Archive for June, 2011

JUSTICE SCOTT DISSENT – CALLS FOR AVOIDANCE OF ABSURD RESULT IN PROBATION REVOCATION PROCEEDINGS – CUNNINGHAM JOINS IN DISSENT

Thursday, June 30th, 2011

 

Commonwealth of Ky. v. LOVE (Ky., 2011)

SCOTT, J., DISSENTING: I respectfully dissent from the majority’s decision — holding that KRS 533.040(3) requires the completion of probation revocation proceedings within ninety days — because it effectively eliminates the Commonwealth’s ability to revoke the probation of a federally incarcerated probationer. And this absurd result belies any legislative intent to mandate a complete revocation within the ninety-day period. See Hall v. Hospitality Resources, Inc., 276 S.W.3d 775, 785 (Ky. 2008) (stating that “[w]e have often said that statutes will not be given [such a] reading where to do so would lead to an absurd or unreasonable conclusion.”) (internal citations omitted).

The majority implicitly concedes this point, acknowledging that common sense guides them to accept the premise that it is now “exceedingly difficult to revoke the Kentucky-state-court-imposed probation of someone in custody of the federal correctional authorities within the narrow ninety-day window contained in KRS 533.040(3).” Slip op. at 10. Consequently, probationers who have the serendipitous fortune of feloniously violating federal law will rarely serve their state-court sentence consecutively.

When undertaking statutory interpretation, we must “refrain from interpreting a statute so as to produce an absurd or unreasonable result.” Wilburn v. Commonwealth, 312 S.W.3d 321, 328 (Ky. 2010). However, the majority’s statutory interpretation admittedly implements a framework so restrictive it has no practical application, i.e., an “absurd or unreasonable result.” Id.

Under such interpretation, if the Commonwealth seeks to revoke state-court-ordered probation and reinstate the state sentence to run consecutively to the federal sentence, it must complete a myriad of proceedings within the “narrow ninety-day window.” Slip op. at 10. The Commonwealth must notify the probationer, secure permission from the United States Department of Justice (DOJ), arrange transportation to and from the revocation hearing, participate in a statutorily-mandated hearing, and await a decision. Not only is this temporally impracticable, but it also presumes cooperation from the DO J. Despite the Commonwealth’s best compliance efforts, the DOJ possesses absolute authority to deny the temporary release of its prisoner for revocation proceedings, thereby eliminating the Commonwealth’s ability to revoke probation. This is surely not what the Legislature intended when it penned KRS 533.040(3).

Careful examination of KRS 533.040′s Official Commentary belies the restrictive framework consequent from the majority’s statutory interpretation. The Official Commentary states that subsection three is a notice provision, designed to prevent unfair surprises, which impede the rehabilitative function of incarceration. This subsection was designed to prevent the authorities from “wait[ing] until the defendant has served his prison sentence for the subsequent offense and then seek revocation of his prior sentence of probation or conditional discharge and reinstate his prior sentence of imprisonment.”

The Official Commentary continues, stating that the purpose KRS 533.040(3) is to “prohibit such a practice unless the authorities act to revoke the prior sentence of probation or conditional discharge before the defendant has completed his imprisonment under the subsequent sentence.” (emphasis added).

As evinced by the Official Commentary, the legislative intent was to require notice of probation revocation prior to the prisoner completing the unrelated federal sentence. In this case, the probationer, Raycine Love, was served with a detainer action letter for his “probation violation,” notifying him that the Commonwealth was attempting to revoke his probation. Thus, here “the authorities act[ed] to revoke . . . before the defendant completed his imprisonment under the subsequent sentence.” Commentary to KRS 533.040 (emphasis added). As a result, Love could not reasonably expect his unrestricted freedom upon completion of his federal sentence.

With the current state of our prison system and the widespread effort to reduce that population by increasingly utilizing probation, it is integral that our prosecutors retain revocation ability when probationers subsequently violate federal law. Despite this, the majority now imposes a framework so procedurally restrictive that revocation, in this context, is now “exceedingly difficult.” Slip op. at 10. As we have keenly stated in the past, “[w]hen all else is said and done, common sense must not be a stranger in the house of the law.” Cantrell v. Kentucky Unemployment Ins. Commission, 450 S.W.2d 235,

237 (Ky. 1970). The majority’s opinion ignores this conventional wisdom; thus, I respectfully dissent.

Cunningham, J., joins.

PREFERRED PROCEDURE A TRIAL COURT SHOULD FOLLOW WHEN ACCEPTING A GUILTY PLEA THAT IS MADE PURSUANT TO A PLEA AGREEMENT

Thursday, June 30th, 2011

.McClanahan v. Com., 308 SW 3d 694 (Ky., 2010)

For guidance to the bench and bar, we set forth the preferred procedure a trial court should follow when accepting a guilty plea that is made pursuant to a plea agreement. As stated by the Court of Appeals in Misher v. Commonwealth, 576 S.W.2d 238 (Ky.App.1978), “The sentencing court should merely accept the plea, note the recommendation or agreement concerning sentence, and set a day certain for sentencing. No sentencing at all should be carried out until KRS 532.050 has been complied with.” Id. at 241.

By assuring Appellant upon acceptance of his guilty plea that should he violate the terms of his release, the full force of the “hammer clause” would be dropped upon him, the judge committed to the imposition of a specific sentence in a way that precluded true compliance with KRS 532.050(1), KRS 532.110(1), KRS 533.010(1) and (2), and RCr 11.02. Following Misher and Matheny avoids that problem.

III. CONCLUSION

For the reasons set forth above, the final judgments entered against Appellant are hereby reversed. This matter is remanded to the Jefferson Circuit Court for further proceedings consistent herewith.

TRIAL COURT ERRED BY ALLOWING THE PROSECUTOR TO ASK THE JURY TO RECOMMEND A SENTENCE IN EXCESS OF THE STATUTORY MAXIMUM OF TWENTY YEARS. – NOT HARMLESS ERROR

Thursday, June 30th, 2011

 

MUCKER v. Commonwealth of Ky. (Ky., 2011) 2G10-SC-000009-MR

MARCH 24, 2011

Appellant next argues that the trial court erred by allowing the prosecutor to ask the jury to recommend a sentence in excess of the statutory maximum of twenty years. The Commonwealth responds that any error relating to the sentencing cap was harmless because the trial court reduced the sentence to comply with the cap. Because this issue is likely to resurface on remand, we find it necessary to address.

KRS 532.055(2) states that a jury is to “determine the punishment to be imposed within the range provided elsewhere by the law.” A jury should thus be instructed about the sentencing cap. Allen v. Commonwealth, 276 S.W.3d 768, 773-774 (Ky. 2008). In Allen, although the trial court knew that the defendant could serve no more than seventy years, no instructions were given to that effect, allowing the jury to “send a message” by recommending a one-hundred-thirty-year sentence. Id. We agreed with the appellant in that case that the recommendation violated the plain language of KRS 532.055(2) and, in light of our decision to reverse on alternative grounds, directed that the trial court instruct the jury in any subsequent proceeding as to the sentencing cap. Id.

In this case, the trial court allowed the prosecutor to describe a twenty-year sentence as the “middle-range” of punishments even though it was the longest term to which Appellant could be sentenced. Defying the explicit limitation of KRS 532.055(2), the jury returned verdicts of eight years enhanced to seventeen for possession of a handgun and five years enhanced to thirteen for possession of a shotgun, to be served consecutively for a total of thirty years. The trial court subsequently reduced Appellant’s time to be served to twenty years.

Failing to instruct the jurors regarding the relevant cap in this case constitutes error. On remand, the trial court should instruct the jury on the statutory twenty-year sentencing limit in any subsequent PFO/Truth in Sentencing proceeding.

WHOSE JOB IS IT TO TRANSPORT PRISONERS? SHERIFF OR DOC?

Thursday, June 30th, 2011

 

Com., Dept. of Corrections v. Engle, 302 S.W.3d 60 (Ky., 2010)

George Hurt was convicted of a Class D felony in Letcher Circuit Court on April 22, 2009. Thereafter, Hurt was remanded to the custody of DOC, which made the decision to house him in the Shelby County Detention Center pursuant to KRS 532.100(4)(a).

In the meantime, Hurt was indicted in Perry County and had a criminal proceeding pending before Judge Engle in Perry Circuit Court. On June 1, 2009, Judge Engle issued an order directing DOC to transport Hurt, round-trip, from the Shelby County Detention Center to Perry County for a pretrial conference scheduled for August 12, 2009, and again for a jury trial scheduled to begin on September 8, 2009.

On June 3, 2009, DOC filed a petition for a writ of prohibition in the Court of Appeals pursuant to CR 76.36. In support of its petition, DOC argued that KRS 441.510(2) requires the Sheriff of Perry County to transport Hurt. The Perry County Attorney responded on behalf of Judge Engle. Among other things, he argued that KRS 441.510(2) was inapplicable to state inmates because KRS Chapter 441 is titled “Jails and County Prisoners.”

On August 10, 2009, the Court of Appeals entered an order denying the writ. The court determined that KRS 441.510(2) was “not clearly written because it fails to take into account who is responsible for the transportation of state inmates housed in county jails or detention centers.” The court instead applied KRS 196.030(1)(c), a statute which generally directs the DOC to aid and assist other governmental departments, agencies, and institutions. Based upon KRS 196.030(1)(c), the Court of Appeals determined that the DOC was required to transport Hurt and, it follows, similarly situated DOC inmates. Concluding that Judge Engle was therefore not acting erroneously, it denied the writ. This appeal followed.

In summary, the proper party to conduct the present transport, and the transport of similarly situated DOC inmates, is the sheriff of the requesting county, not the Department of Corrections. Thus, in issuing the transportation order to DOC, Judge Engle was acting erroneously, and the Court of Appeals similarly erred in its interpretation of KRS 441.510(2).

SUPREME COURT CIVIL RULES COMMITTEE INVITES SUGGESTIONS

Thursday, June 30th, 2011

The Supreme Court Civil Rules Committee is currently reviewing the appellate rules to determine what, if any, changes should be made. To accomplish that task, the Committee has formed two subcommittees: the Appellate Rules Subcommittee and the E-Rules Subcommittee.

These subcommittees are currently seeking input from members of the bar regarding how the appellate rules can be improved. If you have any comments about the appellate rules, please send them to: Bethany A. Breetz, chair of the Appellate Rules Subcommittee, in care of Stites and Harbison, Aegon Center Suite 1800, 400 W. Market Street, Louisville, KY 40202, 502-681-0634, bbreetz@stites.com; or to Michael A. Owsley, chair of the E-Rules Subcommittee, in care of English Lucas Priest & Owsley, P.O. Box 770, Bowling Green, KY 42102-0770, 270-781-6500, mowsley@elpolaw.com.

Note that the Civil Rules Committee hopes to have proposed changes to the rules ready to present at next year’s KBA Convention, therefore, any comments should be forwarded sooner rather than later.

JUSTICE VENTERS SAYS “WE REJECT THE USE OF …PLEA AGREEMENTS AS MARKETING DEVICES TO ENCOURAGE DEFENDANTS TO PLEAD GUILTY (BY OVERCHARGING THEM)

Thursday, June 30th, 2011

 

Justice Venters once again gets it right!

 

Machniak v. Commonwealth Of Ky. (Ky., 2010) DECEMBER 16, 2010

 

OPINION OF THE COURT BY JUSTICE VENTERS

REVERSING AND REMANDING

The Commonwealth argues in support of enforcing the plea agreement in this case that “these kinds of pleas” are very useful in promoting the settlement of cases on the heavy criminal dockets of our circuit courts. We are told “it’s a little more enticing to defendants to say your sentence is three years,” as opposed to twenty years. The Commonwealth contends, “The reality is that twenty years sounds like a big number.” Notwithstanding the plea agreement’s conflict with KRS 532.110(1), we reject the use of such plea agreements as marketing devices to encourage defendants to plead guilty.

JUSTICE CUNNINGHAM MAKES SENSE – DISSENT OPPOSES GIVING WEIGHT TO DRUG COURT RULINGS —DRUG COURT IS NOT A REAL COURT

Thursday, June 30th, 2011

 

 Com. v. Nicely, 326 S.W.3d 441 (Ky., 2010)

III. Conclusion

Because drug court is a treatment program, monitored and enforced by the court, that is frequently used as the primary condition of probation with addicted defendants, the trial court has the authority to modify a defendant’s probation rather than revoking him for program violations. This modification may include requiring the defendant to serve days in jail. Participating defendants in drug court specifically agree to the program, and are made aware before entering that they may be subject to such sanctions. Days served as modifications of probation are days served before the commencement of imprisonment, [326 S.W.3d 450] and are thus treated as time spent in custody pursuant to KRS 532.120(3). Consequently, the Appellee is entitled to custody credit against the maximum term of his sentence on the underlying offense for all the days he served as drug court sanctions. The Court of Appeals is affirmed, but on other grounds, and this case is remanded to the trial court for proceedings consistent with this Opinion.

MINTON, C.J.; ABRAMSON, SCHRODER, SCOTT and VENTERS, JJ., concur. CUNNINGHAM, J., dissents by separate opinion.

CUNNINGHAM, J., dissenting:

With great deference to the writing of Justice Noble, I respectfully dissent.

In speaking for the majority, she is correct in stating that the drug court program has been a resounding success. It is also correct for me to say that my sister on the bench, Justice Noble, deserves a great share of the credit for the establishment and success of this constructive program.

I furthermore agree with the majority in its reasoning and analysis of the contempt process utilized by the trial court in this case. However, I strongly disagree with the Court’s holding that sanctions imposed by the drug court must be converted into credit on the sentence when the defendant’s probation is revoked.

As effective as they have been in this state, there is still much confusion among the trial judges as to exactly the proper status of drug courts legally. And, of course, their status determines what laws apply as to their operation and functioning. I fear our holding here today will only further confuse members of the trial bench.

First of all, “drug court” is a misnomer. It is not a court. The majority admits this. Says Justice Noble: “Stated simply, drug court is a treatment program….” It is a supervisory and administrative arm of the court. But it is not a court of law. While proceedings in drug court may vary across the state, there are elements common to them all.

It is not a court of record. In fact, confidentiality pervades the entire drug court process. The public, including the jury which may have imposed it, has no clue that the sentence is being effectively reduced behind closed doors.

Defendants voluntarily participate in the program. The extent and purity of this “voluntariness” will vary greatly from one judge to another. Sometimes it is a choice of poisons. For others, it is truly a consensual involvement from which one may opt out at anytime without penalty.

Judges also voluntarily take part in the program. Drug court is not a mandated judicial function. The judges who establish and administer drug court do so of their own volition and good will.

In truth, the sanctions which the majority convert today as credit for a sentence set by a judge or jury are not even imposed by a duly constituted, authorized and mandated court. It takes place at a “session.”

Our Supreme Court Amended Drug Court Rules of Administrative Procedure define “session” as “the scheduled appearance of the participant before the drug court judge, during which the progress of the participant is reviewed and incentives may be granted or sanctions imposed.” (Emphasis added.)

Two noteworthy items about this definition. It is not a court of law. There is not a criminal defendant, but a “participant.”

There are no due process requirements.

[326 S.W.3d 451]

No findings, written or otherwise, are required as in probation modifications.

There is no right to appeal from its proceedings.

At the sessions in drug court, where sanctions are imposed, the defendant does not have the right to counsel, nor is the Commonwealth required to be represented.

KRS 532.120(3) states: “Time spent in custody prior to the commencement of a sentence as a result of the charge that culminated in the sentence shall be credited by the court imposing sentence toward service of the maximum term of imprisonment.” (Emphasis added.) Sanctions imposed by drug court are never the result of the charge for which a defendant pled guilty or was placed on probation. They are the result of the defendant being in a drug treatment program and deemed appropriate for treatment.

The majority analogizes these sanctions with confinement given for probation violations. There is a pivotal difference. First of all, changing the conditions of probation, including imposition of jail time, requires an open hearing in a court of law. KRS 533.050. That statute more specifically states: “The court may not revoke or modify the conditions of a sentence of probation or conditional discharge except after a hearing with defendant represented by counsel and following a written notice of the grounds for revocation or modification.” KRS 533.050(2). We just recently emphasized the need for due process scrutiny in Cameron Hunt v. Commonwealth, 326 S.W.3d 437 (Ky.2010).

There is no hearing for imposition of sanctions. No witnesses are required. No right to confrontation. No right to counsel. No right against self-incrimination. No right to appeal. More importantly, as this case highlights, the Commonwealth has no right to appear or have any say as to the sanctions. If he or she attends, they do so only upon invitation from the judge. And, as previously stated, all is cloaked behind the veil of confidentiality.

In this case, the trial court showed tremendous patience and leniency with the troublesome Appellee. On July 21, 2005, Nicely pled guilty to trafficking in drugs. Even before Nicely was formally entered into drug court, a bench warrant was issued for him for failure to abide by “drug court policy.” He was ordered to continue on probation and drug court. In January of 2006, Nicely was again arrested and placed in custody until early February, when he was released. Between April 7, 2006 and April 16, 2007—over a year—he was remanded to serve between 7 and 14 days on seven different times for violations of “terms and conditions” of drug court. Finally, in May 2007, his probation was revoked.

Of course, we have no record of those various remands for drug court violations. We know that neither the Commonwealth Attorney nor defense lawyer had any right to be present. The sweeping rule by the majority today will, in effect, allow our judges state wide to change judicial sentences without any benefit of the adversarial system where both the interest of the defendant and society can be guarded.

It is unfair to allow Nicely credit for these remands toward his sentence when the Commonwealth had no guaranteed say in either the appropriateness or severity of these sanctions. I would strongly submit that “sanctions” cannot be considered the imposition of “time spent in custody” under KRS 532.120(3), because they are not imposed by a court of law.

It is not just the location which determines custody, but also the authority to [326 S.W.3d 452] impose it. A remand to jail as part of the treatment program is no different than a referral by drug court to treatment at The Hope Center or Crossroads. Confinement of a sort is required in both if the person is to continue in drug court. But, to my knowledge, courts are not required to give jail credit for time spent in treatment centers. It is not considered “time spent in custody.”

I would submit that if criminal defendants are afforded credit for drug court sanctions, prosecutors may well want to have a guaranteed say in the sanctions imposed. They should. The Commonwealth should be a part of any proceeding where the legally constituted sentence that has been imposed by the court as a “result of the charge” is lessened or diminished.

The unfettered discretion of drug court judges, in administering what is a volunteer program, is absolutely critical to the treatment and rehabilitation of drug offenders. We will begin to clutter up this valuable attribute of our drug court when we allow the administrative function of the court to become penal. It becomes penal if we give jail credit for sanctions under the auspices that the time served for those sanctions is the “result of the charge” for which he or she has been convicted.

Our decision here today blurs the critical line between a court “case or controversy” and a treatment arm of the court. I fear that we are taking that first wayward step into diluting drug courts of that broad discretion, participatory decision making by professionals, and informality which so invigorates this program. In doing so, an unclear signal is sent to trial judges as to which hat they are wearing when they sit as drug court judges.

To my mind, it takes the imagination of a child on Christmas Eve to contort sanctions given at a treatment session as “time in custody” spent as result of the charge in the judgment. Because of the need of clear guidance to our drug court judges, and on behalf of the drug court program itself, I respectfully dissent.

KBA Bar Counsel and Disciplinary Clerk Allegedly Ignore Section 115 of the Ky. Constitution by Requiring Large Fees to be paid in advance to the Disciplinary Clerk as surety for “costs”. This practice can make Appeals in Discipline Appeals to be so expensive the defendant is denied an appeal

Wednesday, June 29th, 2011
In the Judicial Amendments to the Ky. Constitution adopted in 1976, Section 115 mandates that procedural rules regarding all appeals “shall provide for … inexpensive appeals.”

LawReader has received anecdotal information that the KBA Bar Counsel has submitted to the Disciplinary Clerk claims for “court costs” which appear to violate the intent of Section 115.

It is reported that in two recent cases, the Bar Counsel has reported court costs in excess of $16,000 in one case, and $30,000+ in a second case.  At least one of the defendant attorneys decided not to appeal to the Supreme Court because they would have been required to posted a surety in excess of $30,000 before they could file a Notice of Appeal to the Ky. Supreme Court.  We don’t yet know if the second attorney will be able to raise sufficient cash to earn the right to appeal a decision of the Board of Governors.

The Supreme Court reserves the right to impose costs on an attorney who appeals from an Ethics finding by the Board of Governors, and loses.  The Supreme Court may or may not agree with the fee demand submitted by the Bar Counsel.  But for the attorney who seeks an appeal, it does not appear that a mandatory deposit of $30,000 just to have the right to an appeal is anything but “inexpensive”.

We find no procedural rule for the defendant attorney to seek an interlocutory  judicial review of the cost demand submitted by the Bar Counsel.   If the cash surety is not posted than the attorney cannot file an appeal.

Are these cost demands by the Bar Counsel excessive?  The system should provide the right to appeal, and when an attorney is denied an appeal due to a requirement that he deposit in advance of the appeal a fee determined solely by the Bar Counsel, then effectively the Bar Counsel has the right to deny the right to appeal.

As the procedure is currently operated, the Bar Counsel is not required to justify the amount of their cost bill submitted to the Disciplinary Clerk.  So the Bar Counsel is given absolute discretion to claim any number they want.

We are aware of a pending case that affects the rights of all judges, and the jurisdiction of the Judicial Conduct Commission.   The attorney in this case may or may not be able to raise the large cost demand of the Bar Counsel, and therefore it is possible that there will be no appeal.

If no one appeals in this important case, the Sup. Ct. then accepts the findings of the Board of Governors.   While the Sup. Ct. retains the right  to “review” the findings of the Board of Governors at their discretion, even when there is no appeal filed, that is merely a possibility, and it is far different than the doctrine that everyone has the right to an “inexpensive” appeal.

In essence the Bar Counsel can file a cost demand with the Disciplinary Clerk and thereby deny the right to appeal to the defending attorney.

This is just another problem with the current procedures for Ethics prosecutions of lawyers.


Kentucky Constitution  – Section 115

Right of appeal — Procedure.

In all cases, civil and criminal, there shall be allowed as a matter of right at least one appeal to another court, except that the Commonwealth may not appeal from a judgment of acquittal in a criminal case, other than for the purpose of securing a certification of law, and the General Assembly may prescribe that there shall be no appeal from that portion of a judgment dissolving a marriage. Procedural rules shall provide for expeditious and inexpensive appeals. Appeals shall be upon the record and not by trial de novo.

Text as Ratified on: November 4, 1975, effective January 1, 1976.
History: Repeal and reenactment proposed by 1974 Ky. Acts ch. 84, sec. 1; original version ratified August 3, 1891, and revised September 28, 1891

IS SECOND FEN PHEN SCANDAL BREWING? U.S. ATTORNEY SEEKS ACCOUNTING OF FUNDS SEIZED BY ANGELA FORD IN BEHALF OF FEN PHEN CLIENTS – Ford said by government to be “non-cooperative”.

Sunday, June 26th, 2011

 On June 22, 2011 the U.S. Attorney’s Office filed a motion seeking an accounting of funds collected by Attorney Angela Ford of Lexington in behalf of the victims of the original Fen Phen case.  

 The motion by the government says that:

  ”The government is concerned that funds collected in the state court case

could potentially be reclaimed by the defendants because the Boone Judgment has been

set aside. Moreover, Ford does not represent all of the victims of the defendants’ crimes

in the Boone Circuit Court matter.”

     Previously the U.S. Attorney’s office appeared in Jessamine Circuit Court to seek an order setting aside a judicial sale of the former home of defendant William Gallion.  The Herald-Leader reported that Ford purchased the Gallion home at a judicial sale.  The Master Commissioner of Jessamine County reported in an LawReader interview, that the U.S. Attorney’s office stated in their motion to set aside the Judicial Sale, that some of the money held in trust by Angela Ford, was subject to claims by parties who were not represented by Angela Ford.  The Jessamine Circuit Judge reportedly granted the U.S. Governments request.

In the governments motion they state: ” the government is generally aware of the amounts distributed to victims pursuant to the Boone Judgment”.

The government argues that the Ky.Court of Appeals set aside the summary judgment awarding some $42,000,000 to Ford’s clients and other Fen Phen plaintiffs not represented by Ford.  

Ford claims that the Court of Appeals decision setting aside the summary judgment is not effective until the Supreme Court considers the ruling of the Court of Appeals.   While the government says this issue is not clear they cite authorities to the court to the contrary. Their motion states:

“Of particular concern to the government is the import of the case of Marshall v. Goodwine, No. 2009–SC–000495–MR, 2010 WL 3374404, (Ky. August 26, 2010), which intimates that despite a motion for discretionary review pending before the Supreme Court, a judgment is reversed and the defendants may be entitled to a return of the money that was collected pursuant to that reversed judgment.”

It is not known how much money Ford has seized but the grounds for her holding the funds or distributing funds to her clients raise several critical legal questions.  If the government is correct in suggesting that  some of the money seized by Ford has been distributed “to victim(s)”, then   what is the legal justification for payments to her clients in light of the reversal by the Ky. Court of Appeals.  At the present her claims are not supported by any final judgment.

Ford argues that the original summary judgment issued by Judge Wehr of the Boone Circuit Court remains in effect until the Kentucky Supreme Court considers the reversal of the summary judgment by the Court of Appeals.

The U.S. Government’s motion for an accounting of funds held by Angela Ford details her lack of cooperation with the government,  The motion states:” On March 29, 2011, the last correspondence concerning an accounting, Ford drafted a letter that was once again unresponsive to the request for accounting.” 

Other statements in the government’s motion discuss other efforts where Ford’s office was not cooperative in providing information about the funds.  The government mentions an attempt to obtain information from Ford and they received an e-mail from her law firm that was unresponsive to the questions submitted by the government.

The government’s motion concludes, ” Despite the clarity of the government’s request”…”This email was not responsive to the government’s request.”

” While the distribution grids show, for  example, that Ford collected $13,277,216.00 in legal fees, no information was provided to the government regarding the continued existence of these funds or their location .”

This statement by the government in their motion raises the question;  Has attorney Ford paid herself $13,277,215 out of funds seized based only on a judgment set aside by the Court of Appeals?

The seizure of funds from Gallion, Cunningham, Mills and the Fund for Healthy Living Charitable Trust, may be justified since the defendant attorneys did not file a supercedas bond after Judge Wehr of the Boone Circuit Court granted a summary judgment.

But that summary judgment was timely appealed to the Court of Appeals and was not final.  So if any funds or attorney fees were paid to Ford or her clients, there is the continued possibility that the Supreme Court could uphold the Ct. of Appeals and then there will be no court order justifying distribution of funds supported by a judgment.  

The reversal ruling  by the Ct. of Appeals in February 2011, ordered a retrial, and a final decision may be years in the future.  According to the governments motion, Ford argues that the Ct. of Appeals judgment has no effect on her continued reliance on the original summary judgment.

If the end result is that Ford has seized funds and distributed them to her clients and has paid herself $13 million in attorney fees, and future court rulings go against her, will the government or the defendants be able to obtain the refund of the monies seized by Ford?

There are several issues which could be raised in the future and which could deny Angela Ford the right to collect an attorney’s fee even if the judgment is upheld.

First, on retrial, a jury may find in favor of Gallion, Cunningham and Mills.

Second, in the criminal trial in which Gallion and Cunningham were convicted, the Federal Judge ordered restitution to the original Fen Phen plaintiffs.  If this restitution is based on the criminal conviction and the Federal Court’s order, why should Ford’s clients have to pay her $13 million dollars for work done by the U.S. government?

The criminal conviction of Gallion and Cunningham is on appeal to the Sixth Circuit Court of Appeals.  Credible legal arguments have been presented to the Federal Appellate court on the trial ruling of U.S. District Judge Danny Reeves  to not allow the defendants to present documents and other evidence which provide a defense to the allegations against them.  During the first trial Federal Judge Bertlesman allowed that same evidence to be introduced by the defendants.

The Third argument against Ford is hypothetical.  But under this possible legal theory, Ford could be denied the right to receive any attorneys fee at all.  This legal theory  may exist by reason of a Kentucky Supreme Court Rule:

 “SCR 3.130(7.10) Waiver and forfeiture of fees for prohibited solicitation

If a lawyer illegally or unethically solicited a client for which compensation is paid or payable, all fees arising from such transaction shall be deemed waived and forfeited and shall be returned to the client. A civil action for recovery of such fees may be brought in a court of competent jurisdiction.”

It is reported to LawReader that a deposition exists in which an original plaintiff testified that she was solicited by Angela Ford to join her lawsuit against Gallion, Cunningham and Mills. We have not seen that deposition.  We do not state that this deposition alleges any illegal or unethical violation by Angela Ford. 

Other documents exist which purport to be copies of letters sent to potential clients by Angela Ford.   These documents have been flying around for years.  One letter is dated February 4, 2005, another is dated March 16, 2005. (As a lawyer the author cannot further discuss this issue…due to the Supreme Court Rules which may or may not apply.)  

 If the media was doing its job, and if the media is really concerned about the original plaintiff’s being fairly treated, then perhaps they should be digging into this issue in order to confirm what really happened. Non-lawyers are not subject to Supreme Court Rules.

If the Kentucky Bar Association Counsel were to investigate and prosecute Ford for “unethical solicitation” of clients, and if a violation of SCR 3.130(7.10) is found, then the Supreme Court could order that all of the  $13 million in attorney fees claimed by Ford could be ordered to be paid to her clients. 

We only mention this as a possibility, but in light of the clear language of the Supreme Court Rule, it could result in an order for Angela Ford to return the $13 million dollars in attorney fees that she claims according to the governments motion.  We do not suggest that Angela Ford has violated any law or ethical rule.  We only suggest in light of all possible justifications for a denial to Ford of any attorney fees, that this is a possible issue that may or may not ever be raised.

A strong argument can be made that even if the civil judgment in Boone Circuit Court is disposed of in favor of the defendants, that the Restitution Order in the Federal Criminal Action would still apply, and that is the argument made by the government is seeking an accounting of funds handled by Ford. 

Again we point out that the criminal convictions of  Gallion and Cunningham are on appeal.   Even if the conviction of  Gallion and Cunninghan are upheld,  the question of funds seized from Melbourne Mills presents an interesting issue.  Surely the federal criminal court cannot order restitution against Mills since he was acquitted.

A ruling of the Kentucky Court of Appeals released on June 26th. set aside Mills transfer of his assets to his new wife (who was one of the original Fen Phen clients. 

Text of the motion filed by the U.S. Attorney on June 22, 2011:

 UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

NORTHERN DIVISION

 Case: 2:07-CR-00039

 CRIMINAL NO. 07-39-DCR

 UNITED STATES OF AMERICA PLAINTIFF

 V. MOTION FOR ORDER OF ACCOUNTING

 WILLIAM J. GALLION and

SHIRLEY A. CUNNINGHAM, JR. DEFENDANTS

* * * * *

The United States moves this Court to order an accounting of funds held by

Attorney Angela Ford (“Ford”) in connection with this matter, and in support states as

follows:

1. Some, but not all of the victims in this matter, filed suit against the

Defendants herein in the Boone Circuit Court, Action No. 05-CI-00436, Abbott, et al. v.

Chesley, et al., seeking damages for the conduct underlying this prosecution. The Boone

Circuit Court entered a summary judgment (“Boone Judgment”) on behalf of some, but

not all of the victims of the criminal activity underlying this case. This subset of victims

is represented by Ford, who also serves as crime victims’ advocate for all victims

pursuant to appointment by this Court.

2. The Boone Judgment awarded the Plaintiffs therein approximately

$42,000,000.00. The Defendants appealed, but did not supercede the Boone Judgment.

Ford, on behalf of her clients, has taken action to enforce the judgment and obtained

assets in partial satisfaction of the Boone Judgment.

3. On February 4, 2011, the Kentucky Court of Appeals entered an opinion

regarding issues appealed in the Boone Circuit Court Action. Exhibit A. The Court of

Appeals reversed and remanded the Boone Judgment, which had awarded partial

summary judgment in favor of the Abbott plaintiffs on their fiduciary duty claim. See

Opinion, Page 35. Further, the Court of Appeals noted, inter alia, that the portion of the

August 1, 2007 order that awarded the Abbott plaintiffs compensatory damages in the

sum of $42,000,000.00 was vacated. Id. The Abbott plaintiffs have petitioned the

Kentucky Supreme Court for Discretionary Review.

4. On February 16, 2011, the undersigned corresponded with Ford to request a

complete and immediate accounting of funds collected pursuant to the reversed judgment.

Exhibit B. The government is concerned that funds collected in the state court case

could potentially be reclaimed by the defendants because the Boone Judgment has been

set aside. Moreover, Ford does not represent all of the victims of the defendants’ crimes

in the Boone Circuit Court matter.

5. On February 17, 2011, Ford responded that she was out of the office until

March 1st and could discuss the matter upon her return. Exhibit C.

6. On March 16, 2011, the undersigned contacted Ford again to inquire as to

her response time to the government’s request for accounting. Ford responded on March

17th that a complete accounting of funds could be obtained by reviewing the documents

filed by the former third party fund administrator in the state case. Exhibit D.

Obviously, the government is generally aware of the amounts distributed to victims

pursuant to the Boone Judgment1

7. In an effort to be more specific, the undersigned sent a renewed request for

an accounting to Ford on March 23, 2011, citing Kentucky law regarding the potential

status of funds collected pursuant to a reversed and/or vacated judgment. Exhibit E.

 Of particular concern to the government is the import of the case of Marshall v. Goodwine, No. 2009–SC–000495–MR, 2010 WL 3374404, (Ky. August 26, 2010), which intimates that despite a motion for discretionary review pending before the Supreme Court, a judgment is reversed and the defendants may be entitled to a return of the money that was collected pursuant to that reversed judgment. The government believes that Kentucky law is unclear on this point. As stated in the letter to Ford, it is therefore imperative that the government account for all funds collected, “which includes any money collected or held by you.” (Emphasis in original). Despite the clarity of the government’s request, Ford’s paralegal responded via email on March 24, 2011, by providing the undersigned with copies of the spreadsheets used to calculate the state court distributions. This email was not responsive to the government’s request. While the distribution grids show, for  example, that Ford collected $13,277,216.00 in legal fees, no information was provided to the government regarding the continued existence of these funds or their location .

 The government is unaware of the existence, amount and location of collected funds that were retained by Ford and not distributed to her clients.

1 In the event that Defendants Gallion and Cunningham seek the return of monies

distributed to the victims in the state court case, the government is confident such action

could be rebuffed by the existence of the restitution judgment in the criminal case and

their rights pursuant to that judgment. However, the government may be required to take

action to enforce that judgment in order to protect these funds.

Under typical circumstances, the government is not concerned with such matters.

However, the reversal of the judgment presents an atypical circumstance. The

government’s sole desire is to obtain a complete and accurate picture of funds that could

possibly be returned to the Defendants or otherwise placed beyond the reach of the

government’s efforts to obtain restitution for all of the crime victims.

8. On March 29, 2011, the last correspondence concerning an accounting,

Ford drafted a letter that was once again unresponsive to the request for accounting.

Exhibit F. Ford apparently believes it is clear that her judgment remains in full force and

effect until the Supreme Court says otherwise2

2 Since this letter, the Court of Appeals denied Ms. Ford’s petition for rehearing on the matter. Exhibit

G.

. Although the United States believes that the law is unclear on the issue, such a dispute is a distraction from the more germane issue–an accounting of funds. At a May 25, 2011 hearing in the Boone Circuit Court, attorneys for the Defendants and Melissa Green argued that collected funds should be returned to them in light of the Court of Appeals reversal.

The state court judge took the matter under submission. If either the Boone Circuit Court orders a return of the funds or the Supreme Court denies Ford’s motion for discretionary review, the government must stand ready to collect funds for the benefit of the victims. It is appropriate and responsible for the government to have information regarding all funds. Moreover, it is incumbent on Ford, as the crime victims advocate in this criminal matter, to provide such an accounting. Failure to do so creates an unnecessary and avoidable risk to all victims in the criminal matter.

The government has requested the accounting through every avenue short of a motion to this Court.

9. On June 9, 2011, the undersigned had a lengthy telephone conference with

Ford, wherein issues related to the judgment reversal were discussed. As stated during

the phone conversation, and reiterated in this filing, a request for accounting and any

other mechanism employed to secure funds collected from defendants Gallion and

Cunningham are meant to protect the victims of Defendants’ crimes.

The government and Ford undoubtedly share an interest in protecting the interests of the crime victims in this matter, while acknowledging that our views on how best to meet this goal may differ.

WHEREFORE, the United States respectfully requests that the Court issue an

order requiring Attorney Ford to provide a complete accounting of all funds collected by

her in the Abbott matter and not distributed to the victims; such accounting to include the

location of said funds. A proposed order is tendered for the Court’s consideration.

Respectfully submitted,

KERRY B. HARVEY

UNITED STATES ATTORNEY

By: /s Cheryl Morgan

Cheryl Morgan

Assistant United States Attorney

260 West Vine Street, Suite 300

Lexington KY 40507

(859) 685-4870

Cheryl.Morgan@usdoj.gov

and

/s Wade Thomas Napier

Wade Thomas Napier

Assistant United States Attorney

260 West Vine Street, Suite 300

Lexington KY 40507

(859) 685-4896

Wade.Napier@usdoj.gov

CERTIFICATE OF SERVICE

On June 22, 2011, we electronically filed this document with the clerk of the court

by using the CM/ECF system which will send notice of the electronic filing to all parties

of record.

/s Cheryl Morgan

Assistant United States Attorney

s/ Wade Thomas Napier

Assistant United States Attorney

U.S. Supreme Court denies business record exemption of evidence of DUI bloodtest. A witness with knowledge must present the evidence.

Friday, June 24th, 2011

 

                       SUPREME COURT OF THE UNITED STATES

Syllabus

BULLCOMING v. NEW MEXICO

CERTIORARI TO THE SUPREME COURT OF NEW MEXICO

No. 09–10876. Argued March 2, 2011—Decided June 23, 2011

The Sixth Amendment’s Confrontation Clause gives the accused “[i]nall criminal prosecutions, . . . the right . . . to be confronted with the witnesses against him.” In Crawford v. Washington, 541 U. S. 36, 59, this Court held that the Clause permits admission of “[t]estimonial statements of witnesses absent from trial . . . only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.”

 Later, in Melendez-Diaz v. Massachusetts, 557 U. S. ___, the Court declined to create a “forensic evidence” exception to Crawford, holding that a forensic laboratory report, created specifically to serve as evidence in a criminal proceeding, ranked as “testimonial” for Confrontation Clause purposes.

Absent stipulation, the Court ruled, the prosecution may not introduce such a report without offering a live witness competent to testify to the truth of the report’s statements. 557 U. S., at ___.

U.S. Supreme Court denies business record exemption of evidence of DUI bloodtest. A witness with knowledge must present the evidence.

Friday, June 24th, 2011

 

                       SUPREME COURT OF THE UNITED STATES

Syllabus

BULLCOMING v. NEW MEXICO

CERTIORARI TO THE SUPREME COURT OF NEW MEXICO

No. 09–10876. Argued March 2, 2011—Decided June 23, 2011

The Sixth Amendment’s Confrontation Clause gives the accused “[i]nall criminal prosecutions, . . . the right . . . to be confronted with the witnesses against him.” In Crawford v. Washington, 541 U. S. 36, 59, this Court held that the Clause permits admission of “[t]estimonial statements of witnesses absent from trial . . . only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.”

 Later, in Melendez-Diaz v. Massachusetts, 557 U. S. ___, the Court declined to create a “forensic evidence” exception to Crawford, holding that a forensic laboratory report, created specifically to serve as evidence in a criminal proceeding, ranked as “testimonial” for Confrontation Clause purposes.

Absent stipulation, the Court ruled, the prosecution may not introduce such a report without offering a live witness competent to testify to the truth of the report’s statements. 557 U. S., at ___.

KBA BAR COUNSEL AND BOARD OF GOVERNORS SEEK TO CREATE PRECEDENT TO ALLOW KBA TO CONDUCT HINDSIGHT REVIEW OF JUDGE’S JUDICIAL DECISIONS -The Doctrine of Judicial Immunity for a Judge’s Official Acts hangs in the balance.

Thursday, June 23rd, 2011

By LawReader Senior Editor Stan Billingsley

   In the ethics investigation of Judge Jay Bamberger, the KBA investigation seeks to expand the jurisdiction of the KBA to review and cite Judges past decisions for ethics review.    The Trial Commissioner argued before the Board of Governors that the KBA had jurisdiction to review a judicial officials acts even without a referral by the JCC.

JUDICIAL IMMUNITY

The Supreme Court Rules for the JCC clearly holds that a judges “erroneous rulings” are not subject to the jurisdiction of the JCC.

See: SCR 4.020 Jurisdiction (of the JCC) which says:

 

     “(2) Any erroneous decision made in good faith shall not be subject to the jurisdiction of the Commission. ”

     We suggest that this rule is based in judicial immunity which was explained in Collins v. Brown, No. 2007-CA-000847-MR (Ky. App. 2/26/2010) (Ky. App., 2010)

” First, as to the judicial defendants, Judge Wise and former Chief Justice Lambert, the trial court properly found them to have been shielded by absolute judicial immunity. The doctrine of judicial immunity is well-settled under federal and common law and predates the adoption of the current Constitution of Kentucky. See Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1977); Vaughn v. Webb, 911 S.W.2d 273 (Ky. App. 1995). So long as the judge has jurisdiction over the subject matter of the cause before him, he is entitled to immunity. Id. There is no question in this case that Judge Wise and former Chief Justice Lambert acted within their jurisdiction at all times pertinent to the matters raised in Wes’s complaint. Thus, they are clearly entitled to immunity from civil complaints stemming from their judiciall acts.”

The function of absolute immunity in the performance of judicial duties is not to shield members of the judiciary from liability for their own misconduct, but rather “to protect their offices from the deterrent effect of suit alleging improper motives where there has been no more than a mistake or a disagreement on the part of the complaining party with the decision made.” Yanero v. Davis, 65 S.W.3d 510, 518 (Ky. 2001.”

    “[i]t has been repeatedly held by this court in a long line of decisions that a judicial officer is not subject to civil suit when in the performance of his judicial duties and within his jurisdiction, although his ruling may be the result of mistake of law, error of judgment, or malice, or be done corruptly.” 

This is further explained in:  Vaughn v. Webb, 911 S.W.2d 273 (Ky. App. 1995).

“The doctrine of judicial immunity is well-settled under federal and common law and predates the adoption of the current constitution. So long as the judge has jurisdiction over the subject matter of the cause before him, he is entitled to immunity.”

Vaughn v. Webb, 911 S.W.2d 273 (Ky. App., 1995)   

“The acts of Judge Ray, exercised within his jurisdiction, were judicial acts, not administrative acts and Judge Ray is entitled to the protection of judicial immunity. Under federal law, a judge is immune from personal liability for judicial acts if at the time he acted, regardless of whether he acted in error, maliciously, or in excess of his authority, he had jurisdiction over the subject matter before him. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1977)…”

In  Baker v. (Governor) Fletcher, 204 S.W.3d 589 (Ky., 2006) it was stated:    

“See Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978), for the best recitation of the rule granting judicial immunity and the reasons underlying its desirability. For Kentucky cases recognizing judicial immunity in the Commonwealth see Henry v. Wilson, 249 Ky. 589, 61 S.W.2d 305 (1933), and Vaughn v. Webb, 911 S.W.2d 273 (Ky.App.1995) (“a judge is immune from personal liability for judicial acts if at the time he acted, regardless of whether he acted in error,…”

“And such a view is also consistent with the immunity afforded to judges, which immunizes judges from suit for ANY judicial act, which is defined as any act that is of the nature normally performed by a judge and one in which the parties dealt with the judge in his official capacity.

 Such judicial immunity applies even if “the action he took was in error, was done maliciously, or was in excess of his authority” so long as the judge did not act in the “clear absence of all jurisdiction.”

    The KBA has not to our knowledge presented any evidence that any action taken by Judge Bamberger was outside his judicial jurisdiction.

    The question of judicial immunity was properly raised by Judge Bamberger.

     The Supreme Court will have an opportunity to review the findings of the Trial Commissioner and the Board of Governors against Judge Bamberger.   If the court sanctions Judge Bamberger then they will be writing new law which negates the doctrine of judicial immunity and will dangerously expand the jurisdiction of the KBA. Such a ruling would destroy the theory behind the existence of the Judicial Conduct Commission.  Such a ruling would grant the KBA jurisdiction to file a civil action seeking sanctions of judges who were acting in their judicial function.

    Bamberger made rulings which the KBA claims he should have examined more closely.

No evidence was presented against Judge Bamberger by the KBA to support the proposition that he acted “with evil or improper intent to aid the plaintiff’s lawyers misconduct”.  No evidence was presented that Bamberger was even aware of the plaintiff’s lawyers misconduct until after he had retired.

Testimony in the two criminal trials against Gallion and Cunningham suggests that Gallion and Cunningham lied to Judge Bamberger about material elements as to their actions.  Gallion and Cunningham deny this.

The KBA states in their brief that “there is no doubt that Gallion lied to the respondent (Judge Bamberger), as did Chesley and others.” (See page 9 of KBA brief.)

Judge William Graham acting as Trial Commissioner for the KBA in their ethics case against attorney Stan Chesley, concluded:

“Chesley himself bamboozled Judge Bamberger with his often non-sensical answers to the Judg’es queries about notice.”

One must ask; “if Judge Bamberger was in-on-the-deal…why was it necessary for the plaintiff’s lawyers to lie to him about material elements?”

The KBA bar counsel argues that Bamberger relied on a case citation presented to him by one of the plaintiff’s attorneys that was no longer good law (See KBA brief page 11).  We suggest if that is a basis for ethical sanctions then all judges may at some time in their career be brought up on charges. This argument by the KBA Bar Counsel would justify a sanction against any Judge who incorrectly interpreted the law.  If such a theory is sustained by the Supreme Court, then any judge who is ever overruled by a higher court on appeal, will be subject to an ethics sanction by the KBA.  But it also means that the KBA has assumed the jurisdiction to make their own evaluation of a judge’s rulings on any issue coming before him.  

Such a conclusion would result in harassment of all judges and could be used to justify absolute control of the Judiciary by the KBA.

The KBA argues for punishment of Bamberger because he “had not reviewed any accounting whatsoever and had never even seen the Settlement Agreement.”   We suggest that the record clearly shows that Bamberger was correctly advised that the plaintiffs had executed  signed settlement agreements by all 440 plaintiffs regarding the initial award and again received 440 signed settlement agreements on the distribution of the second amount of funds awarded to them.   If the plaintiff and the defendant in a civil case all agree to a settlement, it is not uncommon for a judge not to conduct an accounting.

Judge Bamberger only awarded attorney fees until after the 440 plaintiff’s expressed their satisfaction with the money they received. It was not a situation where the the attorney fees were awarded and the claimants received what was remaining.

 Will a judge now be required to review all settlements by calling in all plaintiffs and defendants to his court room and conducing a hearing on each settlement with each plaintiff and defendant? 

Does a signed settlement agreement submitted by a plaintiff or defendant have no legal consequences if the party later changes their mind? Will this now be a new ethical requirement in all civil cases and criminal cases? If so we predict there will never be another settlement approved by a trial judge.  Why would any judge in the future risk being sanctioned by the KBA by approving a settlement?

The overriding fact in this case admitted by the KBA, is that the attorneys lied to Judge Bamberger, and he is now to be punished by the KBA for exercising his proper judicial discretion. 

 The KBA suggests new law which will greatly burden the states trial judges with needless drudgery.   Did not the plaintiff’s express their satisfaction with a settlement by executing signed settlement agreements?  Don’t the plaintiff’s have a burden to put the court on notice that they are unhappy with a settlement by not signing the settlement. 

We would suggest that as far as the Judge’s duties are concerned, the plaintiffs in this case waived any duty of the judge to personally inquire of each plaintiff of his satisfaction.  They should be equitably estopped from claiming a foul when their own signed releases were relied upon by the court.  They set on their rights for years and never appealed any decision made by Judge Bamberger.  This meant that the only way they could punish Bamberger was to question his integrity.

If the attorneys have improperly obtained the signed settlements, than that is a completely different issue. Attorneys do not enjoy the protection of the Judicial Immunity Doctrine.  If the attorney committed a fraud or malpractice or violated the Code of  Professional Conduct, how does that implicate the judge?  The best answer to this question given by the KBA is that the judge should have known better. This is clear hindsight review.

The KBA argues in their brief (Page 13) that “to believe his (Bamberger’s) testimony that he signed whatever orders the attorneys give him because he trusted them and had no knowledge or suspicion of impropriety is to believe he had little cognitive ability” … “he was dazzled by and enamored with a group of powerful men…”   Is  ” lack of cognitive ability” a new standard for ethics sanctions?  May not a trial judge weigh the credibility of highly successful lawyers who are nationally recognized for their prior work, when they advise him on issues of law and fact?

The KBA brief includes many conclusions which merely speculate on what Judge Bamberger was thinking when he signed court orders.  Will the Supreme Court tolerate such speculation as to a Judge’s thoughts?  I would submit that the colorful and deprecating language  and unsupported speculation as to another persons’ thoughts,  as used by the Bar Counsel in their brief, would be thrown out of almost any real trial court under the Rules of Evidence.

One of the essential elements of this case which was picked up by the media, and which was played to the hilt by the Bar Counsel was that six months after Bamberger retired he accepted a position on the board of the Healthy Living Charitable Trust.   The Judicial Conduct Code clearly permits even a sitting judge to sit on the board of a charitable trust. 

Bamberger, before accepting this position obtained ethics opinions from two lawyers which suggested that it was not an ethical violation for Bamberger to serve as a board member. At the time he became a Board member of the trust, he had retired from office and had no judicial control over the operation of the Trust.

The Bar Counsel has conveniently ignored the fact that the Healthy Living Charitable Trust was a suggestion made by Stanley Chesley after all of Bamberger’s orders concerning attorney fee awards were signed.  Testimony in federal court trials reveals that there was no plan for the creation of a Cy Pres trust until late in the proceedings (and after Bamberger had made most of his rulings).   The Bar Counsel suggests that a Cy Pres trust is proof of improper conduct.  In fact there is a great deal of precedent in class action cases for such trusts to be set up to dispose of class action funds left over after all plaintiff’s have received their fair share.   Further the Bar Counsel demonstrates their mindset against Judge Bamberger by stating in their brief that the Charitable Trust was “secret”.  This argument suggests, without any proof,  that the trust funds were improperly handled.  

Nationally recognized Class Action expert Stan Chesley gave Judge Bamberger a memo supporting the appropriateness of the cy pres trust option and so did  a highly respected mediator, Pierce Hamlin.  The KBA Bar Counsel brief suggests that Bamberger was “dazzled” by these experts.  (What judge wouldn’t be?)

The charitable trust was approved by the IRS, and was apparently audited by the U.S. Attorney’s office.  After  the funds were seized by the order of Judge Wehr and Judge Crittenden, there was over a million dollars more in the trust then were initially placed in the trust, even after the payment of the trustees salaries and expenses, and after an award by the trust of over a million dollars to other charitable bodies.  

The Bar Counsel dramatically implies that the  board of trustees were highly paid, but their salaries were in line with salaries paid in other charitable trusts.  The IRS had no problem with the fees paid to the trustees, but the Bar Counsel does a parody of the actor Claude Rains as Police Captain Louis Renault in the l942 movie Casablanca, who was “shocked…shocked I tell you!” to find that gambling was going on in his jurisdiction.  What research has the KBA done to support the conclusion that the Charitable Trust trustees where overly paid?  We find no examples of proper salaries for trustees being introduced by the KBA.

While it will not likely be reviewed by the Supreme Court, it would be interesting if the Bar Counsel could be asked if  the Bar Counsel has audited the handling of these trust funds after the court seized the trust funds in behalf of Angela Ford’s clients.  Is the Bar Counsel investigating the purchase of the Gallion personal residence at a judicial sale in Jessamine County by Angela Ford?  Is the Bar Counsel investigating the reason the U.S. Attorney’s office intervened in that judicial sale and obtained an order from the Jessamine Circuit Court setting aside Ms. Ford’s purchase of the real estate.  The KBA would place a high burden on trial judges to obtain accountings but has the KBA met their  own burden?

One of the main arguments made by the Bar Counsel is that the settlement was an “aggregate” settlement as opposed to a “class action settlement”.  This means that if the settlement was an aggregate settlement that the 440 Fen Phen plaintiffs in the class action should receive all of the money left over after the payment of attorney fees and court costs.  On the other hand if the settlement was properly classified as a “class action settlement” then each of the 440 plaintiffs where only entitled to a settlement which fairly compensated them for their true loss.

The issue of whether or not the settlement was an “aggregate” settlement or a “class action settlement” is currently on review by the Sixth Circuit and possibly by the Kentucky Supreme Court.  

Gallion and Cunningham and Chesley all argue that there is a document which is part of the settlement which answers this question.   This document is identified as “the settlement letter of 5-1-01″.  This document  allegedly defines the status of “settling claimants”.  

Judge Bamberger is faulted by the KBA for his judicial interpretation of this issue.  This issue has yet to be decided by the appellate courts. But it demonstrates that the action by the KBA against Judge Bamberger is based on the Bar Counsel’s  interpretation of the meaning of said document as opposed to Judge Bamberger’s interpretation of the meaning of said document. It ignores the possibility that the appellate courts, in due course, may agree with Judge Bamberger’s ruling. 

If this position is sustained in favor of the KBA, then any ruling of any judge can be subjected to ethics prosecution if the KBA disagrees with the trial court’s findings.  Is the Bar Counsel the proper person to rule on questions such as this before they are decided by the appellate courts?

The record of the Bamberger proceedings reveal testimony of Kenneth R. Feinberg.  Feinberg is a nationally recognized expert on class action settlements and the evaluation of claims in class actions.  He is the man that President George W. Bush appointed to oversee the evaluation of compensation for the victims of the Sept. 11 terroristic attack upon the New York World Trade Center.  Feinberg also handled the evaluation of the claims of the 440 plaintiffs in the Kentucky Fen Phen case and he states under oath:

“I have read and considered the assertion in the Plaintiff’s memorandum supporting their motion for summary judgment that Exhibit 3 to the settlement agreement is a “smoking gun” that “proves” that all of the $200,000,000 was intended to compensate only 431 claimants, many of whom are involved in the instant litigation against their former attorneys. In my opinion that assertion is simply a naive misunderstanding or misinterpretation of the language in the settlement agreement and the purpose it served in memorializing the settlement.”

(Footnote on Kenneth Feinberg:

Kenneth Feinberg (born October 23, 1945, Brockton, Massachusetts)[1] is an American attorney, specializing in mediation and alternative dispute resolution. Feinberg was appointed Special Master of the U.S. government’s September 11th Victim Compensation Fund and currently serves as the Special Master for TARP Executive Compensation, popularly called the “pay czar.” Additionally, Feinberg currently serves as the government-appointed administrator of the BP Deepwater Horizon Disaster Victim Compensation Fund. He is also an adjunct professor at the Columbia University School of Law, University of Pennsylvania Law School, Georgetown University Law Center, New York University School of Law, the University of Virginia School of Law and at the Benjamin N. Cardozo School of Law.)

In the first criminal trial of Gallion, Cunningham and Mills, before Judge Bertlesman, the court ruled the settlement was a class action settlement, not an “aggregate” settlement.  No weight is given by the KBA to this ruling of a U.S. District Judge.  If a Federal judge found it to be a “class action” type settlement it is reasonable to justify Judge Bambergers identical finding on this issue.

In the second criminal trial, Judge Danny Reeves refused to allow testimony on this subject and instructed the jury that it was an “aggregate” settlement.  That ruling is on appeal to the Sixth Circuit Court of Appeals.

Judge Wehr, the Boone Circuit Court Judge who handled the Angela Ford case against the Plaintiff’s original lawyers granted a summary judgment apparently finding it was an aggregate settlement.   That summary judgment was set aside by the Ky. Court of Appeals.  The Court of Appeals found that it was a jury question and could not be decided by a summary judgment ruling as it was in the purview of the jury to rule on the facts.  That issue is apparently on appeal to the Kentucky Supreme Court.  In the meantime the $20,000,000 seized in behalf of Angela Ford’s clients is still apparently in their hands, but there is no court judgment supporting their claim to those funds.  They may win such a judgment in the future, but at the present they haven’t to our knowledge returned those funds to the court.  

After reading a news story in the Lexington Hearld -Leader this author called the Master Commissioner of Jessamine County and he reported to LawReader that the judicial sale of Gallion’s personal residence in Jessamine County to Angela Ford,  had been set aside at the request of the U.S. Attorney’s office.  Why was this done?   Has the Bar Counsel conducted a review of Ms. Ford’s handling of the $20,000,000 seized from the charitable trust proceeds?

The Master Commissioner reported that the U.S. Attorney’s office objected to the use of funds held in trust by Angela Ford, to purchase the Gallion residence, on the basis that some of the money held in trust by Ford “belongs to some 12 clients she does not represent.    

The KBA would impose a duty upon Judge Bamberger to account for the handling of all funds. Does the Bar Counsel now take the position that the KBA has no responsibility to inquire about the handling of these trust funds in light of the action by the U.S. Attorney’s office?

      Is all of the $20,000,000 still in her possession? Were these trust funds used to purchase the Gallion home at the Judicial Auction in Jessamine County?  How was such a purchase for the benefit of the trust?  How much of a return has been earned on these funds since they were turned over by the successor judges in trust for Ms. Fords clients? 

The judge who permitted the seizure of the Charitable Trust funds in behalf of the Summary Judgment plaintiffs acted properly because at the time of his order there was a summary judgment in effect, and Gallion and Cunningham did not post a supersedes bond. 

 We raise these issues due to the fact that the KBA Bar Counsel’s brief castigates Judge Bamberger for not inquiring about the handling of funds by the plaintiff’s lawyers.  

What actions has the Bar Counsel taken to review the handling of these funds by Angela Ford as publically raised by the Herald-Leader article? 

We have read the 16 page brief of the KBA and find it frequently makes an emotional argument about things it has not proven, and which is apparently based on their psychic readings of Judge Bamberger’s mind.  It has always been my belief that before a prosecutor can make a closing argument on an issue, it should be supported by at least some proof.

This is exactly the reason that the Doctrine of Judicial Immunity was created many of years ago and applied in every American jurisdiction.  Will judges now be subject to unsupported speculation about their motives in performing their official acts?

A denial of judicial immunity to Judge Bamberger will put every judge in Kentucky under the threat of KBA discipline sanctions if they acted on representations made by the attorneys or parties who appeared before them.  If any judge is overruled by a higher court will he now be subject to an ethics prosecution because he ruled incorrectly on the law or made some other kind of  mistake? 

Setting aside the judicial immunity defense  would grant to the KBA the ability to review any decision ever made by a judge in his entire career. There is no statute of limitations on ethics prosecutions. This hindsight review of judicial actions by the KBA is a dangerous step which was taken by the KBA Bar Counsel, the Trial Commissioner, the Inquiry Commission and now by the Board of Governors. 

We would suggest that the Judicial Immunity Doctrine can co-exist with the KBA discipline process.  In Hardesty the Supreme Court (in dicta) suggested that there were instances where the KBA could proceed without a referral by the JCC.   One reasonable interpretation of that dicta is to  recognize the right of the KBA to proceed immediately against a Judge who has been convicted of a criminal offense.  A criminal offense is not a judicial function and therefore is not protected by the judicial immunity doctrine.

However, the JCC should retain the right in any case against a judge, to make a finding as to whether or not the actions of the defendant judge “was an action within his judicial function” and therefore entitled to the judicial immunity defense. 

If the JCC finds that a judges’ complained of conduct was done within the role of a judge (i.e. signing orders, holding hearings, etc.) he should be entitled to judicial immunity and no discipline action could be taken by the KBA without a finding by the JCC that the judge was acting outside of his official duties.  (We again point out that KBA discipline actions are defined as civil actions.)

On the other hand, if the JCC issues a finding of fact that the complained of actions of the judge were not judicial acts, (i.e. a violation of the criminal code) then the judge should not be protected by judicial immunity.

The JCC by making a referral to the KBA is essence is saying that the conduct of the judge was not protected by judicial immunity.  The JCC is authorized by Supreme Court Rules to refer a judge to the KBA for consideration of sanctions or disbarment.  No such referral was made by the JCC in the case involving Judge Bamberger.  The KBA never really explains why the Supreme Court Rule allowing the JCC to make a discipline referral to the KBA should be ignored.  The Bar Counsel basically ignores this Supreme Court Rule.

The KBA in essense argues that they do not have any limits on their jurisdiction to consider a discipline action, and therefore they claim that the Supreme Court Rule regarding “referrals” by the JCC is without any meaning.

The purpose of the JCC is to provide a body with knowledge of judicial functions. The JCC  membership includes a Court of Appeals judge, a Circuit Judge and a District Judge.  They are presumed to have an understanding of the type of special problems and duties of judges.

If the KBA is allowed carte blanche to determine the proper duties of judges and to rule on whether actions taken by a judge are within his judicial function, then there really will be no reason to continue the existence of the JCC.   The willingness of the KBA to totally ignore an evaluation of judicial functions and judicial immunity is clearly supported by their actions against Judge Bamberger.

 If the special role of the JCC  is ignored by the Supreme Court, then the KBA Bar Counsel, the Inquiry Commission and the Board of Governors (who are all made up of lawyers and in some instances private citizens, who do not have judicial experience), will be the reviewing body authorized to review of the conduct of judges and will have to power to rule on the application of the judicial immunity doctrine.

We submit that logic requires that the application of the judicial immunity doctrine should be addressed by the JCC and reviewed by the Supreme Court. Such an interpretation upholds the power of the JCC to make referrals to the KBA.

We feel confident that the Supreme Court will proceed with caution and will carefully consider what a destruction of the judicial immunity rule will mean to other judges and to the continued existence of the JCC.

                                             JURISDICTION OF THE JCC AND KBA

   The question of the jurisdiction of the JCC and KBA was also raised by Judge Bamberger in his brief to the Board of Governors.

Bamberger asserted that “Section 121 (of the Kentucky Constitution) fixes original jurisdiction for judicial discipline exclusively in the (Judicial Conduct) Commission…”   

The JCC did not refer Judge Bamberger to the KBA “for possible suspension or disbarment…”

In KBA v. Hardesty 775 S.W.2d 87 (Ky., 1989), the Supreme Court dismissed an action by the KBA against a judge.  The Supreme Court added some dicta which suggested 

in the future it will be appropriate for the Bar Association to proceed against the individual in his capacity as a lawyer, as provided for in SCR Rule 3, regardless of the action taken by the JRRC.”

 

This dicta by the Supreme Court in Hardesty did not discuss the effect of  SCR 4.020(1)(d) which gives the Judicial Conduct Commission “the authority to refer any judge of the Court of Justice who, after notice and hearing is found by the Commission to be guilty of misconduct, to the KBA for possible suspension or disbarment from the practice of law.”

 Again we note that the JCC sanctioned Judge Bamberger but they did not exercise their discretion to refer him to the KBA for further discipline.

   The dicta in Hardesty  which suggests that the KBA may take action without a referral from the JCC is not precedent and does not discuss SCR 4.010(1)(d).  Dicta is not authority. It was stated in Stone v. City of Providence, 236 Ky. 775 (KY, 1931)  “such language was dicta, as that question was not really involved, and the dicta is not now binding upon us in this subsequent case…”

We would hope that the Supreme Court, in reviewing Hardesty, should note that Judge Hardesty was charged with making sexual propositions which are clearly outside his judicial function immunity. He was allegedly attempting to sell leniency for sexual favors. 

We have yet to see any proof that Judge Bamberger by signing certain orders was acting “outside of his judicial function“.   This point distinguishes almost every argument raised by the KBA Bar Counsel in their brief to the Board of Governors and to the Trial Commissioner.

There is clear authority for the KBA to discipline any judge (or lawyer) who is actually convicted of a crime. We would suggest that an actual conviction of a judge of the criminal law would justify action by the KBA without a referral by the JCC.    Rulings that support this conclusion, which bypasses the JCC, hold that the criminal conviction must be final, and the KBA has no discipline jurisdiction based on a criminal act, until the defendant is found guilty

Judge Bamberger was never charged with any violation of criminal law and certainly was never convicted. 

We note that the Code of Professional Conduct classifies discipline actions against judges and attorneys as civil actions.   Therefore we suggest that it is well established in the law that a judge enjoys sovereign immunity or judicial immunity for any acts taken within his jurisdiction regardless if they were in error. 

One issue that is raised by the actions of the KBA Bar Counsel is that ethics prosecutions are not entitled to judicial immunity protection.   We would suggest that an ethics prosecution by definition is a “civil action”, and as long as the actions of the judge were performed as a judicial function that judicial immunity applies.  If the Supreme Court changes that rule, then the entire jurisprudence regarding judicial immunity will be made meaningless.

 THE FEE JUDGE BAMBERGER AWARDED TO PLAINTIFF’S ATTORNEYS WAS WITHIN GUIDELINES ESTABLISHED BY THE COURT OF APPEALS

   In Shelton v. Simpson, 441 S.W.2d 421 Ct. of Appeals, May 23, 1969, the court upheld a fee of 50% in a Kentucky class action which had 400 plaintiffs. In that decision the Court of Appeals set aside the trial judges fee award of 25%, and restored the 50% fee claimed by the class action attorney.

Bamberger awarded an attorneys fee of 48%, and the Court of Appeals in Shelton v. Simpson upheld a class action attorneys fee award of 50%. So we ask how outrageous was Judge Bamberger’s fee award?

The Bar Counsel has colorfully suggested that all costs incurred in the Fen Phen case were attorney fees.   The Plaintiffs attorneys did not get some $130,000,000 in fees as claimed by the KBA.  The actual plaintiff’s lawyers received an award of 48% of the gross award.   The attorneys hired expert witnesses, consultants, and Mr. Feinberg and donated $20,000,000 to the Fund for Healthy Living Charitable Trust.  The funds paid to these other parties can be argued to have been court costs.  Nevertheless the KBA, playing to the press, suggests that all money not paid to the original plaintiffs was paid to their attorneys.

But that is a matter to be decided by the Supreme Court and we have found no precedent for guidance on this issue.

Any close examination of the facts reveals that the original offer in the Fen Phen case was about $20,000,000.  The trial consultant and Stan Chesley were brought in to help mediate the settlement and as a result a settlement of $200,000,000 was reached.  Even if this is found to be an “aggregate” award should not the plaintiff’s pay the costs of the consultants and expert witnesses?

KENTUCKY.COURT OF APPEALS DECISION

The key issue in this case is whether or not this settlement approved by Bamberger was an “aggregate” settlement or a “class action settlement”, and that has not been finally decided.

 Judge Bertlesman ruled it was in fact a “class action”.  The Kentucky Court of Appeals say this is a jury question.

Nevertheless the KBA unilaterally concludes that it was an “aggregate” settlement intended only for the benefit of the 440 plaintiff.  Based on their ruling they would permanently disbar Judge Bamberger over his ruling that it was a “class action” settlement and that the original plaintiffs where not entitled to all the proceeds.

 2007-CA-001971   Date: 2/3/2011 ABBOTT V. GALLION, CUNNINGHAM AND MILLS

Quotes from the Ct. of Appeals ruling:

“…it was represented to the Court (i.e. to Judge Bamberger) during the June 27, 2002, hearing regarding that Seven Million Five Hundred Thousand Dollars ($7,500,000.00) that all clients had or would agree to the balance of funds going to charity. It is now clear from the paper discovery produced that same was not true, and none of the clients were advised of the magnitude of the funds being transferred.”

” Judge Bamberger was not made aware of the fee contracts,…”  (i.e. the contingent fee contracts originally obtained by CMC.)

” Abbott points out that GMC  (Gallion Mills and Cunningham) gave it no notice of the true amount of fees it was taking, or that it had asked Bamberger to approve fees in excess of the contingent fee contracts it had executed.”

” This is an independent action that is not the result of a modification or vacation of Bamberger’s orders in the Guard action.”  (i.e. the Court is saying the plaintiff’s represented by Angela Ford did not seek to set aside any orders of Judge Bamberger.)

” In response to Abbott’s motion for partial summary judgment, the seventeen-page affidavit of Hon. Kenneth R. Feinberg, a practicing attorney and an expert in mass tort litigation, was submitted.

 Feinberg’s affidavit concluded the settlement entered in the Guard action was “reasonable” and the “side letter” agreement supported the conclusion that the $200,000,000.00 paid by AHP was not intended to compensate only the 431 plaintiffs, but was also intended “to provide for other payments, including potential claims or (sic) other Phen-Fen (sic) users, subrogation claim holders, and other unforeseen claims.”

 

Feinberg went on to state:

 There was nothing out of the ordinary in the Boone Circuit Court approving the use of approximately twenty million dollars from Guard for cy pres purposes or in approving the formation of a charitable foundation, the Kentucky Fund for Healthy Living, Inc. (Kentucky Fund), to administer the cy pres funds. I am aware that certain of the plaintiffs’ attorneys were appointed by the Court to serve as directors of the Kentucky Fund.

In my opinion, there was no conflict of interest or impropriety whatever in those appointments. The plaintiffs’ attorneys were in an excellent position to understand the purposes of the fund and to carry out the intent of the Court that approved the establishment of the charitable foundation.

In my opinion, the case was handled properly and ethically. I have seen nothing that credibly suggests any misconduct by the attorneys or any inappropriate action by the judge who presided over the case. It appears that the instant action against the plaintiffs’ attorneys in

Guard  (AKA the Fen Phen case) is based on nothing more than misinformation or lack of understanding of the procedures involved in class action or common fund or aggregate mass tort settlement.”

Feinberg’s affidavit was sufficient to create genuine issues of material fact such as:

…whether the entire settlement, minus fees and expenses, was to be split between the 431 settling claimants; whether the settling complainants were fairly and adequately compensated; whether KFHL was funded with money that should have been distributed to the settling claimants or was funded with excess funds for which the plaintiff’s consent to its ultimate use was not required; and, whether GMC and Chesley were obligated to indemnify AHP for additional claimants who might come forward after the settlement had been dispersed. The foregoing questions of fact justified going forward with trial. Steelvest, 807 S.W.2d at 480-82; See also, Chalothorn v. Meade, 15 S.W.3d 391 (Ky. App. 1999).”

(The Court of Appeals ruled)  ” We agree that creation of a cy pres trust is a valid option under the appropriate circumstances.” 

Author’s comment: According to the Court of Appeals, the Charitable Trust approved by Judge Bamberger was a valid option for him to consider.  This ruling of the Court of Appeals was not  mentioned in the Bar Counsel’s brief.  The Bar Counsel stated in their brief re: the Charitable Trust:

 “He (meaning Bamberger) allowed the attorneys to keep another twenty million dollars of settlement funds …”

 This money was not kept by GMC. It was placed in a charitable trust and those funds are  now believed to be held in trust by Angela Ford in behalf of her clients, and others who are not her clients (??).  The argument by the Bar Counsel simply misstates the facts on this issue. This exaggeration is just one of many in the Bar Counsel’s brief.)

” Therefore, reversal is necessary. Because we have determined partial summary judgment was improvidently granted…”.

Author’s comment: Upon trial it is possible that a judgment may be entered declaring the settlement to have been a “class action” settlement and not an “aggregate” settlement, and if that occurs, then every claim brought by the Bar Counsel against Judge Bamberger’s rulings will be cast in quite a different light. 

 We submit that the Supreme Court  must view  Judge Bamberger’s rulings in light of the law, and not just the rhetoric of the Bar Counsel.  We have not discovered one instance in the Bar Counsel’s brief which supports their conclusion that Bamberger ever acted outside of his judicial function in making any ruling.  Therefore there is a strong argument that Judge Bamberger should be protected by the Doctrine of Judicial Immunity.

CONCLUSION

The Bar Counsel has argued that Judge Bamberger was dazzled by the legal arguments of highly respected experts in the class action practices, and therefore he should be sanctioned with permanent disbarment.  This sets a dangerous precedent for any judge who has ever made a ruling. If this novel theory of jurisdiction over judge’s rulings by the Bar Association is upheld, then every judge will henceforth be subject to hindsight review by the Bar Counsel.

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

                   Author’s disclosure:  I have been a friend of Judge Bamberger since May 2, 1971.  I admittedly believe in his credibility and integrity.  This issue however is a legal argument about the Judicial Immunity Doctrine and the jurisdiction of the KBA, and not about my friendship with Judge Bamberger.

  My concern about this case is that the Bar Counsel is seeking to establish a precedent that every judge will in the future be subject to hindsight review of their reasons for making any ruling, and that the Bar Counsel will need only to speculate as to their justifications for every ruling they make.  

The Trial Commissioner and the Board of Governors ignored the judicial immunity issue.   This issue is presumed to be headed for appeal  to the Supreme Court.  

After Judge Bamberger retired as Boone Circuit Judge I was assigned by the Chief Justice to serve as a Senior Status Circuit Judge in Boone County.   The Fen Phen case, due to the established assignment policy of the Boone Circuit Court was automatically assigned to me.   Angela Ford first filed a recusal motion against Judge Frohlich but upon learning that the case had been actually assigned to me immediately filed a recusal motion to remove me from the case.  She alleged that my friendship with Judge Bamberger justified my recusal.   She also moved that “all Northern Kentucky Judges be recused from the case.”

I wrote Chief Justice Lambert and said that I had no great desire to handle this case but found no precedent for a recusal motion based on my relationship with Judge Bamberger.  He was not a party to the pending lawsuit.  I had “control” of the case for less than a week.  During that time I did not make any rulings, did not sign any orders  and conducted no hearings.  I was thankful that Chief Justice Lambert appointed another Judge to hear the case.  

I do not now, nor have I ever, represented Judge Bamberger or any other party in the pending cases or appeals.

This article is written out of concern for the future of the judiciary in which I served as a Trial Commissioner, District Judge and Senior Status Circuit Judge for 27 years.  I have witnessed five years of innuendo and media sensationalism directed against Judge Bamberger.  I speak up now only after having had an opportunity to  read his brief and the Bar Counsel’s brief  and other pleadings so as to understand the real facts.

I served on the Judicial Conduct Commission as an alternate for four years.   I believe that their work is highly professional and fear that the Bar Counsel and the KBA are attempting to eviscerate the jurisdiction of the JCC.

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

*The case heard by Judge Bamberger is called the “Fen Phen” case, or the “Phen Fen” case but the correct name of the case is Guard v. A.H. Robbins.   In some places in the record it is stated that there were 430 original plaintiffs, or 431  and in other places it is said that there were 440 plaintiffs, and in other places another number is stated.

U.S. Supreme Court: Age is a consideration in interrogations by police

Monday, June 20th, 2011

 A divided Supreme Court said Thursday that police and courts must consider a child’s age when examining whether a boy or girl is in custody, a move the court’s liberals called “common sense” but the conservatives called an “extreme makeover” of Miranda rights.

The 5-4 decision came in a case in which police obtained a confession from a seventh grade special-education student while questioning him at school about a rash of breakins in Chapel Hill, N.C., without reading him his Miranda rights, telling him he could leave or call his relatives.

Justice Sonia Sotomayor, a former prosecutor who wrote the opinion, said police have to consider the child’s age before talking to him or her about a crime. Courts also have to take the child’s age into consideration when decid­ing whether that confession can be used in court, she said. “It is beyond dispute that children will often feel bound to submit to police questioning when an adult in the same circumstances would feel free to leave,” Sotomayor said, adding there was no reason for “police officers or courts to blind themselves to that commonsense reality.” But Justice Samuel Alito, also a former prosecutor, said the point of Miranda was that police would have clear, objective guidelines to follow. Opening the door to considering age likely will mean that other characteristics could soon be added to the list, such as educational level, I.Q. and cultural background, he said.

WHY DO KBA DISCIPLINE INVESTIGATIONS AND PROSECUTIONS TAKE SO LONG? DON’T LAWYERS HAVE SPEEDY TRIAL RIGHTS?

Saturday, June 18th, 2011

By LawReader Senior Editor Stan Billingsley

   We have interviewed attorneys who practice before the KBA Discipline body, defendants who have been investigated and prosecuted by the Bar Counsel, and a Trial Commissioner who has heard cases brought by the Bar Counsel and the Inquiry Commission.

We come to the conclusion that many cases are needlessly delayed.  Due to the high level of secrecy of the Discipline process, our information is admittedly anecdotal. 

   We noted that in the Supreme Court decisions handed down on June 16, 2011 they cited a Discipline case that took eight years from the alleged offense to review by the Supreme Court.  EIGHT YEARS!   This case concerned one trial in which the trial lawyer was outspoken during the trial, but the Supreme Court dismissed three charges and issued a public reprimand for the fourth offense.    Eight years of grief for the attorney resulting in a Public Reprimand?

 See:  2011-SC-000230-KB.pdf  KENTUCKY BAR ASSOCIATION VS. LAVIT, THEODORE H.  June 16, 2011.

   In the John Berry Jr. case, he was investigated for l7 months and then a warning letter was placed in his KBA personnel file.  His offense was writing a letter questioning a ruling of the Legislative Ethics Commission.  An influential  member of the Legislative Ethics Commission took offense to Berry’s letter and called the Bar Counsel and obtained a lengthy and expensive investigation.  No hearing was ever conducted where the attorney was allowed to appear.  This case is currently on appeal to the Sixth Circuit Court of Appeals for a Section 1983 civil rights claim.   

The important point to be noted in the Berry case, on the issue of questionable delay by the KBA, is that from the first day of the investigation the Bar Counsel had all the evidence needed to proceed to a resolution of their investigation.  They surely had a copy of the letter Berry wrote to the Legislative Ethics Commission. That was all the evidence that ever existed. When the Bar Counsel had in their possession all the evidence… why did it take them l7 months to finally decide to dismiss the case but place a warning letter in Berry’s file?   Berry admitted being the author of the letter.  (Their dismissal denied Berry the right to appeal, so Berry and the ACLU filed a Federal civil claim against the KBA.  This case is on appeal and raises a credible First Amendment  freedom of speech issue.)

   In the ethics investigation of Judge Jay Bamberger, the KBA investigation not only seeks to expand the jurisdiction of the KBA to review and cite Judges past decisions for ethics review.   There is substantial legal authority for the conclusion that Judges ethics regarding official judicial duties can only be reviewed by the Judicial Conduct Commission.  The JCC did review the actions of Bamberger, and they complied with case law that forbids an ethics review of a judges official decisions.   More on that topic later, the issue discussed here is that this investigation of Judge Bamberger has taken more than five years.   Bamberger has been fully cooperative with the Bar Counsel.  He has not requested any delays.  As reported to us, all the requests for delays and continuances have been requested by the Bar Counsel.   Five years!!

    The ethics prosecution of Stan Chesley, has likewise taken over five years.  We note that Chesley asked for several continuances, but still why has that case taken five years?

     There is a Supreme Court Rule  which requires prompt disposition of ethics complaints.

SCR 3.180 Investigations and trials to be prompt; subpoena power

(1) All investigations and the trial of all disciplinary cases shall be begun, prosecuted, and completed as promptly as the ends of justice will permit. Neither the unwillingness of the complainant to prosecute, nor an offer of settlement, compromise or restitution shall delay the investigation, trial or report to the Bo

   In criminal law the courts have held that any delay in prosecution in excess of eleven months is presumptively prejudicial and may be subject to a motion to dismiss for denial of a defendant’s speedy trial rights.   See Com. v. Vincent, 134 S.E.3d 17 (2004).

Federal courts traditionally impose a Speedy Trial right to 60 to 90 days.

   Of course the KBA discipline process is a civil proceeding, but in light of SCR 3.180 there is a duty for the Bar Counsel to proceed “as promptly as the ends of justice will permit.”  

   Most law firms have administrative officials who review the conduct of their attorneys.  Civil cases filed in civil courts have a procedure for an impartial judge to review requests for delay and continuances.   It doesn’t appear that the KBA superiors have any real handle on controlling the conduct of the Bar Counsel.  

   The Rules creating the KBA discipline process have basically taken a responsibility of the Supreme Court and passed it off to the Board of Governors.  It is our interpretation of the rules that both the Supreme Court or the Board of Governors have some administrative  control over the hiring and firing of the Bar Counsel. 

   When we see delays of five to eight years (and who knows what other cases are buried behind the secrecy of the discipline process) we have to raise an eyebrow and ask, who is reviewing the conduct of the Bar Counsel?

A former Circuit Court Judge who served as a Trial Commissioner for the KBA related to LawReader this week her observation that the Bar Counsel’s office continually asked for continuances and she found it difficult to get them to get the case to a hearing.  She said the defendant never asked for a delay.  This brings into question the work ethic of the Bar Counsel’s office.

We respectfully look to the Supreme Court and the Board of Governors for an accounting of their management of the Bar Counsel’s office.  We would invite an order of the KBA President to require the Bar Counsel to publicly disclose the length of time from the receipt of an ethics complaint to a ruling by the Supreme Court on all cases handled by the KBA over the last five years.

It appears the Supreme Court and the Board of Governors have apparently chosen to distance themselves from any responsibility to monitor and manage the operations of the Bar Counsel at least in the application of the “promptness” rule.  

A study of this issue of promptness may be completely justified but due to the wall of secrecy protecting the Bar Counsel from public view, only the Supreme Court or the Board of Governors have the standing to demand a review of the application of the “promptness” rule.

We note that the discipline process is supposed to be subject to the Rules of Civil Procedure.   We recall that there is a rule that requires the Trial Court to issue show cause notices for dismissal of  all civil cases in which no action has been taken for one year.   Why shouldn’t that rule be applied to ethics proceedings?

COURT OF APPEALS JUDGE SARA COMBS IN CONCURRING OPINION CITES AUTHOR JOHN-PAUL SARTE FOR RULE WHICH IMPOSES A CONTINUING CHILD SUPPORT OBLIGATION ON PRISON INMATES WHO ARE INDIGENT

Friday, June 17th, 2011

 At LawReader we read every appellate decision and seldom find quotations from French authors in the usually dry language of appellate decisions.

 Judge Combs explains that she concurred with the ruling which imposed a continuing child support obligation on a prison inmate who obviously could not earn money to pay child support, and which allows him to be continuously prosecuted for non-payment but she disagrees with the rationale of the law.

 She explains that it is her duty to uphold the law, but that the law is a prime example of the victory of theory over common sense.

 2010-CA-001175  Court of Appeals Decision released on June 17 2011

NOT TO BE PUBLISHED  HENDERSON CIRCUIT COURT

PRYOR (JACKIE)

VS.

COMMONWEALTH OF KENTUCKY

OPINION AFFIRMING

MOORE (PRESIDING JUDGE)

ISAAC (CONCURS) AND COMBS (CONCURS)

 COMBS, JUDGE, CONCURS IN RESULT BY SEPARATE OPINION.  (excerpts)

 COMBS, JUDGE, CONCURRING: I was a member of the panel that decided Commonwealth v. Marshall, 15 S.W.3d 392, 402 (Ky. App. 2000), and I concurred reluctantly in its holding that “incarcerated parents are to be treated no differently than other voluntary unemployed, or underemployed, parents owing

support.” On numerous occasions over the intervening years, I have regretted that vote after seeing the glaring injustice inherent in the rule of the Marshall case.

Marshall is a prime example of the victory of theory over common sense, of academic opining over the dictates of reality, and of form over substance.

…No doubt the deliberate failure of a parent to support a dependent

child is intolerable. However, in reality, it makes no sense to charge a prisoner with constantly accruing new arrearages when he is in no position to work to obtain income either to meet or to offset child support that is owed and becomes owing.

We have in effect created a legal nightmare of No Exit8 in which arrearages

(8 The title of a play by Jean-Paul Sartre in which the incarcerated characters are dealing with hopelessness in the venue of Hell.)

continue to accrue and to constitute new felonies without any possibility on the part of the incarcerated to mitigate or to avoid the felonies of which he/she becomes instantly guilty.

In effect, we are imputing criminal mens rea, a per se violation of due process on the part of the legal establishment.

There is no beneficiary under the current state of the law. Even those intended to be protected — namely, the dependent children – are further victimized by suffering continued and often permanent non-support because the parent who is incarcerated likely will never be able – even if willing – to address and meet his or her growing arrearage and future child support obligations.

ERIC DETERS UPS ANTE AND QUESTIONS THE HONESTY OF TRIAL COMMISSIONER FRANK DOHENY AND BAR COUNSEL LINDA GOSNELL IN YOUTUBE VIDEO

Friday, June 17th, 2011

By LawReader Special Reporter Gwen Billingsley:

   Eric Deters has been ordered to appear in a Rule 11 hearing in July before U.S. District Judge Danny Reeves.   In a controversial video posted on YouTube.com he discusses the ethics charges pending against him, and the potential Rule 11 sanction noticed by Judge Reeves.

Deters says in the internet video that he is looking forward to the hearing.

He then goes on to challenge the integrity of the Trial Commissioner (Frank Doheny) who refused to remove himself from Deters ethics case after disclosing that his law partner received a legal fee from the client who filed a complaint against Deters. 

Deters says “I charged the client $1500 as a legal fee and the Trial Commissioner who heard his case had a law partner who charged the same client $25,000 to settle the same case.”  He alleges that the Trial Commissioner should have recused himself but refused to do so.

In the video Deters leans towards the camera and proclaims:

(Trial  Commissioner) “Frank Doheny is dishonest”.  (KBA) “Bar Counsel Linda Gosnell is dishonest” and “the deputy Bar Counsel is dishonest.”

   Such statements made by an attorney are rarely heard except in private conversations among lawyers.  We report this statement as a public news story and have no comments on the merits of the allegations, that is a matter for others to decide.  We merely report the existence of the video which was published on YouTube.

  Attorneys conduct and speech is regulated by Supreme Court Rules.  Recently the Bar Counsel sought sanctions against an attorney who wrote a letter critical of actions of the Legislative Ethics Commission.  The rule (SCR 3.130 (8.2) forbids an attorney from questioning the integrity of a judicial officer or public legal officer.  The sparse language of the rule makes it difficult to understand if the parties mentioned by Deters fall within the purview of the Supreme Court Rule but it mentions, “Judges and public legal officers”.  The rule says an attorney can be sanctioned for questioning the “integrity” or “qualifications for office” of a judicial officer.

   Deters and several other attorneys have sued the KBA in Federal Court for abridgement of their First Amendment free speech rights.   Judge Danny Reeves dismissed a recent lawsuit against the Bar Association and interpreted SCR 3.130 (8.2) as allowing the KBA to sanction any attorney even for “true but reckless” statements.   The rule provides no definition of the word “reckless” or explains who gets to determine if a statement was reckless.

An appeal on the Reeves ruling is  currently pending in the Sixth Circuit Court of Appeals.

Deters video may be viewed at:

Click here: YouTube – Eric Deters Response to Judge Reeves Order

JudgeS participate in HB 463 training about pretrial release, bond determinations

Thursday, June 16th, 2011

 HB 463 CONCERNS SOME 120 CHANGES IN CURRENT LAW RE: SENTENCING, PROBATION, PAROLE AND DRUG OFFENSES

FRANKFORT, Ky., June 16, 2011 – (Name of judge) who serves (county/counties), participated in a District Judges Seminar on June 3 about how district judges are to handle pretrial release and bond determinations based on House Bill 463, which took effect June 8, 2011. The AOC offered the seminar in Frankfort for all district judges and trial commissioners and circuit judges who share on-call rotations with district judges.

HB 463 is the most concentrated overhaul of Kentucky’s penal code in more than 30 years and was supported by all three branches of government. The legislation is designed to curb the cost of incarceration without compromising public safety.

“House Bill 463 directly affects how district judges do their jobs, especially in the areas of pretrial release and bond,” said Campbell County District Court Judge Karen A. Thomas, who also serves as president of the Kentucky District Judges Association, chair of the District Judges Education Committee and chief regional district judge for the Northern Region. “The seminar was helpful in preparing the judges for the significant changes that come with the new law. These changes require judges to set lower bonds and authorize substantial credit for days served in jail in lieu of requiring defendants to pay costs and fines.”

The three-hour seminar included an introduction to HB 463 and in-depth training on the tool that pretrial officers use to assess risk among pretrial defendants. Pretrial officers use the results of the risk assessment to help judges determine whether to grant pretrial release to defendants. The Administrative Office of the Courts operates the statewide pretrial services program.

Under HB 463, judges are required to consider the pretrial risk assessment when setting bonds and to grant pretrial release to low- and moderate-risk defendants, which are those who pose a low risk of flight, are likely to appear for trial and are not likely to be a danger to others. The legislation limits bond amounts for misdemeanor offenses and mandates that defendants receive credit of $100 per day toward bond and $50 to $100 a day in jail credit toward any fines owed except in certain circumstances. HB 463 calls for law enforcement officers to cite individuals for most misdemeanor offenses rather than arrest them.

District Court

District Court is the court of limited jurisdiction and handles juvenile matters, city and county ordinances, misdemeanors, violations, traffic offenses, probate of wills, arraignments, felony probable cause hearings, small claims involving $2,500 or less, civil cases involving $5,000 or less, voluntary and involuntary mental commitments and cases relating to domestic violence and abuse. Appeals from District Court decisions are made to the local Circuit Court.

Administrative Office of the Courts

The AOC is the operations arm for the state court system and supports the activities of nearly 3,300 court system employees and 403 elected justices, judges and circuit court clerks. The AOC Division of Judicial Branch Education provides continuing education for district judges. As the fiscal agent for the state court system, the AOC also executes the Judicial Branch budget.

Judges who participated in the training are (District Court judge unless otherwise noted):

Anderson County

Circuit Court Judge Charles R. Hickman (serves Anderson, Shelby and Spencer counties)

Judge Linda S. Armstrong (serves Anderson, Shelby and Spencer counties)

Judge Donna G. Dutton (serves Anderson, Shelby and Spencer counties)

Bath County

Court of Appeals Judge Joy A. Moore (represents Bath, Boone, Bracken, Campbell, Carroll, Fleming, Gallatin, Grant, Harrison, Henry, Kenton, Lewis, Mason, Nicholas, Oldham, Owen, Pendleton, Robertson, Shelby, Spencer and Trimble counties)

Judge William W. Roberts (serves Bath, Menifee, Montgomery and Rowan counties)

Boone County

Court of Appeals Judge Joy A. Moore (represents Bath, Boone, Bracken, Campbell, Carroll, Fleming, Gallatin, Grant, Harrison, Henry, Kenton, Lewis, Mason, Nicholas, Oldham, Owen, Pendleton, Robertson, Shelby, Spencer and Trimble counties)

Judge Charles T. Moore (serves Boone and Gallatin counties)

Judge Jeff Smith (serves Boone and Gallatin counties)

 

Bourbon County

Judge Vanessa M. Dickson (serves Bourbon, Scott and Woodford counties)

Judge Mary Jane Phelps (serves Bourbon, Scott and Woodford counties)

Boyd County

Judge Gerald B. Reams Jr.

Boyle County

Judge Jeff L. Dotson (serves Boyle and Mercer counties)

Bracken County

Court of Appeals Judge Joy A. Moore (represents Bath, Boone, Bracken, Campbell, Carroll, Fleming, Gallatin, Grant, Harrison, Henry, Kenton, Lewis, Mason, Nicholas, Oldham, Owen, Pendleton, Robertson, Shelby, Spencer and Trimble counties)

Judge W. Todd Walton II (serves Bracken, Fleming and Mason counties)

Breathitt County

Circuit Court Judge Frank A. Fletcher (serves Breathitt, Powell and Wolfe counties)

Judge Kenneth R. Profitt (serves Breathitt, Powell and Wolfe counties)

Breckinridge County

Judge Shan F. Embry (serves Breckinridge, Grayson and Meade counties)

Judge Kenneth Harold Goff II (serves Breckinridge, Grayson and Meade counties)

Butler County

Judge John M. McCarty (serves Butler, Edmonson, Hancock and Ohio counties)

Caldwell County

Judge Jill Clark (serves Caldwell, Livingston, Lyon and Trigg counties)

Calloway County

Judge Randall A. Hutchens

Campbell County

Court of Appeals Judge Joy A. Moore (represents Bath, Boone, Bracken, Campbell, Carroll, Fleming, Gallatin, Grant, Harrison, Henry, Kenton, Lewis, Mason, Nicholas, Oldham, Owen, Pendleton, Robertson, Shelby, Spencer and Trimble counties)

Circuit Court Judge Richard A. Woeste

Judge Gregory T. Popovich

Judge Karen A. Thomas

Carroll County

Court of Appeals Judge Joy A. Moore (represents Bath, Boone, Bracken, Campbell, Carroll, Fleming, Gallatin, Grant, Harrison, Henry, Kenton, Lewis, Mason, Nicholas, Oldham, Owen, Pendleton, Robertson, Shelby, Spencer and Trimble counties)

Clark County

Judge Earl-Ray Neal (serves Clark and Madison counties)

Clay County

Judge Henria Bailey-Lewis (serves Clay, Jackson and Leslie counties)

Judge Renee H. Muncy (serves Clay, Jackson and Leslie counties)

Clinton County

Judge Scarlett B. Latham (serves Clinton, Russell and Wayne counties)

Judge James M. Lawson (serves Clinton, Russell and Wayne counties)

Crittenden County

Judge Daniel M. Heady (serves Crittenden, Union and Webster counties)

Cumberland County

Judge Kristi Renee Castillo (serves Cumberland and Monroe counties)

 

Daviess County

Judge Daniel M. “Nick” Burlew II

Judge David C. Payne

Edmonson County

Judge John M. McCarty (serves Butler, Edmonson, Hancock and Ohio counties)

Estill County

Judge William “Bo” Leach (serves Estill, Lee and Owsley counties)

Fayette County

Judge Megan Lake Thornton

Judge Kim Wilkie

Fleming County

Court of Appeals Judge Joy A. Moore (represents Bath, Boone, Bracken, Campbell, Carroll, Fleming, Gallatin, Grant, Harrison, Henry, Kenton, Lewis, Mason, Nicholas, Oldham, Owen, Pendleton, Robertson, Shelby, Spencer and Trimble counties)

Judge W. Todd Walton II (serves Bracken, Fleming and Mason counties)

Floyd County

Judge Eric D. Hall

Franklin County

Judge Kathy R. Mangeot

Judge Chris Olds

Gallatin County

Court of Appeals Judge Joy A. Moore (represents Bath, Boone, Bracken, Campbell, Carroll, Fleming, Gallatin, Grant, Harrison, Henry, Kenton, Lewis, Mason, Nicholas, Oldham, Owen, Pendleton, Robertson, Shelby, Spencer and Trimble counties)

Judge Charles T. Moore (serves Boone and Gallatin counties)

Judge Jeff Smith (serves Boone and Gallatin counties)

Garrard County

Judge Bill Oliver (serves Garrard, Jessamine and Lincoln counties)

Grant County

Court of Appeals Judge Joy A. Moore (represents Bath, Boone, Bracken, Campbell, Carroll, Fleming, Gallatin, Grant, Harrison, Henry, Kenton, Lewis, Mason, Nicholas, Oldham, Owen, Pendleton, Robertson, Shelby, Spencer and Trimble counties)

Graves County

Judge Deborah Hawkins Crooks

Grayson County

Judge Shan F. Embry (serves Breckinridge, Grayson and Meade counties)

Judge Kenneth Harold Goff II (serves Breckinridge, Grayson and Meade counties)

Green County

Judge Amy S. Anderson (serves Green, Marion, Taylor and Washington counties)

Hancock County

Judge John M. McCarty (serves Butler, Edmonson, Hancock and Ohio counties)

Hardin County

Judge Kimberly W. Shumate

Judge John D. Simcoe

Harlan County

Judge Jeffrey J. Brock

Harrison County

Court of Appeals Judge Joy A. Moore (represents Bath, Boone, Bracken, Campbell, Carroll, Fleming, Gallatin, Grant, Harrison, Henry, Kenton, Lewis, Mason, Nicholas, Oldham, Owen, Pendleton, Robertson, Shelby, Spencer and Trimble counties)

Judge Charles W. Kuster (serves Harrison, Nicholas, Pendleton and Robertson counties)

Henry County

Court of Appeals Judge Joy A. Moore (represents Bath, Boone, Bracken, Campbell, Carroll, Fleming, Gallatin, Grant, Harrison, Henry, Kenton, Lewis, Mason, Nicholas, Oldham, Owen, Pendleton, Robertson, Shelby, Spencer and Trimble counties)

Judge Diana E. Wheeler (serves Henry, Oldham and Trimble counties)

Hopkins County

Judge W. Logan Calvert

Judge William R. Whitledge

Jackson County

Judge Henria Bailey-Lewis (serves Clay, Jackson and Leslie counties)

Judge Renee H. Muncy (serves Clay, Jackson and Leslie counties)

Jefferson County

Judge Stephanie Burke

Judge David P. Bowles

Judge Gina Kay Calvert

Judge Sean R. Delahanty

Judge Annette Karem

Judge Katie King

Judge Deana “Dee” McDonald

Judge Sandra L. McLaughlin

Judge Ann Bailey Smith

Judge Michele B. Stengel

Judge Jennifer Bryant Wilcox

Judge Erica Lee Williams

Jessamine County

Judge Bill Oliver (serves Garrard, Jessamine and Lincoln counties)

Johnson County

Judge John Kevin Holbrook (serves Johnson, Lawrence and Martin counties)

Judge Susan M. Johnson (serves Johnson, Lawrence and Martin counties)

Kenton County

Court of Appeals Judge Joy A. Moore (represents Bath, Boone, Bracken, Campbell, Carroll, Fleming, Gallatin, Grant, Harrison, Henry, Kenton, Lewis, Mason, Nicholas, Oldham, Owen, Pendleton, Robertson, Shelby, Spencer and Trimble counties)

Knott County

Judge Dennis P. Prater (serves Knott and Magoffin counties)

Lawrence County

Judge John Kevin Holbrook (serves Johnson, Lawrence and Martin counties)

Judge Susan M. Johnson (serves Johnson, Lawrence and Martin counties)

Lee County

Judge William “Bo” Leach (serves Estill, Lee and Owsley counties)

Leslie County

Judge Henria Bailey-Lewis (serves Clay, Jackson and Leslie counties)

Judge Renee H. Muncy (serves Clay, Jackson and Leslie counties)

Lewis County

Court of Appeals Judge Joy A. Moore (represents Bath, Boone, Bracken, Campbell, Carroll, Fleming, Gallatin, Grant, Harrison, Henry, Kenton, Lewis, Mason, Nicholas, Oldham, Owen, Pendleton, Robertson, Shelby, Spencer and Trimble counties)

Lincoln County

Judge Bill Oliver (serves Garrard, Jessamine and Lincoln counties)

Livingston County

Judge Jill Clark (serves Caldwell, Livingston, Lyon and Trigg counties)

Lyon County

Judge Jill Clark (serves Caldwell, Livingston, Lyon and Trigg counties)

Madison County

Judge Earl-Ray Neal (serves Clark and Madison counties)

Magoffin County

Judge Dennis P. Prater (serves Knott and Magoffin counties)

 

Marion County

Judge Amy S. Anderson (serves Green, Marion, Taylor and Washington counties)

Marshall County

Judge Jack M. Telle

Martin County

Judge John Kevin Holbrook (serves Johnson, Lawrence and Martin counties)

Judge Susan M. Johnson (serves Johnson, Lawrence and Martin counties)

Mason County

Court of Appeals Judge Joy A. Moore (represents Bath, Boone, Bracken, Campbell, Carroll, Fleming, Gallatin, Grant, Harrison, Henry, Kenton, Lewis, Mason, Nicholas, Oldham, Owen, Pendleton, Robertson, Shelby, Spencer and Trimble counties)

Judge W. Todd Walton II (serves Bracken, Fleming and Mason counties)

McCracken County

Judge W.A. Kitchen

McCreary County

Judge Cathy E. Prewitt (serves McCreary and Whitley counties)

 

Meade County

Judge Shan F. Embry (serves Breckinridge, Grayson and Meade counties)

Judge Kenneth Harold Goff II (serves Breckinridge, Grayson and Meade counties)

Menifee County

Judge William W. Roberts (serves Bath, Menifee, Montgomery and Rowan counties)

Mercer County

Judge Jeff L. Dotson (serves Boyle and Mercer counties)

Monroe County

Judge Kristi Renee Castillo (serves Cumberland and Monroe counties)

Montgomery County

Judge William W. Roberts (serves Bath, Menifee, Montgomery and Rowan counties)

Nelson County

Judge Robert W. Heaton

Nicholas County

Court of Appeals Judge Joy A. Moore (represents Bath, Boone, Bracken, Campbell, Carroll, Fleming, Gallatin, Grant, Harrison, Henry, Kenton, Lewis, Mason, Nicholas, Oldham, Owen, Pendleton, Robertson, Shelby, Spencer and Trimble counties)

Judge Charles W. Kuster (serves Harrison, Nicholas, Pendleton and Robertson counties)

Ohio County

Judge John M. McCarty (serves Butler, Edmonson, Hancock and Ohio counties)

Oldham County

Court of Appeals Judge Joy A. Moore (represents Bath, Boone, Bracken, Campbell, Carroll, Fleming, Gallatin, Grant, Harrison, Henry, Kenton, Lewis, Mason, Nicholas, Oldham, Owen, Pendleton, Robertson, Shelby, Spencer and Trimble counties)

Judge Diana E. Wheeler (serves Henry, Oldham and Trimble counties)

Owen County

Court of Appeals Judge Joy A. Moore (represents Bath, Boone, Bracken, Campbell, Carroll, Fleming, Gallatin, Grant, Harrison, Henry, Kenton, Lewis, Mason, Nicholas, Oldham, Owen, Pendleton, Robertson, Shelby, Spencer and Trimble counties)

 

Owsley County

Judge William “Bo” Leach (serves Estill, Lee and Owsley counties)

Pendleton County

Court of Appeals Judge Joy A. Moore (represents Bath, Boone, Bracken, Campbell, Carroll, Fleming, Gallatin, Grant, Harrison, Henry, Kenton, Lewis, Mason, Nicholas, Oldham, Owen, Pendleton, Robertson, Shelby, Spencer and Trimble counties)

Judge Charles W. Kuster (serves Harrison, Nicholas, Pendleton and Robertson counties)

Perry County

Judge Leigh Anne Stephens

Pike County

Judge Kelsey E. Friend

Judge Darrel H. Mullins

Powell County

Circuit Court Judge Frank A. Fletcher (serves Breathitt, Powell and Wolfe counties)

Judge Kenneth R. Profitt (serves Breathitt, Powell and Wolfe counties)

Pulaski County

Judge Jeffrey Scott Lawless (serves Pulaski and Rockcastle counties)

Judge Kathryn G. Wood (serves Pulaski and Rockcastle counties)

Robertson County

Court of Appeals Judge Joy A. Moore (represents Bath, Boone, Bracken, Campbell, Carroll, Fleming, Gallatin, Grant, Harrison, Henry, Kenton, Lewis, Mason, Nicholas, Oldham, Owen, Pendleton, Robertson, Shelby, Spencer and Trimble counties)

Judge Charles W. Kuster (serves Harrison, Nicholas, Pendleton and Robertson counties)

Rockcastle County

Judge Jeffrey Scott Lawless (serves Pulaski and Rockcastle counties)

Judge Kathryn G. Wood (serves Pulaski and Rockcastle counties)

Rowan County

Judge William W. Roberts (serves Bath, Menifee, Montgomery and Rowan counties)

Russell County

Judge Scarlett B. Latham (serves Clinton, Russell and Wayne counties)

Judge James M. Lawson (serves Clinton, Russell and Wayne counties)

Scott County

Judge Vanessa M. Dickson (serves Bourbon, Scott and Woodford counties)

Judge Mary Jane Phelps (serves Bourbon, Scott and Woodford counties)

 

Shelby County

Court of Appeals Judge Joy A. Moore (represents Bath, Boone, Bracken, Campbell, Carroll, Fleming, Gallatin, Grant, Harrison, Henry, Kenton, Lewis, Mason, Nicholas, Oldham, Owen, Pendleton, Robertson, Shelby, Spencer and Trimble counties)

Circuit Court Judge Charles R. Hickman (serves Anderson, Shelby and Spencer counties)

Judge Linda S. Armstrong (serves Anderson, Shelby and Spencer counties)

Judge Donna G. Dutton (serves Anderson, Shelby and Spencer counties)

Spencer County

Court of Appeals Judge Joy A. Moore (represents Bath, Boone, Bracken, Campbell, Carroll, Fleming, Gallatin, Grant, Harrison, Henry, Kenton, Lewis, Mason, Nicholas, Oldham, Owen, Pendleton, Robertson, Shelby, Spencer and Trimble counties)

Circuit Court Judge Charles R. Hickman (serves Anderson, Shelby and Spencer counties)

Judge Linda S. Armstrong (serves Anderson, Shelby and Spencer counties)

Judge Donna G. Dutton (serves Anderson, Shelby and Spencer counties)

Taylor County

Judge Amy S. Anderson (serves Green, Marion, Taylor and Washington counties)

Trigg County

Judge Jill Clark (serves Caldwell, Livingston, Lyon and Trigg counties)

Trimble County

Court of Appeals Judge Joy A. Moore (represents Bath, Boone, Bracken, Campbell, Carroll, Fleming, Gallatin, Grant, Harrison, Henry, Kenton, Lewis, Mason, Nicholas, Oldham, Owen, Pendleton, Robertson, Shelby, Spencer and Trimble counties)

Judge Diana E. Wheeler (serves Henry, Oldham and Trimble counties)

Union County

Judge Daniel M. Heady (serves Crittenden, Union and Webster counties)

Washington County

Judge Amy S. Anderson (serves Green, Marion, Taylor and Washington counties)

Wayne County

Judge Scarlett B. Latham (serves Clinton, Russell and Wayne counties)

Judge James M. Lawson (serves Clinton, Russell and Wayne counties)

 

Webster County

Judge Daniel M. Heady (serves Crittenden, Union and Webster counties)

Whitley County

Judge Cathy E. Prewitt (serves McCreary and Whitley counties)

Wolfe County

Circuit Court Judge Frank A. Fletcher (serves Breathitt, Powell and Wolfe counties)

Judge Kenneth R. Profitt (serves Breathitt, Powell and Wolfe counties)

Woodford County

Judge Vanessa M. Dickson (serves Bourbon, Scott and Woodford counties)

Judge Mary Jane Phelps (serves Bourbon, Scott and Woodford counties)

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JUSTICE SCALIA DISSENTS AGAINST TOLERATION OF IMPRECISE LAWS

Thursday, June 16th, 2011

 

In Talk America v. Michigan Bell Telephone, Justice Scalia argued that under a system based on constitutional separation of powers, the person who promulgates a law should not be allowed to interpret it as well. Lacking case law to cite, Justice Scalia quoted Montesquieu’s Spirit of the Laws:

“When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.”

In another case Scalia wrote: “We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases, so do the number of imprecise laws. And no surprise that our indulgence of imprecisions that violate the Constitution encourages imprecisions that violate the Constitution.”

“Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nitty-gritty. In the field of criminal law, at least, it is time to call a halt. I do not think it would be a radical step—indeed, I think it would be highly responsible—to limit ACCA to the named violent crimes. Congress can quickly add what it wishes. Because the majority prefers to let vagueness reign, I respectfully dissent.”

COURT OF APPEALS JUDGE SARA COMBS CALLS FOR MODIFICATION OF STATUTE REGARDING CHILD SUPPORT OBLIGATION. WHEN CHILD BECOMES EMANCIPATED.– LAW ALLOWS CHILD SUPPORT TO CONTINUE UNTIL PARENT FILES MOTION WITH COURT TO TERMINATE THE OBLIGATION.

Saturday, June 11th, 2011

 Case No.  2010-CA-001016  TO BE PUBLISHED  FROM SCOTT CIRCUIT COURT  June 10, 2011

BENNETT, ROBERT LAWRENCE

VS.

BENNETT, THERESA RENEE

OPINION AFFIRMING IN PART, REVERSING IN PART AND REMANDING

ACREE (PRESIDING JUDGE) TAYLOR (CONCURS) AND COMBS (CONCURS BY SEPARATE OPINION)

In this case there is an important statement by Court of Appeals  Judge  Sara Combs warning of problems with current statute regarding cessation of child support.  In this case the father was found liable for retroactive child support because he did not timely file a motion to suspend child support after emancipation of two of his three children.   The Court ruled that under the statute he remained liable for child support on all his children until he moved to terminate support for his emancipated children.

 Judge Combs concurred in the results of this opinion but warned of a trap for parents which should be remedied by the Legislature.

 ”…the circuit court correctly held that Robert was not entitled to retroactive automatic modification of the support obligation based on the emancipation of fewer than all his children covered by the prevailing support order.”

 COMBS, JUDGE, CONCURS BY SEPARATE OPINION

 ”This case is a nightmarish example of a legal pitfall for the unwary. It serves as a stunning caveat for the increasing number of pro se litigants attempting in good faith to negotiate suitable settlements only to discover – to their dismay and to their financial detriment – that the law may produce this kind of inequitable result: an arguable financial support obligation of under $500 mushrooming into a judgment of more than $35,000 in arrearage.

 Mr. Bennett did not evade his obligation; he in fact provided support.

 The judgment in this case amounts to a penalty – facially legal, but inherently inequitable.

 Under the current state of the law, we are clearly compelled to rule as we have done in this case. However, this particular set of facts is not so unique as to avoid repetition among pro se litigants attempting to resolve their dissolution issues among themselves.

 This is a case of which the General Assembly should be made aware. It may perhaps consider the merits of allowing a statutory exception to good faith negotiation to be considered by a trial court prior to the actual date of filing of a motion to alter or amend a child support obligation.”

THE KENTUCKY COURT OF APPEALS ADOPTS NEW TORT OF NEGLIGENT CREDENTIALING – 28 OTHER STATES HAVE ALREADY ADOPTED THIS TORT.

Saturday, June 11th, 2011

 This new tort adopted by the Ct. of Appeals deals with a hospital’s hiring of a physician who has a history of medical license board sanctions.

 COURT OF APPEALS DECISION  2009-CA-001595   TO BE PUBLISHED  FROM HOPKINS CIRCUIT COURT   – June 10, 2011

 THE ESTATE OF JUDITH BURTON

VS.

THE TROVER CLINIC FOUNDATION, INC., ET AL.

 ”…we note that the tort of negligent credentialing has not been formally recognized in Kentucky.

 At least 28 states recognize this cause of action and the parties in the matter sub judice proceeded under the assumption that negligent credentialing would be recognized in this Commonwealth.

 We believe it is proper for this Court to now recognize the tort of negligent credentialing in Kentucky. See Oakley v. Flor-Shin, Inc., 964 S.W.2d 438, 441 (Ky.App. 1998) ((wherein this Court recognized the tort of negligent hiring in Kentucky).

 In order to establish a prima facie case based on negligent credentialing (also known as negligent privileging) the plaintiff must prove:

 1. The defendant hospital owed the patient a duty to insure a competent medical staff.

2. The hospital breached that duty by granting privileges to an incompetent or

unqualified physician.

3. The physician caused harm to the patient.

 The underlying medical malpractice claim must be proved