Archive for April, 2013

JUSTICE BILL CUNNINGHAM DISCUSSES SUICIDES AMONG LAWYERS

Tuesday, April 30th, 2013

Broken hearted idealists –

By Kentucky Sup. Ct. Justice Bill Cunningham Excerpted from the newsdemocrat.com

“A couple weeks ago, a friend of mine committed suicide. He was a little younger than me. And he was a lawyer. I’ve had four friends commit suicide in recent years. All lawyers.
Is there any link between these horrible events and their profession?
Only God knows. Suicide is the most unfathomable of tragedies.
But I do know this.
According to a major study conducted 20 years ago by the National Institute for Safety and Health, lawyers were twice as likely to commit suicide as the general population. Members of the legal profession most at risk were males between the ages of 48-65. All my deceased friends were men.
A survey by John Hopkins University among 10,000 adults showed that, of all occupational groups, attorneys suffered from the highest signs of clinical depression. Most lawyers tend to focus on the problems of their own clients and let their own mental and emotional needs go unattended.
A recent report by Michael Cohen, Executive Director of Florida’s Legal Association, states that 15-18 percent of their group are alcoholics, as opposed to 10 percent of the general population.
While the research is limited in this area, indications are that lawyers are more likely to divorce than members of other professions.”
There are two types of pressure in the practice of law. First is the pressing need that is found in all professions—the heavy obligation of getting it right. Whether it’s making the proper diagnosis in medicine or designing a bridge that won’t collapse, the lawyer is likewise faced with the pressure of getting it right every day. At next Thursday’s closing of a multi-million dollar real estate deal, the lawyer had better make certain all liens have been released and there is no misprint or missing signatures in the paper work. A misstep could cause the client delays and thousands of dollars.
Or it may be the criminal defense lawyer standing by his client as the jury returns to the courtroom with a verdict. The client will either go out the front door with mama or out the back door with the sheriff to prison. That defense lawyer only hopes and prays that, if his client is convicted, it’s because of the evidence and not his mistakes.
I could go on and on with endless examples where the lawyer is expected to perform every day at top speed. There is an endless line of people with a smorgasbord of problems, constant phone calls to return. A lot of people call with problems. Few call with solutions.
And then there is the second most oppressive burden of a lawyer. I’m speaking of the arena of human tragedy in which each of my suicidal friends worked.
Every lawyer worth their salt comes out of law school as an idealist. Someone has said that lawyers are “humanists who fight.” Young lawyers believe. They think they can make a difference. They want to make a difference. To use the lance of the law to pierce injustice and evil. To summons down the majesty of the law into courtrooms and board rooms so that people will always be treated fairly and justly. To make the world a better place because of their efforts.
Once out in the day to day practice of law, they learn that justice is not always done. Innocent people are abused and some go to prison. People guilty of terrible wrongs go free, laughing at the very system of which they are a part. Bad things happen to good people. Bad people are unjustly enriched.
They learn that the system is not perfect, judges are infallible, and even their own skills are inadequate to take on the vast sea of troubles on which they are afloat in their small boat.
But they keep fighting because there are, in fact, people they help; burdens they lift; lives that are changed and made better. They live from one small victory to another. If my lawyer friends are able to keep things in perspective and endure, they will spend a life time doing much good and leave behind a better world. There will be countless people who will have been blessed by these barristers of American democracy.
Lawyers—most of them—are heroic. You go home at night with your problems. They go home with the problems of many. And then they deal with their own personal problems— sick children, an alcoholic spouse, or a parent who is deep in Alzheimer’s—layered over by the demands of clients and judges and other lawyers.
But worst of all for practicing lawyers is the sinking feeling which settles upon them that in all the struggles, in the thick of battle, it all amounts to nothing. The growing suspicion that all that they do makes no difference. That all the worry, all the late hours and missed holidays from family and friends, and all the endless hours of worry, do not matter. They become a weak-kneed boxer in the 15th round. They keep flailing away. But they lose purpose. They lose hope.
And unfortunately, in some instances, they have reason to despair. In my 35 years in the justice system—years and years of sending people to prison for trafficking in illegal drugs—the scourge of illegal drugs is as bad today as when I started. Maybe worse. Drug abuse infests families of all social and economic class and spreads its malignant cancer into all crevices of our society. No one, no family, is immune. But, we keep flailing away with no hope in sight.
The ballast in the hold for all successful and well-balanced lawyers was articulated by the famous Confederate General Stonewall Jackson. “Duty is ours; consequences are God’s.”
The practice of law is not for the emotionally short-winded. After a while, some lawyers burn out. They become broken-hearted idealists. Some become jaded, cynical, even bitter. In short, they give up.
The great Victor Hugo wrote, “The human heart cannot contain more than a certain quantity of despair. When the sponge is soaked, the ocean cold pass over it without its absorbing one drop more.”
This begs the darker question. What becomes of the sponge?
- Bill Cunningham is a Kentucky Supreme Court Justice.

Read more: News Democrat Leader – Broken hearted idealists

Justices CUNNINGHAM, NOBLE and SCHRODER, call on Judges to make themselves available 24 hours a day for review of search warrants.

Monday, April 29th, 2013

Justices CUNNINGHAM, NOBLE and SCHRODER, call on Judges to make themselves available 24 hours a day for review of search warrants.

Copley v. Commonwealth, 361 S.W.3d 902 (Ky., 2012) March 22, 2012

II. Suppression of Evidence When the Rule Violation
Infringes the Defendant’s Constitutional Rights.

Suppression of evidence pursuant to the exclusionary rule applies only to searches that were carried out in violation of an individual’s constitutional rights. Brock v. Commonwealth, 947 S.W.2d 24, 29 (Ky.1997). In several prior cases, our appellate courts have admitted evidence where the underlying warrant did not strictly comply with the rules but the defendant’s constitutional rights were not violated. …… in Commonwealth v. Hubble, 730 S.W.2d 532 (Ky.App.1987), the Court declined to suppress the seized evidence even though the judge who issued the search warrant failed to retain and file with the clerk a copy of the affidavit and the warrant as required by RCr 13.10(2), and inserted information into the supporting affidavit which was not sworn to by the affiant. The Hubble Court upheld the warrant, stating that because RCr 13.02 is procedural in nature and does not confer any new substantive rights upon the defendant, a violation of the rule does not necessarily affect the defendant’s due process rights. Id. at 533. “The evidence obtained should not be suppressed unless the violation of the rule resulted in prejudice to the defendant.” Id. at 533. See also Stephens v. Commonwealth, 522 S.W.2d 181 (Ky.1975) (upholding warrant issued by magistrate on a form for the Rowan County Quarterly Court).

All sitting. All concur. CUNNINGHAM, J. concurs by separate opinion in which NOBLE and SCHRODER, JJ., join.
CUNNINGHAM, J., concurring.
I fully concur with the excellent opinion of Justice Abramson. I write simply to express my concern that apparently no judge or trial commissioner was available to sign a warrant in this murder case. With all due respect to circuit clerks, they are neither trained nor schooled in the law, nor instructed on the value of neutral and detached magistrates. They are not expected to be.
There may well have been a plausible and acceptable explanation why law enforcement in this case was unable to secure the service of a judge or commissioner. The purpose of this writing is not to pass judgment nor chastise. It is intended to simply remind our judiciary that we are on duty around the clock.
In this day of staggering technological advances in communications—both written and oral—there should be little problem in providing full time judicial coverage. E-warrants, smart phones, and fax machines now make immediate access to a judge or commissioner much easier.

A judge or commissioner neither has to leave his or her house, nor wait on the arrival of the police.
Our law enforcement people work hard, especially when involved in the rigorous demands of criminal investigations. Sometimes they are required to work around the clock, without sleep and under the pressure of circumscribing all their work within constitutional bounds. With that often comes great urgency and the immediate need of a magistrate.

Most jurisdictions in this state consist of several judges and even commissioners. A shared schedule of on call duty should not prove overly onerous.

In conclusion, I simply implore the judges and commissioners of this state to consider their distinguished positions as ones of full time service. That includes always being available to the law enforcement centurions of our cherished communities.

NOBLE and SCHRODER, JJ. join.

Annotation by Gwen Billingsley CEO LawReader.com

IS HAVING A JUROR AS A FACEBOOK FRIEND BASIS FOR RECUSAL?

Sunday, April 28th, 2013

Sluss v. Commonwealth, 381 S.W.3d 215 (Ky., 2012)

The shortcomings of Appellant’s motion, however, are understandable. Whether being a person’s Facebook “friend” standing alone can disqualify a juror is a question this Court has not been called upon to answer, nor has the Court previously considered the impact of an online “friendship” between a juror and someone closely involved in a criminal case. More broadly, it is the first time that the Court has been asked to address counsel’s investigation of jurors by use of social media. Without precedential guidance, Appellant’s failure to demonstrate in his motion for a new trial why this evidence could not be discovered prior to the verdict is excusable since there was little reason for him to think he needed to investigate a juror’s Facebook account or that he even could have done so ethically given the state of the law at the time of trial. Moreover, Appellant was not on notice that such an investigation was necessary on the basis of Virginia Matthews’ unequivocal denial that she was a member of Facebook, and both jurors’ failure to state that they knew April Brewer.

There is further an unsettled question about the extent to which counsel for a criminal defendant may investigate jurors during or after trial.11 The question generally

[381 S.W.3d 227]

involves whether the attorney engaged in inappropriate “communications” with a juror, such as adding the juror as a “friend” on Facebook directly through his own account or through a form of deception, or whether the information was truly public. If the information about a juror is available to the public on a social media site, ethics opinions from other jurisdictions suggest that counsel may investigate that information. See, e.g., N.Y. Cnty. Lawyers Ass’n Comm. on Prof’l Ethics, Formal Op. 743 (May 18, 2011), available at http:// www. nycla. org/ site Files/ Publications/ Publications 1450_ 0. pdf. Given many attorneys’ unfamiliarity with the minutiae of social media, it is not unreasonable for an attorney to be cautious as to his conduct while investigating jurors during the trial.

In fact, there is evidence that, while the practice of conducting intensive internet vetting of potential jurors is becoming more commonplace, “lawyers are skittish about discussing the practice, in part because court rules on the subject are murky or nonexistent in most jurisdictions.” Brian Grow, Internet v. Courts: Googling for the Perfect Juror, Reuters (Feb. 17, 2011), http:// us. mobile. reuters. com/ article/ technology News/ id USTRE 71 G 4 VW 20110217.

Here, in order to discover the evidence in the present case, Appellant would have had to gain access to April Brewer’s list of friends, which might or might not be private,12 and then to access the two jurors’ information to verify their identities. While much of this information is likely public, a reasonable attorney without guidance may not think this investigatory tactic appropriate, and it is still such a new line of inquiry that many attorneys who themselves are not yet savvy about social media may never even have thought of such inquiry.

In 2011, the New York County Lawyers Association’s Committee on Professional Ethics examined whether, under New York’s professional conduct rule governing communications between a lawyer and a juror or member of the jury venire, N.Y. R. Profl Conduct 3.5, a lawyer is permitted, “[a]fter voir dire is completed and the trial commences, … [to] routinely conduct ongoing research on a juror on Twitter, Facebook and other social networking sites.” N.Y. Cnty. Lawyers Ass’n Comm. on Prof’l Ethics, Formal Op. 743 (May 18, 2011). The Committee’s ethics opinion, mirroring the ethics rule, differentiates between conduct that is permissible during the pretrial phase and conduct that is permissible during the evidentiary and deliberation phases. The committee concluded:

It is proper and ethical under [Rule of Professional Conduct] 3.5 for a lawyer to undertake a pretrial search of a prospective juror’s social networking site, provided that there is no contact or communication with the prospective juror and the lawyer does not seek to “friend” jurors, subscribe to their Twitter accounts, send jurors tweets or otherwise contact them. During the evidentiary or deliberation phases of a trial, a lawyer may visit the publicly available Twitter, Facebook or other social networking site

[381 S.W.3d 228]

of a juror but must not “friend” the juror, email, send tweets to the juror or otherwise communicate in any way with the juror or act in any way by which the juror becomes aware of the monitoring. Moreover, the lawyer may not make any representations or engage in deceit, directly or indirectly, in reviewing juror social networking sites.

Id. Moreover, the opinion sets forth the proper procedure for the lawyer to report jury misconduct if such misconduct is discovered:

Gwen Billingsley
C.E.O. Lawreader.com
502-732-4617

COURT OF APPEALS SLAPS WRIST OF JUDGE WHO REFUSED TO CLEAN UP ERROR

Sunday, April 28th, 2013

Given v. Commonwealth (Ky. App., 2013) April 12, 2013

We declare more formally that which the Court in Cardwell implied, i.e., a discrepancy between a trial court’s intended sentence and the final judgment is a clerical error where the intended sentence was explicitly expressed by the trial court and fully made known to the parties, and such is readily apparent from the record of the sentencing hearing, with no credible evidence to the contrary. Sentencing is a significant occurrence, as it is when the defendant learns the extent to which he has lost his liberty and the Commonwealth learns what punishment will be imposed. In an ideal world, the written judgment would accurately reflect the appropriate punishment determined by the judge for the crime committed, but unfortunately reality does not always conform to the ideal. Judges have a solemn duty to dispense justice fairly, in accordance with the law, and to maintain the integrity of the justice system so as to merit and hold fast the public’s faith in that system. Binding parties to an unintended and mistaken judgment that either delivers an undeserved windfall or imposes an inequitable punishment serves neither party and undermines our system of justice.

WHEN MEASURING ACHIEVEMENT OF LAWYERS, SHOULD HOURS OR RESULTS MATTER MOST SHOULD SIX SIGMA PLAN APPLY TO LAW FIRMS

Saturday, April 27th, 2013

Posted Apr 25, 2013 By Patrick J. Lamb
Not long ago, I was speaking before a group of law firm managing partners who were curious about how we ran a firm without keeping track of hours.
One manager asked how we handled associate reviews considering we don’t track billable hours. Before answering, I asked how many used hours as part of their review process. All acknowledged they do. When I asked for other review criteria, the consensus seemed to be work quality and citizenship factors also weighed in during reviews.
Then I turned to client representatives who were in the room and asked if they also had a review process for lawyers. They did. But none of them used hours as a factor during reviews.
Why not count hours when measuring achievement?
They agreed that hours weren’t relevant.
Law firms have considered themselves “special” for so long that they routinely try to figure out solutions to problems that businesses have long ago resolved. Rather than learn from what businesses, including their clients, have done, firms want to try to figure out a solution anew. My fellow columnist Paul Lippe has described this as using the Lewis & Clark method of figuring out where you’re going instead of Google Maps.
The point, however made, is clear: Law firms are business enterprises and should build on the success of other business enterprises rather than simply solving problems from scratch or using other law firms as sources of solution insights.
Let’s look at a few examples. How do law firms view productivity? Most measure productivity by the average number of hours worked by the number of full-time equivalent lawyers. Yet no business uses a similar measurement. In the simplest manner, businesses determine the number of outputs in a given time period, controlling for variables such as the number of workers and so forth. The key is the focus on results.
Since Jack Welch popularized Six Sigma in his days at General Electric, the many GE vice-presidents who soon were CEOs in other companies have made Six Sigma a mainstay of business. It has evolved over time, and now many businesses combine Six Sigma with the principles of Lean. How do law firms score in that area? Poorly at best. Only Seyfarth Shaw stands out as a firm of any size that has even attempted to make Lean Six Sigma an integral part of its culture.
Marketing? Branding? Sales? Law firm efforts in these areas are infantile in comparison to business.
Leadership development? Law firms look to their best salespeople (almost always men) and make them department heads or managing partners. The implicit assumption is that accomplishment in sales and business development makes one a leader. Businesses know that leadership skills are honed in a number of ways, but they know most importantly that leadership skills don’t just happen.
Law firms, by contrast, are built solely on the hope that they do.
Finally, there is the very fundamental question of business model. Is there any business based on a model that jettisons people after they have spent years learning the business and become extremely valuable to customers? Do any businesses choose to structure themselves on the partnership model so many law firms use? If there are any businesses that do, they do a great job of disguising their success.
Part of the New Normal is the application of business tools and techniques to the business of law. One of the most critical tools is self-critical analysis—not assuming that we have right answers simply because we are lawyers or our practices previously were successful.The best businesses are building themselves for 2020 and beyond. Law firms should be doing the same.
________________________________________
Patrick Lamb is a founding member of Valorem Law Group, a litigation firm representing business interests. Valorem helps clients solve their business disputes and coping with pressures to reduce legal spend using nontraditional approaches, including use of nonhourly fee structures, coordination with LPOs or contract lawyers, joint-venturing with other firms and implementation of project management tools to handle lawsuits or portfolios of litigation.

SIX SIGMA EXPLAINED BY WIKIPEDIA
For Sigma 6, the six-piece band that became Pink Floyd, see Pink Floyd.

The often-used Six Sigma symbol
Six Sigma is a set of tools and strategies for process improvement originally developed by Motorola in 1985.[1][2] Six Sigma became well known after Jack Welch made it a central focus of his business strategy at General Electric in 1995,[3] and today it is used in different sectors of industry.[4]
Six Sigma seeks to improve the quality of process outputs by identifying and removing the causes of defects (errors) and minimizing variability in manufacturing and business processes.[5] It uses a set of quality management methods, including statistical methods, and creates a special infrastructure of people within the organization (“Champions”, “Black Belts”, “Green Belts”, “Orange Belts”, etc.) who are experts in these very complex methods.[5] Each Six Sigma project carried out within an organization follows a defined sequence of steps and has quantified value targets, for example; process cycle time reduction, customer satisfaction, reduction in pollution, cost reduction and/or profit increase.[5]
The term Six Sigma originated from terminology associated with manufacturing, specifically terms associated with statistical modeling of manufacturing processes. The maturity of a manufacturing process can be described by a sigma rating indicating its yield or the percentage of defect-free products it creates. A six sigma process is one in which 99.99966% of the products manufactured are statistically expected to be free of defects (3.4 defects per million), although, as discussed below, this defect level corresponds to only a 4.5 sigma level. Motorola set a goal of “six sigma” for all of its manufacturing operations, and this goal became a byword for the management and engineering practices used to achieve it.
Doctrine
Like its predecessors, Six Sigma doctrine asserts that:
• Continuous efforts to achieve stable and predictable process results (i.e., reduce process variation) are of vital importance to business success.
• Manufacturing and business processes have characteristics that can be measured, analyzed, controlled and improved.
• Achieving sustained quality improvement requires commitment from the entire organization, particularly from top-level management.
Features that set Six Sigma apart from previous quality improvement initiatives include:
• A clear focus on achieving measurable and quantifiable financial returns from any Six Sigma project.[5]
• An increased emphasis on strong and passionate management leadership and support.[5]
• A special infrastructure of “Champions”, “Master Black Belts”, “Black Belts”, “Green Belts”, etc. to lead and implement the Six Sigma approach.[5]
• A clear commitment to making decisions on the basis of verifiable data and statistical methods, rather than assumptions and guesswork.[5]
The term “Six Sigma” comes from a field of statistics known as process capability studies. Originally, it referred to the ability of manufacturing processes to produce a very high proportion of output within specification. Processes that operate with “six sigma quality” over the short term are assumed to produce long-term defect levels below 3.4 defects per million opportunities (DPMO).[6][7] Six Sigma’s implicit goal is to improve all processes, but not to the 3.4 DPMO level necessarily. Organizations need to determine an appropriate sigma level for each of their most important processes and strive to achieve these. As a result of this goal, it is incumbent on management of the organisation to prioritize areas of improvement.
Six Sigma is a registered service mark and trademark of Motorola Inc.[8] As of 2006 Motorola reported over US$17 billion in savings[9] from Six Sigma. Other early adopters of Six Sigma who achieved well-publicized success include Honeywell (previously known as AlliedSignal) and General Electric, where Jack Welch introduced the method.[10] By the late 1990s, about two-thirds of the Fortune 500 organizations had begun Six Sigma initiatives with the aim of reducing costs and improving quality.[11]
In recent years, some practitioners have combined Six Sigma ideas with lean manufacturing to create a methodology named Lean Six Sigma.[12] The Lean Six Sigma methodology views lean manufacturing, which addresses process flow and waste issues, and Six Sigma, with its focus on variation and design, as complementary disciplines aimed at promoting “business and operational excellence”.[12] Companies such as IBM and Sandia National Laboratories use Lean Six Sigma to focus transformation efforts not just on efficiency but also on growth. It serves as a foundation for innovation throughout the organization, from manufacturing and software development to sales and service delivery functions.
The International Organisation for Standards (ISO) has published ISO 13053:2011 defining the six sigma process.[13]
Methods
Six Sigma projects follow two project methodologies inspired by Deming’s Plan-Do-Check-Act Cycle. These methodologies, composed of five phases each, bear the acronyms DMAIC and DMADV.[11]
• DMAIC is used for projects aimed at improving an existing business process.[11] DMAIC is pronounced as “duh-may-ick” (< ˌdʌ ˈmeɪ ɪk>).
• DMADV is used for projects aimed at creating new product or process designs.[11] DMADV is pronounced as “duh-mad-vee” (< ˌdʌ ˈmæd vi>).
DMAIC
The DMAIC project methodology has five phases:
• Define the problem, the voice of the customer, and the project goals, specifically.
• Measure key aspects of the current process and collect relevant data.
• Analyze the data to investigate and verify cause-and-effect relationships. Determine what the relationships are, and attempt to ensure that all factors have been considered. Seek out root cause of the defect under investigation.
• Improve or optimize the current process based upon data analysis using techniques such as design of experiments, poka yoke or mistake proofing, and standard work to create a new, future state process. Set up pilot runs to establish process capability.
• Control the future state process to ensure that any deviations from target are corrected before they result in defects. Implement control systems such as statistical process control, production boards, visual workplaces, and continuously monitor the process.
Some organizations add a Recognize step at the beginning, which is to recognize the right problem to work on, thus yielding an RDMAIC methodology.[
Implementation roles
One key innovation of Six Sigma involves the "professionalizing" of quality management functions. Prior to Six Sigma, quality management in practice was largely relegated to the production floor and to statisticians in a separate quality department. Formal Six Sigma programs adopt a ranking terminology (similar to some martial arts systems) to define a hierarchy (and career path) that cuts across all business functions.
Six Sigma identifies several key roles for its successful implementation.[15]
• Executive Leadership includes the CEO and other members of top management. They are responsible for setting up a vision for Six Sigma implementation. They also empower the other role holders with the freedom and resources to explore new ideas for breakthrough improvements.
• Champions take responsibility for Six Sigma implementation across the organization in an integrated manner. The Executive Leadership draws them from upper management. Champions also act as mentors to Black Belts.
• Master Black Belts, identified by champions, act as in-house coaches on Six Sigma. They devote 100% of their time to Six Sigma. They assist champions and guide Black Belts and Green Belts. Apart from statistical tasks, they spend their time on ensuring consistent application of Six Sigma across various functions and departments.
• Black Belts operate under Master Black Belts to apply Six Sigma methodology to specific projects. They devote 100% of their time to Six Sigma. They primarily focus on Six Sigma project execution, whereas Champions and Master Black Belts focus on identifying projects/functions for Six Sigma.
• Green Belts are the employees who take up Six Sigma implementation along with their other job responsibilities, operating under the guidance of Black Belts.
Some organizations use additional belt colours, such as Yellow Belts, for employees that have basic training in Six Sigma tools and generally participate in projects and ‘white belts’ for those locally trained in the concepts but do not participate in the project team.[16]

Former DA jailed after judge issues scathing opinion in rare Texas court of inquiry

Saturday, April 27th, 2013

Posted Apr 22, 2013 12:40 PM CDT from ABA Journal
By Martha Neil
An unusual court of inquiry held to probe the conduct of a former Texas district attorney has concluded with a blistering opinion by the presiding judge.
Former Williamson County District Attorney Ken Anderson was briefly booked into jail Friday before being released on $7,500 bail after District Judge Louis Sturns determined that there was probable cause to support charges that Anderson had violated state law and acted in contempt of court by lying to a trial judge decades ago to win a conviction in a murder case, the American-Statesman reports.
The convicted man, Michael Morton, served nearly 25 years before he was exonerated.
“This court cannot think of a more intentionally harmful act than a prosecutor’s conscious choice to hide mitigating evidence so as to create an uneven playing field for a defendant facing a murder charge and a life sentence,” Sturns said.
His ruling represents the first step toward a potential prosecution of Anderson, who is now a sitting state court judge. Sturns issued a separate show-cause order requiring Anderson to appear in court to defend a criminal contempt citation, for which he could be sentenced to a maximum $500 fine and six months in jail if he is convicted.
Anderson’s lawyer, Eric Nichols, said his client will appeal on statute-of-limitations grounds. He also argues that the facts do not support Sturns’ finding and says he believes the court of inquiry went beyond the scope of its authority.
Sturns apologized to Morton, on behalf of the state’s judges, before issuing his ruling.
He found that Anderson concealed two critical items of evidence that could have helped Morton avoid conviction at trial. First, a police interview transcript showed that Morton’s young son had witnessed the murder and said his father wasn’t home when it occurred. Second, a man had parked a green van near the Morton home and several times walked into a wooded area behind the house.

Governor Beshear makes numerous appointments to Boards and Commissions

Saturday, April 27th, 2013

Press Release Date: Friday, April 26, 2013

FRANKFORT, Ky. – Gov. Steve Beshear has made the following appointments to Kentucky boards and commissions:

Gov. Beshear has reappointed the following members to the KATS Network Advisory Council to serve for terms expiring March 31, 2016:
•Norbert J. Ryan, of Versailles, is the state Americans with Disabilities Act coordinator. He represents other state agencies, public agencies or private organizations.

•Matthew B. Davis, of Bowling Green, is an administrator at Western Kentucky University. He represents individuals with disabilities who use assistive technology.

•Joe L. Cowan, of Monticello, is an instructional specialist and Americans with Disabilities Act coordinator at Somerset Community College. He represents individuals with disabilities who use assistive technology.

•Sharon S. Fields, of Frankfort, is self-employed. She represents individuals with disabilities who use assistive technology.

•Nathan P. Bolton, of Bowling Green, is a professional speaker. He represents individuals with disabilities who use assistive technology.

Gov. Beshear has reappointed the following members to the Consumers’ Advisory Council to serve for terms expiring Sept. 8, 2015:
•Randall Azbill, of London, is an attorney.

•Diane Wood, of Hopkinsville, is a retired auditor.

•John D. Tidwell, of Mayfield, is a real estate appraiser at Waldrop & Associates.

Gov. Beshear has appointed the following members to the Reading Diagnostic and Intervention Grant Steering Committee to serve for terms expiring May 16, 2016:
•Cheri Murrey, of Beattyville, is an elementary school teacher for the Lee County Board of Education. She represents primary teachers with expertise in reading and literacy. The appointment replaces Gala Catron, whose term has expired.

•Kristen H. Perry, of Lexington, is an assistant professor at the University of Kentucky. She represents university professors with expertise in reading and literacy. The appointment replaces Julia E. Embry, whose term has expired.

•April Kathleen “Kathy” Mansfield, of Simpsonville, is an elementary school library media specialist for Shelby County Public Schools. She represents certified media specialists. The appointment replaces Rosana V. Denham, whose term has expired.

•Kathi Haley, of Paris, is a reading recovery teacher at Bourbon County schools. She represents the state at large. The appointment replaces James A. Nelson, whose term has expired.

Gov. Beshear has appointed Monica Rath to the Charitable Gaming Advisory Commission to serve for the remainder of the unexpired term ending July 10, 2015.
•Monica Rath, of Newport, is a community center coordinator for the city of Southgate. She represents Kentucky volunteer firefighters organizations. The appointment replaces Ralph Spurlock, who has resigned.

Gov. Beshear has appointed Rodney Simpson to the Kentucky River Authority to serve for the remainder of the unexpired term ending Sept. 18, 2014.
•Rodney Simpson, of Frankfort, is a self-employed consultant. He represents counties adjacent to locks and dams 1 through 4 of the Kentucky River. The appointment replaces Jerry T. Wildt, who has resigned.

Gov. Beshear has appointed the following members to the Kentucky Heritage Council to serve for terms expiring Aug. 6, 2016:
•Virginia W. Butler, of Maysville, is a substitute teacher. The appointment replaces James E. Hays, whose term has expired.

•Nana Lampton, of Goshen, is CEO at American Life Insurance and chairwoman of Hardscuffle Inc. The appointment replaces Darlene J. Brown, whose term has expired.

•Charles W. Weyland, of Louisville, is an architect and real estate developer at City Properties Group. The appointment replaces Dennis J. Vesper, whose term has expired.

Gov. Beshear has reappointed the following members to the council to serve for terms expiring Aug. 6, 2016:
•Stephen L. Collins, of Shelbyville, is an attorney and funeral director at Hall-Taylor Funeral Home. Collins shall serve as vice chairman of the council.

•Jennifer B. Miller, of Lexington, is an attorney and self-employed consultant.

Gov. Beshear has reappointed Robert Joseph Roberts to the Kentucky Real Estate Commission to serve for a term expiring June 19, 2017. This order is effective June 20, 2013.
•Robert Joseph Roberts, of Richmond, is an insurance agent at R.J. Roberts Inc. He represents citizens at-large.

Gov. Beshear has reappointed the following members to the Kentucky Historic Preservation Review Board to serve for terms expiring July 15, 2016:
•Robert S. Weise, of Richmond, is a historian at Eastern Kentucky University. He represents architectural historians.

•Kelli Carmean, of Lexington, is an associate professor at Eastern Kentucky University. She represents archeologists.

•William H. Mulligan Jr., of Murray, is a professor at Murray State University. He represents professionally recognized historians.

Gov. Beshear has reappointed Stephen D. Lewis to the State Board of Auctioneers to serve for a term expiring June 30, 2016. This order is effective July 1, 2013.
•Stephen D. Lewis, of Morehead, is an auctioneer and realtor at C.R. Lewis Agency Inc.

Gov. Beshear has appointed Roxann Fry to the Kentucky Workforce Investment Board to serve for the remainder of the unexpired term ending May 12, 2015.
•Roxann Fry, of Bowling Green, is a senior economic development consultant for the Tennessee Valley Authority. She represents business/members at large. The appointment replaces Kimberly M. Huston, who has resigned.

Gov. Beshear has reappointed Shelley W. Ryan to the Kentucky Board of Veterinary Examiners to serve for a term expiring April 1, 2017.
•Shelley W. Ryan, of Lexington, is a physical therapist at Shriners Hospital. She represents consumers.

Gov. Beshear has appointed Greg Curlin to the Water Transportation Advisory Board to serve for a term expiring Sept. 30, 2016.
•Greg Curlin, of Fulton, is executive director of Hickman-Fulton Co. Riverport Authority. He represents the Commonwealth’s public riverports. The appointment replaces Thomas E. Riney, whose term has expired.

Gov. Beshear has appointed the following members to the Jefferson Community and Technical College Board of Directors to serve for terms expiring Dec. 19, 2018:
•James L. Lancaster, of Glenview, is CEO at Lantech.Com LLC. The appointment replaces Louis I. Waterman, whose term has expired.

•Mary S. Moseley, of Louisville, is the owner of Al J. Schneider Co. The appointment replaces Joanna S. Freels, whose term has expired.

Gov. Beshear has reappointed Lou Ann Moore to the board to serve for a term expiring Dec. 19, 2018.
•Lou Ann Moore, of Shepherdsville, is a real estate broker at Century 21 Advantage Plus.

Gov. Beshear has appointed Susan Ulmer Blake to the Child Sexual Abuse and Exploitation Prevention Board to serve for a term expiring Sept. 20, 2015.
•Susan Ulmer Blake, of Lexington, is a business manager at Lexington Neurology. The appointment replaces Jane B. Dobson, whose term has expired.

Gov. Beshear has appointed the following members to the Kentucky Grape and Wine Council to serve for a term expiring Jan. 1, 2017:
•Patsy E. Wilson, of Lexington, is an extension specialist of viticulture at the University of Kentucky. She represents the University of Kentucky Agriculture Experiment Station. The appointment replaces Dr. John G. Strang, whose term has expired.

•Ann B. McBrayer, of Lexington, is president of KY Eagle Inc. She represents citizens at large. The appointment replaces John A. Carpenter, whose term has expired.

•Ann E. Karsner, of Willisburg, is vice president at Horse Bend Vineyards. She represents winery operators. The appointment replaces Charles A. Smith, whose term has expired.

Gov. Beshear has appointed Sandra Anez Powell to the Child Labor Committee to serve at the pleasure of the Governor.
•Sandra Anez Powell, of Richmond, is a social service coordinator at Foothills Community Action Partnership. She represents the Kentucky Commission on Human Rights. The appointment replaces Alma Randolph-Patton, who has resigned.

Gov. Beshear has appointed Aaron H. Pierce to the State Plumbing Code Committee to serve for a term expiring Jan. 31, 2015.
•Aaron H. Pierce, of Brandenburg, is a master plumber and plumbing superintendent at Hussung Mechanical. He represents the Kentucky Mechanical Contractors Association. The appointment replaces Gary W. Schardein, whose term has expired.

Gov. Beshear has reappointed the following members to the committee to serve for a term expiring Jan. 31, 2015:
•Park Heaton Rommel, of Owensboro, is an engineer and the owner of A & G Engineering. He represents the Kentucky Society for Professional Engineers.

•James W. Gibson, of Benton, is a self-employed plumber. He represents the Association of General Contractors of America.

Gov. Beshear has appointed Kevin Shurn to the Kentucky Office for the Blind State Rehabilitation Council to serve for the remainder of the unexpired term ending June 30, 2013.
•Kevin Shurn, of Louisville, is the owner of Superior Maintenance. He represents Kentucky Workforce Investment Board. The appointment replaces William Monterosso, who has resigned.

Gov. Beshear has reappointed the following members to the Kentucky Board of Hairdressers and Cosmetologists to serve for terms expiring Feb. 1, 2015:
•Regina Kay Swanner, of East Bernstadt, is a cosmetology instructor at Somerset Community College. She represents cosmetology teachers in public education.

•Bea Collins, of Wittensville, is a hairdresser and owner of Bea’s Beauty Salon. She represents cosmetology salon owners.

•Rebecca H. Taylor, of Winchester, is a cosmetology school owner. She represents cosmetology school owners.

Gov. Beshear has appointed Leigh Gross Latherow to the Ashland Community and Technical College Board of Directors to serve for a term expiring Jan. 1, 2019.
•Leigh Gross Latherow, of Ashland, is an attorney at VanAntwerp, Monge, Jones, Edwards & McCann LLP. The appointment replaces Carl D. Edwards, whose term has expired.

Gov. Beshear has reappointed Ann B. Perkins to the board to serve for a term expiring Jan. 1, 2019.
•Ann B. Perkins, of Ashland, is the director at Safe Harbor.

Gov. Beshear has appointed Kathy Boehmer to the Kentucky Board of Licensure for Massage Therapy to serve for the remainder of the unexpired term ending July 16, 2013.
•Kathy Boehmer, of Edgewood, is a physical therapist and athletic trainer at St. Elizabeth Healthcare. She represents citizens at large. The appointment replaces Max A. Maxwell, who has resigned.

Gov. Beshear has appointed Donald S. Elias to the Tennessee-Tombigbee Waterway Development Authority to serve for a term expiring Dec. 6, 2015.
•Donald S. Elias, of Murray, is an engineering project coordinator and inspector at Bacon, Farmer, Workman Engineers. The appointment replaces James O. Butts, whose term has expired.

THE KENTUCKY SUPREME COURT UNANIMOUSLY ORDERS DEFENDANTS ACCESS TO DNA TEST LawReader Applauds the Supreme Court

Friday, April 26th, 2013

THE KENTUCKY SUPREME COURT UNANIMOUSLY ORDERS DEFENDANTS ACCESS TO DNA TEST LawReader Applauds the Supreme Court

Two offenders serving life sentences based “on highly circumstantial evidence” should have access to conduct DNA testing that wasn’t available at the time of their trial, the Ky. Supreme Court unanimously ruled April 25, 2013.

Linda Smith the director of the Kentucky Innocence Project said, “the ruling will benefit everyone because it will allow the guilty to be convicted and the innocent to go free.”

Two prosecutors fought efforts to allow DNA testing and their efforts were strangely supported by the Attorney General. The AG’s office opposed the testing and said, “it would at most implicate a third person.”

Justice Cunningham, a former Prosecutor himself, will long be remembered and quoted for writing in his opinion:

“We proclaim that evidence admitted into criminal trials in this state belongs to the Commonwealth of Kentucky. It does not belong to the Commonwealth’s Attorney. The latter is charged with the duty to preserve and protect the integrity of evidence, not to hoard it.”

Those attorneys who really practice criminal law, will realize how important this decision is. We have all seen prosecutors who refuse to every listen to any argument about a potential mistake which convicted an innocent man, and allowed the guilty person to escape justice. The strong language of the Supreme Court to prosecutors sends them a message that they have a duty to live up to their ethical duty to be “a ministers of justice”.

We applaud the Ky. Supreme Court for their support of “truth justice and the American way.”

The decision is styled:

HARDIN, GARR KEITH, ET AL
VS.
COMMONWEALTH OF KENTUCKY

2011-SC-000722-TG.PDF TO BE PUBLISHED FROM MEADE CIRCUIT COURT

OPINION OF THE SUPREME COURT BY JUSTICE CUNNINGHAM- REVERSING AND REMANDING

Former Agriculture Commissioner Richie Farmer pleaded not guilty Thursday to federal charges

Thursday, April 25th, 2013

By Beth Musgrave — bmusgrave@herald-leader.com

Former Agriculture Commissioner Richie Farmer pleaded not guilty Thursday to federal charges that he misused more than $450,000 of state money and property during his eight years as Kentucky’s top agriculture official.

A federal judge set a trial date of July 2 and denied Farmer’s request to visit Cancun, Mexico in May with his girlfriend. Farmer, who is unemployed, was released on his own recognizance but must look for employment, can’t leave the state and must surrender his passport, the judge ordered.

Read more here: http://www.kentucky.com/2013/04/25/2615224/richie-farmer-enters-federal-courthouse.html#emlnl=Latest_headlines_newsletter#storylink=cpy

RECENT RULINGS ON CR 11 MAKE IT MORE DIFFICULT TO OBTAIN RULE 11 SANCTIONS

Wednesday, April 24th, 2013

RECENT RULE 11 CASES HANDED DOWN IN 2013 AND 2012

The first case cited below imposes some degree of restriction in the court granting Rule 11 sanctions.

LEXINGTON INVESTMENT COMPANY AND MATTHEW STOCKHAM APPELLANTS
v.
RANDY WILLEROY; CLIFF STIDHAM; AND LYNN STIDHAM APPELLEES
NO. 2010-CA-001027-MR
Commonwealth of Kentucky Court of Appeals
RENDERED: MARCH 1, 2013
TO BE PUBLISHED

APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE PAMELA R. GOODWINE, JUDGE
ACTION NO. 06-CI-03998

We now turn to the central issue in this appeal: the denial of the Brokers’ motions for sanctions and attorney fees against Willeroy. CR 11 requires that all pleadings be signed by the party or counsel of record. The rule further provides, in relevant part:
The signature of an attorney or party constitutes a certification by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. . . . If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee.
CR 11 does not provide substantive rights to litigants but is a procedural rule designed to curb abusive conduct in the litigation process. Clark Equip. Co., Inc. v. Bowman, 762 S.W.2d 417, 420 (Ky. App. 1988). It is intended only for exceptional circumstances. Id. The test to be used by the trial court in
Page 7
considering a motion for sanctions is whether the attorney’s conduct, at the time he or she signed the allegedly offending pleading or motion, was reasonable under the circumstances. Id. Where a trial court denies a motion for sanctions under CR 11, this Court’s review is limited to a determination of whether the trial court abused its discretion. Id. The test for abuse of discretion is whether the trial court’s ruling was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000).
In arguing that sanctions were justified, the Brokers primarily focus on two significant facts. First, the Brokers emphasize that they signed the tolling agreement which Willeroy had requested. Thus, the Brokers contend that Willeroy did not need to bring the action against them immediately, but could have conducted further investigation. And second, the Brokers contend that Willeroy’s counsel admitted during litigation that he had not conducted an adequate review of the factual basis for the claims against them. However, we agree with Willeroy that these facts, while relevant, do not compel an award of sanctions.
JEREMI SIMON-KINNAMAN APPELLANT
v.
KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION; AND LIFESKILLS, INC. APPELLEES
NO. 2011-CA-002341-MR
Commonwealth of Kentucky Court of Appeals
RENDERED: JANUARY 25, 2013
NOT TO BE PUBLISHED

APPEAL FROM WARREN CIRCUIT COURT
HONORABLE JOHN R. GRISE, JUDGE
ACTION NO. 11-CI-01160

OPINION
AFFIRMING
benefits. Upon the motion of Lifeskills, Inc., Simon-Kinnaman’s former employer, the circuit court dismissed the action on jurisdictional grounds because Simon-Kinnaman failed to verify his complaint as required by KRS1 341.450(1). In his appeal to this court, Simon-Kinnaman argues that his attorney’s signature on the complaint sufficiently complies with the statutory mandate and that his complaint should be reinstated as a matter of right under CR2 15.01, or he should be granted leave to amend his complaint under that rule. He further asserts that corrections of technical defects such as verification are allowed under CR 11. We disagree.
KRS 341.450(1) permits judicial review of a decision of the Commission providing, among other things, that the complaint is verified by the plaintiff or his attorney. When an aggrieved party is permitted by statute to appeal an administrative agency decision, “the requirements of the statute are mandatory, and a circuit court does not obtain jurisdiction to hear the appeal unless the statutory requirements have been met.” Cabinet for Human Res. v. Holbrook, 672 S.W.2d 672, 675 (Ky. App. 1984) (citations omitted). Kentucky courts have long held that statutes providing for judicial review of administrative agency decisions are to be strictly observed. See Kentucky Unemployment Comm’n v. Carter, 689 S.W.2d 360 (Ky. 1985); Board of Adjustment of the City of Richmond v. Flood, 581 S.W.2d 1 (Ky. 1979); Fisher v. Kentucky Unemployment Ins. Comm’n, 880 S.W.2d
Page 3
891, 892 (Ky. App. 1994); Monyhan v. Kentucky Unemployment Ins. Comm’n, 709 S.W.2d 837 (Ky. App. 1986); Frisby v. Board of Educ. of Boyle County, 707 S.W.2d 359 (Ky. App. 1986); Holbrook, 672 S.W.2d 672; Pickhart v. United States Post Office, 664 S.W.2d 939 (Ky. App. 1983); Roberts v. Watts, 258 S.W.2d 513 (Ky. 1953). Further, “[t]he civil rules which would normally permit amendment do not apply to appeals of administrative decisions until after the appeal has been perfected and jurisdiction has attached.” Holbrook, 672 S.W.2d at 675 (citing Pollitt v. Kentucky Unemployment Ins. Comm’n, 635 S.W.2d 485 (Ky. App. 1982)).
Here, Simon-Kinnaman failed to verify his complaint filed with the Warren Circuit Court; thus, the appeal was not perfected. We find Simon-Kinnaman’s reliance on Shamrock Coal Co. v. Taylor, 697 S.W.2d 952 (Ky. App. 1985), in support of his argument of sufficient compliance unavailing. In Shamrock Coal, this court found that the plaintiff’s “clear attempt at verification” constituted sufficient compliance with KRS 341.450(1); specifically, the court found that the plaintiff verified his petition by signing it, though not under oath, and the failure to strictly comply with the statute “was no more than a technical defect.” Id. at 953. Simon-Kinnaman did not sign or attempt to verify his complaint. As such, we find Shamrock Coal distinguishable from this case. We further note that the Kentucky Supreme Court in Carter, 689 S.W.2d at 361, also interpreting KRS 341.450(1), disallowed substantial compliance when the appeal process is statutorily created and implemented.
Page 4
Since the civil rules do not apply to appeals from decisions of administrative agencies until the appeal is perfected, the amendment provision of CR 15.01 and correction of technical defect concept of CR 11 are not viable avenues of relief for Simon-Kinnaman. On this ground alone, the circuit court properly dismissed the appeal for lack of jurisdiction.
The order of the Warren Circuit Court is affirmed.
ALL CONCUR.

DONNA YEAGER, AS EXECUTRIX
OF THE ESTATE OF STACEY CLISE APPELLANT
v.
DANIEL DICKERSON AND STEPHEN DALLAS APPELLEES
AND
ERIC DETERS AND DONNA YEAGER,
AS EXECUTRIX OF THE ESTATE OF STACEY CLISE APPELLANTS
v.
DANIEL DICKERSON AND STEPHEN DALLAS APPELLEES
AND
DANIEL DICKERSON CROSS-APPELLANT
v.
DONNA YEAGER, AS EXECUTRIX OF THE ESTATE
OF STACEY CLISE AND ERIC DETERS CROSS-APPELLEES
AND
STEPHEN DALLAS CROSS-APPELLANT
v.
ERIC DETERS AND DONNA YEAGER,
AS EXECUTRIX OF THE ESTATE OF
STACEY CLISE CROSS-APPELLEES
NO. 2008-CA-000153-MR
NO. 2009-CA-000107-MR
NO. 2009-CA-000108-MR
NO. 2009-CA-000109-MR
Commonwealth of Kentucky Court of Appeals
RENDERED: JANUARY 11, 2013
TO BE PUBLISHED

APPEAL FROM GRANT CIRCUIT COURT
Rule 11 Sanctions
The final issue in this case concerns an appeal filed by Yeager and her attorney Eric Deters and a cross-appeal filed by attorneys Dickerson and Dallas. The issue involves the grant of a motion for sanctions pursuant to Kentucky Civil Rule (CR) 11 against each attorney representing Yeager in this case. The appeal challenges the granting of these fees and the cross-appeal challenges the adequacy of the award. Attorney’s fees are appropriate sanctions for violations of CR 11. CR 11 states that every pleading, motion, or other paper to be filed with the court is to be signed by an attorney of record.
The signature of an attorney or party constitutes a certification by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
CR 11. If a signed pleading is filed for an unreasonable purpose, a trial court can sanction the attorney.
We find that sanctions were inappropriate in this case.
While some courts apply an across-the-board abuse of discretion standard of review to all Rule 11 rulings, we think where sanctions are imposed our role requires a multi-standard approach, that is, a clearly erroneous standard to the trial court’s findings in support of sanctions, a de novo review of the legal conclusion that a violation occurred, and an abuse of discretion standard on
Page 15
the type and/or amount of sanctions imposed. (Citation omitted).
Clark Equipment Company, Inc. v. Bowman, 762 S.W.2d 417, 421 (Ky. App. 1988). Rule 11 sanctions are to be used only in extraordinary circumstances and this Court has previously emphasized that it is not a “vehicle to obtain relief by one who has suffered damages by simple negligence in the filing of a lawsuit or by the filing of a meritless lawsuit.” Id. at 420. It cautioned that even if a case is meritless, the Rule has no “application unless it is demonstrated that a party or his lawyer signed a paper in violation of the Rule.” Id. (quotation and citation omitted).
The imposition of sanctions in this case is equivalent to an award of attorney’s fees to the prevailing party. Although the trial court found that the complaint alleging violation of HIPAA privacy protections was not well grounded in fact or in existing law and there was no good faith argument for the extension, modification, or reversal of existing law, we believe that its findings were based on hindsight rather than whether the complaint was reasonable when filed. The complaint was filed prior to this Court’s opinions in McMillen v. Kentucky Dept. of Corrections, 233 S.W.3d 203 (Ky. App. 2007), and Young v. Carran, 289 S.W.3d 586 (Ky. App. 2008). In addition, this was also an issue that was newly arisen in the courts, trial counsel consulted with another legal professional, and independent research was performed prior to filing the complaint.
Page 16
We believe that the complaint filed by the appellants was well grounded in fact, because the appellees had utilized records subject to HIPAA protection if disclosed by certain entities. The appellants made good faith arguments for extension, modification, or reversal of existing law; therefore, their complaint was not for improper purposes such as to harass, or to cause unnecessary delay or needless increase in the cost of litigation. Under the facts and applying a de novo standard of review, the trial court’s conclusion that a Rule 11 violation occurred was erroneous.
Conclusion
The circuit court’s decision is hereby affirmed in part and reversed in part. This Court has recently ruled that KRS 446.070 does not give a private right of action for violations of HIPAA. Further, Yeager has not proven that Appellees are “covered entities” to which HIPAA regulations and penalties would apply because Appellees are not medical providers or custodians entrusted with the decedent’s medical records. Moreover, the decedent’s medical records were not introduced into evidence, but merely referred to during court proceedings. Any statements and lines of questioning by the attorneys cannot give rise to action under the Judicial Proceedings Privilege. However the trial court did err in imposing Rule 11 sanctions; therefore, that award is vacated.
ALL CONCUR.

2012
382 S.W.3d 826
Tony C. TAYLOR, Appellant,
v.
KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION and River Metals Recycling, LLC, Appellees.
No. 2011–SC–000346–DG.
Supreme Court of Kentucky.
Oct. 25, 2012.
The Supreme Court affirmed, holding (1) because Appellant failed to comply with the verification provision of section 341.450(1), the circuit court lacked jurisdiction over the controversy; and (2) Appellant did not comply with the verification requirement, as his attorney’s signature on the petition did not constitute “certification.”

On appeal, Taylor raises the following claims for our review: (1) that failure to include a verification clause in the original application did not deprive the circuit court of jurisdiction, and thus the court could have granted his motion to amend; (2) that even if the verification requirement is jurisdictional he substantially complied with KRS 341.450′s verification requirement; (3) that he has met the requirements of KRS 341.450(1) as amended because his attorney signed the petition which pursuant to CR 11 suffices to qualify as a verification; and (4) that KRS 13B.140 grants the circuit court subject matter jurisdiction and supersedes KRS 341.450.
For the reasons stated below, we affirm.

377 S.W.3d 553
KENTUCKY BAR ASSOCIATION, Movant
v.
D. Anthony BRINKER, Respondent.
No. 2012–SC–000386–KB.
Supreme Court of Kentucky.
Sept. 20, 2012.
8
The charge alleged Brinker violated SCR 3.130–3.4(c) (knowingly disobeying an obligation of the rules of a tribunal) in failing to comply with CR 11 in filing his March 25, 2010 motion; SCR 3.130–8.1(b) (knowingly failing to respond to a lawful demand for information from an admissions or disciplinary authority) in failing to respond to the bar complaint; and SCR 3.130–8.4(c) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation) by representing to the Boone Circuit Court that he would not prevent the settlement check from clearing and subsequently revoking the check. The Board voted nineteen to zero, with one recusal and one absence, to find Brinker guilty on all three counts.

DAVID CHRISTOPHER EATON APPELLANT
v.
KRISTINA NICOLE JOHNSON APPELLEE
NO. 2010-CA-002080-ME
NO. 2011-CA-001907-ME
Commonwealth of Kentucky Court of Appeals
RENDERED: AUGUST 31, 2012
NOT TO BE PUBLISHED

ordering him to give Johnson a copy of the insurance card. The trial court acted wholly properly and rationally in ordering that the card be transferred to Johnson.
Finally, we again note that Eaton’s mother, a licensed attorney, has served as his counsel. The numerous errors, coupled with the frivolous nature of many of the arguments and issues raised, clearly implicate CR 11. At this juncture, we shall refrain from invoking that rule against counsel because of the undoubtedly
Page 10
emotional involvement that she has in this matter. However, we caution that a repetition of the noncompliance with the rules merit a more serious consideration of CR 11 sanctions in the future.
We affirm the orders of the Fayette Circuit Court.
ALL CONCUR.
DAVID A. CLARK APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE
NO. 2010-CA-000785-MR
Commonwealth of Kentucky Court of Appeals
RENDERED: JULY 20, 2012
NOT TO BE PUBLISHED
A party who is not represented by an attorney shall sign his pleading, motion, or other paper and state his address. . . . If a pleading, motion or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant.
Kentucky Rules of Civil Procedure (CR) 11. See Brey v. Commonwealth, 917 S.W.2d 558 (Ky. 1996) (court directs clerk to strike from motion the signature of “inmate litigator”).
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Right of Co-Parties to File Separate Appellate Briefs

Tuesday, April 23rd, 2013

By David Kramer | dkramer@dbllaw.com

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Confusion sometimes arises in appeals in which there are co-parties as to whether each co-party is entitled to file its own appellate brief, or whether the co-parties must jointly submit one brief. CR 73.01(3) states that two or more persons entitled to appeal from a judgment may join as appellants by: (a) filing a joint notice of appeal; or (b) after filing separate notices of appeal, joining in one appeal (if practicable). If such parties join in appeal, the Rule provides that they “shall thereafter proceed as a single appellant.” Proceeding as a single appellant entails filing a single brief, absent permission of the appellate court to file separate briefs.

The issue of the right to file separate briefs involves some ambiguity under the rules, however, in the case in which two parties file separate notices of appeal from the same judgment (thereby initiating two separate appeals), yet do not wish to combine their briefing as one appellant. No civil rule expressly addresses this situation. In practice, such parties are typically afforded the right to file separate briefs.

The Kentucky Court of Appeals Basic Appellate Practice Handbook provides some insight on this issue. It states: “It is important to remember that only one appellant brief may be filed in each appeal. If appellants or groups of appellants have separate interests that will make it desirable to file separate briefs, separate notices of appeal must be filed.” [FN: Basic Appellate Practice Handbook, supra Comment 7, at 14.] This statement confirms that the filing of separate notices of appeal normally entitles those who were co-parties in the trial court to file separate appellate briefs. The prosecution of separate appeals is normally not economical if the appeals concern the same parties and the same judgment, and it could also create inconsistent results. For those reasons, the Court of Appeals routinely orders that separate appeals from the same judgment be consolidated for oral argument (if held) and decision by the same appellate panel, while affording the separate appellants the right to file separate briefs.

With respect to the procedure for consolidating contemporaneous appeals, CR 75.11 (“Several Appeals”) mandates that a single record on appeal be prepared in the event that more than one appeal is taken from the same judgment. This, of course, paves the way for an economical consolidation of the appeals.

CR 76.03 requires the appellant to file a prehearing statement within 20 days of filing the notice of appeal. The prehearing statement provides a set of background information to the Court about the case and appeal. That information includes, inter alia, whether the matter has been before the Court of Appeals on a previous occasion and whether other appeals arising from the same case or controversy are pending before the appellate courts. The primary purposes of the prehearing statement are to provide the Court of Appeals with a case background and to allow the Court to determine whether a prehearing conference should be held. The prehearing conference, if held, provides the parties and Court an opportunity to agree on a number of ground rules for the appeal, including simplification of issues, the content of the record, the time for filing briefs, and other matters to aid in the disposition of the appeal. See CR 76.03(10). Since the prehearing statement will have provided information on contemporaneous appeals, this is an ideal time for the Court to consolidate any such appeals, if practicable, and for the Court and parties to address related matters such as the issue of separate briefs by multiple parties.

In the event the Court of Appeals consolidates separate appeals but the appellants do not join, the Rules likewise do not expressly provide whether the appellee(s) may file a separate brief for each appellant’s brief, whether the appellee(s) may file only one brief, or whether the appellee(s) may file a combined brief with an enlarged page limit. However, fairness and a reasonable interpretation of the rules indicates that the appellees should be provided the opportunity to respond to each appellant’s brief separately, if desired. By analogy, CR 76.20(5) governing responses to motions for discretionary review provides that a response may be filed by each respondent. Questions as to such matters should ideally be resolved by agreement of the parties confirmed by an agreed order or by the Court following a prehearing conference if one is held.

Where the Court consolidates for oral argument and/or decision separate appeals of separate judgments by different parties on the basis that the issues raised in the separate appeals are identical or overlapping, the separate appellants are given the right to file separate briefs, and the appellees have the right to file one responsive brief for each appellant’s brief filed.

Note: The foregoing post includes commentary reprinted from the forthcoming 2013 supplement to Rules of Civil Procedure Annotated, 6th ed. (Vols. 6 & 7, Kentucky Practice Series), by David V. Kramer, with permission of the author and publisher. Copyright (c) 2013 Thomson Reuters. For more information about this publication please visit http://store.westlaw.com/rules-of-civil-procedure-annotated-6th-vols-6-7-kentucky/130503/11774808/productd\

David Kramer is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.

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ANOTHER PARTY SEEKS ACCOUNTING BY ANGELA FORD FOR PAYMENTS SHE MADE TO ATTORNEYS DERIVED FROM SEIZED FEN PHEN ASSETS. How long can she hide the names of attorneys she shared millions with?

Tuesday, April 23rd, 2013

April 23, 2013

By LawReader staff

The following story is based on a motion filed April 22, 2013 against Lexington Attorney Angela Ford.

This discovery request apparently refers to an accounting sought by the U.S. Attorney for two years. It is believed by LawReader that the accounting has finally been given to the U.S. Attorney but it has apparently been sealed.

Stan Chesley has requested discovery on this same topic. The acting Judge in the Boone County civil action filed by Angela Ford has denied Chesley’s efforts to obtain discovery from Angela Ford. That civil case is still pending in the Boone Circuit court, and the Summary Judgment against Gallion and Cunningham is on appeal to the Ky. Sup. Ct.

The summary judgment obtained by Ford against William Gallion and Shirley Cunningham did not include Stan Chesley. The trial judge found that facts regarding Chesley were jury questions.

Consequently Chesley is still entitled to a trial, but the acting Judge has stopped Chesley’s discovery efforts. Chesley has moved the court for an order lifting the discovery stay. Chesley is obviously exploring a potential connection between Angela Ford and Leslie Rosenbaum.

Rosenbaum advertised on his web site that he had experience in “mass drug tort” cases…and Chesley seeks to obtain proof of a connection between the prosecutor and Angela Ford.

This would be very important if such a connection is actually proven…since Rosenbaum’s wife is Linda Gosnell, the Chief KBA prosecutor who prosecuted ethics charges against Chesley, Gallion, Cunningham et al. Gosnell was fired by the KBA Board of Governors but the Board of Governors continues to refuse to disclose why Gosnell was fired.

If Gosnell’s husband was receiving money from Ford when his wife (Linda Gosnell) was assisting the efforts of Angela Ford to disparage the Fen Phen defendants and Chesley, then the “unclean hands” issue raised in the following Baerg motion may be relevant.

We make no allegations of any law or rule having been broken. Nevertheless the U.S. Attorney sought an accounting from Angela Ford for two years. Stan Chesley has been denied discovery related to this issue and now the Baergs are seeking the same discovery. The obvious question to which Gallion, Chesley, and now the Baerg’s have raised is “Was there a financial connectin between Angela Ford and Linda Gosnell?” No one has made such an allegation, but the discovery motions certainly raise that question.

Ms. Ford, to LawReader’s knowledge, has never issued a press release denying that Leslie Rosenbaum received money from her whis his wife was seeking the disbarment of the movant’s. She has filed two appeals which went to the Sixth Circuit Court of Appeals to seek the reversal of a District Court order by Fed. Judge Danny Reeves, ordering Ford to disclose the names of the attorneys she paid and the amounts they were paid from the Fen Phen funds.

Angela Ford’s former co-counsel, Seth Johnston,(who helped Ford in the collection of assets from the Fen Phen defendants – $42 million) has filed an answer in Fords civil suit against him and the Baergs, saying that Ford used him to set up LLC’s for the purpose of hiding her assets from “potential creditors”.

MOTION OF HAROLD AND KATHLEEN BAERG FOR LEAVE TO INTERVENE AND TO UNSEAL CERTAIN RECORDS FILED WITH THE COURT

April 22nd, 2013,

LawReader excerpt of Baerg Motion

Movants, Harold and Kathleen Baerg Baergs respectfully request leave to intervene in this criminal case for the limited purpose of moving the Court to unseal, with appropriate terms and conditions, the accounting, and related information, filed by the Court-Appointed Victims Advocate Angela M. Ford on July 11, 2011 or thereafter

The Baergs seek to have the Accounting unsealed to their counsel, under terms
and conditions as this Court may deem appropriate and necessary, in order for their
counsel to have the opportunity to review the Accounting with respect to fact discovery
and related issued in the civil action Ms. Ford, and three of her allegedly-owned limited
liability companies (Villa Paradisio, LLC, Solutions Ventures, LLC, and ATI Ventures,
LLC) filed against the Baergs and others in Fayette Circuit Court…
….Specifically, the Accounting is relevant to certain defenses they have in the
Fayette Action, such as the defense that Ms. Ford may have acted with unclean hands
regarding her deposit or placement of attorneys fees received from the collection on the
civil judgment against Messrs. Gallion, Cunningham and Mills, et al., (over which this
Court has jurisdiction as a result of the criminal forfeiture orders) into the limited liability
companies and Johnston Legal, P.S.C s escrow account.

Ms. Ford placed those attorneys fees in question in the Fayette Action by certain
allegations she made in her Complaints and an Affidavit she filed into the record. If, in
fact, Ms. Ford did not adequately or accurately identify the location of these attorneys
fees in the Accounting, the Baergs believe this should be used as evidenced at trial of the
matter in the Fayette Action to demonstrate that Ms. Ford did not act with clean hands
in the creation of the three limited liability companies in question or the
deposit/placement of funds into them. In support thereof, the Baergs submit the attached
Memorandum of Fact and Law.

Respectfully submitted:
Respectfully submitted:
/s/ John N. Billings (Attn. for the Baergs)
Billings Law Firm, PLLC
219 North Upper Street, 2nd Floor
Lexington, Kentucky 40507

CIRCUIT CLERK’S OFFICE MAY NOT CLOSE DOORS TO PREVENT FILING OF TIMELY APPEAL

Monday, April 22nd, 2013

Hammers v. Plunk, 374 S.W.3d 324 (Ky. App., 2012) September 12, 2012
Discretionary Review Denied by Supreme Court Sept. 12, 2012.
Before the Court Sitting En Banc.

As the clerk’s office could not accept a faxed complaint, counsel contacted a local attorney whose legal assistant agreed to file the complaint on his behalf. The legal assistant called the clerk’s office, knowing they typically closed by four o’clock, to let them know to expect her around four o’clock. The assistant’s sworn statement attests that the clerk stated “if that is the faxed complaint from Bowling Green, we are not going to accept it,” apparently under the misapprehension that the assistant could not sign the complaint and initial it with permission of counsel for filing. The assistant arrived a few minutes before four o’clock with the complaint and a check for the fees in hand, only to find that the doors had already been locked before the close of the business day. The assistant left and returned in the morning, on February 10, 2009, when the complaint was accepted and filed by the clerk’s office.

In such a situation, it is within the court’s power to find that a statute has been equitably tolled. Nanny v. Smith, 260 S.W.3d 815, 817 (Ky.2008) (Plaintiff should not be punished for clerk’s failure to perform duties mandated by statute and court rule.); Ward v. Howard, 177 Ky. 38, 197 S.W. 506, 510 (1917) (Clerk cannot deliberately absent himself or close his office to thwart procedure.); Prewitt v. Caudill, 250 Ky. 698, 63 S.W.2d 954, 958–59 (1933) (Clerk cannot deliberately absent himself or close his office to thwart procedure.); Hagy v. Allen, 153 F.Supp. 302 (E.D.Ky.1957) (Good faith should be considered, especially when paired with circumstances plaintiff could not control). Further, the clerk’s doors are said to “be deemed always open,” although here the doors were closed— literally. …. (“CR”) 77.01.

Accordingly, we do not disturb the trial court’s prior ruling, and Hammers, et al., may proceed with their case at trial.

We need not address the issues raised by Hammers, et al., concerning the propriety of a retroactive application of Wagoner as these are now moot.

Accordingly, we reverse and remand in both cases for further proceedings consistent with this opinion.

Restyled as Real Estate Trusts, Varied Businesses Avoid Taxes

Monday, April 22nd, 2013

By NATHANIEL POPPER The New York Times April 21, 2013

A small but growing number of American corporations, operating in businesses as diverse as private prisons, billboards and casinos, are making an aggressive move to reduce — or even eliminate — their federal tax bills.

They are declaring that they are not ordinary corporations at all. Instead, they say, they are something else: special trusts that are typically exempt from paying federal taxes.

The trust structure has been around for years but, until recently, it was generally used only by funds holding real estate. Now, the likes of the Corrections Corporation of America, which owns and operates 44 prisons and detention centers across the nation, have quietly received permission from the Internal Revenue Service to put on new corporate clothes and, as a result, save many millions on taxes.

The Corrections Corporation, which is making the switch, expects to save $70 million in 2013. Penn National Gaming, which operates 22 casinos, including the M Resort Spa Casino in Las Vegas, recently won approval to change its tax designation, too.

Changing from a standard corporation to a real estate investment trust, or REIT — a designation signed into law by President Dwight D. Eisenhower — has suddenly become a hot corporate trend. One Wall Street analyst has characterized the label as a “golden ticket” for corporations.

“I’ve been in this business for 30 years, and I’ve never seen the interest in REIT conversions as high as it is today,” said Robert O’Brien, the head of the real estate practice at Deloitte & Touche, the big accounting firm.

At a time when deficits and taxes loom large in Washington, some question whether the new real estate investment trusts deserve their privileged position.

When they were created in 1960, they were meant to be passive investment vehicles, like mutual funds, that buy up a broad portfolio of real estate — whether shopping malls, warehouses, hospitals or even timberland — and derive almost all of their income from those holdings.

One of the bedrock principles — and the reason for the tax exemption — was that the trusts do not do any business other than owning real estate.

But bit by bit, especially in recent years, that has changed as the I.R.S., in a number of low-profile decisions, has broadened the definition of real estate, and allowed companies to split off parts of their business that are unrelated to real estate.

For example, prison companies like the Corrections Corporation and the Geo Group successfully argued that the money they collect from governments for holding prisoners is essentially rent. Companies that operate cellphone towers have said that the towers themselves are real estate.

The conversions generally do not require the companies to change their underlying business. The chief executive of the Corrections Corporation, Damon T. Hininger, told investors in February that the new structure should help in the company’s aim of “housing more and more population for federal, state and local levels as they grow or deal with overcrowding.”

The I.R.S. released its latest decision, allowing a data and document storage company to convert, on April 5. The letter did not include the name of the company, but several data storage companies, including Iron Mountain and Equinix, are in the process of converting.

A few days later, a strategist at the Wall Street firm Jefferies wrote in a report: “It is not a far stretch to envision REITs concentrated in railroads, highways, mines, landfills, vineyards, farmland or any other ‘immovable’ structure that generates revenues.”

Today, there are more than 1,000 real estate investment trusts, about 10 percent of them traded publicly on the stock market. Investors like them because, by law, they must distribute at least 90 percent of their taxable income to their shareholders — a particularly alluring prospect today, given the low interest rates paid by many other basic investments.

The benefits of converting are obvious for stockholders and corporate insiders as well. The conversion typically drives up a company’s stock price. Investors are drawn by the prospect of lucrative dividends under the new structure. The mere rumor that a company might convert has been enough to send its stock price soaring.

The trend has been a concern to advocates of the traditional trusts, who fear that the newcomers may eventually jeopardize the tax status of older funds that do not do any business other than owning real estate.

“I worry that in a world where Congress is very sensitive to taxes, that a lot of these structures could end up attracting a lot of attention that might not be entirely positive,” said Ross L. Smotrich, an analyst at Barclays.

Steven Rosenthal, a staff member at the Joint Committee on Taxation during the 1990s and now a visiting fellow at the nonpartisan Tax Policy Center, said that the trend raises questions about the purpose of corporate income taxes at a time when there are so many ways around them. The conversions are one of many strategies that businesses use to avoid paying the corporate tax rate of 35 percent.

“What is there about a business owning real estate that suggests we should not tax them?” Mr. Rosenthal said.

Some Congressional staff members said they had noticed the recent conversions and were monitoring the issue.

This is not the first wave of companies seeking out a new type of corporate status to avoid taxes. In the 1980s, dozens of companies, including Sahara Resorts and the Boston Celtics, became master limited partnerships, another corporate form that is tax-exempt. After the practice attracted notice, Congress passed laws that limited the industries that could use the structure. In the 1990s, hotel companies took advantage of the laws, but a change to the laws in 1999 soon snuffed that out.

It is too soon to tell how far the current round of conversions will spread. PricewaterhouseCoopers recently counted 20 companies that are at some stage in the process of converting, and there has been a steady stream of suggestions for what industry might next secure I.R.S. approval.

Lawyers have also been finding creative ways to follow the letter of the law by splitting off parts of a company into subsidiaries that can be taxed. In the legal world, the most controversial such effort is being undertaken by Penn National, the casino company. It won approval from the I.R.S. late last year to turn itself into a real estate holding company. In the process, it created a tax-paying subsidiary that holds the casino operations and pays rent to the parent company.

Mr. O’Brien, at Deloitte & Touche, said he has been talking with other casino operators that are looking at making similar moves. The ruling could also open the door for restaurant companies like McDonald’s and retailers like J. C. Penney to follow a similar route, though neither company has indicated it is considering such a move.

For now, companies like the Corrections Corporation are quickly moving through the process.

“The good news about this is that we are going to be able to enjoy a full year of tax savings for 2013,” Mr. Hininger, the chief executive, said in February. Last week, the company’s share price hit its highest level in over a decade.

HAROLD AND KATHY BAERG SEEK SUMMARY DISMISSAL ON ANGELA FORD CLAIM – ANGELA FORD’S CONVERSION CLAIM ON SHAKY GROUND

Saturday, April 20th, 2013

HAROLD AND KATHY BAERG SEEK SUMMARY DISMISSAL ON ANGELA FORD CLAIM – ANGELA FORD’S CONVERSION CLAIM ON SHAKY GROUND
April 20, 2013
This lawsuit pleading reveals that Angela Ford placed some $3,000,000 in the control of her co-counsel Seth Johnston. Johnston who is also a defendant in this lawsuit, states in his answer and counterclaim against Ford, that she directed him to set up three LLC’s for the purpose of hiding her assets from “potential creditors”. The LLC’s were created by Johnston and funded by Angela Ford, and only Johnston had the power to access the funds. Johnston says his orders were given to him at the time that U.S. District Judge Danny Reeves granted the U.S. Attorneys request for an order directing Angela Ford to provide the government an accounting of her funds seized from Gallion et al in the Fen Phen case. She filed two appeals to the Sixth Circuit Ct. of Appeals seeking to set aside Judge Reeves order that she disclose her distribution list. Apparently that was finally done but is sealed.
She reportedly collected some $42 million dollars from the assets of the Fen Phen defendants, and told the Courier-Journal that she shared the money with other attorneys. She won’t disclose publically which attorneys received a portion of these funds.
Stan Chesley in his civil suit in Boone County has asked for Ford to disclose her financial relationships with Linda Gosnell, the former KBA Bar Counsel. Gosnell was the KBA prosecutor who was prosecuting Chesley, Gallion, Cunningham and Milles , and whose disbarments she obtained. Gosnell’s office testified in the Gallion criminal trial. Gosnell’s husband, Leslie Rosenbaum of Lexington, has posted on his web site his experience in “mass tort” class action claims. The only mass tort of this type is said by some to be the Fen Phen case. He wasn’t associated with Chesley or Gallion…and Chesley’s discovery requests seek to determine if Rosenbaum was working for Angela Ford. Was Chesley denied due process in his bar prosecution? Will Chesley be denied due process in his still pending civil case brought by Angela Ford? The Chesley discovery may be broad enough to inquire about the activities of other former KBA officials with Angela Ford.
The current lawsuit in Fayette Circuit Court was filed by Angela Ford to recover funds she says were paid by her trustee and co-counsel, Seth Johnston, to reimburse Harold And Kathy Baerg who were entitled to recover these funds from Johnston’s firm on a real estate deal not connected to Angela Ford.
The Baergs had no business with Ford. Apparently Johnston had enough money to honor his legal obligation to the Baergs but not enough to handle his obligation to Ford. Ford claims that the return of the Baergs assets to them was “conversion”. The Baergs attorneys make a strong argument that the conversion claim must fail.

At some point in time the U.S. Government in their indictment of Johnston says Johnston was dealing in synthetic drugs. LawReader doesn’t know if the U.S. Government is holding any seized money that might have been taken from Johnston…but Ford blames the Baergs for getting their money from Johnstons law firm..as she believes any money in the possesion of Johnston should be paid to her.

The Baergs’ attorney John N. Billings, cites compelling authority that Angela Ford’s civil claim fails to meet the requirements for her “conversion” claim.
Those who have watched Angela Ford rightiously attack the honesty and integrity of other attorneys, and who saw Angela Ford dance a joyful but shameful dance for the press in her comments about Stan Chesley getting disbarred, are surely watching this civil case and are wondering if more people other than Seth Johnston will be indicted.

SEE 88 PAGE BAERG PLEADING SEEKING SUMMARY JUDGEMENT AT
Angela Ford v Johnston _Baergs

THIS LINK IS POSTED IN THE LEFT HAND COLUMN ON THE FRONT PAGE OF LAWREADER.

COURT RULES THAT POLICE MUST MAKE GOOD FAITH EFFORT TO RELEASE VIDEO TAPES WHICH ARE TIMELY REQUESTED

Saturday, April 20th, 2013

“it was prejudicial to Wilson for his counsel not to be able to investigate the (POLICE) “pool” car’s use log, despite her attempts to obtain a copy of it well before trial. “

This case suggests police falsehoods. Some detention centers are not cooperative in perserving video of the intake procedures of a defendant. One must applaud the Court of Appeals for realizing that actual attempts to destroy evidence useful to a defendant is a growing practice.

Wilson v. Commonwealth (Ky. App., 2012) December 7, 2012

One month prior to trial, Wilson’s defense counsel requested discovery in the form of in-car audio/video from both police “pool” cars and exculpatory evidence in the form of a list of any individuals who were in Officer Shelton’s squad car within the twenty-four hour period preceding Wilson’s arrest. The trial court ordered the Commonwealth to answer the request in writing within ten days. The day after the court’s deadline, with no response from the Commonwealth, defense counsel filed a Kentucky Rule of Criminal Procedure (RCr) 7.24(9) motion to dismiss. The trial court, sua sponte, gave the Commonwealth three additional days to comply, excusing the prosecutor’s failure to comply with the court’s order as due to having “a lot of back to back trials.”

Nineteen days after the court’s original deadline and closing in on the trial date, the Commonwealth faxed defense counsel a response indicating that it had no knowledge of the identity and charges of the information requested; that defense counsel was equally situated regarding access to that information; and provided defense counsel with a list of Officer Shelton’s arrests from Courtnet. The day before trial, the prosecutor informed defense counsel whom he saw in another court division that there were no in-car audio/videos.

On the day of trial, defense counsel filed a motion to dismiss the indictment based on the Commonwealth’s failure to comply with the court’s order.

Defense counsel noted that the Courtnet information provided by the Commonwealth was not in compliance, as it did not provide a list of persons in Officer Shelton’s “pool” car in the twenty-four hours before Wilson’s arrest. Defense counsel alternatively requested a hearing in which Officer Shelton could testify and answer questions about why the Commonwealth had failed to seek the information from Officer Shelton, despite his response that there was a “pool” car log available.

The Commonwealth responded, arguing that it had complied with the three-day extension period, even though it had not. The Commonwealth further argued that it had complied with a request for copies of the uniform citations although defense counsel could have done it herself; it could not respond more timely to the in-car audio/video request because its paralegal was out; it did not have to turn over anything in response to the request for the “pool” car list because it was not exculpatory; Officer Shelton was mistaken when he said the Commonwealth had asked him about the log the day before trial because the Commonwealth had not done so; and alternatively, defense counsel could get the log herself through an open records request.

In ruling on defense counsel’s motion to dismiss or for a continuance, the trial court held that the above issues were proper questions for cross-examination or that defense counsel could subpoena Officer Shelton, but found that the Commonwealth had complied with the court’s order. Additionally, the trial court noted that the log was not “that important to this case or to the overall

We agree with Wilson that an officer’s statement that he routinely checks his patrol or pool cars for maintenance, safety, and the existence of any weapons or drugs is not conclusive evidence that the officer properly checked the patrol or pool car at issue in the instant case.

Particularly, we agree with Wilson’s arguments that Officer Hidrogo and Officer Shelton had conflicting testimony about the events leading to Wilson’s arrest. Thus, Officer Shelton’s credibility was at issue in this case, and it was prejudicial to Wilson for his counsel not to be able to investigate the “pool” car’s use log, despite her attempts to obtain a copy of it well before trial. We find this particularly persuasive in light of the fact that no in-car audio/videos were available. The trial court’s denial of a continuance after the Commonwealth’s continued delays in producing the evidence was an abuse of discretion, as there was a reasonable probability that the outcome of Wilson’s trial would have been different had he been able to present evidence that prior occupants of the “pool” car left the drugs inside. At the very least, Wilson should have been afforded time to develop an argument concerning such a theory, and the Commonwealth’s refusal to provide the court-ordered discovery prevented him from doing so.

Because our ruling on this issue is determinative of the case in its entirety, we do not need to consider the other arguments Wilson makes in his brief.

Based on the above finding of an abuse of discretion, we vacate the judgment of the Jefferson Circuit Court and remand this case to the court for a new trial.

STAN CHESLEY RESIGNS FROM OHIO BAR ASSOCIATION AND UNIV. OF CINCINNATI BOARD OF TRUSTEES

Friday, April 19th, 2013

by Kimball Perry
A sad end to a distinguished legal career came today as attorney Stan Chesley, already disbarred in Kentucky and facing potential disbarment in Ohio, “permanently resigned” to the Ohio Supreme Court.
Chesley, 77, has fought for his legal life over the past few years after he was disbarred in Kentucky last month after the Kentucky Supreme Court found him dishonest and noted he improperly kept $7.5 million in clients’ fees in the fen-phen diet drug case.
A terse Chesley said today from his Indian Hill home “Something will come out later today” and then hung up.
The retirement means Chesley no longer can practice law in Ohio. That means he can’t be disbarred.
“He’s no longer a lawyer so there is no longer a disbarment proceeding,” Ohio Supreme Court Disciplinary Counsel Jonathan Coughlan said today.
Chesley filed his application for permanent retirement “earlier this week,” Coughlan added. After that, an investigation was conducted to determine if there were any ethic violations or pending lawsuits against Chesley before his retirement was accepted.
“When it’s somebody like (Chesley), I can pick up the phone and find out,” Coughlan said.
None of the documents regarding that information are public, he said.
Joe Deters, Hamilton County’s Prosecutor, has worked as a private attorney is Chesley’s Downtown law firm for the last five years. He’s unsure how Chesley’s disbarment impacts him or the firm which, Deters said, has two stockholders.
“My contract is with the firm, not with Stan,” said Deters, who said he hadn’t talked to Chesley about the retirement.
“Stan can still teach and do stuff like that, but he can’t practice law.”
In addition to being disbarred in Kentucky, Chesley also has resigned from practicing law in at least two federal courts. Chesley’s wife is U.S. District Court Judge Susan Dlott, based in Cincinnati.
Chesley also resigned under pressure this week from the University of Cincinnati Board of Trustees.

FAMOUS AUTHOR JUSTIFIES WIVES OF RETIRED JUDGES, SHOOTING THEIR HUSBAND WHEN HE REACHES THE AGE OF 70. AUTHOR CALLS FOR GRANTING THESE BELEAGURED WIVES A ROYAL PARDON.

Saturday, April 13th, 2013

By Retired Judge Stan Billingsley April 13, 2013

Jeffrey Archer, a #1 New York Times bestselling author, in his novel A PRISONER OF BIRTH notes the dilemma of the wives of retired judges, and particularly judges who have reached the age of 70.
The following passages from his book were recently shown to me by my wife, Gwen, two weeks after my 70th. birthday. She had an evil smile on her face that sent a chill down my spine:

“When will the Home Office realize that when judges retire, not only are they sent home for the rest of their lives, but the only people they have left to judge are their innocent wives?”
“So what are you recommending”” asked Alex as they walked into the drawing room.
“That judges should be shot on their seventieth birthday, and their wives granted a royal pardon and given their pensions by a grateful nation.”
“I may have come up with a more acceptable solution, “ suggested Alex.
“Like what? Making it legal to assist judges’ wives to commit suicide?
“Something a little less drastic, said Alex, I won’t feed him again.

Polling the Jury By Hon. Dave Kramer

Friday, April 12th, 2013

Polling the Jury
By David Kramer | dkramer@dbllaw.com

By Kentucky statute, either party may request that the jury be polled after its verdict is announced. See KRS 29A.320(3)(d). While the pertinent federal civil rule provides that either party may request a poll, it also provides that the trial court may poll the jury sua sponte. See FRCP 48(c). One would presume that a trial court in Kentucky inherently retains the same authority where the verdict raises a question in the judge’s mind. This process is probably most commonly requested by a defendant who has been convicted in a criminal trial, in which a verdict must be unanimous, but polling may also be employed by any party in a civil trial. See KRS 29A.320(3)(d). In a civil case, polling may be advisable if the jury struggled to reach a decision by the minimum number of jurors required for a verdict, as well as if the verdict form indicates jury confusion or contains inconsistent findings or anomalous marks or signatures. The polling of the jury is to be conducted by the judge, who is to ask each juror if the verdict announced by the foreman was his or her verdict. The questioning by the judge to clarify a juror’s answer during polling should not be coercive. If the verdict is not affirmed by the number of jurors required to reach a verdict under KRS 29A.280, the court must send the jury back for further deliberation, under KRS 29A.320(3)(e). A court has discretion to declare a mistrial or grant a motion for a new trial if the court finds that the response of a juror indicates there was a lack of free and voluntary assent by a juror in reaching the verdict. See, e.g., Kaminski v. Bremner, Inc., 281 S.W.3d 298 (Ky. App. 2009).

Note: The foregoing post includes commentary reprinted from the forthcoming 2013 supplement to Rules of Civil Procedure Annotated, 6th ed. (Vols. 6 & 7, Kentucky Practice Series), by David V. Kramer, with permission of the author and publisher. Copyright (c) 2013 Thomson Reuters. For more information about this publication please visit http://store.westlaw.com/rules-of-civil-procedure-annotated-6th-vols-6-7-kentucky/130503/11774808/productd

David Kramer is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.

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NEW MADISION, INDIANA BRIDGE MENTIONED IN WALL STREET JOURNAL

Tuesday, April 9th, 2013

April 6, 2013
Murray Johnson, a 55-year-old civil engineer from Vancouver, British Columbia, has designed, repaired, inspected or demolished more than 150 bridges. But he’s best known for sliding them.
When a deteriorating truss bridge—made of linear elements connected in triangles—must be replaced, Mr. Johnson figures out how to move it out of the way or slide a new one into its footprint. He engineers the plan that will send thousands of tons of steel gliding sideways over a river with the poise of a tightrope walker
Although truss-sliding isn’t new, Mr. Johnson has elevated what he calls “extreme bridge engineering” to an art form. It’s one that saves municipalities plagued by decaying infrastructure millions of dollars, while limiting bridge closures—and commuter headaches.
This summer, Mr. Johnson will meet his biggest challenge yet, launching the new 2,427-foot-long Milton-Madison Bridge over the Ohio River into a spot currently occupied by a 1929 bridge. It’s believed to be the longest bridge slide of its type in the world.
Other teams competing for the $103 million project proposed closing down the bridge for a year and running a ferry. Mr. Johnson saw a way to keep traffic flowing for all but 10 days of the three-year project, helping shave $28 million from its estimated cost. As the new bridge is constructed on temporary piers, cars whiz past it a scant 55 feet upstream on the old bridge. When work on the new bridge is finished, traffic will be briefly rerouted onto it, so the old one can be demolished.
In the grand finale this July, the new 15,260-ton steel bridge, pulled by powerful strand jacks, will slide slowly upstream on steel beams lubricated with high-grade silicon grease, before finally coming to rest in the footprint of the original bridge.
The logistical intricacies—and risks—awe seasoned bridge builders. Theodore Zoli, whose bridge engineering won him a MacArthur Foundation “genius” award in 2009, compares Mr. Johnson’s task to performing “open-heart surgery on the runner while he’s running a marathon.”
Mr. Johnson’s innovation was spawned by salmon. In 2009, his firm, Buckland & Taylor, won the bid to replace the Capilano River Bridge. There was a catch: Any construction in the river had to take place during two brief “fish windows”—a total of six weeks when the salmon were upstream.

Bridge Engineer Murray Johnson moves the old Capilano Bridge into a temporary roadway while a new bridge is built in British Columbia. Video courtesy of BC Ministry of Transportation and Infrastructure, 2010.

Bridge Engineer Murray Johnson completes the lift of the second bridge span over the Ohio River that connects Milton, Kentucky and Madison, Indiana. Video courtesy of Walsh Construction Company, 2012.
That wasn’t enough time to build a temporary detour. So Mr. Johnson’s team came up with a solution: move the old bridge upstream onto a temporary pier and abutments, and reroute traffic onto it while they built the new one.
The bridge’s aging trusses were jacked up so that their underbellies could be outfitted with sliding shoes—steel plates lined with Teflon-like pads—for a low-friction ride on greased steel tracks. A temporary pier in the middle of the river served as a runway.
Pairs of hydraulic jacks, pulling on three separate high-strength rods connected to bearings under the old bridge, slowly tugged it upriver, 6 inches at a time. Because the bridge had to be rotated slightly to fit in its new spot, Mr. Johnson calculated that each rod had to be pulled at a different speed.
Less than six hours later, the bridge swung neatly into place. It reopened to traffic the next morning.
“I always knew I was going to design or build things,” Mr. Johnson says, recalling hours spent banging nails into wood scraps as a little boy. When he was 12, his family moved to a remote island in British Columbia, which may explain why he “fell in love with big bridges.”
On site at Milton-Madison, Mr. Johnson’s office was a steel platform 100 feet above the river, equipped with a computer, a coffee maker and a porta-potty. In his hard hat and fall-arrest harness, he fit right in with the ironworkers, whose every move he choreographed long before they arrived on the work site.
Before he could slide the four-span bridge, Mr. Johnson had to figure out how to lift it—from the river itself. “Lifting is more exciting than sliding,” he says wryly. “It can’t fall down when you’re sliding it.”
One at a time, the bridge’s two center truss spans—the longer was 727 feet—were floated out to the middle of the river on barges, hooked up to bundles of steel cables and slowly raised 90 feet into the air by eight powerful strand-jacks on the lifting platform. Then came the real high-wire act.
While the truss span dangled in the air, a 100-ton steel girder, lifted by a floating crane, was inserted in a temporary pier, cut loose, and then maneuvered under the span’s bearings, to serve as a support and, ultimately, as a sliding track. “I figured out how to do this on a napkin,” Mr. Johnson says, doodling a picture of the giant girder cantilevered over the river like a diving board.

Close

Murray Johnson
With each bridge, Mr. Johnson goes through a lot of paper, drafting thousands of pages of calculations, drawings and diagrams. Above, a concept sketch for sliding the 80-year-old Capilano River Bridge.
Next, Mr. Johnson has designs on New Jersey’s Bayonne Bridge, the fourth-longest steel-arch bridge in the world. Local officials want to elevate the roadbed of the 1931 bridge a full 64 feet, to accommodate the larger container ships that are expected after the widening of the Panama Canal in 2015. Mr. Johnson is working with a shortlisted contractor on a bid to pull off that feat while keeping traffic flowing. More than that, he won’t say.
If his work didn’t keep him up so late, he would probably wake up in the middle of the night worrying about it. He points out that the catastrophic 2007 collapse of a bridge in Minneapolis—which he wasn’t involved in—happened during construction work.
Mr. Johnson shows off a gray ring on his right pinkie: “It’s called the iron ring,” he says. In Canada, civil engineers wear the iron ring on their drawing hand as a symbol of their oath to protect life and limb. “We have to make sure everything we do is infallible,” he says.