Archive for May, 2013

Can an Investigative Stop by Police of Your Vehicle violate the Fourth Amendment to the United States Constitution?

Friday, May 31st, 2013

The law affects us everyday. It can be confusing but it gives order to our activities and allows us to live a more safe and satisfying life. It is my goal with this newsletter to help my past, present and future clients put the law on their side and to say thank you to them for their support and trust.

Sincerely,
Nicholas Nighswander on behalf of
Nicholas M Nighswander PLLC Attorney at Law

Stewart Turley appealed his conviction in the trial court for first degree possession of a controlled substance, possession of marijuana, and of being a second degree persistent felony offender that resulted in a twenty-year prison sentence for him as a matter of right to the Kentucky Supreme Court. As grounds for his appeal, Turley contended that the trial court erred when it did not grant his motion to suppress the drug-related evidence seized from his vehicle during a routine traffic stop.

The legal basis for his contention was that the discovery of the evidence occurred as a result of a custodial detainment that extended beyond the original purpose for the traffic stop by police in violation of the Fourth Amendment. Under case law precedent, an investigative detention must be temporary and can extend no longer than necessary to complete the purpose of the stop.

The Kentucky Supreme Court concluded that the evidence was found after the purpose of the investigative stop had been concluded, and no exception occurred allowing the police officer to extend the time beyond the temporary nature of the stop, the trial court then erred in not suppressing the drug-related evidence.

Turley was driving a Ford F-150 pick up truck with two passengers when a state trooper observed him speeding. The license plate on the truck was also poorly illuminated. The trooper stopped the truck for those violations. The windows on the truck were tinted to make it difficult to see the passengers inside. Turley was asked to exit the vehicle and perform some field sobriety tests. The trooper said that Turley passed the tests and then confirmed the status of his license and proof of registration. Once that was completed, the trooper said that Turley could be on his way, indicating that the purpose for the traffic stop had ended. Turley then headed back to his truck.

The trooper, instead of leaving and going on his way, then uncharacteristically accompanied Turley back to his truck with the intention to detain the two passengers in the truck for investigative purposes under what is known as a Terry stop. A Terry stop allows a brief detention if an officer has reasonable suspicion to believe that criminal activity is occurring and his safety may be compromised. The trooper testified however that the reason for the detention was that he just wanted to see who the passengers were and make sure they were not wanted persons. Important to the Supreme Court was that the trooper testified that the passengers were not engaged in, or about to engage in, any criminal activity to justify a Terry stop.

As Turley was sitting back in his truck with the passengers, the trooper noticed a small box near the console and asked Turley about its contents, Turley responded that he did not know what was in it as it was not his. The trooper persisted in his quest to know its contents and would have pursued Turley if he had driven away. Turley then tried to open the box but the view was blocked to the trooper. The trooper then testified that he feared for his safety and quickly grabbed the box. A bag of marijuana fell out of it. The trooper then arrested Turley and ordered the passengers out of the truck. A search of the truck turned up other drugs, two pistols and over $3,000.00 in cash. Turley was later indicted for the charges above.

Turley tried to suppress the evidence at the trial court as an unlawful seizure under the Fourth Amendment as fruit of the poisonous tree as the trooper’s actions after telling him to be on his way were unconstitutional. The trial court denied his motion on the basis that the continued detention was consensual as he could have driven away. The seizure of the box then was authorized when the trooper believed it contained a weapon and threatened his safety. After a jury trial, Turley was found guilty of the charges listed above. He then appealed as a matter of right to the Kentucky Supreme Court.

The Kentucky Supreme Court reviewed the motion for suppression of the evidence in a two-pronged analysis. First, whether the trial court’s findings of fact are supported by substantial evidence, and if supported by substantial evidence, then second, the Court conducts a new review of the court’s application of the law to the facts to determine if there was clear error by the trial court in that application.

Here the Kentucky Supreme Court in a detailed analysis of the facts of this case as applied to the law determined that the trial court clearly erred in its application of the law to the facts of this case and substantial evidence existed in the reverse to support Turley’s motion to suppress the evidence seized from the unlawful search of his truck from the prolonged detention by the trooper. Turley’s twenty-year sentence and guilty judgment were reversed and the case remanded for further proceedings based upon the decision, i.e., most likely a get-out-of-jail free card.

The link for this Kentucky Supreme Court Case follows.

http://opinions.kycourts.net/sc/2011-SC-000276-MR.pdf

This case is not yet final and should not be cited as legal authority.

For more information about personal legal issues click on Read More

New Law: The time for filing a Worker’s Compensation Board appeal petition for review may be enlarged pursuant to a motion filed before it expires.

Friday, May 31st, 2013

Nickell v. Diversicare Mgmt. Servs. (Ky., 2012) February 17, 2012

Following the amendment of KRS 342.290, the Supreme Court adopted SCR 1.03(3), which provides that final decisions of the Board are subject to review by the Court of Appeals under procedures set forth in the Rules of Civil Procedure. CR 76.25 provides, in pertinent part, as follows:

(1) General.
Pursuant to Section 111 (2) of the Kentucky Constitution and SCR 1.030(3), decisions of the Workers’ Compensation Board shall be subject to direct review by the Court of Appeals in accordance with the procedures set out in this Rule.
(2) Time for Petition.
Within 30 days of the date upon which the Board enters its final decision pursuant to KRS 342.285(3) any party aggrieved by that decision may file a petition for review by the Court of Appeals and pay the filing fee required by CR 76.42(2)(a)(xi). Failure to file the petition within the time allowed shall require dismissal of the petition.

This appeal concerns whether the 30-day period set forth in CR 76.25(2) may be enlarged before it expires pursuant to a motion by the appellant under CR 6.02, which states as follows:

When by statute or by these Rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may, at any time in its discretion,
(a) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or
(b) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under Rules 50.02, 52.02, 59.02, 59.04, 59.05, 60.02, 72.02, 73.02 and 74 except to the extent and under the conditions stated in them.

The Court of Appeals relied on dictum from Hutchins to conclude that “CR 76.25, like CR 73.02, embodies a policy choice that a tardy petition for review is subject to automatic dismissal and cannot be saved through application of the doctrine of substantial compliance.” The statement from Hutchins is correct but does not control the present facts.

CR 76.25 contains no explicit provision that prohibits the time for filing a petition for review from being enlarged. Mindful of the similarities between a petition for review and a motion for discretionary review, we conclude that the use of the phrase “within the time allowed” in the second sentence of CR 76.25(2) rather than the words “30 days” has significance and implies that the time for filing a petition for review may be enlarged pursuant to a motion filed before it expires. The Court of Appeals erred in the present case by denying the claimant’s motion without considering the merits of her request for what amounted to an enlargement of time in which to file a brief.
The decision of the Court of Appeals is reversed and this matter is remanded for the court to consider the merits of the motion for an extension of time and proceed accordingly.

U.S. SUPREME COURT Some inmates get more than a year to dispute convictions

Thursday, May 30th, 2013

May 29, 2013 12:00 am • Robert Barnes The Washington Post
WASHINGTON – A divided Supreme Court ruled Tuesday that a prisoner who presents credible evidence of his innocence can overcome a procedural barrier that he waited too long to go to court.
Federal law dictates that a state prisoner has one year from the time he is convicted to petition federal courts to say his conviction violated his constitutional rights – for instance, that he was deprived of effective counsel.
But Justice Anthony Kennedy joined with the court’s liberal wing in ruling 5 to 4 that barring someone who has a credible claim of innocence from filing a habeas petition would be a miscarriage of justice.
Justice Ruth Bader Ginsburg, who wrote for the majority, stressed that such instances would be rare.
“The miscarriage-of-justice exception, we underscore, applies to a severely confined category: cases in which new evidence shows it is more likely than not that no reasonable juror would have convicted” the petitioner, she wrote.
Besides Kennedy, Ginsburg was joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan.
Justice Antonin Scalia wrote a blistering dissent for his fellow conservatives. He said Congress was specific in writing the one-year limitation into the Antiterrorism and Effective Death Penalty Act of 1996, and that the court’s exception was “a flagrant breach of the separation of powers.”
“One would have thought it too obvious to mention that this court is duty-bound to enforce AEDPA, not amend it,” wrote Scalia, who was joined by Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito.
passed similar laws, and more have considered it as a protest of Planned Parenthood’s support of abortion.
As is customary, the court did not comment on why it will not review the 7th Circuit decision.

SCOKY Reverses Defense Verdict for Trial Court’s Erroneous Denial of Plaintiff’s Motions to Strike Prospective Jurors for Cause; Discussion of Procedure Required to Avoid Harmless Error Finding

Wednesday, May 29th, 2013

By David Kramer | dkramer@dbllaw.com

More Sharing ServicesShare|Share on facebookShare on twitterShare on emailShare on printIn Grubb v. Norton Hospitals, Inc., http://opinions.kycourts.net/sc/2010-SC-000532-DG.pdf (issued 5/23/13), the Kentucky Supreme Court reversed a decision of the Court of Appeals that had upheld a defense jury verdict entered by the trial court in a medical negligence case based on plaintiff’s allegation of error during jury selection. In particular, the Supreme Court held that the trial court should have excused for cause on the plaintiff’s motion two jurors: (1) the parent of a long-term employee of the defendant hospital who indicated he would have difficulty being impartial; and (2) a female juror for whom a medical expert witness for one of the defendants had done two obstetrical deliveries.

In reversing the trial court, the Supreme Court held that principles adopted in a series of criminal cases (starting with Shane v. Com., 243 S.W.3d 336 (Ky. 2007), followed by King v. Com., 276 S.W.3d 270 (Ky. 2009), culminating in Gabbard v. Com., 297 S.W.3d 844 (Ky. 2009)) to determine whether a trial court’s denial of a challenge for cause was erroneous or harmless should apply equally in civil cases. The Court’s analysis as it evolved in those criminal cases has placed an additional procedural burden over and above moving to strike a juror for cause on the moving party in order to preserve the matter for appellate review and to avoid a finding of harmless error. Specifically, one seeking reversal based on the trial court’s denial of a challenge for cause must have used a peremptory challenge on the challenged juror, and then listed on the jury strike sheet an alternate juror on whom the moving party would have used a peremptory challenge if the motion to strike had been granted. If the juror designated in the alternative peremptory challenge by the complaining party ends up sitting on the jury, the trial court’s error will not be deemed harmless.

In Grubb v. Norton, the plaintiff’s lawyers partially followed the procedure set forth in those criminal cases, and named two other jurors on whom they would have used peremptory challenges if they had not had to use one on the parent of the hospital employee and if their for-cause challenge had been granted as to the former patient of the expert (on whom they did not use a peremptory, but who was excused as an alternate before deliberations began). Though the opinion did not say so, one must presume that the juror who was designated as an alternate peremptory challenge for the hospital employee’s parent ended up sitting on the jury. Thus, the Court found that substantial error had occurred, requiring reversal and retrial. However, the decision appears to have been a close call as both the majority opinion and the concurring opinion commented on the limited follow-up questioning the complaining party’s counsel did of the jurors who were challenged for cause.

Had the plaintiff used peremptory challenges on neither of the jurors who were challenged for cause (as opposed to one), or if the juror named in the alternate peremptory challenge for the hospital employee’s father not ended up sitting on the jury, the error likely would not have been deemed preserved for review or would have been presumed harmless under the line of criminal cases that the Court relied on. Also, the Grubb case does not discuss how the juror who sat on the case but who would have been excused by the next peremptory challenge if the complaining party’s challenge for cause had been sustained actually voted. If that juror voted in favor of the complaining party, one could make a decent argument that the trial court’s error in declining to excuse for cause the challenged juror on whom the complaining party had to use a peremptory challenge was still harmless. (That inquiry would be unnecessary in an appeal by a defendant in a criminal case since a unanimous verdict is required for a criminal conviction.)

Finally, the application of these jury selection principles to civil cases is consistent with a prior unpublished opinion of the Court of Appeals on remand from the Supreme Court in O’Hair v. Wells, 2008 WL 2610164 (Ky. App. 2008), and with commentary in 7 Philipps & Kramer, Kentucky Practice, “Rules of Civil Procedure Annotated,” CR 47.03 Comment 6 at pp. 26-28 (2012 supplement).

Grubb v. Norton Hospitals is not final as of the date of this blog post. Decisions that are not final should not be cited as authority in Kentucky.

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

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ERIC DETERS SANCTIONED BY Ky. SUPREME COURT In Fiery Response Deters says he will consider appeal to U.S. Supreme Court

Sunday, May 26th, 2013

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May 26, 2013
By LawReader

Eric Deters has been suspended from the practice of law for 90 days with 30 days running concurrently with the 60 day sentence. The charges against Deters involve a procedural error in confusing the registration date of a LLC. Deters says he relied on documents from his client, but nevertheless the Sup. Ct. found he had violated Rule 11 The sanctions also include statements Deters made regarding past KBA actions against him. He argued that if the sanction was to be confidential under the rules, that he was not required to disclose the sanction, but the Supreme Court didn’t see it that way. This ruling will subject attorneys interested in plea bargaining ethics charges with a Non-Disclosure clause, will now be subject to public disclosure by other attorneys or even by the KBA in future actions. ( See: 2012-SC-000666-KB.PDF TO BE PUBLISHED May May 23, 2013. KENTUCKY BAR ASSOCIATION V. ERIC C. DETERS )

Deters has responded to the findings of the KBA and the Ky. Supreme Court imposing court costs and a 60 day suspension as follows:

“I’m fighting on. As of today and until I report otherwise.. I’m not suspended in Kentucky or Ohio. (The Sup. Ct. order directed that the suspension begin on June 3, 2013.) I plan an appeal to the U.S. Supreme Court.

Many of you have head a court hearing, unemployment hearing, worker’s compensation hearing, social security disability hearing, grievance hearing with a union, attended a city council meeting or other public hearing. One of the common denominators of all those hearings? An official record to appeal from. It’s part of the due process requirements which are sacred to this country.

Imagine a lawyer facing discipline would not be allowed to make the same record as all those examples I just have? Well, the Kentucky bar Counsel, the Kentucky Board of governors and the Rules of the Kentucky Supreme Court give the Board of governors the right to say not to an attorney from having a court reporter, audiotape or videotape of his Board of Governors meeting.
In my first suspension, the Board did not allow my videographer to videotape claiming I did not request it in time. This time, I asked in time, but they said no. Incredible injustice. This was in part the basis of my argument to the Kentucky Supreme court.

I disagree with the Kentucky Supreme court on the issue of the court reporter or videographer for the record. They state in the opinion:
“The court sees no prejudice in this practice as it relates to this Court’s review of the matter. When this Court undertakes review of a disciplinary proceeding, whether at a party’s urging under SCR 3.370(7) or the Court’s own motion under SCR 3.370(8), it is not bound as it would be in a pure appeal. The court is not required to defer to the findings of fact of conclusions of law of the trail commissioner of the Board. Rather, in disciplinary proceedings, those entities act as administrative agent of this court to produce a records and a recommendation.
Once this court undertakes review of a case it “shall enter such orders or opinion as it deems appropriate on the entire record”. SCR 3.370(8). Thus, the demeanor and actions of the Board and Bar Counsel are not relevant. This Court instead decides the case de nova itself based on the record developed below. Any potential unfairness shown by a Board member of by Bar Counsel is alleviated by this Court’s independent review of a lawyer’s alleged misconduct.

The Kentucky Supreme Court references three times the record:. “to produce a record”, “on the entire record”, and based on the record developed below.” This is a contradiction.
The Court admits a record is important while at the same time concludes it’s not.
Towards the end of the opinion the Court concludes:

“Deters has received due process from these proceedings.”
I don’t know how they can state this without me being given the opportunity for a record of a Board of Governors hearing. For example, the Board of Governors drafted a written report. I had no record to point out their mistakes.

Last year I had to serve 52 days more than the 60 days ordered because Bar Counsel was allowed to extend it in part on these two charges. The Court explains the 52 days away by stating that the disciplinary cases were not the only reason for the objection to extend last years suspension. This means they admit it was part of it yet give me no credit and there is no question it was the main reason. They are attempting to punish me twice for the same conduct.
“The Small Claims Court, The District Court, the Circuit Court and the Appeals Court and the Ky. Supreme Court all require a record. Not the Bar Association or law discipline? Sorry, it’s wrong. The Medical Board allows it for doctors. Doctors aren’t even the “defenders of liberty” (sarcasm) lawyers are. “I’ve decided to ask the Ky. Supreme Court to reconsider and then if they do not, I’m filing with the US Supreme Court where I’ll ask them to hear the case.”

The allegations against me in these two dated matters involved allegations filed in a Complaint or lawsuit. Guess what? It’s not a perfect process. You make mistakes. I’m unaware of one single lawyer in the tri-state who has ever been sanctioned or disciplined ever for this.

At the Board of Governor’s hearing, I point out I think it’s hypocrisy that defense lawyers every day in Kentucky file Answer to lawsuits where they claim things they know are false like defenses know they apply. (sic)

Two or three members of the Board laughed and said: “year we do that and we will keep doing that.” They thought it was funny. Ten they judged me and didn’t’ give me the record I wanted to base my argument in part to the Kentucky Supreme Court. The Court has ruled that’s OK. Well, it’s not OK.

I owe it to myself and other lawyers who face these same issues in the future to battle on. And I shall. I’m right. The cause is just. And as TR said: “Aggressive fighting for the right is the noblest sport the world affords.”

FEDS ARGUE ILLEGAL IMMIGRANT SHOULDN’T GET LAW LICENSE

Thursday, May 23rd, 2013

the associated press
TALLAHASSEE, Fla. — A Florida’s man bid to obtain a law license despite questions about his immigration status could be coming to an end.
The U.S. Department of Justice this week filed a legal brief arguing that the state should deny a law license to anyone who enters or remains in the country without legal permission.
Attorneys for the federal government made the filing at the request of the Florida Supreme Court. Justices last month asked whether or not federal law precludes the court’s admission of an undocumented immigrant to the Florida Bar.
The court’s review was requested by Jose Godinez-Samperio. He came to the U.S. with his parents on visitors’ visas when he was 9 years old, but the family never returned to Mexico.
He graduated from New College in Florida, earned a law degree from Florida State University and already has passed the Florida bar examination.
In its filing, attorneys for the federal government argued that professional licenses constitute a public benefit that U.S. law prohibits to someone who has entered the country illegally.
Last October, former American Bar Association president Talbot “Sandy” D’Alemberte – who represents Godinez-Samperio and taught him when he was a law student – argued the federal law doesn’t apply because the Florida Supreme Court is not an “agency.” He also argued the states have a constitutional right to decide who practices law in their courts.

COURT CITES ANOTHER INSTANCE OF INQUIRY COMMISSION OF KBA FAILING TO DESCRIBE THE OFFENSE CORRECTLY

Wednesday, May 22nd, 2013

Kentucky Bar Ass’n v. Edwards,Terry Ray 377 S.W.3d 557 (Ky., 2012) September 20, 2012

Emma Frances Kottmyer was adjudged to be incompetent to handle her finances, having been diagnosed with dementia and early-onset Alzheimer’s disease. The district court appointed Edwards, who was Kottmyer’s attorney on several occasions for over a decade before the appointment, and Ernest R. Hafley, a Kottmyer family friend, as co-curators of Kottmyer’s financial affairs.
While acting as co-curator, Edwards made several unexplained withdrawals from Kottmyer’s IRA account; sold her home without court approval; and paid himself $20,810 in fees. Edwards wrote checks to himself totaling $78,000, designating these disbursements as “loans.” During this time, Edwards failed to file the required accounting of Kottmyer’s estate.

II. EDWARDS VIOLATED SCR 3.130–1.8(A), SCR 3.1303.4(C), AND SCR 3.1308.3(C).

The Board of Governors properly determined Edwards violated SCR 3.130–1.8(a), SCR 3.130–3.4(c), and SCR 3.130–8.3(c). Edwards admits to these violations in his brief submitted to this Court. We find the Board’s conclusion regarding these charges supported by the record and the law. And we adopt the decision of the Board of Governors for these charges. We agree that Edwards violated the Rules of Professional Conduct by taking funds from the Kottmyer estate while serving as co-curator.

III. A CRIME MUST BE ALLEGED FOR SCR 3.130–8.3(B) TO APPLY.

The Board of Governors found Edwards guilty of violating 3.130–8.3(b), Count III of the Charge. Edwards now challenges this ruling and the sufficiency of the Charge because of the Inquiry Commission’s failure to state a criminal statute he violated. And Edwards challenges the Board of Governors’ failure to apply the facts to the law and state a crime relevant to his conduct. We agree with Edwards.

B. Count III Is Insufficient Because It Asserts No Illegality.

The Board of Governors found Edwards guilty of violating SCR 3.130–8.3(b) because of his unauthorized taking of money from Kottmyer’s account for his personal use. Because of Edwards’s inaction before the Inquiry Commission, this case became a default case; and the record was not developed as it would have been had there been a hearing before a Trial Commissioner.

In such cases, the Board of Governors must rely on the Charge issued by the Inquiry Commission when determining the respondent’s guilt. The Charge is critical, especially in default cases. And it should convey enough factual information to support a finding of a violation of the count(s) it asserts.

The Inquiry Commission is required to state the illegal nature of a respondent’s conduct. This comports with the plain language of SCR 3.130–8.3(b). The rule reads, “It is professional misconduct for a lawyer to: commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.” Commit, as defined by Black’s Law Dictionary, means, “to perpetrate (a crime).”

The use of the word commit in SCR 3.130–8.3(b) indicates that the respondent’s act must evince an illegality. And to meet the requisite burden of proof, the Inquiry Commission must state what the illegality is.

Without stating an alleged crime encompassing Edwards’s conduct, the Inquiry Commission fails to provide sufficient evidence that Edwards’s act was criminal.

Rather, the Inquiry Commission only alleges that Edwards committed an act but does not identify the crime committed.

In the instant case, Edwards’s conduct certainly appears illegal.

He could have been charged with theft by unlawful taking or possibly theft by failure to make required disposition of property. But the Inquiry Commission did not apply the law to Edwards’s conduct to allege adequately that he committed a criminal act. There was no conclusion of law regarding Edwards’s criminal conduct by the Board of Governors because there was no crime alleged in the Charge.

The KBA argues that the proof provided for Count IV is sufficient to sustain a conclusion of a criminal act under Count III. The evidence for Count III and Count IV may very well be the same, and this is allowable. But the Inquiry Commission must state a crime that Edwards’s actions constitute before a violation of SCR 3.130–8.3(b) can stand.

We do not hold that a criminal conviction is required for SCR 3.130–8.3(b) to be applicable or even that charges must be filed. The KBA must, only meet a preponderance-of-the-evidence standard, much lower than the beyond-a-reasonable-doubt standard required for a criminal conviction.

We only require a Respondent’s actions to be shown, by a preponderance of the evidence, to fit within a crime under state or federal law. The Board of Governors’ finding of guilt on Count III will be set aside because the Charge was insufficient in regard to that count.

IV. PERMANENT DISBARMENT IS APPROPRIATE.

The Court finds that permanent disbarment is the appropriate sanction for Edwards. We have a duty to “safeguard the public’s trust that this Court maintains a bar membership that has the fitness and character to practice law.” Clients evince a high level of trust when they hand over control of their money to a lawyer. And Edwards admittedly violated that important trust relationship.

KENTUCKY SUPREME COURT WARNS BAR COUNSEL THAT DISCIPLINE PROCEEDINGS ARE NOT CRIMINAL TRIALS!!

Wednesday, May 22nd, 2013

Kentucky Bar Ass’n v. Robinson, 386 S.W.3d 739 (Ky., 2012)

These distinctions between the procedure provided by SCR 3.360(4) and SCR 3.480(2) are of vital importance. While KBA disciplinary proceedings are frequently treated as prosecutorial by the bar, they are not criminal proceedings.

Rather, they are civil disciplinary matters carried out by an agency of this Court.

Bar Counsel seems to conflate disciplinary proceedings with criminal plea bargains or guilty pleas, or civil settlement agreements, whereby the judge maintains a role throughout the negotiation process, including approval of the parties’ agreement.

We caution Bar Counsel not to conflate a Trial Commissioner with a trial court, nor Bar Counsel with a prosecutor. While there are some similarities, the rules indicate that neither is identical in function or authority

SUPREME COURT REQUIRES INQUIRY COMMISSION CHARGES TO STATE ACTUAL FACTS

Wednesday, May 22nd, 2013

The Supreme Court has mandated that the Inquiry Commission actually provide factual information to support their findings of ethical violations.

Ky. Bar Ass’n v. Blum (Ky., 2013) April 25, 2013
9. See SCR 3.190. This is not to be construed as an endorsement of the form of the Charge in this case. We do find it worthwhile to note that the Charge issued here contains fifty-nine numbered paragraphs of factual allegations under the heading of “Count I” and then merely a quote of the rule alleged to have been violated and a general description of the violation under each succeeding count. Although not improper, this Charge would have been clearer had it alleged with specificity the offending statement or action that Blum had made or done in violation of any rule. The Inquiry Commission must “convey enough factual information to support a finding of the violation of the count(s) it asserts.” Kentucky Bar Ass’n v. Edwards, 377 S.W.3d 557, 562 (Ky. 2012).

Ky. Bar Ass’n v. Blum (Ky., 2013)

ATTORNEY SANCTIONED FOR USING OFFICE WESTLAW…Why didn’t he just subscribe to LawReader?

Wednesday, May 22nd, 2013

Finley v. Kentucky Bar Ass’n, 378 S.W.3d 313 (Ky., 2012) September 20, 2012

The Kentucky Bar Association (“KBA”) now charges that Finley violated SCR 3.130–8.4(c) by using his official position for financial gain. SCR 3.130–8.4(c) provides that “It is professional misconduct for a lawyer to … engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” In this disciplinary proceeding, Finley acknowledges that his violation of KRS 11A.020(1)(c) amounts to a violation of SCR 3.130–8.4(c).

These proceedings are the result of Finley bringing his personal laptop computer to work and using it, in his downtime, to post answers to questions posted on the JustAnswer.com website for profit. The posting of these answers did not interrupt his work assignments. However, Finley occasionally used his office’s Westlaw account to do research before posting an answer to the questions asked on the website. The investigation carried out by the Office of Inspector General disclosed that Finley made thirty-six searches on Westlaw relating to JustAnswer.com questions. Finley disputes the number of searches he made relating to JustAnswer.com, but acknowledges that his use of the office’s Westlaw account and the use of his downtime while at work for the furtherance of his online employment was improper.

Finley now moves for a public reprimand to resolve KBA File 19503. The KBA has no objection to Finley’s motion and believes that a public reprimand is an appropriate sanction for his violation of SCR 3.130–8.4(c). See Kentucky Bar Association v. Pat Harris, 269 S.W.3d 414 (Ky.2008) (An attorney was sanctioned with a public reprimand, after adjudication by an administrative agency, for violating Kentucky state employment policies.).

….we agree with the KBA that a public reprimand is the appropriate sanction here, and thus grant Finley’s motion

WORKERS’ COMPENSATION BOARD MEMBER VACANCY…APPLICATIONS BEING ACCEPTED

Wednesday, May 22nd, 2013

Kentucky Department of Workers’ Claims

The Workers’ Compensation Nominating Commission is now accepting applications to fill an unexpired term on the Workers’ Compensation Board. This is a full-time position for a term expiring on January 4, 2016. The appointee shall not hold any other public office.

An applicant for the Workers’ Compensation Board Member position must be an attorney and must have the qualifications required of an Appeals Court Judge (except for residence in a district), shall receive the same salary and shall be subject to the same standards of conduct.

APPLICATIONS MUST BE RECEIVED ON OR BEFORE 3:00 PM (EDT), MONDAY, June 3, 2013. Interested parties are required to send one original resume and seven copies, along with a cover letter containing an e-mail address, to the attention of Brenda Majcher, Nominating Commission Clerk, Kentucky Department of Workers’ Claims, Prevention Park, 657 Chamberlin Avenue, Frankfort, KY 40601. Questions may be directed to Ms. Majcher at 502-782-4439 or brenda.majcher@ky.gov.

Those serving on the Workers’ Compensation Nominating Commission are as follows:

William Grover Arnett, Chairman

Salyersville, KY

Sherri P. Brown-Keller Robert W. Carlisle

Lexington, KY Villa Hills, KY

Brockton L. Edwards Charles E. McCoy

Louisville, KY Owenton, Ky

John W. Morgan Roger D. Riggs

Lexington, KY Mt. Sterling, KY

Applicants and employees in this classification may be required to submit to a drug screening test and background check. The Commonwealth of Kentucky does not discriminate on the basis of race, color, religion, national origin, sex, age, disability, sexual orientation, gender identity, ancestry or veteran status in the admission or access to, or participation or employment in, its programs or services.

JUSTICE SCOTT AUTHORS IMPORTANT RULING ON HAIR COMPARISION EVIDENCE AND DAUBERT

Wednesday, May 22nd, 2013

Although SCOKY affirmed the scientific evidence of “hair comparison” evidence which has been historically admissible in Kentucky, Justice Scott shot a warning volley over the bow of Daubert with a bit of a warning that the past may not always be the assurance for continuing admissibility -
the state of scientifically accepted evidence is ever changing, and what is scientifically acceptable today may be found to be incorrect or obsolete in the future. In the present case, the trial court correctly took judicial notice of the acceptability of scientific methods, but this is not a rule that is “set in stone,” and is subject to change with scientific discovery. It is up to the trial courts to stay abreast of currently accepted scientific methods, as they are the gatekeepers for the admissibility of evidence. Therefore, even though case law may be in acceptance of a certain method of analysis, it is the trial court’s duty to ensure that method is supported by scientific findings, or at least not seriously questioned by recent reputable scientific findings,’ before taking judicial notice of its acceptability.
The decision:
Meskimen vs. Commowealth of Kentucky
SCOKY, Published 4/25/2013
OPINION OF THE COURT BY JUSTICE SCOTT – AFFIRMING
MINTON, C.J.; ABRAMSON, CUNNINGHAM, NOBLE, SCOTT, AND VENTERS, JJ., SITTING. ALL CONCUR
Questions Presented:
First degree manslaughter, first degree tampering with physical evidence, third degree alcohol intoxication, and third degree criminal trespass-25 years. Trial court properly denied motion to suppress defendant’s statement obtained during his interrogation at police headquarters and his subsequent statements made during his hospitalization. Right to remain silent. Intoxication. Hair comparison evidence-Daubert hearing. Criminal contempt.
OPINION OF THE COURT BY JUSTICE SCOTT.
Fayette Circuit Court jury found Appellant, Timothy Meskimen, guilty of first-degree manslaughter, first-degree tampering with physical evidence, third-degree alcohol intoxication, and third-degree criminal trespass. For these crimes, Appellant received a twenty-five-year prison sentence. He now appeals as a matter of right, Ky. Const. §110(2)(b), alleging that the trial court erred by: (1) allowing the use of Appellant’s coerced statements in violation of his constitutional rights, (2) failing to suppress the evidence of subsequent statements made during his hospitalization, (3) denying his motion to suppress evidence of hair comparisons, and (4) summarily imposing a consecutive six- month sentence for indirect contempt. For the reasons that follow, we affirm Appellant’s conviction and sentence.
B. Daubert Hearing
Appellant next argues that the trial court erred to his substantial prejudice when it denied his motion to exclude physical evidence. Specifically, Appellant alleges the admission of hair comparisons was erroneous because the trial court failed to conduct a Daubert hearing. We review a trial court’s theory at issue.” Id. “Courts are right to admit or exclude much evidence without reinventing the wheel every time by requiring the parties to put on full demonstrations of the validity or invalidity of methods or techniques that have been scrutinized well enough in prior decisions to warrant taking judicial notice of their status.” Id. (internal quotations omitted). “This Court holds that Kentucky trial judges may take judicial notice of those scientific methods or techniques that have achieved the status of scientific reliability, and thus a Daubert hearing is not required.” Id. at 262. Indeed, leividence of hair analysis by microscopic comparison has been admissible in this Commonwealth for many years.” Id.
In this case, the Commonwealth offered evidence that has been admissible in the state of Kentucky for many years. Microscopic hair analysis is a scientifically reliable method, and we, therefore, do not require that a Daubert hearing be held with regard to the admittance of such evidence. We will not disturb the decisions of the trial court without a clear showing of abuse of discretion. Partin v. Commonwealth, 918 S.W.2d 219 (Ky. 1996). In this case, there is no indication that the trial court abused its discretion in admitting the evidence. Thus, Appellant’s argument is without merit.
With that being said, the state of scientifically accepted evidence is ever changing, and what is scientifically acceptable today may be found to be incorrect or obsolete in the future. In the present case, the trial court correctly took judicial notice of the acceptability of scientific methods, but this is not a rule that is “set in stone,” and is subject to change with scientific discovery. It is up to the trial courts to stay abreast of currently accepted scientific methods, as they are the gatekeepers for the admissibility of evidence. Therefore, even though case law may be in acceptance of a certain method of analysis, it is the trial court’s duty to ensure that method is supported by scientific findings, or at least not seriously questioned by recent reputable scientific findings,’ 0 before taking judicial notice of its aceptability. That of course was not the case here, thus, we find no error.
Full text below:
The post Experts: Daubert Hearing Admits Hair Comparison Evidence but SCOKY reminds all that prior rulings on admissibility “not set in stone” (Meskimen vs. Commonwealth of Kentucky, SCOKY, Pub, 4/25/2013

KBA CONTINUES TO CLOSELY REVIEW COMPLAINTS AGAINST FEE BILLS OF INDIVIDUAL ATTORNEYS AND SMALL LAW FIRMS. WE CAN’T FIND EVIDENCE OF THE REVIEW OF BILLING PRACTICES OF INSURANCE DEFENSE LAWYERS BY KBA.

Monday, May 20th, 2013

Kentucky Bar Ass’n v. Greene, 386 S.W.3d 717 (Ky., 2012) November 21, 2012

As a result of the above conduct on March 16, 2009, Carneal and his current wife filed a bar complaint against Respondent pertaining to Respondent’s representation of him. On July 21, 2009, the Inquiry Commission filed a four-count charge against the Respondent alleging the following violations: (I) SCR 3.130–1.9(a) (conflict in representation with a former client for representing Potter in a custody dispute against his former client Carneal); (II) SCR 3.130–1.2(d) (scope of representation); (III) …

We agree with the Board that Respondent’s representation of Carneal in the 2007 temporary custody case and Potter in the 2008 de facto custody case did not violate SCR 3.130–1.9(a). This rule provides that “A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.”

Nevertheless, there was evidence before the trial commissioner supporting Respondent’s testimony that he performed fourteen to sixteen hours of work on the Foster case. Obviously a fee of $2,000.00 for this amount of work (less than $150.00 per hour) is not unreasonable, particularly considering the extraordinary efforts made to accommodate Foster during her initial, highly distraught, visit to the office. Nor would a $2,000.00 advance retainer for this type of case be unreasonable given the circumstances presented. By depositing of the funds directly into his office account rather than his client escrow account, Respondent committed a violation. That violation was, however, mooted in the short time it took Respondent to perform services that earned the fee.
“The burden of proof shall rest upon [Bar Counsel] in a disciplinary proceeding, and the facts must be proven by a preponderance of the evidence.” SCR 3.330. Because Bar Counsel failed to present any testimony to refute Respondent’s evidence, the alleged violation was not proven by a preponderance of the evidence. As such, based upon the evidence presented at the evidentiary hearing as discussed above, we determine that Respondent did not charge an unreasonable fee in violation of SCR 3.130–1.5(a) and he did not fail to return an unearned fee in violation of SCR 3.130–1.16(d). The brief comingling of client funds with the law firm’s funds (SCR 3.130–1.15(a)) was of such duration that we agree with the Board’s conclusion that discipline is not warranted.

RIGHT OF INDIGENT TO HAVE APPOINTED COUNSEL IN CHILD CUSTODY CASES

Sunday, May 19th, 2013

RIGHT OF INDIGENT TO HAVE APPOINTED COUNSEL IN CHILD CUSTODY CASES

See:
A.C. v. Cabinet for Health & Family Servs., 362 S.W.3d 361 (Ky. App., 2012)

A.C. v. Cabinet for Health & Family Servs., 362 S.W.3d 361 (Ky. App., 2012) February 24, 2012
This is an appeal from the Kenton Family Court’s January 11, 2011 order terminating the parental rights of appellant, A.C., with regard to her minor son, M.W.C. In the course of our review, we are called upon to determine whether it is proper to extend the briefing procedures of Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), to appeals from orders terminating parental rights and, if so, whether the appeal before us is, in fact, wholly frivolous. We answer both questions affirmatively and affirm the family court’s judgment.

In 1971, our Supreme Court adopted, albeit indirectly, the Anders principle and began accepting Anders briefs in no-merit appeals in criminal proceedings. Fite v. Commonwealth, 469 S.W.2d 357, 358 (Ky.1971); see also Fraser v. Commonwealth, 59 S.W.3d 448, 454 (Ky.2001) (noting, pursuant to Fite, Kentucky has adopted Anders proceedings in criminal appeals). Since that time, Kentucky appellate courts have consistently permitted appointed counsel to file Anders briefs in direct appeals of criminal matters. See, e.g., Hughes v. Commonwealth, 875 S.W.2d 99, 101 (Ky.1994) (denying counsel’s motion to withdraw, pursuant to Anders, on the ground that the appeal was not wholly frivolous); Caldwell v. Commonwealth, No. 2007–CA–001922–MR, 2009 WL 4882826, at *1 (Ky.App. Dec. 18, 2009); Young v. Commonwealth, No. 2006–CA–001092–MR, 2007 WL 4125899, at *1 (Ky.App. Nov. 21, 2007).

However, we have not yet addressed whether Anders proceedings should be extended to cases outside the criminal context and, particularly, to termination of parental rights matters. See C.R.G. v. Cabinet for Health and Family Services, 297 S.W.3d 914, 915 (Ky.App.2009)(declining to “address whether Anders may be invoked in a termination of parental rights case”). We do so now.

Initially, we must determine whether indigent parents are entitled to appointed counsel on appeal. But for a constitutional or statutory right to appellate counsel, the attorney can simply terminate his or her relationship with the indigent parent and avoid submitting a frivolous appeal to this Court, thus eliminating the need for Anders-like procedures in termination of parental rights cases.

The United States Supreme Court has found no absolute right to counsel in termination cases under the umbrella of the United States Constitution but instead has held the appointment of counsel need only be made on a case-by-case basis. Lassiter, 452 U.S. at 31–32, 101 S.Ct. at 2162; see also A.P. v. Commonwealth, Cabinet for Health and Family Services, 270 S.W.3d 418, 420 (Ky.App.2008). Kentucky’s General Assembly eliminated the need for a case-by-case determination by enacting KRS 625.080(3), which provides, in pertinent part, that “parents have the right to legal representation in involuntary termination actions. The Circuit Court shall determine if the parent is indigent and, therefore, entitled to counsel.” KRS 625.080(3); see also Z.T. v. M.T., 258 S.W.3d 31, 36 (Ky.App.2008).
While KRS 625.080(3) does not limit appointed representation to trial proceedings, neither does it explicitly allow for appointed counsel during the appellate process. In construing KRS 625.080(3), our purpose “is to give effect to the intent of the General Assembly, and we derive that intent, if at all possible, from the plain meaning of the language the General Assembly chose.” Bowling v. Kentucky Dep’t of Corrections, 301 S.W.3d 478, 490–91 (Ky.2009). To that end, “the language of the statute is to be given full effect as written.” Mohammad v. Commonwealth, 202 S.W.3d 589, 590 (Ky.2006). We believe a fair reading of KRS 625.080(3) reveals the Kentucky legislature intended to afford indigent parents the benefits of counsel during the entire course of the termination proceedings, including any appeal.

In sum, we are persuaded by the reasoning of the majority of states addressing the issue and agree the “benefits from the Anders protections to the indigent parent’s right to counsel outweigh” any potential harm. Linker–Flores, 194 S.W.3d at 747. Accordingly, we hold the procedures set forth in Anders, as so modified by this opinion, apply to appeals from orders terminating parental rights in which an indigent parent has court-appointed counsel who concludes the appeal lacks any meritorious issues which might support the appeal, and is, therefore, frivolous.

We believe it prudent to include a procedural blueprint to assist the bar in cases in which an Anders brief is warranted. Particularly, we are compelled to emphasize that an Anders brief should not be used as an escape provision for a court-appointed counsel whose payments have exhausted, but should only be filed when appointed counsel has conducted a thorough, good-faith review of the record and can ascertain absolutely no meritorious issue to raise on appeal. See Anders, 386 U.S. at 744, 87 S.Ct. at 1400. In the context of termination of parental rights cases, counsel should, at a minimum, review the circuit court’s (1) neglect and/or abuse determination; (2) finding of unfitness under KRS 625.090(2); and (3) best-interests determination.

In accordance with Anders, once counsel has reached the conclusion that the appeal is wholly frivolous, counsel “should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal.” Anders, 386 U.S. at 744, 87 S.Ct. at 1400. That means counsel must accomplish all this within the thirty-day window allowed in CR 76.12(2)(a)(i) for filing briefs in such a case. The Anders brief shall both refer to “anything in the record that might arguably support the appeal [,]” Anders, id., and objectively demonstrate the issues identified are wholly frivolous. See In re S.M., 314 Ill.App.3d 682, 247 Ill.Dec. 424, 732 N.E.2d 140, 143 (2002) (requiring appointed counsel to “(a) sketch the argument in support of the issues that could conceivably be raised on appeal, and then (b) explain why he believes the arguments are frivolous”).

Moreover, the Anders brief must conform with CR 76.12 by including, inter alia, statements regarding whether the argument was preserved regardless of its lack of merit, a thorough recitation of the facts, a concise and well-reasoned analysis of the issues, and appropriate citations to the record and law. See CR 76.12(4). Further, appointed counsel must certify in the Anders brief that counsel provided the indigent parent with a copy of the brief and informed the parent that he or she has a right to file a pro se brief raising any issues the parent deems meritorious. Anders, 386 U.S. at 744, 87 S.Ct. at 1400.

Upon receiving counsel’s motion to withdraw and accompanying Anders brief, this Court shall enter an order granting the indigent parent thirty days to file a pro se brief and deferring counsel’s motion to withdraw to the merits panel. The order shall also grant the Cabinet thirty days from the due date of the parent’s pro se brief to file its response. After all briefs are filed, this Court will fully examine the record and decide whether the appeal is wholly frivolous pursuant to Anders, 386 U.S. at 744, 87 S.Ct. at 1400. During the course of this review, this Court may, in its discretion, order either or both parties to file a supplemental brief addressing any issues this Court finds may have merit.

A decision to terminate parental rights is fact-intensive and requires strict application of statutory standards. P.C.C. v. C.M.C., Jr., 297 S.W.3d 590, 592 (Ky.App.2009) (“In order to protect the rights of natural parents, Kentucky courts require strict compliance with statutory provisions governing the involuntary termination of parental rights.”). Furthermore, the evidence to support terminating parental rights must be clear and convincing. KRS 625.090(1). Therefore, we urge restraint in filing Anders briefs. “The Anders brief is not a substitute for an advocate’s brief on the merits.” McCoy v. Court of Appeals of Wisconsin, District 1, 486 U.S. 429, 444, 108 S.Ct. 1895, 1904, 100 L.Ed.2d 440 (1988). Likewise, it is not an escape provision to end undercompensated, and sometimes uncompensated, legal services the lawyer agreed to provide.

….. Compare SCR 3.130, Preamble, III (requiring an attorney to “zealously assert the client’s position under the rules of the adversary system”) and SCR 3.130(1.2)(a) (“[A] lawyer shall abide by a client’s decisions concerning the objectives of representation.”) with SCR 3.130(3.1) (“A lawyer shall not knowingly bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous.”) …

In view of our consideration of this case under the standards of Anders and its progeny, the Cabinet’s Motions to Dismiss and to Advance are moot.

V. Conclusion

Based on the foregoing, the Kenton Family Court’s January 11, 2011 order terminating A.C.’s parental rights as to M.W.C. is affirmed.

LAWYERS CAN’T BE SUED FOR FRAUD UNDER OLD LEGAL DOCTRINE

Saturday, May 18th, 2013

CONN. COURT HOLDS THAT LAWYERS CAN’T BE SUED FOR FRAUD UNDER OLD LEGAL DOCTRINE
DAVE COLLINS , The Associated Press, MAY 17, 2013, 10:51 AM
HARTFORD, Conn. – The state Supreme Court has ruled in an ex-NFL player’s case that Connecticut lawyers can’t be sued for fraud for their conduct in court cases because of a centuries-old legal doctrine.
The court’s 5-1 decision last week came in the case of Bob Simms of Greenwich, who played for the New York Giants and Pittsburgh Steelers in the early 1960s and founded the investment firm Simms Capital Management Inc. in 1984.
Simms, 74, tried to sue his ex-wife, Donna, and her lawyers, alleging they failed to disclose a nearly $360,000 inheritance she received in 2006 and 2008, during a legal fight over the amount of alimony he pays her. Donna Simms’ lawyers denied the allegations. A trial court judge ruled against Bob Simms, and he appealed.
Simms called the Supreme Court’s ruling “ludicrous” on Friday.
Justices ruled May 10 that lawyers are shielded from fraud lawsuits under absolute immunity, a doctrine dating back to medieval England. The doctrine was intended to promote people speaking freely at judicial proceedings without fear of being sued and to avoid hindering an attorney’s advocacy for his or her client.
“The mere possibility of such (fraud) claims, which could expose attorneys to harassing and expensive litigation, would be likely to inhibit their freedom in making good faith evidentiary decisions and representations and, therefore, negatively affect their ability to act as zealous advocates for their clients,” Justice Peter Zarella wrote in the majority opinion.
The court cited decisions by federal courts, including the U.S. Supreme Court, recognizing absolute immunity for government lawyers. Justices also said Connecticut lawyers can be punished for any misconduct, including being disbarred by the Statewide Grievance Committee.
Justice Richard Palmer dissented in the ruling. He said the majority’s decision is out of step with a large majority of courts or legislatures that have declined to extend absolute immunity to include fraud. He also said the court’s majority ignored a “strong presumption” against absolute immunity.
“The majority’s decision rightly will be viewed , by nonlawyers especially , as unduly protectionist of attorneys,” Palmer wrote.
Bob and Donna Simms married in 1961 and divorced in 1979. He was ordered to pay alimony as part of the divorce settlement. The legal wrangling resumed in 1989 when she filed motions to increase the alimony while he sought to decrease or eliminate it.
The case took a number of twists and turns over the years, including three trips to the state Supreme Court.
The attorneys named in Bob Simms’ lawsuit are Penny Seaman, Susan Moch, Kenneth Bartschi, Brendon Levesque and Karen Dowd, all of whom represented Donna Simms in various state Superior Court and appeals court proceedings from 2005 to 2008. They denied the allegations.
A phone message seeking comment was left at Donna Simms’ home on Friday.
According to court documents, Donna Simms inherited $310,000 from an uncle in June 2006 and another $49,000 from his estate in February 2008. Bob Simms claimed she and her lawyers intentionally concealed the inheritance during court proceedings until May 2008, when they were forced to disclose it under a court order. A lower court judge ruled that information about the inheritance had been improperly withheld.

LEX. ATTN. BILL GARMER CONSIDERING U.S. SENATE CHALLENGE TO McCONNELL

Saturday, May 18th, 2013

Bill Garmer a member of the KBA Board of Governors, and successful Lexington attorney is considering a challenge against Mitch McConnell in next years U.S. Senate race.

Lexington Herald states:

FRANKFORT — Former Kentucky Democratic Party Chairman Bill Garmer said Friday he is considering running for the U.S. Senate next year if Secretary of State Alison Lundergan Grimes declines to enter the race against Republican incumbent Mitch McConnell.”A lot of people have talked to me about the race,” said Garmer, a Lexington lawyer, in a telephone interview. “But Alison is the center of discussion. In my mind, if she wants the nomination, she has my support. She is one of the bright stars in the Democratic party and she wants to serve Kentucky. I would be the first in line to support her.”Asked if he would consider running if Grimes decides not to run, Garmer said, “that sounds like a lawyer’s question but that would be fair.”Neither Grimes nor McConnell’s campaign manager, Jesse Benton, returned phone calls Friday seeking comment.Grimes said April 23 that she is pondering whether to run for the U.S. Senate next year against McConnell. She said she would “take the time to reflect with my family, my supporters on how I can best continue to serve the Commonwealth of Kentucky.”Grimes did not set a timetable for making a decision, saying only that she would “give it the due diligence it deserves.” She has not yet announced her decision.Her father, businessman Jerry Lundergan of Lexington, replaced Garmer in January 2005 as state Democratic Party chairman. Garmer held the post for a year, and resigned after Democrats suffered a series of defeats in November 2003 elections. Lundergan also had been party chairman in 1988 during the administration of the late Gov. Wallace Wilkinson.Garmer said he thinks Grimes is aware of his political sentiments “but I’ve not had a direct one-on-one” conversation with her about the race.”I can’t emphasize enough that I hope Alison runs,” he said.The Kentucky Democratic Party “will have a credible candidate” to run against McConnell, Garmer said.”It’s important for the party to get behind a single candidate,” he said. “Registration in Kentucky is majority Democratic, and if the party gets behind a single candidate, we win.”Two Democrats without a statewide following have said they will challenge McConnell next year: Owensboro contractor Ed Marksberry and Louisville musician and music promoter Bennie J. Smith.Environmental attorney Tom FitzGerald of Louisville said last month that he is thinking about running for the Democratic nomination. He said this week that he expects to make a decision by the end of this month.Actress Ashley Judd had considered entering the race since late 2012 but announced in March that she would not challenge McConnell.Several well-known Democrats have said they have no plans to run. They include Gov. Steve Beshear, Lt. Gov. Jerry Abramson, former Auditor Crit Luallen, Attorney General Jack Conway, Auditor Adam Edelen, Louisville Mayor Greg Fischer and former Lt. Gov. Daniel Mongiardo of Hazard.No Republican has emerged to challenge McConnell in a primary, though Tea Party activist David Adams of Jessamine County said earlier this week that a Tea Party candidate will announce soon for the race.Garmer has a legal career that spans more than 35 years. He was one of five attorneys selected to the trial team to represent the families of the passengers of Comair Flight 5191, which crashed on takeoff from Lexington in August 2006. He recently represented the family of a victim of nursing home abuses resulting in an $8 million jury verdict in Louisville.Garmer received his law degree from the University of Kentucky in 1975 after obtaining a bachelor of arts degree from UK.He is a member of several professional organizations and has received numerous awards in the legal community. He also has been an adjunct professor at the University of Kentucky College of Law in litigation skills since 1981 and in health care law since 2003.Garmer served on active duty in the U.S. Air Force as a staff sergeant from 1969 to 1973. He also is a member of the board of governors of the Prichard Committee for Academic Excellence.Garmer is scheduled to appear on Kentucky Tonight, a public affairs show of the Kentucky Educational Television network, Monday night to discuss the 2014 election with Republicans Steve Robertson and Ellen Williams and Democrat Jonathan Miller.

Read more here: http://www.kentucky.com/2013/05/17/2643731/former-kentucky-democratic-party.html#emlnl=AM_update#storylink=cpy

OUR FAMILY WIZARD SOFTWARE for Family Law APPROVED BY CT. OF APPEALS

Friday, May 17th, 2013

On May 17, 2013 the Ky. Court of Appeals upheld a Family Court Order mandating that divorced parents subscribe to “Our family Wizard” on line software to assist parents to avoid direct communication and to avoid many legal issues by providing a method of communication that time stamps entries and avoids a lot of “he said” and “she said” disputes in the Family Court.

This looks like a useful tool which any practitioner of family law might consider. The price is only $99 per spouse per year.
Click to Read Full Tex tof the Ky. Ct. of Appeals decision: 2012-CA-000568 NOT TO BE PUBLISHED KENTON
TELEK (JOHN STEPHEN) VS. DAUGHERTY (N/K/A TAYLOR) (SAMANTHA)
OPINION AFFIRMING
The site may be accessed at:

http://www.ourfamilywizard.com/ofw/index.cfm/plans-pricing/

\
Shared custody and visitation schedules, expense tracking, messaging and more.
We know that life after divorce can be difficult, but it doesn’t have to be. The OurFamilyWizard website® is dedicated to providing you with the tools that you need to organize your shared parenting and reduce conflict between you and your co-parent, leaving you with more time to spend with your children.
How can these tools get you on track towards a better life for you and your children?
• Easily coordinate your shared custody and joint custody parenting time schedules while keeping accurate records with the OurFamilyWizard calendar.
• Have more confidence to request parenting time trades through the OurFamilyWizard calendar trade function.
• Take the confusion out of splitting the expenses with your co-parent through the OurFamilyWizard expense log.
• Easily stay up-to-date with your child’s health records, immunization histories, school information, and more with the OurFamilyWizard information bank.
• You don’t have to worry if an email got to where it needed to go anymore with the safe and secure OurFamilyWizard message board.
Keep your children out of the middle of your co-parenting custody disputes.
More effectively manage your difficult shared custody, joint custody, and co-parenting relationships.
• Prepare yourself for any unexpected disputes or accusations by having clear and accurate documentation at your disposal. Every function that the OurFamilyWizard website® provides acts a source of truthful documentation that cannot be tampered with.
• Avoid confusion and unnecessary disputes with your co-parent by creating a clear picture of parenting time schedules and custody arrangements.
• Decrease your chance of going back to court by settling your disputes elsewhere. There is no more “he said/she said” between you and your co-parent because every action is stamped with who made it and when it was made.
• If you do go back to court because of an unresolved dispute, it doesn’t have to be so hard. All pages available through the OurFamilyWizard tools are printable and most come with a preformatted print option.
• Get the help of your neutral family professional to keep conflict and dispute to a minimum. You can easily add a third-party professional account with the OurFamilyWizard website® who can oversee every action taking place between you and your co-parent and make recommendations.
The OurFamilyWizard website® is so effective that judges in nearly all 50 states and 5 Canadian provinces have ordered families to utilize the site in contested cases to reduce family conflict. Why not take the step to create a better life for you and your co-parenting family? Join the tens of thousands of families in over 70 countries who already have made the decision to improve their life by using the OurFamilyWizard website®.

LAWREADER MOVIE CRITIC DOUG MILBERN REVIEWS THE NEWEST VERSION OF “THE GREAT GATSBY”

Tuesday, May 14th, 2013

GATSBY AT BAT MAY 15,2013

The best tales concern desire & that is what The Great Gatsby is about. Like any re-make, the scrutiny of The Great Gatsby for many will be in the context of the 2 previous versions & of course the landmark American novel which each are respectively based upon. And that is where the most recent version has its strengths. Themes of private verses public self & the fine line between unconditional love & obsession are the most obvious explorations in the 2013 version.

Each of the main characters are suffering from a basic existential dilemma which essentially forces them to maintain dual identities; the public face seen by friends & family in contrast to the private one available to paramours & cronies. These mated constructs are supported by both the expectations of social propriety & the circumstance of Prohibition Era America. Gatsby’s internal conflict puts his character on both sides of the equation, being that he desires to reveal his secret love for Daisy yet his perceived set of requirements for doing so prevents from divulging his past & source of his wealth.

One secret which is easily kept is how Gatsby’s character failed, repeatedly & miserably. Within the context of the story, Gatsby’s acquired opulence in the name of love is impressively quaint. Yet the contrast between the extravagant gala’s thrown in the vain attempt to lure Daisy to his lair & how their affair proceeds once he gets her there are polemical; the lights had been turned off at the once brilliant mansion. His insistence for Daisy’s complete renunciation of having ever loved Buchanan is the completion of his obsessive attraction to her. Perhaps Daisy had become a symbol for his feelings of shame about his impoverished upbringing, she seemingly not being recognized as much beyond that. In fact, Gatsby had 3 opportunities with Daisy that he misplayed; first being when he chose to seek his fortune rather than return to her, the next was when she asked him to run away together at the party, & the third was when he pressured her into denouncing her marriage as a fraud. Three strikes, you’re out.

The weakness of the film mostly lies in the sound track; Hip Hop doesn’t retro-fit easily, if at all. The other seemingly unexplained element is the background as to why the protagonist is writing the story in a sanitarium; probably shouldn’t be casually dismissed but most likely will be by most, including yours truly.

All in all, the best version to date & an interesting movie which may do more justice to the novel than it deserves.

Douglas W. Milbern
Cincinnati, Ohio

Divisibility of Disability Pension Later Reclassified as Ordinary Retirement Pension, Attorney’s Fees, Bailey v. Bailey, Case Digest, Ky Court of Appeals by Diana Skaggs and Associates

Monday, May 13th, 2013

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Divisibility of Disability Pension Later Reclassified as Ordinary Retirement Pension, Attorney’s Fees, Bailey v. Bailey, Case Digest, Ky Court of Appeals by Diana Skaggs and Associates

Buddy Lee Bailey v. Linda Beth Bailey, No. 2012-CA-000508-MR

Published: Affirming

County: Spencer

Facts

Husband filed for dissolution of the parties’ thirty year marriage in 2004. During his employment, Husband actively participated in his employer’s retirement pension plan. Subsequent to the parties’ separation, Husband was injured and filed for short term disability. The order entered by the Court after mediation included a provision that Husband was to provide to Wife information concerning the retirement account, including the policy, and all information regarding Husband’s disability. Wife was not provided with this information. The trial court entered a limited decree of dissolution in December 2004. In August 2006, the Court entered a judgment against Wife for the value of Husband’s personal property not returned to him. Husband filed a motion in June 2008 to satisfy the judgment. Since the pension issue had not been resolved, the Court also granted Wife’s request that the parties exchange all documents relating to retirement or disability accounts.

In June 2011, the Court entered an order holding that Husband’s retirement pension was not subject to division as marital property because Husband’s retirement pension was converted into a disability pension. Wife filed a motion to alter, amend or vacate the order because she was never provided with the retirement policy documents. Husband was deposed, and Wife received the documents. In January 2012, the Court granted Wife’s motion to alter, amend or vacate the judgment, holding that Wife was entitled to entry of a Qualified Domestic Relations Order allocating one half of the pension benefits accrued from the date of marriage to the date of the entry of the limited decree of dissolution. The court found that Husband’s disability pension would be converted to an ordinary retirement pension when Husband reached the age of 62. Wife was also ordered to satisfy the August 2006 judgment against her, plus statutory interest. Husband filed a motion to alter, amend or vacate the Court’s January 2012 order. The Court denied Husband’s motion after a hearing, and Husband appealed.

Analysis

When the Court ruled on the divisibility of the retirement plan, the relevant plan documents had not been made available to Wife or the Court. Because a full and candid disclosure of the parties’ assets is necessary for an equitable division of property, the Court did not abuse its discretion in granting Wife’s motion. Once obtained, the policy clearly stated that when Husband turned 62 his disability pension would end, and he would become eligible for a normal retirement pension. The Court of Appeals distinguished this case factually from the Kentucky Supreme Court’s decision in Holman v. Holman, 84 S.W.3d 903 (Ky. 2002), which held that disability benefits which replace future income should not be classified as marital property. Husband’s disability benefits would be reclassified on a date certain, which was different from the facts presented in Holman. The ordinary pension benefits that were accumulated during the marriage that would be reclassified as normal pension funds when Husband turned 62 were marital property. Any other conclusion would be inequitable because it could allow a spouse to prevent the other spouse from his or her share of retirement benefits through an election of disability coverage.

On the attorney’s fees issue, Husband argued that the Court failed to rule on the motion. Wife argued that the Court’s silence on the matter was a denial of attorney’s fees. The Court of Appeals agreed with Wife, stating that attorney’s fees are entirely within the discretion of the trial court, and the Court in this case clearly considered the financial resources of both parties throughout the lengthy proceedings. Nothing in the record could demonstrate that the Court abused its discretion in failing to award attorney’s fees.

Affirmed.

Digested by: McKenzie Cantrell, Attorney, of counsel, Diana L. Skaggs + Associates

Justice Michelle M. Keller to be formally sworn in as a Supreme Court justice May 14 at the Capitol

Friday, May 10th, 2013

Justice Michelle M. Keller to be formally sworn in as a Supreme Court justice May 14 at the Capitol

Ceremony is open to the public

FRANKFORT, Ky., May 10, 2013 – Justice Michelle M. Keller will be formally sworn in as a justice of the Supreme Court of Kentucky at an investiture ceremony Tuesday, May 14, at the state Capitol in Frankfort. The event is open to the public and will take place at 11 a.m. EDT in the Supreme Court Courtroom on the second floor of the Capitol. The Capitol is located at 700 Capitol Ave.

Gov. Steve Beshear appointed Justice Keller in April to serve as the justice from the 6th Supreme Court District. Justice Keller was a Court of Appeals judge for the six years prior to being selected for the Supreme Court. With her appointment, the seven-member Supreme Court now has three female justices for the first time ever.

Justice Keller was appointed to fill the unexpired term of Justice Wil Schroder, who retired in January 2013 due to health issues.

The 6th Supreme Court District is composed of Bath, Boone, Bracken, Campbell, Carroll, Fleming, Gallatin, Grant, Harrison, Henry, Kenton, Lewis, Mason, Nicholas, Oldham, Owen, Pendleton, Robertson, Shelby, Spencer and Trimble counties.

Supreme Court

The Supreme Court is the state court of last resort and the final interpreter of Kentucky law. Seven justices sit on the Supreme Court and all seven justices rule on appeals that come before the court. The justices are elected from seven appellate districts and serve eight-year terms. A chief justice, chosen for a four-year term by fellow justices, is the administrative head of the state’s court system and is responsible for its operation. The Supreme Court may order a ruling or opinion to be published, which means that the ruling becomes the case law governing all similar cases in the future in Kentucky.