Archive for August, 2011

Commonwealth Attorney James Crawford of Carrollton selected as Special Prosecutor after Attorney General Jack Conway recused himself from Investigation of Sullivan College

Wednesday, August 31st, 2011

By Stan Billingsley   LawReader Senior Editor

  On Tuesday Aug 30, the Courier Journal announced that Ky. Attorney General had recused himself from the investigation of Sullivan College for allegations that the for-profit college had told employees not to vote for Democrat Jack Conway’s re-election and encouraged contribution to the campaign of Conway’s Republican opponent Todd P’Pool.

Crawford was selected by a committee of four top officials of the AG’s office.

We don’t know the facts of this case and express no opinion about the possible outcome, but we know Jim Crawford and we believe that everyone can feel comfortable with his selection. 

 We have known Crawford for some 35 years.  He is a hard-nosed prosecutor. We once described him in our Book  Prosecutorial Misconduct, as being as “strong as nylon rope but also fair”.  We have previously cited him as the perfect model for a good prosecutor.   Being tough is not the only criteria for a good prosecutor.  Crawford is known for his fair play.  He is as tough on the police as he is on criminal defendants. 

Crawford is not like some well known prosecutors who host web sites and brag about their blood lust against all defendants.   Crawford just does his job and does it very well.

Anyone who has seen him work in the court room has seen him call out  the police for sloppy work.  He refuses to present weak cases.  If you try to pull a fast one on the facts, you do so at your own peril.

 Crawford is not political in the sense that he can be categorized as a partisan.  His strength in getting re-elected is political only in the sense that good work is the best politics.

Our biggest regret about Jim Crawford is that he never ran for Circuit Judge.  He would have been a great judge.   So stand back and watch this investigation.  Crawford calls his shots fairly, and won’t be intimidated by either side to this investigation.   The committee which appointed Crawford as Special Prosecutor did a great job.

A USA TODAY investigation documented 201 criminal cases across the nation in which federal judges found that prosecutors broke the rules

Wednesday, August 31st, 2011

A USA TODAY investigation documented 201 criminal cases across the nation in which federal judges found that prosecutors broke the rules. The abuses put innocent people in jail, set guilty people free.

Full coverage | Explore cases | Methodology 

Did prosecutors taint Memphis murder trial?

by Brad Heath, USA TODAY (08/17/2011)

Michael Rimmer’s attorneys are pursuing an extraordinary strategy to try to save his life. They want a Tennessee appeals court to find that misconduct by prosecutors and police here was so pervasive that the entire Shelby County District Attorney General’s Office should be disqualified from the case, and that a new prosecutor should be brought in to review the evidence.

Prosecutors’ conduct can tip the scales

by Brad Heath and Kevin McCoy, USA TODAY (09/22/2010)

A USA TODAY investigation found that prosecutors have repeatedly violated their duty to seek justice in courtrooms across the country. The abuses have put innocent people in prison, set guilty people free.

D.C. court asked to disbar federal prosecutor

by Brad Heath, USA TODAY (03/08/2011)

Regulators asked the District of Columbia’s highest court on Tuesday to strip a former federal prosecutor of his law license for his “illegal and unethical” conduct during a series of high-profile murder cases in the mid-1990s.

MAP, DATABASE: Explore misconduct cases

USA TODAY’s investigation documented 201 cases in which judges threw out convictions or rebuked prosecutors. Examine the cases we identified and explore an interactive map.

Justice Dept. office to punish prosecutors’ misconduct

Innocence Blog Police and Prosecutors Withheld Evidence in Kentucky Case

Wednesday, August 31st, 2011

The Innocence Blog – Posted: August 30, 2011 3:55 pm

 Kerry Porter has spent 13 years in Kentucky prisons for a murder he says he did not commit, and the Louisville Courier-Journal has uncovered evidence of innocence that police and prosecutors failed to turn over the Porter’s attorneys. Porter was convicted of the 1996 shooting death of his ex-girlfriend’s husband and sentenced to 60 years. The Kentucky Innocence Project has been working on Porter’s case since 2007. Last year there seemed to be a break in the case when a cooperating government witness, Francois Cunningham, told a detective and two prosecutors that Porter was innocent and another man was the real perpetrator. But despite rules requiring prosecutors to disclose exculpatory evidence that suggests innocence, the testimony was withheld from Porter’s defense attorneys, according to The Courier-Journal. Defense attorney Melanie Lowe who has worked on Porter’s case for the past four years was made aware of the statement pointing to her client’s innocence when The Courier-Journal called her last week when it was unsealed as part of an unrelated murder case. The detective who questioned Cunningham said police hadn’t turned over the new evidence because it is “part of an ongoing investigation.” Prosecutors refused to comment on the case other than to say the investigation was ongoing. Porter’s original innocence claim included information about the alleged real perpetrator, the same man Cunningham implicated. Eyewitness misidentification could have played a role in Porter’s conviction as well. Before Porter was charged, the victim’s brother showed Porter’s picture to a witness right before they were about to go through photographs to make an identification. Although he previously believed Porter was guilty of his brother’s murder, he is now convinced otherwise. Read the full article. Read more about government misconduct and wrongful convictions

CORPORATE VEIL NOT PIERCED BY FAILURE OF LLC TO PAY ANNUAL CORPORATE FEES, IF FEES UNTIMATELY PAID AND LLC IS REINSTATED

Saturday, August 27th, 2011

 In an unpublished decision the Ct. of Appeals held on Aug. 26, 2011 that a Plaintiff was not entitled to sue tenant personally for lease executed by LLC.   The LLC registration had expired due to non-payment of annual fees to Sec. of State, but the company was later reinstated by the Sec. of State.

 The Court held that KRS 275.295(3)(c) clear intent was for:

 ”[R]einstatement to restore a corporation to the same position it would have occupied had it not been dissolved and that reinstatement validates any action taken by a corporation between the time it was administratively dissolved and the date of its reinstatement…”

See: 2010-CA-001172   PANNELL, RICK  VS.  SHANNON, ANN, ET AL

KY. SUPREME COURT RULES THAT CHILD’S SOCIAL SECURITY BENEFITS MAY NOT BE DEDUCTED FROM FATHER’S CHILD SUPPORT OBLIGATION –

Saturday, August 27th, 2011

In an unpublished decision the Supreme Court held on Aug. 25, 2011:

 ” this Court concluded that Social Security benefits received by a child as a result of a parent’s disability—unlike other types of benefits, such as SSI—are not the type of “independent financial resources” that would permit a deviation from the child support guidelines pursuant to KRS 403.211(3)(d)”

See: 2011-SC-000091-DGE.PDF 

LAURA HUDSON (NOW STANBERY) V.  DONALD HUDSON

DUTIES OF TRIAL COURT IN IMPOSING SANCTIONS FOR NON-SUPPORT – JUSTICE CUNNINGHAM CITES STAR WARS IN HIS SPIRITED DISSENT

Saturday, August 27th, 2011

 

In a published case released by the Ky.  Supreme Court on Thursday Aug. 25, 2011, the Sup. Ct. again upheld the rule that a party who is delinquent in the payment of child support has the right to a due process hearing to determine if his/her  failure to pay child support is “willful”.

Justice Bill Cunningham  issued a colorful dissent.

See: 

COMMONWEALTH OF KENTUCKY V.  GRAVES   2009-SC-000229-DG.PDF  Aug. 25, 2011

 The majority ruled:  “We conclude that due process requires that the trial court considering revocation for nonpayment of support (1) consider whether the probationer has made sufficient bona fide efforts to pay but has been unable to pay through no fault of his own and (2) if so, consider whether alternative forms of punishment might serve the interests of punishment and deterrence.

This holding is consistent with existing Kentucky and United States Supreme Court precedent concerning motions to revoke probation for failure to pay fines or restitution.

We also reconfirm the principle of due process that the trial court must make clear findings on the record specifying the evidence relied upon and the reasons for revoking probation. This requirement specifically includes findings about whether the defendant made sufficient bona fide efforts to make payments.

Marshall and Johnson both testified that they had not willfully refused to pay child support. They testified that they had been unable to make the required child support payments because of low income caused by inability to find or maintain sufficiently remunerative employment.

Despite Marshall’s and Johnson’s explanations of their alleged inability to pay child support, the trial court revoked their conditional discharges.”

Justice Cunningham vigorously dissented from  the ruling:

CUNNINGHAM, J., DISSENTING:  (excerpts from dissent)

“Even Yoda, the diminutive Star Wars guru, recognized that sometimes in life we have to fish or cut bait. “Do or do not. There is no try.”…

It is an admonition which fits the deadbeat parent when all our solicitous pleadings and beseeching have led nowhere….

Standing on the other side of the courtroom are fathers, sometimes thousands of dollars behind in their obligations. This creates not only a terrible hardship on young mothers, but strains our already strapped welfare system….

With our decision here today, we make it more difficult for the state to enforce child support laws…

Therefore, for the reasons stated above, I would affirm. I thereby respectfully dissent.”

QUESTION: NASCAR DRIVER KYLE BUSH LOSES HIS DRIVER’S LICENSE…CAN HE DRIVE IN A NASCAR RACE?

Saturday, August 27th, 2011

We would suggest that it is not likely that a Nascar driver could be cited for driving with a suspended driver’s license if he only drove on the race track, since it is not likely that any part of the actual race track would be open to the public.

KENTUCKY LAW:

 KRS 186.410 Operators’ licenses — Requirements and issuance — Personal identification cards, validity — Driver training programs. (1) Every person except those exempted by KRS 186.420 and 186.430 shall, before operating a motor vehicle, motorcycle, or moped upon a highway, secure an operator’s license as provided in this chapter.

KRS 186.010 Definitions for KRS 186.010 to 186.640. . (2) “Highway” means every way or place of whatever nature when any part of it is open to the use of the public, as a matter of right, license, or privilege, for the purpose of vehicular traffic.

NEW UK FACULTY TRUSTEE IRINA VORO CRITICAL OF UK ADMINISTRATORS – WE WERE HIGHLY IMPRESSED WITH HER IN A RECENT LAWREADER INTERVIEW

Wednesday, August 24th, 2011

Irina Voro, the new faculty trustee on the UK board, campaigned on transparency. She has criticized the raise given former UK president Lee T. Todd Jr. before his retirement and the “secret search” for UK’s new president.

Irina Voro, the University of Kentucky’s new faculty trustee, teaches in a cramped studio that houses two pianos, and won not one but two elections to get her seat on the board.

She criticizes UK’s spending — “Is this the University of Kentucky or Wall Street?” — and said in her platform statement that UK’s administration treats the faculty like “bumpkins.”

She has spoken out in behalf of accountability from the UK administration. She questions how UK  finds money to give the president a raise when the faculty has  struggled along for years without one.

“She will be vocal,” said fellow faculty trustee Joe Peek, elected in 2010 on a similar reform platform. “I think she’ll be aggressive. I think she will have no hesitance to speak up.”

Although Peek has joked about the “rubber stamp” that some UK trustees give to administration initiatives, he thinks that during the last year more trustees have been willing to speak up and openly dissent from the prepackaged agenda.

Voro is both an acclaimed pianist and teacher of piano.  She has appeared on stage at Carnegie Hall.  She told us that she could sense the ghosts of the many famous performers who had stood on center stage.  

We found her to be a remarkably intelligent woman.  UK may never be the same.    If her influence is felt by the other UK Trustees, and we predict it will,  there won’t be much use for the rubber stamp policies of past Trustee board members.

Supreme Court Will Revisit Eyewitness IDs – One Third of Eyewitness Reports Are Wrong

Tuesday, August 23rd, 2011

By ADAM LIPTAK

WASHINGTON — Every year, more than 75,000 eyewitnesses identify suspects in criminal investigations. Those identifications are wrong about a third of the time, a pile of studies suggest.

Mistaken identifications lead to wrongful convictions. Of the first 250 DNA exonerations, 190 involved eyewitnesses who were wrong, as documented in “Convicting the Innocent,” a recent book by Brandon L. Garrett, a law professor at the University of Virginia.

In November, the Supreme Court will return to the question of what the Constitution has to say about the use of eyewitness evidence. The last time the court took a hard look at the question was in 1977. Since then, the scientific understanding of human memory has been transformed.

Memory is not a videotape. It is fragile at best, worse under stress and subject to distortion and contamination.

The unreliability of eyewitness identification is matched by its power.   There is almost nothing more convincing than an eyewitness report.

Seven positions on the KBA Board of Governors will be up for election in 2012. Applicants must submit a petition signed by 20 KBA members by October 28, 2011.

Monday, August 22nd, 2011

 

The following notice was published in the July edition of the Bench & Bar magazine in compliance with Supreme Court Rules.

 ”On June 30 of each year, terms expire for seven of the fourteen Bar Governors on the KBA Board of Governors.

 SCR 3.080 provides that notice of the expiration of the terms of the Bar Governors shall be carried in the Bench & Bar. SCR 3.080 also provides that a Board member may serve three consecutive two-year terms.

 Requirements for being nominated to run for the Board of Governors are contained in Section 4 of the KBA By-Laws and the requirements include filing a written petition signed by not less than twenty (20) KBA members in good standing who are residents of the candidate’s Supreme Court District. Board policy provides that “No member of the Board of Governors or Inquiry Commission, nor their respective firms, shall represent an attorney in a disciplinary matter.”

 Any such petition must be received by the KBA Executive Director at the Kentucky Bar Center in Frankfort prior to close of business on the last business day in October. The current terms of the following Board members will expire on June 30, 2012:

 1st District

Jonathan Freed  Paducah

2nd District

James D. Harris Jr.  Bowling Green

3rd District

M. Gail Wilson  Jamestown

4th District

Douglas C. Ballantine  Louisville

5th District

Anita M. Britton  Lexington

6th District

David V. Kramer  Crestview Hills

7th District

Bobby Rowe  Prestonsburg”

Forbes Magazine: Non-Lawyers Find It Hard Avoid Breaking Bar’s Vague Rules. Kentucky Bar Association Cited for Improper Interference with Federal Mandates re: consumer protection

Monday, August 22nd, 2011

 

 By Daniel Fisher Forbes Magazine Staff                         August 22, 2011

I am a senior editor at Forbes, covering legal affairs, corporate finance, macroeconomics and the occasional sailing story. I was the Southwest Bureau manager for Forbes in Houston from 1999 to 2003, when I returned home to Connecticut for a Knight fellowship at Yale Law School. Before that I worked for Bloomberg Business News in Houston and the late, great Dallas Times Herald and Houston Post. While I am a Chartered Financial Analyst and have a year of law school under my belt, most of what I know about financial journalism, I learned in Texas.

For the better part of a decade, Della Tarpinian has been locked in a Kafkaesque battle with a trade association she doesn’t belong to, the Kentucky Bar Association. She’s been fined $5,000 and ordered to pay the costs of her investigation, for violating rules that the average non-lawyer might find maddeningly vague and hard to understand.

Such as: “A person is guilty of unlawful practice of law when, without a license issued by the Supreme Court, he engages in the practice of law.” That one tripped up Tarpinian, 53, who runs a small document-preparation firm in Owensboro, Kentucky specializing in uncontested divorces, wills and other simple legal matters.

After a lengthy investigation, the Kentucky Bar determined that Tarpinian’s clients couldn’t possibly have figured out how to fill out the paperwork they filed in court, without her coaching them behind the scenes. What surprised Tarpinian — and many other document-preparers around the country — is that the Bar could drag her before the state Supreme Court and have her fined for, as she sees it, competing against its members. Especially since a jury acquitted Tarpinian of similar charges in a 2004 criminal trial, after less than half an hour of deliberations.

“They only charge people that’s making money,” said Tarpinian, who has a paralegal degree and worked in a lawyer’s office before opening her own document-preparation firm in Owensboro. “It’s so ambiguous, so unclear.”

Small firms aren’t the only ones running afoul of their local bar association. LegalZoom, a nationwide provider of incorporation documents, divorce papers, wills and other legal forms, has been investigated in North Carolina, Pennsylvania and other states. It’s being sued by lawyers in Missouri who want to form a class action on behalf of consumers statewide, even though there are no consumer complaints referenced in the case.

All 50 states have rules and laws prohibiting the unauthorized practice of law, ostensibly to protect consumers. Defenders of these laws  make the analogy to doctors: You wouldn’t want an unlicensed doctor to remove your appendix, would you? But the analogy isn’t precise. While it’s true an unlicensed person can’t perform surgery or prescribe medicine, the American Medical Association doesn’t have the power to fine, say, a massage therapist who advises a client to take St. John’s Wort instead of Paxil. When it comes to the law, the bar associations of many states have the power not only to identify people who are violating their rules, but haul them into court.

This self-regulatory scheme bothers experts like Gillian Hadfield of the University of Southern California Law School, who thinks lawyers can use it to squelch  competition and innovations such as automated legal document services.  The U.K. never had unauthorized-practice rules, she notes, and in 2007 it established an independent commission to oversee all types of legal services including lawyers. The feds have also been critical at times of the legal profession’s attempt to maintain a closed shop. The Federal Trade Commission sent a threatening letter to the American Bar Association in 2002, warning that a proposed model standard for unauthorized practice would “raise costs for consumers and limit their competitive choices.”

There seem to be some glaring exceptions when it comes to enforcement. Members of politically powerful Realtors organizations rarely get dragged before state UPL commissions, even though they routinely provide contracts and advice involving the largest investment most consumers will ever make. Bank employees in many states can preside over mortgage closings.

The Kentucky Bar Association tried to close these loopholes in 1999, but the  U.S. Justice Department intervened. In a 2003 ruling, the state Supreme Court sided with the feds, noting that the Bar Association failed to provide any evidence consumers had been harmed.

State motor-vehicle departments also have teams of operators standing by to offer advice on how to obtain or recover another essential modern legal right, the right to drive. But lawyers who specialize in traffic tickets keep a sharp eye out for unlicensed competitors. Don Bailey first ran afoul of Ohio bar officials in 1996 when he was investigated for providing legal advice along with his service of filing vehicle-related paperwork. He signed a consent agreement — a typical pattern in these cases — then proceeded to build his License Resque into a prosperous business by providing paperwork and shuttling it to the local motor-vehicle bureau.  The Cincinnati Bar Association repeatedly investigated him and filed legal actions against the firm. Finally in 2006, the state Supreme Court fined Bailey $50,000, citing his long-ago consent agreement.

Bailey refuses to pay, claiming he is indigent. Indignant, too. The Supreme Court decision says Bailey advised clients on time limits for filing forms, requirements for reinstating licenses, and communicated with motor vehicle department personnel on behalf of clients. Bailey says his advice ran to telling consumers how to fill out paperwork, when it needed to be filed, and practical tips like “if you’re filing with the court to recover your driving privileges, for God’s sake, don’t get another ticket.’”

“Is that being a lawyer?” he asks. “I can’t tell them what my experience has been over the years?”

A spokesperson for the Ohio Supreme Court, in a statement, said the rules are clear, citing “more than 80 years of case law from the Supreme Court of Ohio that clearly delineates what is and is not permitted.” The rules are designed for consumer protection, the court spokesperson said, although the court also hears complaints brought by lawyers. The state has prosecuted 34 cases since 2004, levying $22 million in fines but collecting only about $79,000 of that. The spokesperson couldn’t provide figures on how many cases began with consumer, as opposed to lawyer, complaints. The biggest fines were levied against American Family Prepaid Legal Corp., which targeted elderly consumers with “Living Will” products that supposedly bundled a broad array of legal services along with annuities and insurance. State consumer-protection laws cover the type of activity American Family was accused of, including misleading customers about the nature of the services it provided.

In Arizona, it’s the lucrative, high-volume business of processing immigration paperwork that has drawn the interest of unauthorized-practice officials. In 2003 the state created a licensing regime for document preparers, over the objections of lawyers.

“There’s been an ongoing battle here ever since,” said lawyer Kevin Torrey. He represents Karina Morales, a licensed document preparer who has been sued by the state licensing board for filing immigration papers for her clients. Torrey says the case stems from a disgruntled — and unlicensed — competitor who was sued by the bar and then filed a complaint against Morales because she remained in business. An administrative law judge has indicated he thinks document preparers should not be able to handle immigration matters, Torrey said, even though U.S. Customs rules have allowed the practice for more than a decade. Customs encourages people to use professional document preparers because of the volume and complexity of forms that must accompany an application, Torry said.

 “People who can’t afford a lawyer, I don’t know how they could ever fill out that paperwork,” said Torrey.  “My client after 12 years knows all the ins and outs.”

Tarpinian first got in trouble with the Kentucky Bar in 2001, shortly after she had moved from L.A. As with Bailey, the bar sent her a letter in 2003 warning her that an investigators had determined she was practicing law without a license. Tarpinian ignored the letter, and then the district attorney in Owensboro mounted an undercover sting operation, enlisting a state trooper to obtain a will. Tarpinian was indicted for the misdemeanor crime of practicing law without a license, with a possible sentence of 90 days in jail.

Her lawyer, Galen Clark (paid-up member of the Kentucky Bar) said the prosecutor tried to negotiate a plea bargain but Tarpinian refused. The case went before a six-member jury in 2004 that quickly acquitted her of the charge.

“From 2004 to 2010 they left me alone,” Tarpinian said. But meanwhile, judges in Owensboro started complaining about people who came into court with divorce and other papers that looked suspiciously well-prepared. Some judges began to refusing to process divorces if Tarpinian had prepared the paperwork, even though her clients weren’t complaining.

Shawn Dowden told me she filed an uncontested divorce in Daviess County Court in March, 2008 on forms Tarpinian had supplied.

“The court threw it out because of her, so I had to completely start over,” said Dowden, who had no complaint about Tarpinian. “The judge said she filled out my paperwork for me, but I filled it out myself.”

The judges filed a complaint with the Bar in 2010, Clark said, and Tarpinian was accused of violating the 2003 cease-and-desist letter even though she’d never signed it. Her crimes included preparing nine uncontested divorces and filling out a child support worksheet in which she calculated child-support obligations.The court concluded that Tarpinian’s clients representing themselves or pro se, couldn’t have drafted the documents they filed with the court.

These petitions are legally sophisticated pleadings, citing case law and court rules. They evidence legal knowledge well beyond the legal knowledge of an ordinary person. Each of these petitions are signed by the litigants, pro se. These pro se litigants did not create these petitions.

Tarpinian, like Bailey, has refused to pay her $5,000 fine.

“I pay my taxes, I’ve never broken any laws, and I’ve helped thousands of people who can’t afford an attorney and don’t want one,” she told me. “I’m still working even though they scared me to death.”

For document-preparers like Tarpinian, determining the fuzzy line they can’t cross over is difficult. One lawyer struggled to come up with a definition and finally told me the practice of law is giving advice that two lawyers can disagree upon, with neither one committing legal malpractice. That goes to the heart of any profession, which is exercising judgment honed by specialized education and experience. The judicial branch has a particular interest in insuring that people who collect fees to represent clients in court are qualified to be there.

But if even lawyers have trouble delineating the boundaries of the legal profession outside of court, how are non-lawyers expected to figure it out?

 

IMPORTANT AMICUS BRIEF REJECTED BY SUPREME COURT — KBA ATTACK ON THE JUDICIAL IMMUNITY DOCTRINE ADVANCES-

Monday, August 22nd, 2011

 

By LawReader Senior Editor Stan Billingsley                                   August 22, 2011

     Last week the Ky. Supreme Court denied a motion to allow the author of this article to file an Friend of the Court Amicus brief in the disciplinary action against retired Judge Joseph Bamberger.

Even though permission for this Amicus brief  to be filed by retired judge Stan Billingsley, the Supreme Court retains the discretionary right to review the issues raised in the rejected brief.

   The KBA  around 2005 began an investigation of Bamberger for rulings he made as a Judge in the Fen Phen class action case. 

    The purpose of the tendered Amicus brief was to bring to the courts attention important legal issues that affect all members of the judiciary.   The KBA seeks to void the judicial immunity rule, which disallows any civil action against a judge for rulings he made in his official capacity.

   For hundreds of years judges have enjoyed immunity from rulings they made as a judge.  The purpose of this was to allow judges to make rulings without concern that they might be sued by anyone who disagreed with their ruling.  The proper remedy for a bad judicial ruling was an appeal to a higher court.   None of the rulings made by Judge Bamberger were appealed.

As explained in the tendered brief (a copy of which is posted below) the judicial immunity rule applies even if the judge acted with malice.  The doctrine is written broadly and has served a useful purpose in our judicial system. It has been explained in many case law rulings that the Doctrine is not intended to protect an out of control judge, but is justified on the larger purpose of protecting judicial independence.

   In the Bamberger discipline case, the KBA seeks to sanction Judge Bamberger for making bad decisions in relying on the recommendations of national experts in Class Action law.  Only after Bamberger issued his rulings were allegations made public that the original plaintiff’s attorneys may have mishandled some of their client’s funds.  Even that issue is not yet final as the Court of Appeals reversed the Summary Judgment  against William Gallion, Melbourne Mills and Cunningham.   Cunningham and Gallion were convicted at their second criminal trial, but that conviction is currently on appeal to the Sixth Circuit.

   So even though the criminal and civil issues against Gallion, Cunningham (Mills was acquitted) are still pending, the KBA has chosen without a request from the Judicial Conduct Commission to seek permanent disbarment of Judge Bamberger.

   The Billingsley Amicus brief does not attempt to defend the merits of any ruling made by Bamberger per se.   The issue sought to be raised in the Amicus brief is that the KBA has no jurisdiction to review the legal rulings of any judge made in his official capacity due to the Judicial Immunity Doctrine. 

 The Judicial Conduct Commission is subject to a SCR which says that a judge may not be sanctioned for an “erroneous ruling”.  The KBA ignores that rule by attempting to sanction Judge Bamberger.

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.

   The Billingsley Amicus brief argues that as a retired judge he has standing to raise the issue of the Judicial Immunity Doctrine.   If this legal argument made by the KBA is upheld, then any current or retired judge could be subject to hindsight review for any bad decision they may have made.   This ruling would place the KBA on the bench beside every judge, and allow them to sanction the judge for any ruling he/she made with which the KBA disagrees.

We admit that judges sometimes make bad rulings.  I do not exempt myself from that allegation.  However, the remedy for a bad ruling is an appeal.  If this claim by the KBA is allowed to become precedent, then the KBA can reopen any ruling every made by a judge (even retired judges) and they can pass judgment on whether or not the judge made an error.  

The errors for which the KBA seeks to sanction Judge Bamberger include claims that he “was dazzled and influenced” by national experts in class action law in making his rulings.   I confess that I have made rulings during my 27 years as a Trial Commissioner, District Judge and Circuit Judge in which I gave greater weight to recognized experts than to self-serving statements by a party.  I suppose it could be argued that in the future Judges will have to be prophets in order to escape discipline review by the KBA.

The KBA alleged that Bamberger “should have” know facts which were not revealed until years after he signed the questioned orders.  Witnesses, Judges and Trial Commissioners, and even the KBA have written that Gallion and Cunningman lied to or mislead Judge Bamberger about material facts.  One such fact was the claim that Gallion, Cunningham and Mills had contingent fee contracts with their clients and that Bamberger should have known this, even though it was clearly admitted in the criminal  and civil trials, and in the KBA action against Bamberger, that these facts were concealed from Bamberger. 

The key facts that Judge Bamberger was mislead by the plaintiff’s attorneys, and by Stanley Chesley are clearly in the KBA discipline record, yet are ignored by the KBA. 

The bottom line is that the KBA is seeking to sanction a trial judge because he was mislead by the parties on key facts.  If this precedent is upheld by the Supreme Court, then they will be opening a Pandora’s Box which will allow the KBA to inject itself in to every case coming before any judge.  The KBA argues that the Judicial Conduct Commission has no power to limit the involvement of the KBA is reviewing the conduct of judges.  We ask in our tendered (and rejected) brief that if this argument is upheld, then there will be no justification for the continued existence of the Judicial Conduct Commission… (on which I served as an alternate for four years).

The argument by the KBA is that Judge Bamberger “should have known better”.  In other words he was not a prophet and therefore he should lose his law license.

I do not know many facts about the Fen Phen case.   My tendered Amicus brief which was rejected by the Supreme Court was not to seek a vindication for Judge Bamberger, but to uphold the Doctrine of Judicial Immunity.  The Doctrine clearly says even malicious rulings by a judge are protected by the Judicial Immunity Doctrine.   If the Supreme Court sanctions Judge Bamberger for a ruling he made in his jurisdiction, then every sitting and every retired judge will then be subject to KBA hindsight review.

I found it interesting that in the KBA reply to my motion to file an Amicus brief, they argued that I was a friend of Judge Bamberger.   They are correct, and I have admitted and detailed my relationship with Judge Bamberger over the last forty years I have known him.  The KBA by making this argument was suggesting that I should have no standing to file an Amicus brief due to my long friendship with Judge Bamberger.  That is the type of argument which suggests the Bar Counsel had no real legal argument.  The KBA, in their motion to disallow my Amicus brief, chose to go personal against me and tried to distract the audience from the real issues in this case.  They dedicated about six pages of their eight page motion to a personal attack on me.  They attempted to divert the Supreme Court’s attention from the real issue of Judicial Immunity.

      If the Judicial Immunity Doctrine is repealed, then the Supreme Court will have given unlimited license to the KBA to sanction any judicial officer for any ruling with which the KBA disagrees.  The reader should also know that there is no statute of limitations for discipline charges to be filed.  So they will be able to go back and review every single decision every made by any judge. Such a precedent would be the first such ruling in the United States.  All other states uphold the Doctrine of Judicial Immunity.

   Another issue of importance raised in this discipline case, is the practice of the KBA in imposing large costs bills upon defendant attorneys who wish to appeal to the Supreme Court.  In Judge Bamberger’s case, he chose not to file an appeal since the Bar Counsel submitted a cost bill to the Disciplinary Clerk of $18,800.  So if Bamberger filed an appeal to the Supreme Court he first had to deposit $18,000 with the Disciplinary Clerk of the KBA.   SCR 3.370

The KBA  tax on appeals clearly violates Section 115 of the Kentucky Supreme Court which holds that all appeals “shall be inexpensive.”   So the prosecutors of discipline actions are allowed to prevent appeals by imposing large cost bills for which the attorney must post a surety before having the right to appeal.  There is no process allowed in the Supreme Court Rules which grant the defendant attorney  a due process hearing on the amount of costs claimed by the Bar Counsel.

   We anecdotally have heard that in another discipline case the KBA imposed an appeal tax of some $40,000 on an attorney.  No $40,000, deposited with the KBA, or no appeal.

  The final issue that is discussed in the rejected Amicus brief, is the “promptness” rule.  The Supreme Court Rules require that all attorney discipline prosecutions and investigations shall be conducted “promptly”.  In Speedy Trial cases the courts have long held that delays of as little as eleven months are “prejudicial”.  In the Bamberger case, the KBA started their investigation over six years ago.  

The Promptness Rule  —- 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.”

The Supreme Court in another discipline case recently ruled that three years in an ethics prosecution was” prejudicial” to the attorney. See: Kentucky Bar Association v. Lococo, 199 S.W.3d 182 (Ky., 2006): “…. Here, there was a delay in the prosecution of this case…..This delay from April of 2000 until August of 2003 is a mitigating factor and was prejudicial toward Ms. Lococo.”  (Emphasis added.)

The Bamberger investigation and prosecution started about 2005, some six years ago.  This fact reveals that the “promptness” rule is being ignored by the KBA.

   The final issue is the claim by the KBA that if the defendant attorney does not file a brief, then the KBA does not have to file a brief.   That is correct. 

But the KBA incorrectly interprets SCR  3.370 to say that the Supreme Court has to accept the Findings of the Trial Commissioner and the Board of Governors without review of the facts and legal arguments if the KBA or the defendant attorney do not file an appeal.  We submit that SCR 3.370 grants the Supreme Court the right to unilaterally decide to review any Findings of the Board of Governors or the Trial Commissioner at their discretion.

SCR 3.370 says:    (9) the Supreme Court may, …..notify the Bar Counsel and the Respondent that it will review the decision.

   We have chosen to publish this rejected brief as we believe it presents important issues that could dramatically affect all judges in Kentucky.   We do not question the right or authority of the Supreme Court to deny the filing of our brief. 

If this sanction against Judge Bamberger is upheld, then we suggest that every current and every retired judge should promptly purchase malpractice insurance.  Oh yes, the KBA will be glad to sell you a malpractice insurance policy!

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

The following is a copy of the Amicus brief submitted to the Ky. Supreme Court by the author.  The Supreme Court granted the motion of the KBA Bar Counsel to reject the filing of this brief.

KENTUCKY SUPREME COURT                                                                                                       KBA FILE NO. 13985

KENTUCKY BAR ASSOCIATION                                 COMPLAINANT
 
v.
 JOSEPH BAMBERGER                                                RESPONDENT
 

PETITION AND BRIEF OF  RETIRED JUDGE STAN BILLINGSLEY  
AS AMICUS CURIAE
IN SUPPORT OF RESPONDENT  


MAY IT PLEASE THE COURT:

     Appearing as a Amicus Curiae, Judge Stan Billingsley (Retired) hereby petitions this Honorable Court to permit the filing of the following Amicus Curiae Brief.  

CERTIFICATION

I hereby certify that a true and correct copy of this petition and brief  was properly addressed to the Hon. Linda Gosnell, KBA Chief  Bar Counsel, at 514 W. Main Street, Frankfort KY 40601-1812 and to the Disciplinary Clerk, of the Kentucky Bar Association at  514 W. Main Street Frankfort KY 40601-1812, and the Hon.  Susan D. Phillips Phillips, Parker Orberson, 716 W Main St Ste 300, Louisville, Ky. 40202, Trial Commissioner of the KBA in this action, and the Hon. Jerry J. Cox, Attorney for the Respondent, 115 Richmond St,  PO Box 1350, Mt Vernon, KY 40456-1350,  with proper postage affixed, and mailed by placing same in the U.S. Mail, on July 12, 2011.

Judge Stan Billingsley (Retired)                                                                                                               314 7th. St.                                                                                                                                    Carrollton, Ky. 41008                                                                                                                                    Bar Number-05170                                                                                                                                Phone (502)732-4617    

GROUNDS  JUSTIFYING THE COURT IN ALLOWING THIS AMICUS CURIAE BRIEF TO BE CONSIDERED

 

STANDING OF RETIRED JUDGE

  The author of this tendered amicus curie brief, alleges interest and standing on the basis that if the Judicial Immunity Doctrine is voided, then all rulings of any sitting or retired judges will thereafter be subject to hindsight review by the KBA.  The author is a retired judge. 

  Under the argument advanced in this case by the KBA, it is claimed that the KBA has the jurisdiction to review any ruling of any judge without limitation. 

   If the precedent sought by the KBA is upheld in this case then the jurisdictional authority of the  KBA will be so broadly expanded then the justification for the existence of the Judicial Conduct Commission will be voided.  this case warrants a declaratory ruling by the Ky. Supreme Court regarding the jurisdiction of the JCC versus the KBA.

    Our research has found no precedent of any other state ever granting the right to review the judicial rulings of a judge, made within his jurisdiction, by a State Bar Association.

   The author of this brief has no financial interest in the underlying case, does not represent any party in this case, and has not sought or received approval of either party to this action to tender this brief.  If the KBA and Bar Counsel is upheld, and if they elect to conduct a review of  all rulings made by the author during his 23 years on the bench, then the author will be subject to severe financial implications in defending himself.

AUTHORITY OF THE  KENTUCKY  SUPREME  COURT  TO  GRANT  DISCRETIONARY REVIEW  OF  THIS  CASE  UNDER  SCR 3.370 (9)

The Supreme Court may exercise discretionary authority under SCR 3.370 (9), to consider the issues in this case even if the complainant or respondent fail to file an appeal.

    SCR 3.370 Procedure before the Board and the Court

“(9) The Court may, within ninety (90) days of the filing with the Court of the Trial Commissioner’s report as provided by 3.360(4), or of the Board’s decision, notify Bar Counsel and Respondent that it will review the decision…., the Court shall enter such orders or opinion as it deems appropriate on the entire record.”  (emphasis added by author)

If the Ky. Supreme Court does not agree to review this action as permitted under Section (9), then the findings of the Board of Governors will be automatically adopted by rule SCR 3.370 – (10).  Section (10) which holds that:

” If no notice of review is filed by either one of the parties, or the Court under paragraph nine (9) of this rule, the Court shall enter an order adopting the decision of the Board or the Trial Commissioner, whichever the case may be, relating to all matters.”

   There is an important jurisdictional question raised by the attempt of the KBA to discipline  a judge for acts taken by the judge in his jurisdiction without the referral by the Judicial Conduct Commission. Until now, the Doctrine of Judicial Immunity has protected a judge from claims involving decisions he has made within his jurisdiction.

The Supreme Court’s action in this case will establish an important precedent regarding the jurisdiction of the Judicial Conduct Commission versus the jurisdiction of the KBA.

The Bar Counsel has filed a report with the Disciplinary Clerk requiring the respondent judge to post a surety in the amount of approximately $18,500 in order to have the right to file an appeal. 

This high surety violates Section 115 of the Kentucky Constitution which states that all appeals shall be “inexpensive”. This high surety imposed unilaterally by the Bar Counsel may well prevent the respondent judge from filing an appeal. 

In such a case,  important questions of law affecting the jurisdiction of the Judicial Conduct Commission, and rights of all sitting and all retired judges will be automatically decided in favor of the KBA, and against the interest of the Judicial Conduct Commission, and of the  judiciary, by repealing the Doctrine of Judicial Immunity. 

That makes the tendered Amicus brief highly important to the JCC and the Judiciary.

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

AMICUS CURIAE BRIEF BY JUDGE STAN BILLINGSLEY (RETIRED)

 

MAY IT PLEASE THE COURT:

THE  KENTUCKY  SUPREME  COURT  SHOULD  GRANT  DISCRETIONARY REVIEW  OF  THIS  CASE  UNDER  SCR 3.370

There are three reasons why the Supreme Court should exercise discretionary authority granted to the court under SCR 3.370, to consider the issues in this case.

1.  The costs claimed by the Bar Counsel’s office, which must be posted by the respondent are in violation of Section 115 of the Kentucky Constitution.   The actions of the Bar Counsel’s office, in unilaterally setting a high cost bill, denies due process to the respondent.

2.  There is an important jurisdictional question raised by the attempt of the KBA to discipline  a judge for acts taken by the judge in his jurisdiction. This action by the KBA violates the Judicial Immunity Doctrine.  If the Supreme Court does not review this jurisdictional issue, then there will be established a precedent which will void the Doctrine of Judicial Immunity.

3. The Supreme Court’s action in this case will establish an important precedent regarding the jurisdiction of the Judicial Conduct Commission versus the jurisdiction of the KBA.

 KENTUCKY CONSTITUTION SECTION 115 – RIGHT TO INEXPENSIVE APPEAL

   It is possible that neither the respondent judge nor the KBA will file an appeal with the Supreme court in this action.   Even though Section 115 of the Kentucky Constitution states that all appeals shall be “inexpensive”. The SCR rules permit the Bar Counsel to unilaterally determine the costs of the discipline proceeding, and report said costs to the Disciplinary Clerk.

 The respondent in a discipline action must deposit a surety with the Disciplinary Clerk in the amount unilaterally claimed by the Bar Counsel’s office in order to have the right to appeal the findings of the Board of Governors to the Supreme Court.  As the rule is worded if there is no surety posted there is no appeal.

The report of the Bar Counsel’s office regarding costs in this case will require the respondent to post a surety of some $18,500.  This does not appear to be “inexpensive” and operates as an unconstitutional restriction on the right to appeal that is granted by the Kentucky Constitution.

WHEN THE RESPONDENT OR THE KBA FAIL TO FILE AN APPEAL,  THE SUPREME COURT RETAINS THE JURDICTION TO “REVIEW” THE FINDINGS OF THE BOARD OF GOVERNORS.

A review of SCR 3.370 grants the Supreme Court the discretion to review a finding of the Board of Governors even in the absence of an appeal by the respondent or by the KBA.

     ” SCR 3.370 Procedure before the Board and the Court

(9) The Court may, within ninety (90) days of the filing with the Court of the Trial Commissioner’s report as provided by 3.360(4), or of the Board’s decision, notify Bar Counsel and Respondent that it will review the decision. If the Court so acts, Bar Counsel and Respondent may each file briefs within thirty (30) days, with no right to file reply briefs unless by order of the Court, whereupon the case shall stand submitted. Thereafter, the Court shall enter such orders or opinion as it deems appropriate on the entire record.”  (emphasis added by author)

We respectfully submit that an important jurisdictional issue and constitutional question is presented by this case, and that a failure of the Supreme Court to review the findings of the Board of Governors will have the effect of voiding the Judicial Immunity Doctrine, and will destroy the justification for the existence of the Judicial Conduct Commission.

THE JURISDICTIONAL QUESTION

    In the ethics investigation of  retired Judge Joseph Bamberger, the KBA investigation seeks to expand the jurisdiction of the KBA to review and review Judges past decisions for ethics review.

The Trial Commissioner in his Brief to the Board of Governors opined that the KBA had jurisdiction to review a judicial officials acts even without a referral by the JCC.

    Current rules grant jurisdiction to the Judicial Conduct Commission to examine the ethical conduct of judicial officials.  The rules permit the JCC to make referrals to the KBA if the JCC determines that additional review is appropriate by the KBA.

    The end result sought by the KBA is to expand their jurisdiction to review the judicial rulings of a judicial officer, and to inflict sanctions including disbarment if they disagree with the judge’s rulings.

   First we note that this attempted review of Judge Bamberger’s rulings violate SCR 4.029.

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 would ask the Court to consider why the Judicial Conduct Commission is denied the right  to review erroneous rulings of a judge, and why the KBA  should be granted such a right? (Such a right is claimed in this action by the KBA.)

   We suggest that this Supreme Court Rule  4.020 is solidly based in the Judicial Immunity Doctrine  explained in Collins v. Brown,  No. 2007-CA-000847-MR (Ky. App. 2/26/2010) (Ky. App., 2010)”.  (This is an unpublished decision but it cites several Kentucky and U.S. Supreme Court decisions which uphold the Doctrine of Judicial Immunity.)

” 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 judicial acts.” (emphasis added by author)

 “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(s) 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.”  Yanero v. Davis, 65 S.W.3d 510, 518 (Ky. 2001.”

   We suggest that a KBA discipline proceeding is a “civil” proceeding.  SCR 3.300 and SCR 3.330 both describe discipline proceedings in terms of a civil action.

“SCR 3.300 Rights of respondent against whom a charge has been files

…”The Respondent shall have all the rights secured to a party by the Rules of Civil Procedure …”

 

“SCR 3.330 Order of proceedings and burden of proof

…. The burden of proof shall rest upon the Association in a disciplinary proceeding, and the facts must be proven by a preponderance of the evidence. ..”

     We respectfully suggest that the discipline process is a civil proceeding and thus falls within the protective walls of the Judicial Immunity Doctrine.

     In  Vaughn v. Webb, 911 S.W.2d 273 (Ky. App., 1995) it was held:  

“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.”  (emphasis added by Billingsley)

    The question of judicial immunity was properly raised by Judge Bamberger in his brief to the Board of Governors.

   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 for a ruling he made that was within his jurisdiction, 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.

ARGUMENT

   Bamberger made rulings which the KBA claims he should have examined more closely.  The Bar Counsel argues that the respondent judge made bad rulings based largely on the reputation of the attorneys and experts who appeared before him.   This argument is nothing less than a head on attack on the Judicial Immunity Doctrine, as it challenges the judges reasoning for making a ruling.  

   Nowhere does the KBA argue that Bamberger did not have the jurisdiction to make every ruling he made.  They argue about his reasoning and his wisdom, but they do not present facts contesting his jurisdiction to rule on the issues before him.

   It is not enough that some decisions turned out bad.  It is not enough that the non-judge lawyers in the KBA believe they would have done things differently had they been the judge. 

   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.  Therefore the KBA has failed to provide a preponderance of evidence to justify their findings against Judge Bamberger.

  Testimony in the two criminal trials against Gallion and Cunningham alleged that Gallion and Cunningham,  lied to Judge Bamberger about material elements as to their actions.  This effort to misinform Judge Bamberger on the law and facts is admitted by the Trial Commissioner in her brief as having occurred in Judge Bamberger’s case.

  The Trial Commissioner admits  in her 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 Judges 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?”

   More importantly, if the KBA can sanction a judicial ruling anytime they disagree with the results, the Doctrine of Judicial Immunity will be thereby voided.   We note that there is no statute of limitations applying to the KBA which will prevent the KBA from reviewing the rulings of any sitting or retired judges over their entire judicial career.

   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 that ever came before the judge.

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

DISCUSSION  OF  FACTS  CITED  BY  TRIAL COMMISSIONER  AND  BAR COUNSEL  FOR  THEIR  RECOMMENDED  DISCIPLINE  OF  JUDGE BAMBERGER.

   The KBA argues for punishment of Judge 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.   He was never informed that the plaintiff’s lawyer had secured contingent fee contracts with their clients.

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  after the 440 plaintiff’s expressed their satisfaction with the amount they received. It was not a situation where 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?   Attorneys representing the plaintiffs appeared before Judge Bamberger.  Is a client not bound by the actions of his own lawyer?

   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 protected  judicial discretion.

   The original  plaintiff’s surely have some burden to put the court on notice that they are unhappy with a settlement.  They could have done this by not signing the settlement. They had the right to file an appeal of any ruling of Judge Bamberger, but none did so.

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.

The original plaintiff’s 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.

Only after the original plaintiffs discovered that their own attorneys had not been candid with them, did they turn their attention to Judge Bamberger.  There appeal rights had tolled, and the only way they could proceed and keep their claims alive, was to attack the trial judges’ 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 attorneys committed a fraud or committed 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.

BAMBERGERS’S SERVICE ON THE BOARD OF THE FUND FOR HEALTY LIVING CHARITABLE TRUST

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.

See Commentary:

“Canon 4- Section …4C(3) permitting service by a judge with organizations devoted to the improvement of the law, the legal system or the administration of justice and with educational, religious, charitable, fraternal or civic organizations not conducted for profit….

 

(3) A judge may serve as an officer, director, trustee or non-legal advisor of an organization or governmental agency devoted to the improvement of the law, the legal system or the administration of justice or of an educational, religious, charitable, fraternal or civic organization not conducted for profit,…”

 

         The record reveals that Judge 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.  The Bar Counsel suggests that a Cy Pres trust is itself evidence 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 and a respected mediator have supported the appropriateness of the cy pres trust option.  Only after Judge Bamberger’s retirement were questions raised which might have supported a different ruling by respondent.

The KBA Bar Counsel brief suggests that Bamberger was “dazzled” by these experts. (What judge wouldn’t be?  Bamberger made his last ruling in this case in January 2004.  His conduct is now measured by events and revelations made years after his rulings were made.

   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 organizations.

    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 were overly paid? We find no examples of proper salaries for trustees being introduced by the KBA.

THE LINGERING ISSUE OF AGGREGATE SETTLEMENT VERSUS CLASS ACTION SETTLEMENT

     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”. If the settlement was an aggregate settlement then 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.  Judge Bamberger ruled that the settlement was a class action settlement, and this resulted in excess funds being left after all the 440 plaintiff’s had been paid according to the facts of their individual claims.

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.   The KBA and the Board of Governors have ignored this continuing but highly important issue.

   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. The KBA seeks sanctions against the Judge based on their guess on how the Kentucky Supreme Court will rule on this issue in the plaintiff’s civil case now on appeal. 

    The finding of the  Kentucky Court of Appeals held that the type of settlement was a jury question.

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 in the Boone County civil case heard by Judge Wehr.

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.”

     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 …”  (i.e. by setting up the charitable trust.)

This money was not kept by Gallion, Mills or Cunningham.  This argument by the Bar Counsel simply misstates the facts on this issue. This exaggeration is just one of many in the Trial Commissioner’s brief.  The $20,000,000 did not go to GMC, it went to a legally formed charitable trust.  All funds from this trust were recovered.

   The Kentucky Court of Appeals concluded, ” Therefore, reversal is necessary. Because we have determined partial summary judgment was improvidently granted…”.

    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

    This material issue 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.

Ruling on conflicting legal issues is clearly within a judges jurisdiction and is protected by the Doctrine of Judicial Immunity.

    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  - 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.

    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 Bamberger’s identical finding on this issue.  The KBA dismisses the very real and legitimate issue regarding what type of settlement was made between the diet drug manufacturer and the plaintiff’s.

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.  The KBA argument ignores the possibility that the Sixth Circuit Court of Appeals may find that Judge Bertlesman was correct and that Judge Reeves was wrong on this issue. 

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 the type of settlement 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 very issue is currently on appeal to the Kentucky Supreme Court in the civil suit.

   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?

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%. Bamberger’s fee award was clearly made with some precedent.

WHAT JURISDICTION SHOULD THE KBA HAVE OVER JUDGES

   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, 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 explains why the Supreme Court Rule granting jurisdiction to the JCC to make a discipline referral to the KBA should be ignored.

The KBA in essence 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, a representative of the Bar Association and two citizen members. 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.

JURISDICTION OF THE JCC AND KBA

The question of the jurisdiction of the JCC and KBA was 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…”

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

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 based on conflicting facts or conflicting legal issues.

   If this novel theory of jurisdiction over judge’s rulings by the Kentucky Bar Association is upheld, then every judge will henceforth be subject to hindsight review by the Bar Counsel.

  We further submit that the practice of the Bar Counsel in being allowed to unilaterally set the appeal surety of a judge or lawyer as a prerequisite for the right to appeal to the Supreme Court is unconstitutional.

   We submit the Supreme Court should clarify the jurisdiction of the JCC and the KBA and uphold the Doctrine of Judicial Immunity.  And further, the Court should amend the SCR’s to permit the filing of  inexpensive appeals.

RESPECTFULLY SUBMITTED:

Judge Stan Billingsley (Retired)                                                                                                               314 7th. St.                                                                                                                                    Carrollton, Ky. 41008                                                                                                                                    Bar Number-05170                                                                                                                                Phone (502)732-4617                                                                                                                                 E-mail: Firstjudge@aol.com

IMPORTANT AMICUS BRIEF  REJECTED BY SUPREME COURT  —  KBA ATTACK ON THE JUDICIAL IMMUNITY  DOCTRINE  ADVANCES-

By LawReader Senior Editor Stan Billingsley                                   August 22, 2011

     Last week the Ky. Supreme Court denied a motion to allow the author of this article to file an Friend of the Court brief in the disciplinary action against retired Judge Joseph Bamberger.

Even though permission for this Amicus brief  to be filed by retired judge Stan Billingsley, the Supreme Court retains the discretionary right to review the issues raised in the rejected brief.

   The KBA  around 2005 began an investigation of Bamberger for rulings he made as a Judge in the Fen Phen class action case. 

    The purpose of the tendered Amicus brief was to bring to the courts attention important legal issues that affect all members of the judiciary.   The KBA seeks to void the judicial immunity rule, which disallows any civil action against a judge for rulings he made in his official capacity.

   For hundreds of years judges have enjoyed immunity from rulings they made as a judge.  The purpose of this was to allow judges to make rulings without concern that they might be sued by anyone who disagreed with their ruling.  The proper remedy for a bad judicial ruling was an appeal to a higher court.   None of the rulings made by Judge Bamberger were appealed.

As explained in the tendered brief (a copy of which is posted below) the judicial immunity rule applies even if the judge acted with malice.  The doctrine is written broadly and has served a useful purpose in our judicial system. It has been explained in many case law rulings that the Doctrine is not intended to protect an out of control judge, but is justified on the larger purpose of protecting judicial independence.

   In the Bamberger discipline case, the KBA seeks to sanction Judge Bamberger for making bad decisions in relying on the recommendations of national experts in Class Action law.  Only after Bamberger issued his rulings were allegations made public that the original plaintiff’s attorneys may have mishandled some of their client’s funds.  Even that issue is not yet final as the Court of Appeals reversed the Summary Judgment  against William Gallion, Melbourne Mills and l Cunningham.   Cunningham and Gallion were convicted at their second criminal trial, but that conviction is currently on appeal to the Sixth Circuit.

   So even though the criminal and civil issues against Gallion, Cunningham (Mills was acquitted) are still pending, the KBA has chosen without a request from the Judicial Conduct Commission to seek permanent disbarment of Judge Bamberger.

   The Billingsley Amicus brief does not attempt to defend the merits of any ruling made by Bamberger per se.   The issue sought to be raised in the Amicus brief is that the KBA has no jurisdiction to review the legal rulings of any judge made in his official capacity due to the Judicial Immunity Doctrine.  The Judicial Conduct Commission is subject to a SCR which says that a judge may not be sanctioned for an “erroneous ruling”.  The KBA ignores that rule by attempting to sanction Judge Bamberger.

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.

   The Billingsley Amicus brief argues that as a retired judge he has standing to raise the issue of the Judicial Immunity Doctrine.   If this legal argument made by the KBA is upheld, then any current or retired judge could be subject to hindsight review for any bad decision they may have made.   This ruling would place the KBA on the bench beside every judge, and allow them to sanction the judge for any ruling he/she made with which the KBA disagrees.

We admit that judges sometimes make bad rulings.  I do not exempt myself from that allegation.  However, the remedy for a bad ruling is an appeal.  If this claim by the KBA is allowed to become precedent, then the KBA can reopen any ruling every made by a judge (even retired judges) and they can pass judgment on whether or not the judge made an error.  

The errors for which the KBA seeks to sanction Judge Bamberger include claims that he “was dazzled and influenced” by national experts in class action law in making his rulings.   I confess that I have made rulings during my 27 years as a Trial Commissioner, District Judge and Circuit Judge in which I gave greater weight to recognized experts than to self-serving statements by a party.  I suppose it could be argued that in the future Judges will have to be prophets in order to escape discipline review by the KBA.

The KBA alleged that Bamberger “should have” know facts which were not revealed until years after he signed the questioned orders.  Witnesses, Judges and Trial Commissioners, and even the KBA have written that Gallion and Cunningman lied to or mislead Judge Bamberger about material facts.  One such fact was the claim that Gallion, Cunningham and Mills had contingent fee contracts with their clients and that Bamberger should have known this, even though it was clearly admitted in the criminal  and civil trials, and in the KBA action against Bamberger, that these facts were concealed from Bamberger. 

The key facts that Judge Bamberger was mislead by the plaintiff’s attorneys, and by Stanley Chesley are clearly in the KBA discipline record, yet are ignored by the KBA. 

The bottom line is that the KBA is seeking to sanction a trial judge because he was mislead by the parties on key facts.  If this precedent is upheld by the Supreme Court, then they will be opening a Pandora’s Box which will allow the KBA to inject itself in to every case coming before any judge.  The KBA argues that the Judicial Conduct Commission has no power to limit the involvement of the KBA is reviewing the conduct of judges.  We ask in our tendered (and rejected) brief that if this argument is upheld, then there will be no justification for the continued existence of the Judicial Conduct Commission… (on which I served as an alternate for four years).

The argument by the KBA is that Judge Bamberger “should have known better”.  In other words he was not a prophet and therefore he should lose his law license.

I do not know many facts about the Fen Phen case.   My tendered Amicus brief which was rejected by the Supreme Court was not to seek a vindication for Judge Bamberger, but to uphold the Doctrine of Judicial Immunity.  The Doctrine clearly says even malicious rulings by a judge are protected by the Judicial Immunity Doctrine.   If the Supreme Court sanctions Judge Bamberger for a ruling he made in his jurisdiction, then every sitting and every retired judge will then be subject to KBA hindsight review.

I found it interesting that in the KBA reply to my motion to file an Amicus brief, they argued that I was a friend of Judge Bamberger.   They are correct, and I have admitted and detailed my relationship with Judge Bamberger over the last forty years I have known him.  The KBA by making this argument was suggesting that I should have no standing to file an Amicus brief due to my long friendship with Judge Bamberger.  That is the type of argument which suggests the Bar Counsel had no real legal argument.  The KBA, in their motion to disallow my Amicus brief, chose to go personal against me and tried to distract the audience from the real issues in this case.  They dedicated about six pages of their eight page motion to a personal attack on me.  They attempted to divert the Supreme Court’s attention from the real issue of Judicial Immunity.

   We have not found any legal grounds to justify the denial of  the filing of an Amicus brief simply because the person submitting the brief happened to know the defendant.

   If the Judicial Immunity Doctrine is repealed, then the Supreme Court will have given unlimited license to the KBA to sanction any judicial officer for any ruling with which the KBA disagrees.  The reader should also know that there is no statute of limitations for discipline charges to be filed.  So they will be able to go back and review every single decision every made by any judge. Such a precedent would be the first such ruling in the United States.  All other states uphold the Doctrine of Judicial Immunity.

   Another issue of importance raised in this discipline case, is the practice of the KBA in imposing large costs bills upon defendant attorneys who wish to appeal to the Supreme Court.  In Judge Bamberger’s case, he chose not to file an appeal since the Bar Counsel submitted a cost bill to the Disciplinary Clerk of $18,800.  So if Bamberger filed an appeal to the Supreme Court he first had to deposit $18,000 with the Disciplinary Clerk of the KBA.   SCR 3.370

The KBA  tax on appeals clearly violates Section 115 of the Kentucky Supreme Court which holds that all appeals “shall be inexpensive.”   So the prosecutors of discipline actions are allowed to prevent appeals by imposing large cost bills for which the attorney must post a surety before having the right to appeal.  There is no process allowed in the Supreme Court Rules which grant the defendant attorney  a due process hearing on the amount of costs claimed by the Bar Counsel.

   We anecdotally have heard that in another discipline case the KBA imposed an appeal tax of some $40,000 on an attorney.  No $40,000, deposited with the KBA, or no appeal.

  The final issue that is discussed in the rejected Amicus brief, is the “promptness” rule.  The Supreme Court Rules require that all attorney discipline prosecutions and investigations shall be conducted “promptly”.  In Speedy Trial cases the courts have long held that delays of as little as eleven months are “prejudicial”.  In the Bamberger case, the KBA started their investigation over six years ago.  

The Promptness Rule  —- 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.”

The Supreme Court in another discipline case recently ruled that three years in an ethics prosecution was” prejudicial” to the attorney. See: Kentucky Bar Association v. Lococo, 199 S.W.3d 182 (Ky., 2006): “…. Here, there was a delay in the prosecution of this case…..This delay from April of 2000 until August of 2003 is a mitigating factor and was prejudicial toward Ms. Lococo.”  (Emphasis added.)

The Bamberger investigation and prosecution started about 2005, some six years ago.  This fact reveals that the “promptness” rule is being ignored by the KBA.

   The final issue is the claim by the KBA that if the defendant attorney does not file a brief, then the KBA does not have to file a brief.   That is correct.  But the KBA incorrectly interprets SCR  3.370 to say that the Supreme Court has to accept the Findings of the Trial Commissioner and the Board of Governors without review of the facts and legal arguments if the KBA or the defendant attorney do not file an appeal.  We submit that SCR 3.370 grants the Supreme Court the right to unilaterally decide to review any Findings of the Board of Governors or the Trial Commissioner at their discretion.

SCR 3.370 says:    (9) the Supreme Court may, …..notify the Bar Counsel and the Respondent that it will review the decision.

   We have chosen to publish this rejected brief as we believe it presents important issues that could dramatically affect all judges in Kentucky.   We do not question the right or authority of the Supreme Court to deny the filing of our brief.  If this sanction against Judge Bamberger is upheld, then we suggest that every current and every retired judge should promptly purchase malpractice insurance.  Oh yes, the KBA will be glad to sell you a malpractice insurance policy!

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

The following is a copy of the Amicus brief submitted to the Ky. Supreme Court by the author.  The Supreme Court granted the motion of the KBA Bar Counsel to reject the filing of this brief.

KENTUCKY SUPREME COURT                                                                                                       KBA FILE NO. 13985

KENTUCKY BAR ASSOCIATION                                 COMPLAINANT
 
v.
 JOSEPH BAMBERGER                                                RESPONDENT
 

PETITION AND BRIEF OF  RETIRED JUDGE STAN BILLINGSLEY  
AS AMICUS CURIAE
IN SUPPORT OF RESPONDENT  


MAY IT PLEASE THE COURT:

     Appearing as a Amicus Curiae, Judge Stan Billingsley (Retired) hereby petitions this Honorable Court to permit the filing of the following Amicus Curiae Brief.  

CERTIFICATION

I hereby certify that a true and correct copy of this petition and brief  was properly addressed to the Hon. Linda Gosnell, KBA Chief  Bar Counsel, at 514 W. Main Street, Frankfort KY 40601-1812 and to the Disciplinary Clerk, of the Kentucky Bar Association at  514 W. Main Street Frankfort KY 40601-1812, and the Hon.  Susan D. Phillips Phillips, Parker Orberson, 716 W Main St Ste 300, Louisville, Ky. 40202, Trial Commissioner of the KBA in this action, and the Hon. Jerry J. Cox, Attorney for the Respondent, 115 Richmond St,  PO Box 1350, Mt Vernon, KY 40456-1350,  with proper postage affixed, and mailed by placing same in the U.S. Mail, on July 12, 2011.

Judge Stan Billingsley (Retired)                                                                                                               314 7th. St.                                                                                                                                    Carrollton, Ky. 41008                                                                                                                                    Bar Number-05170                                                                                                                                Phone (502)732-4617    

GROUNDS  JUSTIFYING THE COURT IN ALLOWING THIS AMICUS CURIAE BRIEF TO BE CONSIDERED

 

STANDING OF RETIRED JUDGE

  The author of this tendered amicus curie brief, alleges interest and standing on the basis that if the Judicial Immunity Doctrine is voided, then all rulings of any sitting or retired judges will thereafter be subject to hindsight review by the KBA.  The author is a retired judge. 

  Under the argument advanced in this case by the KBA, it is claimed that the KBA has the jurisdiction to review any ruling of any judge without limitation. 

   If the precedent sought by the KBA is upheld in this case then the jurisdictional authority of the  KBA will be so broadly expanded then the justification for the existence of the Judicial Conduct Commission will be voided.  this case warrants a declaratory ruling by the Ky. Supreme Court regarding the jurisdiction of the JCC versus the KBA.

    Our research has found no precedent of any other state ever granting the right to review the judicial rulings of a judge, made within his jurisdiction, by a State Bar Association.

   The author of this brief has no financial interest in the underlying case, does not represent any party in this case, and has not sought or received approval of either party to this action to tender this brief.  If the KBA and Bar Counsel is upheld, and if they elect to conduct a review of  all rulings made by the author during his 23 years on the bench, then the author will be subject to severe financial implications in defending himself.

AUTHORITY OF THE  KENTUCKY  SUPREME  COURT  TO  GRANT  DISCRETIONARY REVIEW  OF  THIS  CASE  UNDER  SCR 3.370 (9)

The Supreme Court may exercise discretionary authority under SCR 3.370 (9), to consider the issues in this case even if the complainant or respondent fail to file an appeal.

    SCR 3.370 Procedure before the Board and the Court

“(9) The Court may, within ninety (90) days of the filing with the Court of the Trial Commissioner’s report as provided by 3.360(4), or of the Board’s decision, notify Bar Counsel and Respondent that it will review the decision…., the Court shall enter such orders or opinion as it deems appropriate on the entire record.”  (emphasis added by author)

If the Ky. Supreme Court does not agree to review this action as permitted under Section (9), then the findings of the Board of Governors will be automatically adopted by rule SCR 3.370 – (10).  Section (10) which holds that:

” If no notice of review is filed by either one of the parties, or the Court under paragraph nine (9) of this rule, the Court shall enter an order adopting the decision of the Board or the Trial Commissioner, whichever the case may be, relating to all matters.”

   There is an important jurisdictional question raised by the attempt of the KBA to discipline  a judge for acts taken by the judge in his jurisdiction without the referral by the Judicial Conduct Commission. Until now, the Doctrine of Judicial Immunity has protected a judge from claims involving decisions he has made within his jurisdiction.

The Supreme Court’s action in this case will establish an important precedent regarding the jurisdiction of the Judicial Conduct Commission versus the jurisdiction of the KBA.

The Bar Counsel has filed a report with the Disciplinary Clerk requiring the respondent judge to post a surety in the amount of approximately $18,500 in order to have the right to file an appeal. 

This high surety violates Section 115 of the Kentucky Constitution which states that all appeals shall be “inexpensive”. This high surety imposed unilaterally by the Bar Counsel may well prevent the respondent judge from filing an appeal. 

In such a case,  important questions of law affecting the jurisdiction of the Judicial Conduct Commission, and rights of all sitting and all retired judges will be automatically decided in favor of the KBA, and against the interest of the Judicial Conduct Commission, and of the  judiciary, by repealing the Doctrine of Judicial Immunity. 

That makes the tendered Amicus brief highly important to the JCC and the Judiciary.

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

AMICUS CURIAE BRIEF BY JUDGE STAN BILLINGSLEY (RETIRED)

 

MAY IT PLEASE THE COURT:

THE  KENTUCKY  SUPREME  COURT  SHOULD  GRANT  DISCRETIONARY REVIEW  OF  THIS  CASE  UNDER  SCR 3.370

There are three reasons why the Supreme Court should exercise discretionary authority granted to the court under SCR 3.370, to consider the issues in this case.

1.  The costs claimed by the Bar Counsel’s office, which must be posted by the respondent are in violation of Section 115 of the Kentucky Constitution.   The actions of the Bar Counsel’s office, in unilaterally setting a high cost bill, denies due process to the respondent.

2.  There is an important jurisdictional question raised by the attempt of the KBA to discipline  a judge for acts taken by the judge in his jurisdiction. This action by the KBA violates the Judicial Immunity Doctrine.  If the Supreme Court does not review this jurisdictional issue, then there will be established a precedent which will void the Doctrine of Judicial Immunity.

3. The Supreme Court’s action in this case will establish an important precedent regarding the jurisdiction of the Judicial Conduct Commission versus the jurisdiction of the KBA.

 KENTUCKY CONSTITUTION SECTION 115 – RIGHT TO INEXPENSIVE APPEAL

   It is possible that neither the respondent judge nor the KBA will file an appeal with the Supreme court in this action.   Even though Section 115 of the Kentucky Constitution states that all appeals shall be “inexpensive”. The SCR rules permit the Bar Counsel to unilaterally determine the costs of the discipline proceeding, and report said costs to the Disciplinary Clerk.

 The respondent in a discipline action must deposit a surety with the Disciplinary Clerk in the amount unilaterally claimed by the Bar Counsel’s office in order to have the right to appeal the findings of the Board of Governors to the Supreme Court.  As the rule is worded if there is no surety posted there is no appeal.

The report of the Bar Counsel’s office regarding costs in this case will require the respondent to post a surety of some $18,500.  This does not appear to be “inexpensive” and operates as an unconstitutional restriction on the right to appeal that is granted by the Kentucky Constitution.

WHEN THE RESPONDENT OR THE KBA FAIL TO FILE AN APPEAL,  THE SUPREME COURT RETAINS THE JURDICTION TO “REVIEW” THE FINDINGS OF THE BOARD OF GOVERNORS.

A review of SCR 3.370 grants the Supreme Court the discretion to review a finding of the Board of Governors even in the absence of an appeal by the respondent or by the KBA.

     ” SCR 3.370 Procedure before the Board and the Court

(9) The Court may, within ninety (90) days of the filing with the Court of the Trial Commissioner’s report as provided by 3.360(4), or of the Board’s decision, notify Bar Counsel and Respondent that it will review the decision. If the Court so acts, Bar Counsel and Respondent may each file briefs within thirty (30) days, with no right to file reply briefs unless by order of the Court, whereupon the case shall stand submitted. Thereafter, the Court shall enter such orders or opinion as it deems appropriate on the entire record.”  (emphasis added by author)

We respectfully submit that an important jurisdictional issue and constitutional question is presented by this case, and that a failure of the Supreme Court to review the findings of the Board of Governors will have the effect of voiding the Judicial Immunity Doctrine, and will destroy the justification for the existence of the Judicial Conduct Commission.

THE JURISDICTIONAL QUESTION

    In the ethics investigation of  retired Judge Joseph Bamberger, the KBA investigation seeks to expand the jurisdiction of the KBA to review and review Judges past decisions for ethics review.

The Trial Commissioner in his Brief to the Board of Governors opined that the KBA had jurisdiction to review a judicial officials acts even without a referral by the JCC.

    Current rules grant jurisdiction to the Judicial Conduct Commission to examine the ethical conduct of judicial officials.  The rules permit the JCC to make referrals to the KBA if the JCC determines that additional review is appropriate by the KBA.

    The end result sought by the KBA is to expand their jurisdiction to review the judicial rulings of a judicial officer, and to inflict sanctions including disbarment if they disagree with the judge’s rulings.

   First we note that this attempted review of Judge Bamberger’s rulings violate SCR 4.029.

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 would ask the Court to consider why the Judicial Conduct Commission is denied the right  to review erroneous rulings of a judge, and why the KBA  should be granted such a right? (Such a right is claimed in this action by the KBA.)

   We suggest that this Supreme Court Rule  4.020 is solidly based in the Judicial Immunity Doctrine  explained in Collins v. Brown,  No. 2007-CA-000847-MR (Ky. App. 2/26/2010) (Ky. App., 2010)”.  (This is an unpublished decision but it cites several Kentucky and U.S. Supreme Court decisions which uphold the Doctrine of Judicial Immunity.)

” 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 judicial acts.” (emphasis added by author)

 “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(s) 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.”  Yanero v. Davis, 65 S.W.3d 510, 518 (Ky. 2001.”

   We suggest that a KBA discipline proceeding is a “civil” proceeding.  SCR 3.300 and SCR 3.330 both describe discipline proceedings in terms of a civil action.

“SCR 3.300 Rights of respondent against whom a charge has been files

…”The Respondent shall have all the rights secured to a party by the Rules of Civil Procedure …”

 

“SCR 3.330 Order of proceedings and burden of proof

…. The burden of proof shall rest upon the Association in a disciplinary proceeding, and the facts must be proven by a preponderance of the evidence. ..”

     We respectfully suggest that the discipline process is a civil proceeding and thus falls within the protective walls of the Judicial Immunity Doctrine.

     In  Vaughn v. Webb, 911 S.W.2d 273 (Ky. App., 1995) it was held:  

“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.”  (emphasis added by Billingsley)

    The question of judicial immunity was properly raised by Judge Bamberger in his brief to the Board of Governors.

   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 for a ruling he made that was within his jurisdiction, 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.

ARGUMENT

   Bamberger made rulings which the KBA claims he should have examined more closely.  The Bar Counsel argues that the respondent judge made bad rulings based largely on the reputation of the attorneys and experts who appeared before him.   This argument is nothing less than a head on attack on the Judicial Immunity Doctrine, as it challenges the judges reasoning for making a ruling.  

   Nowhere does the KBA argue that Bamberger did not have the jurisdiction to make every ruling he made.  They argue about his reasoning and his wisdom, but they do not present facts contesting his jurisdiction to rule on the issues before him.

   It is not enough that some decisions turned out bad.  It is not enough that the non-judge lawyers in the KBA believe they would have done things differently had they been the judge. 

   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.  Therefore the KBA has failed to provide a preponderance of evidence to justify their findings against Judge Bamberger.

  Testimony in the two criminal trials against Gallion and Cunningham alleged that Gallion and Cunningham,  lied to Judge Bamberger about material elements as to their actions.  This effort to misinform Judge Bamberger on the law and facts is admitted by the Trial Commissioner in her brief as having occurred in Judge Bamberger’s case.

  The Trial Commissioner admits  in her 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 Judges 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?”

   More importantly, if the KBA can sanction a judicial ruling anytime they disagree with the results, the Doctrine of Judicial Immunity will be thereby voided.   We note that there is no statute of limitations applying to the KBA which will prevent the KBA from reviewing the rulings of any sitting or retired judges over their entire judicial career.

   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 that ever came before the judge.

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

DISCUSSION  OF  FACTS  CITED  BY  TRIAL COMMISSIONER  AND  BAR COUNSEL  FOR  THEIR  RECOMMENDED  DISCIPLINE  OF  JUDGE BAMBERGER.

   The KBA argues for punishment of Judge 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.   He was never informed that the plaintiff’s lawyer had secured contingent fee contracts with their clients.

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  after the 440 plaintiff’s expressed their satisfaction with the amount they received. It was not a situation where 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?   Attorneys representing the plaintiffs appeared before Judge Bamberger.  Is a client not bound by the actions of his own lawyer?

   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 protected  judicial discretion.

   The original  plaintiff’s surely have some burden to put the court on notice that they are unhappy with a settlement.  They could have done this by not signing the settlement. They had the right to file an appeal of any ruling of Judge Bamberger, but none did so.

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.

The original plaintiff’s 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.

Only after the original plaintiffs discovered that their own attorneys had not been candid with them, did they turn their attention to Judge Bamberger.  There appeal rights had tolled, and the only way they could proceed and keep their claims alive, was to attack the trial judges’ 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 attorneys committed a fraud or committed 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.

BAMBERGERS’S SERVICE ON THE BOARD OF THE FUND FOR HEALTY LIVING CHARITABLE TRUST

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.

See Commentary:

“Canon 4- Section …4C(3) permitting service by a judge with organizations devoted to the improvement of the law, the legal system or the administration of justice and with educational, religious, charitable, fraternal or civic organizations not conducted for profit….

 

(3) A judge may serve as an officer, director, trustee or non-legal advisor of an organization or governmental agency devoted to the improvement of the law, the legal system or the administration of justice or of an educational, religious, charitable, fraternal or civic organization not conducted for profit,…”

 

         The record reveals that Judge 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.  The Bar Counsel suggests that a Cy Pres trust is itself evidence 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 and a respected mediator have supported the appropriateness of the cy pres trust option.  Only after Judge Bamberger’s retirement were questions raised which might have supported a different ruling by respondent.

The KBA Bar Counsel brief suggests that Bamberger was “dazzled” by these experts. (What judge wouldn’t be?  Bamberger made his last ruling in this case in January 2004.  His conduct is now measured by events and revelations made years after his rulings were made.

   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 organizations.

    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 were overly paid? We find no examples of proper salaries for trustees being introduced by the KBA.

THE LINGERING ISSUE OF AGGREGATE SETTLEMENT VERSUS CLASS ACTION SETTLEMENT

     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”. If the settlement was an aggregate settlement then 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.  Judge Bamberger ruled that the settlement was a class action settlement, and this resulted in excess funds being left after all the 440 plaintiff’s had been paid according to the facts of their individual claims.

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.   The KBA and the Board of Governors have ignored this continuing but highly important issue.

   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. The KBA seeks sanctions against the Judge based on their guess on how the Kentucky Supreme Court will rule on this issue in the plaintiff’s civil case now on appeal. 

    The finding of the  Kentucky Court of Appeals held that the type of settlement was a jury question.

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 in the Boone County civil case heard by Judge Wehr.

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.”

     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 …”  (i.e. by setting up the charitable trust.)

This money was not kept by Gallion, Mills or Cunningham.  This argument by the Bar Counsel simply misstates the facts on this issue. This exaggeration is just one of many in the Trial Commissioner’s brief.  The $20,000,000 did not go to GMC, it went to a legally formed charitable trust.  All funds from this trust were recovered.

   The Kentucky Court of Appeals concluded, ” Therefore, reversal is necessary. Because we have determined partial summary judgment was improvidently granted…”.

    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

    This material issue 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.

Ruling on conflicting legal issues is clearly within a judges jurisdiction and is protected by the Doctrine of Judicial Immunity.

    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  - 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.

    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 Bamberger’s identical finding on this issue.  The KBA dismisses the very real and legitimate issue regarding what type of settlement was made between the diet drug manufacturer and the plaintiff’s.

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.  The KBA argument ignores the possibility that the Sixth Circuit Court of Appeals may find that Judge Bertlesman was correct and that Judge Reeves was wrong on this issue. 

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 the type of settlement 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 very issue is currently on appeal to the Kentucky Supreme Court in the civil suit.

   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?

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%. Bamberger’s fee award was clearly made with some precedent.

WHAT JURISDICTION SHOULD THE KBA HAVE OVER JUDGES

   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, 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 explains why the Supreme Court Rule granting jurisdiction to the JCC to make a discipline referral to the KBA should be ignored.

The KBA in essence 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, a representative of the Bar Association and two citizen members. 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.

JURISDICTION OF THE JCC AND KBA

The question of the jurisdiction of the JCC and KBA was 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…”

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

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 based on conflicting facts or conflicting legal issues.

   If this novel theory of jurisdiction over judge’s rulings by the Kentucky Bar Association is upheld, then every judge will henceforth be subject to hindsight review by the Bar Counsel.

  We further submit that the practice of the Bar Counsel in being allowed to unilaterally set the appeal surety of a judge or lawyer as a prerequisite for the right to appeal to the Supreme Court is unconstitutional.

   We submit the Supreme Court should clarify the jurisdiction of the JCC and the KBA and uphold the Doctrine of Judicial Immunity.  And further, the Court should amend the SCR’s to permit the filing of  inexpensive appeals.

RESPECTFULLY SUBMITTED:

Judge Stan Billingsley (Retired)                                                                                                               

 

 

 

 

AUTO INSURANCE POLICY EXEMPTION, CALLED A PERMISSIVE DRIVER STEP DOWN PROVISION, INVALID IN THIS CASE

Saturday, August 20th, 2011

 

In a published decision the Court of Appeals on August 19, 2011 disallowed an attempt by a motor vehicle liability insurance company from reducing its policy limits pursuant to a clause they had added to their policy called  “STEP DOWN PROVISION”. 

This  Step Down Provision  is triggered when a driver other than an insured of the first class is operating the covered vehicle with permission.

Shelter maintained that the lower bodily injury liability limits of $25,000 each person/$50,000 each accident were applicable. Yates rejected Shelter’s interpretation of the insurance policy and demanded the remaining $25,000. Yates argues that as a named insured under the policy, he was entitled to the higher bodily injury liability limit of $50,000.

The court did not totally throw out such provisions, but in this case they found grounds based on lack of a fair notice to the policyholder to throw out the application of this policy provision,

” we will address only one: that the permissive driver step-down provision is unenforceable under the doctrine of reasonable expectations. Yates points out that he paid a premium for the higher bodily injury liability limits, for “full coverage protection,” and was led to believe by the declarations page of the policy that the higher bodily liability limits of $50,000 each person/$100,000 each accident were applicable.”

 

See Ct. of Appeals case for Aug 19 2011″:   YATES, RICHARD  VS.  SHELTER MUTUAL INSURANCE COMPANY

DIFFERENCE IN MALICIOUS PROSECUTION AND ABUSE OF PROCESS TORTS

Saturday, August 20th, 2011

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The Court of Appeals on Aug. 19th, 2011 explained the difference in the tort of malacious prosecution and the tort of abuse of process.  The main factor is the difference in required proof. 

 Malacions prosecution tort:

  “(1) the institution or continuation of original judicial proceedings, either civil or criminal, or of administrative or disciplinary proceedings, (2) by, or at the instance, of the plaintiff, (3) the termination of such proceedings in defendant’s favor, (4) malice in the institution of such proceeding, (5) want or lack of probable cause for the proceeding, and (6) the suffering of damage as a result of the proceeding.” Raine v. Drasin, 621 S.W.2d 895, 899 (Ky. 1981).

The plaintiff in a malicious prosecution action has the burden of establishing a lack of probable cause. Collins v. Williams, 10 S.W.3d 493, 496 (Ky. App. 1999).

the fact that the plaintiff filed the action upon advice of counsel is a complete defense. Mayes v. Watt, 387 S.W.2d 872, 873 (Ky. 1964). The advice of counsel need not be sound.

Abuse of process tort:

 

On the other hand,abuse of process”  consists of the employment of legal process for some purpose other than that which it was intended by the law to effect.

See:  Ct. of Appeals ruling on August 19, 2011 from Pulaski County,   GARCIA, BOBBY D/B/A AUTOBAHN AUTOMOTIVE  VS.  WHITAKER, LARRY

 

OBAMACARE OPPONENTS ARGUMENTS COULD VOID MANDATORY AUTO LIABILITY INSURANCE STATUTES

Wednesday, August 17th, 2011

     The Sixth Circuit Court of Appeals has upheld the constitutionality of the President’s Health Plan called Obamacare.  The Eleventh Circuit Court of Appeals ruled that mandatory laws requiring citizens to purchase health insurance was unconstitutional.   It is almost certain that this issue will be heard by the U.S. Supreme Court before next year’s presidential election.

The 11th. Circuit reasoned that “ what Congress cannot do … is mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product”.  

   If the U.S. Supreme Court (which has a conservative majority) buys this argument of the 11th. Circuit, then we would submit that state laws which mandate that all motorists purchase insurance from private insurance companies would also be unconstitutional.

  The Kentucky Motor Vehicle Reparations Act found in KRS Chapter 304 requires that everyone who operates a motor vehicle in Kentucky must purchase from a private company a liability insurance policy.  Similar statutes apply to motorists in all states.

KRS  304.39-090 Required security.

An owner of a motor vehicle registered in this Commonwealth who ceases to maintain security as required by the provisions on security may not operate or permit operation of the vehicle in this Commonwealth until security has again been provided as required by this subtitle. An owner who fails to maintain security as required by this subtitle shall have his or her motor vehicle registration revoked in accordance with KRS 186A.040. All other owners shall provide such security while operating a motor vehicle in this Commonwealth.   Effective: July 15, 1998

   The Legislative policy which explains why mandatory motorist’s insurance is required is stated in KRS 304.39-010.  This legislative policy statement in the Kentucky MVRA is justified in language similar to language found in the Federal Health Care act called Obamacare.

KRS  304.39-010 Policy and purpose.

 

The toll of about 20,000,000 motor vehicle accidents nationally and comparable experience in Kentucky upon the interests of victims, the public, policyholders and others require that improvements in the reparations provided for herein be adopted to effect the following purposes:

(1) To require owners, registrants and operators of motor vehicles in the Commonwealth to procure insurance covering basic reparation benefits and legal liability arising out of ownership, operation or use of such motor vehicles;

(2) To provide prompt payment to victims of motor vehicle accidents without regard to whose negligence caused the accident in order to eliminate the inequities which fault-determination has created;

(3) To encourage prompt medical treatment and rehabilitation of the motor vehicle accident victim by providing for prompt payment of needed medical care and rehabilitation;

(4) To permit more liberal wage loss and medical benefits by allowing claims for intangible loss only when their determination is reasonable and appropriate;

(5) To reduce the need to resort to bargaining and litigation through a system which can pay victims of motor vehicle accidents without the delay, expense, aggravation, inconvenience, inequities and uncertainties of the liability system;

(6) To help guarantee the continued availability of motor vehicle insurance at reasonable prices by a more efficient, economical and equitable system of motor vehicle accident reparations;

(7) To create an insurance system which can more adequately be regulated; and

(8) To correct the inadequacies of the present reparation system, recognizing that it was devised and our present Constitution adopted prior to the development of the internal combustion motor vehicle.  Effective: July 1, 1975

     The Commerce Clause of the U.S. Constitution grants Congress the power to regulate Interstate Commerce.

The Commerce Clause is an enumerated power listed in the United States Constitution (Article I, Section 8, Clause 3). The clause states that the United States Congress shall have power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”. Courts and commentators have tended to discuss each of these three areas of commerce as a separate power granted to Congress. It is common to see the Commerce Clause referred to as “the Foreign Commerce Clause“, “the Interstate Commerce Clause“, and “the Indian Commerce Clause“, each of which refers to a different application of the same sentence in the Constitution.

   The Commerce Clause represents one of the most fundamental powers delegated to the Congress by the founders. The outer limits of the Interstate Commerce Clause power has been the subject of long, intense political controversy. Interpretation of the sixteen words of the Commerce Clause has helped define the balance of power between the federal government and the states and the balance of power between the two elected branches of the Federal government and the Judiciary. As such, it has a direct impact on the lives of American citizens.

  The “New Deal Court” drastically changed the focus of the Court’s inquiry in determining whether legislation fell within the scope of the Commerce Clause, and in some sense returned to the concept articulated in Gibbons. Central to this theory was the belief that the democratic process was sufficient to confine the legislative power. Thus one of the central issues was whether the judiciary or the elected representatives of the people should decide what commerce is. The Court began to defer to the Congress on the theory that determining whether legislation impacted commerce appropriately was a legislative, not a judicial decision. The debate over Commerce Clause jurisprudence thus includes philosophic differences over whether Congressional abuse of the Commerce Clause is best redressed at the ballot box or in the Federal courts.

   When examining whether some activity was considered “Commerce” under the Constitution, the Court would aggregate the total effect the activity would have on actual economic commerce. Intrastate activities could fall within the scope of the Commerce Clause, if those activities would have any rational effect on Interstate Commerce. Finally, in United States v. Darby Lumber Co., 312 U.S. 100 (1941), the Court said the 10th Amendment “is but a truism” and was not considered to be an independent limitation on Congressional power.[citation needed]

   In 1941 the Court upheld the Fair Labor Standards Act which regulated the production of goods shipped across state lines. In 1942, in Wickard v. Filburn, the Court upheld the Agricultural Adjustment Act of 1938, which sought to stabilize wide fluctuations in the market price for wheat by stabilizing supply through quotas.

    The Court’s decision rejected former decisions that seemed to focus on “Whether the subject of the regulation in question was production, consumption, or marketing. Those formalistic characterizations were not material for purposes of deciding the question of federal power before us. That an activity: is of local character may help in a doubtful case to determine whether Congress intended to reach it…. But even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as ‘direct’ or ‘indirect.

   If the Supreme Court upholds the 11th.Circuit Ruling, then it is reasonable to assume that further attacks on Federal and State powers to mandate the purchase of insurance will soon follow. and the rights of Congress to regulate Commerce will be in jeopardy.

The 11th. Circuit’s Ruling on Health Law

 

Insurance mandate exceeds federal powers  – WatertownDailyTimes.com

WEDNESDAY, AUGUST 17, 2011

ARTICLE OPTIONS

A federal appellate court struck at the core of the national health care law in the latest court ruling declaring the centerpiece of the law to be unconstitutional.

The Atlanta-based 11th Circuit Court of Appeals sided with 26 states in a 2-1 ruling that the mandate requiring all Americans to purchase insurance was an “unprecedented” expansion of federal power, specifically its power to regulate interstate commerce.

Both sides of the national debate agree that the individual mandate, which is meant to bring (or force) more people into the insurance pool to spread the costs of other provisions, such as requiring insurers to cover everyone, including those with pre-existing health conditions. Without the mandate, backers say, people would wait until they needed insurance to obtain it and could then drop out afterward. It would also shift costs disproportionately to those who choose to have insurance.

The two-judge majority agreed that the government had the power to confront the problem of nearly 50 million uninsured Americans, but “what Congress cannot do … is mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die.” The mandate, the judges said, “is breathtaking in its expansive scope.”

“Even in the face of a Great Depression, a World War, a Cold War, recessions, oil shocks, inflation, and unemployment, Congress never sought to require the purchase of wheat or war bonds, or require every American to purchase a more fuel efficient vehicle,” the court said.

The majority said the individual mandate “represents a wholly novel and potentially unbounded assertion of congressional authority.” Indeed, its rationale would mean unlimited power of the government to regulate individual economic decisions in almost any endeavor.

The ruling was a partial victory for both sides with the court leaving the rest of the law in place. Opponents had sought to have the entire Affordable Care Act declared unconstitutional.

It is just the latest in a number of conflicting court rulings on the mandate with cases still before three other federal appellate courts, ensuring the Supreme Court will ultimately decide the law’s constitutionality, possibly as early as next year. The individual mandate does not take effect until 2014, but a decision is needed well before that as the administration moves forward implementing the law.

COMPANY SELLS AUTO INSURANCE TO DRIVERS CONVICTED OF DUI FOR AS LITTLE AS $9.00 A WEEK

Tuesday, August 16th, 2011

 We report this story as an interesting option that DUI attorneys might suggest to their clients. This could be a godsend.

We haven’t checked this out. We found this in an ad in the Lexington Herald-Leader.

Go to:   http://lifestylejournal.com/are-you-paying-more-than-9-a-week-for-your-auto-insurance/?t202id=64399&c1=buy36y&t202kw=McClatchy.com

ARE JUDGES AND JAILER’S DEFRAUDING SURETIES?

Monday, August 15th, 2011

 

By LawReader Senior Editor Stan Billingsley                           August 15, 2011

   LawReader received a report from a businessman concerning his complaint that the bail bond he posted for a friend was accepted by the  JAILER without acknowledgment that the case bond of $800 was posted by the businessman.  The JAILER completed the form as if the defendant posted the bond.  This was incorrect, the businessman traveled over a hundred miles to personally post the cash bond with the JAILER.

Afterwards, the  businessman  realized that his name was not on the bond receipt.  He says when he called the clerk he was told that the local District Judge required that bonds be accepted in the name of the defendant so that the court could seize the bond to pay restitution to any victim of the defendant.  The receipt for the bond reflects a deposit of $800 but the name of the actual surety was omitted.

   If a defendant posts a bond, case law allows costs and fines to be deducted from the bond, but if a surety is posted by a third party, the bond must be returned to the surety unless the terms of the bond were violated.  The criminal rules provide for a due process hearing before the court can seize a bond from a surety.  The Commonwealth must prove that the defendant violated the terms of the bond.

But when the defendant posts the bond, the surety is cut out and has no rights.

This practice appears to violate the Criminal Rules.

 RCr 4.26 Receipt for and record cash deposit and bond

     (1) When an authorized officer receives a cash deposit the officer shall give a receipt to the person from whom the officer receives the money on a uniform receipt form provided by the Administrative Office of the Courts….

                 When the defendant posts the bond, the court may claim part of it:

 RCr 4.46 Application of deposit to fine or costs

     (1) Upon a final rendition of judgment against the defendant for a fine and costs, or either, in the prosecution of a cause in which money has been deposited as bail by the defendant himself or herself, if the money still remains on deposit and unforfeited, and such fine and costs, or either, have not been paid, such money, or so much thereof as may be necessary, shall be applied to the payment of such fine and costs, or either.

     (2) Upon motion by the defendant, the court may order the amount repayable to the defendant to be paid to the defendant’s attorney.

     A due process hearing is required before a surety can be deprived of his deposit.

      One must wonder why the Judge why a District Judge would interpert the Criminal Rules to allow false receipts to be delivered to a surety.


RCr 4.42 Change of conditions of release; bond forfeiture

     (1) If at any time following the release of the defendant and before the defendant is required to appear for trial the court is advised of a material change in the defendant’s circumstances or that the defendant has not complied with all conditions imposed upon his or her release, the court having jurisdiction may order the defendant’s arrest and require the defendant or the defendant’s surety or sureties to appear and show cause why the bail bond should not be forfeited or the conditions of release be changed, or both.

     (5) Before the court may make the findings required for change of conditions or forfeiture of bail under this rule, the defendant and the defendant’s surety or sureties shall be granted an adversary hearing comporting with the requirements of due process. Whenever the court changes conditions of release (except upon motion of the defendant) or orders forfeiture of bail, it must furnish the defendant and the defendant’s surety or sureties with written reasons for so doing.

 

 

1981 Ethics Opinion Allowing Limited Employment of Suspended Lawyer by Law Firm

Sunday, August 14th, 2011

In  1981  Professor Martin Huelsmann wrote the following ethics opinion regarding the ability and conditions of a lawyer to hire a suspended lawyer.  These opinions are advisory opinions and are not binding on the KBA.

The Supreme Court is currently considering an amendment to the Sup. Ct. rules that would forbide any employment of a suspended lawyer by a lawyer.

                                                              **********

 

KENTUCKY BAR ASSOCIATION

Ethics Opinion KBA E-255

 

Issued: November 1981

Question: May a lawyer employ a former lawyer who is presently disbarred or under

suspension to perform duties for the lawyer?

Answer: Qualified yes.

References: DR 3-101(A); Canon 9; KBA U-14; SCR 3.020, 3.470; ABA Informal

Opinion 7, 1046, 1434; Howton v. Morrow, 106 S.W.2d 81 (Ky. 1937);

Lester v. Kentucky Bar Assn, 532 S.W.2d 435 (Ky. 1975)

OPINION

The purpose of this opinion is to reconsider KBA E-228. The Ethics Committee

hereby overrules and replaces KBA E-228 with the following opinion.

In Informal Opinion 7, the American Bar Association stated “an attorney should not

employ a disbarred lawyer even to do only office work and see no clients, ‘because of the

practical difficulty of confining his activities to an area which does not include the practice

of law and be cause such employment would show disrespect to the courts.”’ Ethics

opinions in other states are at best conflicting.

In Kentucky, the Court in Howton v. Morrow, 106 S.W.2d 81 (Ky. 1937), held

that “practicing law” is not confined to performing services in actions and proceedings in

courts of justice, but includes giving advice, preparing wills, contracts, deeds, mortgages,

and other instruments of legal nature.

The Court in 1975, in dicta, held that a disbarred attorney may serve as a “law

clerk” to an attorney, however, the court will look behind the title and examine the duties

performed to determine the real nature of the work. Lester v. Kentucky Bar Assn, 532

S.W.2d 435 (Ky. 1975).

In SCR 3.020 the court defines what the practice of law is:

The practice of law is any service rendered involving legal

knowledge or legal advice, whether of representation, counsel or advocacy

in or out of court, rendered in respect to the rights, duties, obligations,

liabilities, or business relations of one requiring the services. But nothing

herein shall prevent any natural person not holding himself out as a

practicing attorney from drawing any instrument to which he is a party

without consideration unto himself therefore. An appearance in the small

claims division of the district court by a person who is an officer of or who

is regularly employed in a managerial capacity by a corporation or

partnership which is a party to the litigation in which the appearance is

made shall not be considered as unauthorized practice of law.

Further, SCR 3.470 “Attorney Aiding Unauthorized Practice” provides:

Any attorney who knowingly aids, assists or abets in any way, form

or manner any person or entity in the unauthorized practice of law shall be

guilty of unprofessional conduct.

See also DR 3-101(A) which states: “A lawyer shall not aid a non-lawyer in the

unauthorized practice of law.” There are those in the legal profession who may argue that

the best interest of the organized Bar would be served by hiring employees who have been

disbarred, suspended, or have resigned from the practice of law. However, there seems to

be no rule per se excluding the hiring of these individuals. It would seem that the best

interest to society, as well as to the ex-lawyer, is that they should be employable within the

legal system to undertake certain functions that are not the unauthorized practice of law.

Accordingly, with some trepidations, the Ethics Committee feels that the ex-lawyer

can be employed with certain General Provisos, as well as Specific Provisos, as follows:

General Provisos

1. The individual may do anything a lay person could do.

2. The individual may perform such work which is of a preparatory or

ministerial nature.

Specific Provisos

1. The individual may not have any contact whatsoever with a client of a

lawyer.

2. The individual is not a Paralegal within SCR 3.700.

3. The individual may not have an office, or place, in the lawyer’s facility.

4. The individual may perform any drafting acts, as long as they are

submitted in draft form only to the responsible lawyer for approval.

5. The individual may perform clerical aspects of a probate matter.

6. The individual may do an abstract title examination.

7. The individual may provide legal research to a lawyer.

It seems clear to the Ethics Committee that an attorney who hires a suspended,

disbarred, or resigned attorney does so at the attorney’s own risk. If the previous lawyer

engages in any unauthorized practice, the lawyer employing that person will be guilty of

unprofessional conduct and will be appropriately disciplined by the Supreme Court of

Kentucky.

__________

Note to Reader

This ethics opinion has been formally adopted by the Board of Governors of the

Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530

(or its predecessor rule). Note that the Rule provides: “Both informal and formal

opinions shall be advisory only; however, no attorney shall be disciplined for any

professional act on his part performed in compliance with an opinion furnished to him on

his petition, provided his petition clearly, fairly, accurately and completely states his

contemplated professional act.”

Proposed Sup. Ct. Rule to Forbide Suspended Lawyers to Work as Paralegals Criticized

Friday, August 12th, 2011

Pat Harris expresses her opposition to proposed amendment to Supreme Court Rules which would bar suspended or disbarred lawyers from ever working as a paralegal for a lawyer. You can express your opinion on this proposed rule by contacting the Supreme Court Rules Committee. Justice Venters is the Chairman of this committee.

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

August 10, 2011 Supreme Court of Kentucky Capitol Frankfort, Kentucky 40601

 Re: opposition to proposed SCR 3.130 (5.7

 Honorable Justices:

 I am writing in opposition to proposed SCR 3.130(5.7). The proposed rule provides that suspended and disbarred lawyers not be allowed to assist lawyers except as secretaries, not be allowed to perform work that people who were never members of the bar are allowed to perform. A first year law student, college student, anyone can assist a lawyer if the lawyer is willing to hire him.

 The only people who will not be able to assist lawyers are those who have been suspended or disbarred. It is unfair to single out this group and prohibit them from doing what every other person is allowed to do.

 Please consider, as an example, the plight of suspended attorneys who because of illness could not pay bar dues, waiver of dues was denied (this could have been before due process procedures were adopted for waiver of dues), and they were suspended for non-payment of dues.

 Because they did not have funds to pay bar dues and other fees connected with reinstatement, they are reduced to assisting lawyers in good standing. They have had the right to practice taken away and now, perhaps years after the suspension, you propose to take away their right even to assist lawyers. Is this not an unlawful taking as well as an unfair taking?

A suspended or disbarred lawyer has already had his right to practice law taken from him as punishment, perhaps only for being poor. He can no longer call himself a lawyer because he no longer has the right to practice law.

He cannot advise clients, go to court, sign pleadings, briefs, complaints, or other court documents. All he can do is assist a lawyer just as any other assistant is allowed to do. The attorney for whom he works must review, edit, take responsibility for, and sign (after approval) of the finished work. The finished work is that of the attorney, not of his assistant no matter who the assistant is.

Now, after the imposition of disbarment or suspension (and without notification at the time of disbarment or suspension), the court proposes taking another right away — the universal right to work as an assistant to a lawyer.

In suspending or disbarring a lawyer, the Court takes away the right to practice law, a right granted by the Court when a law student passes the Kentucky Bar Exam. The right to assist lawyers is not something granted by the Supreme Court.

The Court cannot take away something it did not grant. Is it possible that the proposed rule is not only unfair but also unconstitutional? The proposed rule also punishes attorneys in good standing by prohibiting them from hiring whomever they want to assist them. The proposed rule provides that they may employ anybody except a suspended or disbarred lawyer.

If a lawyer is willing to accept responsibility for the work performed, he should be able to hire a suspended lawyer as well as his twenty-year-old nephew who dropped out of high school. Yours truly, Pat Harris

Volunteers needed to assist children placed in foster care in Bracken, Kenton and Mason counties

Wednesday, August 3rd, 2011

Citizen Foster Care Review Board needs volunteers to help Kentucky’s children

FRANKFORT, Ky., Aug. 3, 2011 – Citizen Foster Care Review Boards for Bracken, Kenton and Mason counties are seeking volunteers to make a difference in the lives of local children in foster care. Volunteers are needed to review cases of children placed in foster care because of abuse, dependency and neglect to ensure these children are placed in safe, permanent homes as quickly as possible.

Volunteers are not required to reside in the county where a board meets.

The Kentucky General Assembly created the Citizen Foster Care Review Board, or CFCRB, in 1982 as a way to decrease the time children spend in foster care. CFCRB volunteers review Cabinet for Health and Family Services files on children placed in out-of-home care and work with the cabinet and courts on behalf of the state’s foster children.

All volunteers must complete a six-hour initial training session and consent to a criminal record and central registry check. A recommendation is then made to the chief judge of the District Court or Family Court for appointment.

The Bracken/Mason County CFCRB meets quarterly and the Kenton County CFCRBs meet monthly. The meeting schedules for the boards most in need of volunteers are as follows:

Bracken/Mason, quarterly on Thursday, 10 a.m.

Kenton A, fourth Tuesday of the month, 5 p.m.

Kenton B, third Thursday of the month, 11 a.m.

Kenton C, third Wednesday of the month, 10 a.m.

Kenton D, third Monday of the month, 10 a.m.

For more information, contact:

Jamie Bergman

Northern Kentucky CFCRBs

859-334-3245 or jamiebergman@kycourts.net

Individuals who would like to volunteer but are not available for the aforementioned meetings may contact Jamie Bergman to get meeting schedules for other Northern Kentucky CFCRBs.  

Approximately 80 volunteers across the state serve as members of the Kentucky Citizen Foster Care Review Board. The boards operate within the Division of Dependent Children’s Services of the Administrative Office of the Courts in Frankfort. The volunteer reviewers help ensure that children receive the necessary services while in foster care and are ultimately placed in permanent homes.

Approximately 80

Individuals who would like to volunteer but are not available for the aforementioned meetings may contact Jamie Bergman to get meeting schedules for other Northern Kentucky CFCRBs.   

Volunteers across the state serve as members of the Kentucky Citizen Foster Care Review Board. The boards operate within the Division of Dependent Children’s Services of the Administrative Office of the Courts in Frankfort. The volunteer reviewers help ensure that children receive the necessary services while in foster care and are ultimately placed in permanent homes.

As the operations arm for the state court system, the AOC supports the activities of nearly 3,300 court system employees and 403 elected justices, judges and circuit court clerks, and executes the Judicial Branch budget.