Archive for June, 2013

Importance Of Compliance With Local Court Rules Highlighted By Decision Of Kentucky Court Of Appeals

Friday, June 28th, 2013

By David Kramer | dkramer@dbllaw.com June 28, 2013

More Sharing ServicesShare|Share on facebookShare on twitterShare on emailShare on printIn a 2011 unpublished opinion, the Kentucky Court of Appeals reversed the Jefferson Circuit Court’s dismissal of a case for lack of prosecution by the plaintiff because of the failure of the defendants and the trial court to strictly comply with the Local Rules of the Jefferson Circuit Court. In Gaines v. Nichols, 2011 WL 6260365 (Ky. App.), the Court noted that, once they are approved by the Chief Justice of the Kentucky Supreme Court, the local rules of Kentucky circuit courts have the same binding effect as the Kentucky Rules of Civil Procedure.

In Gaines, the plaintiffs and their counsel failed to attend a pretrial conference set by the trial court after having failed to answer discovery requests from the defendants. The defendants then moved for dismissal for failure to prosecute. Rather than responding to the motion on the merits, the plaintiffs filed a motion to set for trial and also a motion to strike the motion to dismiss because it had been noticed for hearing at motion docket. The local rules provide that motions to dismiss should not be set for regular motion hour, that a party opposing a motion to dismiss has 20 days for response time and an opportunity to request oral argument, and that the motion/response/argument process is concluded by the filing of a notice of submission for final adjudication (AOC Form 280). The trial court nevertheless granted the motion to dismiss without waiting 20 days.

The Court of Appeals concluded that the plaintiffs should have been afforded the full 20 days to respond and then an opportunity to request oral argument in compliance with the local rules. The Court rejected the defendants’ argument that the plaintiffs’ filing of other motions (to set for trial and to strike the motion to dismiss) justified the trial court’s failure to wait 20 days before granting the motion. The Court also relied on the fact that a notice of submission had not been filed as the local rules required. Based on these circumstances, the Court, while noting that the issue was not whether the defendants were entitled to dismissal substantively, found that the case should not have been dismissed from a purely procedural standpoint.

This decision is in keeping with the general approach of Kentucky appellate courts in carefully scrutinizing dismissals for lack of prosecution, whether done on motion under CR 41.02 or pursuant to the “housekeeping” rule of CR 77.02. Also, Kentucky trial courts generally are required to afford parties the full response time before imposing “the death penalty” on a civil action by dismissing it. For instance, Kentucky law has long held that the 10 days’ notice for a motion for summary judgment provided for under the Civil Rules is “jurisdictional” and mandatory.

The Gaines decision was not designated for publication in the South Western Reporter. Unpublished decisions may qualify for citation under CR 76.28(4)(c).

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

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Are KBA discipline hearings quasi-criminal, quasi-civil or both or neither…Can anyone help us understand just what gender discipline hearings are?

Thursday, June 27th, 2013

Are KBA discipline hearings quasi-criminal, quasi-civil or both or neither?

We previously wrote about the Supreme Court ruling in KBA v. Robinson. We understand the simply words but we are not sure that we understand the meaning of how discipline hearings are different than criminal proceedings….sometimes they have been called quasi-criminal and quasi-civil in nature. As a practical matter how should the KBA and the defense bar apply this ruling? Can anyone help us with an explanation?

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

Judge Forbids Mention of Free Speech in Trial – State Statute allowed to overrule First Amendment

Wednesday, June 26th, 2013

The following article was sent to LawReader with the question: Did the judge serve as a former bar counsel? We don’t know the answer to that question.

****
Jeff Olson, the 40-year-old man who is being prosecuted for scrawling anti-megabank messages on sidewalks in water-soluble chalk last year now faces a 13-year jail sentence. A judge has barred his attorney from mentioning freedom of speech during trial.
According to the San Diego Reader, which reported on Tuesday that a judge had opted to prevent Olson’s attorney from “mentioning the First Amendment, free speech, free expression, public forum, expressive conduct, or political speech during the trial,” Olson must now stand trial for on 13 counts of vandalism.
In addition to possibly spending years in jail, Olson will also be held liable for fines of up to $13,000 over the anti-big-bank slogans that were left using washable children’s chalk on a sidewalk outside of three San Diego, California branches of Bank of America, the massive conglomerate that received $45 billion in interest-free loans from the US government in 2008-2009 in a bid to keep it solvent after bad bets went south.
The Reader reports that Olson’s hearing had gone as poorly as his attorney might have expected, with Judge Howard Shore, who is presiding over the case, granting Deputy City Attorney Paige Hazard’s motion to prohibit attorney Tom Tosdal from mentioning the United States’ fundamental First Amendment rights.
“The State’s Vandalism Statute does not mention First Amendment rights,” ruled Judge Shore on Tuesday.
Upon exiting the courtroom Olson seemed to be in disbelief.
“Oh my gosh,” he said. “I can’t believe this is happening.”
Tosdal, who exited the courtroom shortly after his client, seemed equally bewildered.
“I’ve never heard that before, that a court can prohibit an argument of First Amendment rights,” said Tosdal.
Olson, who worked as a former staffer for a US Senator from Washington state, was said to involve himself in political activism in tandem with the growth of the Occupy Wall Street movement.
On October 3, 2011, Olson first appeared outside of a Bank of America branch in San Diego, along with a homemade sign. Eight days later Olson and his partner, Stephen Daniels, during preparations for National Bank Transfer Day, the two were confronted by Darell Freeman, the Vice President of Bank of America’s Global Corporate Security.
A former police officer, Freeman accused Olson and Daniels of “running a business outside of the bank,” evidently in reference to the National Bank Transfer Day activities, which was a consumer activism initiative that sought to promote Americans to switch from commercial banks, like Bank of America, to not-for-profit credit unions.
At the time, Bank of America’s debit card fees were among one of the triggers that led Occupy Wall Street members to promote the transfer day.
“It was just an empty threat,” says Olson of Freeman’s accusations. “He was trying to scare me away. To be honest, it did at first. I even called my bank and they said he couldn’t do anything like that.”
Olson continued to protest outside of Bank of America. In February 2012, he came across a box of chalk at a local pharmacy and decided to begin leaving his mark with written statements.
“I thought it was a perfect way to get my message out there. Much better than handing out leaflets or holding a sign,” says Olson.
Over the course of the next six months Olson visited the Bank of America branch a few days per week, leaving behind scribbled slogans such as “Stop big banks” and “Stop Bank Blight.com.”
According to Olson, who spoke with local broadcaster KGTV, one Bank of America branch claimed it had cost $6,000 to clean up the chalk writing.
Public records obtained by the Reader show that Freeman continued to pressure members of San Diego’s Gang Unit on behalf of Bank of America until the matter was forwarded to the City Attorney’s office.
On April 15, Deputy City Attorney Paige Hazard contacted Freeman with a response on his persistent queries.
“I wanted to let you know that we will be filing 13 counts of vandalism as a result of the incidents you reported,” said Hazard.
Arguments for Olson’s case are set to be heard Wednesday morning, following jury selection.

U.S. Supreme Court Rules in Favor of Same Sex Marriage

Wednesday, June 26th, 2013

June 26, 2013

By MARK SHERMAN — Associated Press
WASHINGTON — The Supreme Court ruled Wednesday that legally married same-sex couples should get the same federal benefits as heterosexual couples.The court invalidated a provision of the federal Defense of Marriage Act that has prevented married gay couples from receiving a range of tax, health and retirement benefits that are generally available to married people.

The vote was 5-4.Justice Anthony Kennedy wrote the majority opinion. Same-sex marriage has been adopted by 12 states and the District of Columbia. Another 18,000 couples were married in California during a brief period when same-sex unions were legal there.

The court has yet to release its decision on California’s ban on same-sex marriage.”Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways,” Kennedy said.”DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal,” he said. He was joined by the court’s four liberal justices. Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas dissented. Scalia read his dissent aloud.
Scalia said the court should not have decided the case. But, given that it did, he said, “we have no power under the Constitution to invalidate this democratically adopted legislation.”
Read more here: http://www.kentucky.com/2013/06/26/2692874/high-court-gay-marriage-decisions.html#emlnl=Breaking_news#storylink=cpy

Bloomberg: U.S. Supreme Court Struck Down Core Part of l965 Voting Rights Act

Tuesday, June 25th, 2013

This morning, the Supreme Court struck down a core part of the 1965 Voting Rights Act, “a landmark law that opened the polls to millions of southern blacks,” as Bloomberg’s Greg Stohr put it. In a much-anticipated 5-4 decision the court ruled that Congress could not require states with a history of disenfranchising minority voters to get federal approval before re-drawing election districts, changing voting rules, or moving polling places.
“What the Supreme Court did was to put a dagger in the heart of the Voting Rights Act,” Rep. John Lewis, the Georgia Democrat and seminal figure in the civil rights movement, told ABC News’s Jeff Zeleny.
How important is this decision? Well, since 2006 the Justice Department has blocked 31 attempts to change voting laws, most of them in the nine mostly Southern states fully covered by the relevant section of the law (they are: Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia). Most, if not all, of those proposed changes would have aided Republican electoral fortunes by making it harder for minorities to vote (most vote Democratic). But the Justice Department stepped in.
Now, that can no longer happen. These nine states, along with the others partially covered by the law, will be able to pursue whatever changes they like free of federal oversight. And they’re all but certain to make changes that favor GOP candidates. As Reid Wilson of The Hotline points out, all nine states have GOP-controlled legislatures.
On its face, this looks like a big victory for Republicans. But is it really? I suspect it will turn out to be a poisoned chalice. Many of the GOP’s current problems stem from the fact that it is overly beholden to its white, Southern base, at a time when the country is rapidly becoming more racially diverse. In order to expand its base of power beyond the House of Representatives, the GOP needs to expand its appeal to minority voters. As the ongoing battle over immigration reform demonstrates, that process is going poorly and looks like it will be very difficult.
The Supreme Court’s decision to strike down a central provision of the Voting Rights Act will make it easier for Republicans to hold and expand their power in those mainly Southern states. That will, in turn, make it easier for them to hold the House. But it will also intensify the Southern captivity of the GOP, thereby making it harder for Republicans to broaden their appeal and win back the White House.

Delaware Bar Association May Not Sanction a Lawyer for Conduct Not Related to Practice of Law

Wednesday, June 19th, 2013

Ponytail Pull No Ethics Violation
The Delaware Supreme Court has ordered that a bar discipline matter be closed, concluding that the attorney’s conviction for Offensive Touching “bears no relationship to Respondent’s fitness to practice law.”
The conviction involved a domestic incident in public during which [the attorney] grabbed his minor daughter by her ponytail, held her head at an angle, and refused to let go. Respondent took that action to prevent his troubled, minor daughter from again attempting to run away from home, in the context of an intensely stressful family situation.
The Office of Disciplinary Counsel (“ODC”) objected to the Board on Professional Responsibility’s report finding no violation.
ODC contended that every criminal conviction violates Rule 8.4(b).
The court here sharply rejected that contention: “This case, by its nature and in these specific circumstances, should not have warranted intervention by the ODC.”
The court used the name “Eric Michaels” rather than the attorney’s true name.(Mike Frisch)

The Supreme Court of Delaware ruled:
NOW, THEREFORE, IT IS ORDERED that the Report filed by the Board
on Professional Responsibility on March 18, 2013 is hereby APPROVED, and the
Petition for Discipline is DENIED;
1. In its Petition for Discipline, the ODC alleged that in February 2012,
Respondent was involved in a domestic incident in public during which he grabbed
his minor daughter by her ponytail, held her head at an angle, and refused to let her
go.3 Respondent took that action to prevent his troubled, minor daughter from
again attempting to run away from home, in the context of an intensely stressful
family situation. For that conduct, the Respondent was convicted of Offensive
Touching, which is an unclassified misdemeanor, in the Family Court. This case,
by its nature and in these specific circumstances, should not have warranted
intervention by the ODC.
2. The ODC nonetheless charged the Respondent with having violated
Rules 8.4(b) and 8.4(d) of the Delaware Lawyers’ Rules of Professional Conduct
(the “Rules”). Rule 8.4(b) states that “[i]t is professional misconduct for a lawyer
to . . . commit a criminal act that reflects adversely on the lawyer’s honesty,

3 Because he suffered a traumatic injury from falling off of a roof, Respondent requested the
ODC to delay presenting its Petition for Discipline to the Preliminary Review Committee
(“PRC”), to afford Respondent sufficient time to prepare for the PRC meeting. The ODC denied
Respondent’s request. The PRC then approved the ODC’s Petition and offered Respondent a
private admonition, which he declined. Although these background facts do not influence our
disposition of this matter, we are troubled that the ODC would refuse Respondent’s reasonable
request to delay the PRC meeting. The record does not disclose the ODC’s reasons for refusing
the Respondent’s request.
trustworthiness or fitness as a lawyer in other respects.” Rule 8.4(d) provides that
“[i]t is professional misconduct for a lawyer to . . . engage in conduct that is
prejudicial to the administration of justice.”
3. A hearing panel of the Board found unanimously that the ODC had
not met its burden of establishing, by clear and convincing evidence, that
Respondent had violated either Rule. In its Report, the Board found “no principled
basis—let alone clear and convincing evidence—to support the conclusion” that
Respondent had violated Rule 8.4(b). The Board further found, “for the same
reasons,” that Respondent had not violated Rule 8.4(d). Consequently, the Board
recommended that the Petition be denied.
4. The ODC objected to the Board’s Report on the basis that every
criminal conviction must necessarily violate Rule 8.4(b). Because Respondent was
convicted of Offensive Touching, he therefore violated Rule 8.4(b). In his
response to the ODC’s Objections, Respondent disputes that claim.
5. This Court has the “exclusive authority for disciplining members of
the Delaware Bar.”4 It has “an obligation to review the record” and
4 In re Katz, 981 A.2d 1133, 1149 (Del. 2009).
It has “an obligation to review the record” and
4 In re Katz, 981 A.2d 1133, 1149 (Del. 2009).
4
“independently” determine “whether there is substantial evidence to support the
Board’s factual findings.”5 The Board’s conclusions of law are reviewed de novo.6
6. The ODC’s interpretation of the scope of Rule 8.4(b) is overbroad.
By its very language, Rule 8.4(b) implicates only criminal conduct that reflects
adversely on a lawyer’s fitness to practice law. We have found no case, in
Delaware or any other jurisdiction, where Offensive Touching, under factual
circumstances such as those involved here, has led to professional discipline.
7. Title 11, Section 601 of the Delaware Code defines Offensive
Touching, in relevant part, as:
Intentionally touch[ing] another person either with a member of his or
her body or with any instrument, knowing that the person is thereby
likely to cause offense or alarm to such other person . . . .7
Offensive Touching is neither an inherently violent nor sexual offense. Although it
is a criminal act, it does not, in and of itself, “reflect[] adversely on [a] lawyer’s
honesty, trustworthiness or fitness” to practice law under Rule 8.4(b), nor is it
“prejudicial to the administration of justice” under Rule 8.4(d).
8. Respondent’s criminal conviction for Offensive Touching, which he
committed to prevent his child from running away from home, bears no

5 In re Fountain, 878 A.2d 1167, 1173 (Del. 2005) (internal quotation marks and citation
omitted).
6 In re Abbott, 925 A.2d 482, 484 (Del. 2007) (citation omitted).
7 11 Del. C. § 601(a)(1).
5
relationship to Respondent’s fitness to practice law. In these unique factual
circumstances, the ODC should not have intervened. Because the case was not an
appropriate subject of a Petition for Discipline, we adopt the Board’s Report and
deny the Petition for Discipline.

The matter is hereby CLOSED.

BY THE COURT:
/s/ Jack B. Jacobs
Justice

JUDICIAL CONDUCT COMMISSION TO HEAR MARTIN F. McDONALD ETHICS CASE

Tuesday, June 18th, 2013

Notice of Hearing In re the matter of: Martin F. McDonald, Senior Status Special Judge

LOUISVILLE, Ky., June 18, 2013 –

COMMONWEALTH OF KENTUCKY

JUDICIAL CONDUCT COMMISSION

IN RE THE MATTER OF:

MARTIN F. MCDONALD,

SENIOR STATUS SPECIAL JUDGE

NOTICE OF TIME AND PLACE FOR HEARING

NOTICE is hereby given that the hearing in these formal proceedings will be held commencing August 7, 2013, at 10:00 a.m., in the Jefferson County Judicial Center, 10th Floor Appellate Courtroom, 700 West Jefferson Street, Louisville, Kentucky, 40202.

To access the complete record of formal proceedings, including the Notice of Hearing, click this link or paste it into your browser: http://courts.ky.gov/commissionscommittees/JCC/Documents/Public_Information/FormalProceedingsMcDonald.pdf

Judicial Conduct Commission

The mission of the Kentucky Judicial Conduct Commission is to protect the public, to encourage judges, commissioners and candidates for judicial office to maintain high standards of conduct, and to promote public confidence in the integrity, independence, competence, and impartiality of the judiciary.

The Commission accomplishes this mission through its investigation of complaints of judicial misconduct, wrongdoing or disability. In cases where judges, commissioners and candidates for judicial office are found to have engaged in misconduct or to be incapacitated, the Kentucky Constitution authorizes the Commission to take appropriate disciplinary action, including issuing admonitions, reprimands, censures, suspensions, or removal from office.

Note: Judge David P. Bowles recused from any consideration of this matter.

FAMILY LAW ATTORNEY POSITION AVAILABLE

Tuesday, June 18th, 2013

Eight attorney law firm in downtown Cincinnati seeks to hire an attorney who has 3-5 years of experience in litigation (plaintiff and defense) and family law. Is licensed to practice in both Ohio and Kentucky.

The candidate should submit a resume and writing sample.

PLEASE EMAIL TO: juliejones.director@nkybar.com Place in subject line DMRR208. All applicants will be forwarded to the requested law firm with the strictest of confidence.

Respectfully,

Julie L. Jones

NKBA Executive Director

P: (859) 781-1300, Ext. 104

F: (859) 781-1277

HIPPA DOES NOT OVERRULE PUBLIC RECORDS ACCESS LAWS – COURT ORDERS REVIEW

Tuesday, June 18th, 2013

Commonwealth v. Lexington H-L Servs., Inc., 382 S.W.3d 875 (Ky. App.,
2012) October 19, 2012

In a letter written on June 5, 2009, the Cabinet denied Estep’s request, claiming that the requested records were uniformly exempt from disclosure under various state and federal laws, including the confidentiality provisions of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the Open Records Act’s personal privacy exemption (KRS 61.878(1)(a)), the Act’s exemption for records or information prohibited from disclosure by state or federal law (KRS 61.878(1)(k) and ( l )), and other statutes that generally provide for the confidentiality of the Cabinet’s child abuse investigation records (KRS 194A.060, KRS 620.050(5)). The Herald-Leader appealed the Cabinet’s denial to the Attorney General pursuant to KRS 61.880(2), and on September 11, 2009, the Attorney General issued Open Records Decision 09-ORD-149, which determined that the Cabinet’s actions had not violated the Open Records Act.

The Attorney General determined that the Cabinet had properly withheld the requested information pursuant to KRS 61.878(1)( l ). That provision exempts from inspection “[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly[.]”

The Attorney General found that the exemption applied in this case in light of KRS 194A.060(1), which generally “protect[s] the confidential nature of all records and reports of the cabinet that directly or indirectly identify a client or patient or former client or patient of the cabinet,” and KRS 620.050(5), which limits the individuals to whom a “report of suspected child abuse, neglect, or dependency and all information obtained by the cabinet or its delegated representative, as a result of an investigation or assessment made pursuant to this chapter” may be disclosed. Because Appellees did not fit within the categories of individuals permitted to review the subject records under KRS 620.050(5), the Attorney General concluded that the Cabinet had not acted improperly in declining to disclose those records.

We agree with the circuit court that the Cabinet’s failure to disclose the requested records in this case constituted a “willful” violation of the Open Records Act. Had the Cabinet considered Appellees’ requests on their merits and denied disclosure upon a reasonable basis, perhaps our opinion would be different. However, it is apparent that the Cabinet failed to make particularized analysis and instead relied on an all-encompassing policy of nondisclosure despite the purpose of the Act and despite the acknowledged applicability of KRS 620.050(12)(a) under these circumstances. The circuit court concluded that these denials were made in “bad faith,” and we see no grounds to disagree with that conclusion.

In light of our decision, and per Appellees’ request, we remand this matter to the circuit court for a supplemental award of attorneys’ fees and costs incurred on appeal. Under KRS 61.882(5), upon a showing of a willful withholding, Appellees are entitled to any fees and costs “incurred in connection with the legal action,” which would necessarily include fees and costs incurred in defending the judgment on appeal. Since Appellees have requested a determination on this issue, remand is appropriate. See Moorhead v. Dodd, 265 S.W.3d 201, 205 n. 1 (Ky.2008).

JUDICIAL CONDUCT COMMISSION GIVES PUBLIC REPRIMAND TO CIRCUIT JUDGE LANGFORD

Tuesday, June 18th, 2013

Timothy A. Langford, The Circuit Court Judge for 1ST JUDICIAL CIRCUIT of Ballard, Carlisle, Fulton and Hickman counties was given a public reprimand by the Judicial Conduct Commission on June 17, 2013.

It was charged that Judge Langford was asked by the grandmother of two children to allow her to take them to an Easter Egg hunt. The judge granted the requested. An anonymous ethics complaint was filed against the judge.

It was found that the District Judge had previously issued a Domestic Violence order which forbade the children to be around their father pending further order of the District Court.

It appears that Judge Langford’s main violation was the ex parte communication he had with the grandmother on the weekend when the court house was closed. This is a complex issue as all Judges are supposed to be on call 24/7…and many times they must enter emergency orders on the weekend.

This ruling will make it more difficult to comply with the JCC. The message is that no judge should meet with just one party…if they all can’t be present then no hearing. The JCC applied the rule as it is written, and they were correct. The solution might be to ask the Supreme Court to really look at this rule and figure out how a judge is supposed to be on call 24/7 but can only meet or talk with all parties.

No harm was experienced by the children. The Circuit Judge was given a public reprimand.

Sometimes a judge tries to look out for the best interest of a child, and that can get him in trouble.

The entire file in this case may be reviewed on line at:

http://courts.ky.gov/commissionscommittees/JCC/Documents/Public_Information/FormalProceedingsLangford.pdf

U.S. SUPREME COURT SAYS PRE-MIRANDA SILENCE CAN BE USED

Monday, June 17th, 2013

June 17, 2013
In a 5-4 ruling, the justices said prosecutors can use a person’s silence against them if it comes before he’s told of his right to remain silent.

The Supreme Court says prosecutors can use a person’s silence against them if it comes before he’s told of his right to remain silent.
The 5-4 ruling comes in the case of Genovevo Salinas, who was convicted of a 1992 murder. During police questioning, and before he was arrested or read his Miranda rights, Salinas answered some questions but did not answer when asked if a shotgun he had access to would match up with the murder weapon.
Prosecutors in Texas used his silence on that question in convicting him of murder, saying it helped demonstrate his guilt. Salinas appealed, saying his Fifth Amendment rights to stay silent should have kept lawyers from using his silence against him in court. Texas courts disagreed, saying pre-Miranda silence is not protected by the Constitution.
The high court upheld that decision.
RELATED: SUPREME COURT STRIKES DOWN PROOF-OF-CITIZENSHIP PROVISION IN ARIZONA VOTING LAW
The Fifth Amendment protects Americans against forced self-incrimination, with the Supreme Court saying that prosecutors cannot comment on a defendant’s refusal to testify at trial. The courts have expanded that right to answering questions in police custody, with police required to tell people under arrest they have a right to remain silent without it being used in court.
Prosecutors argued that since Salinas was answering some questions — therefore not invoking his right to silence — and since he wasn’t under arrest and wasn’t compelled to speak, his silence on the incriminating question doesn’t get constitutional protection.
Salinas’ “Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer’s question,” Justice Samuel Alito said. “It has long been settled that the privilege ‘generally is not self-executing’ and that a witness who desires its protection ‘must claim it.”’
The court decision was down its conservative/liberal split, with Alito’s judgment joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Antonin Scalia.
RELATED: ALL TOO HUMAN
Liberal Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan dissented. “In my view the Fifth Amendment here prohibits the prosecution from commenting on the petitioner’s silence in response to police questioning,” Breyer said in the dissent.
Salinas was charged in 1993 with the previous year’s shooting deaths of two men in Houston. Police found shotgun shells at the crime scene, and after going to the home where Salinas lived with his parents, obtained a shotgun kept inside the house by his father. Ballistic reports showed the shells matched the shotgun, but police declined to prosecute Salinas.
Police decided to charge him after one of his friends said that he had confessed, but Salinas evaded police for years. He was arrested him in 2007, but his first trial ended in a mistrial. It was during his second trial that prosecutors aggressively tried to use his silence about the shotgun in closing remarks to the jury.
Salinas was sentenced to 20 years in prison. The Texas Court of Appeals and the Texas Court of Criminal Appeals upheld the conviction, with the latter court saying “pre-arrest, pre-Miranda silence is not protected by the Fifth Amendment right against self-incrimination, and that prosecutors may comment on such silence regardless of whether a defendant testifies.”

Read more: http://www.nydailynews.com/news/politics/supreme-court-pre-miranda-silence-article-1.1374838#ixzz2WVFcps3w

JEFF. COUNTY ATTN. O’ CONNELL FIGHTS SANCTION BY KBA Will the Ky. Supreme Court allow free speech of prosecutors to be limited?

Monday, June 17th, 2013

By Gwendolyn Billingsley, LawReader CEO June 17, 2013
Jefferson County Attorney Michael O’Connell has received a private admonition from the KBA Inquiry Commission, for “violating ethics rules by sending a harshly worded letter to district judges last December, urging them to stop what he called ‘disingenuous maneuvering’ by defense lawyers in DUI and other cases.” This allegation concerns suppression motions where the defendant has moved to suppress evidence by the commonwealth.

O’Connell said he has decided to reject the private sanction by the KBA Inquiry Commission even though it placed him at risk for a greater sanction by contesting the “private admonition”.

O’Connell had complained in a letter sent to a number of Jefferson County Judges, that judges were allowing defense lawyers to file motions to suppress evidence after trials began…”after the prohibition kicks in against trying a defendant twice for the same crime. That meant that prosecutors are limited in appealing an adverse ruling by the trial judge in a DUI case. “
Prominent defense lawyers including Benham Sims said that O’Connell’s argument was “ironic” since he had his office won a case before the Ky. Supreme Court in 2012 in which the supreme court said it was improper for defense lawyers to contact judges to get client’s bonds reduced.”

A former KBA President,” Buzz” English representing O’Connell argued that “O’Connell is an elected official…he took action to improve the quality and administration of justice.”

The effort to silence O’Connell is consistent with the KBA’s attempt to silence attorney John M. Berry Jr. when he was critical of the procedures followed in the ethics prosecution of Senator David Williams by the Legislative Ethics Commission. The 6th. Circuit found in Berry’s free speech rights and imposed court costs against the KBA of some $200,000. Berry sought to express his political opinion, and it appears that Mike O’Connell was doing the same thing.

The KBA has sanctioned O’Connell for expressing a political opinion on a legal subject. O’Connell did not interrupt a meeting, he was not in contempt of court. He merely expressed his disagreement with some judges who apply a local rule of procedure with which he disagrees. Other judges around the state do not necessarily apply that local Jefferson District Court rule.
The KBA has found that O’Connell’s letter was an ex parte communication.

“Ex parte contact occurs when an attorney communicates with another party outside the presence of that party’s attorney. Ex parte contact also describes a judge who communicates with one party to a lawsuit to the exclusion of the other party or parties, or a judge who initiates discussions about a case with disinterested third parties. Canon 3(A)(4) of the American Bar Association (ABA) Model Code of Judicial Conduct discourages judges from such ex parte communications. Under rule 4.2 of the ABA Model Rules of Professional Responsibility, a lawyer should refrain from contacting a party who the lawyer knows is represented by another attorney, unless the lawyer has the consent of the other attorney or is authorized by law to do so.” – Legal Dictionary

This attempt by the KBA to control the free speech of John M. Berry Jr. and now County Attorney Mike O’Connell is troubling. The controversial rule cited in the Berry case is SCR 3.130 (8.2) which provides that a Kentucky lawyer may be sanctioned even if he makes a truthful statement but does so “with reckless disregard as to its truth or falsity”. The KBA found a rule to apply to Berry and now they are going after Mike O’Connell.

It has been reported to LawReader that the Supreme Court is considering an amendment to SCR 3.130 (8.2) to expand the definition of “public legal officer” to clearly include police officers. If this is true then the Supreme Court will be allowing an attorney to be sanctioned for pointing out the misdeeds of a police officer…..surely the Supreme Court will not make that mistake??

The rules says:
SCR 3.130(8.2) Judicial and legal officials
(a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.
(b) A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct.
HISTORY: Adopted by Order 89-1, eff. 1-1-90

The effort to limit the free speech of lawyers is continuing. If a lawyer sees fraud, incompetence, continued error in their work, of judges, hearing officers, police officers and prosecutors, then the lawyer must keep silent. Whistleblowers aren’t allowed in the legal profession!!!

The essence of the original complaint against O’Connell is that his letter was apparently in violation of Supreme Court Rule 3.130(3.5) which holds:

SCR 3.130(3.5) Impartiality and decorum of the tribunal
A lawyer shall not:
(a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law;
(b) communicate ex parte with such a person as to the merits of the cause except as permitted by law or court order;
(c) communicate with a juror or prospective juror after discharge of the jury if:
(1) the communication is prohibited by law, local rule, or court order;
(2) the juror has made known to the lawyer a desire not to communicate; or
(3) the communication involves misrepresentation, coercion, duress or harassment; or
(d) engage in conduct intended to disrupt a tribunal.
HISTORY: Amended by Order 2009-05, eff. 7-15-09; adopted by Order 89-1, eff. 1-1-90
The official Commentary of the Ky. Supreme Court limits the ex parte rule in some situations and requires that all lawyers “stand firm against abuse” by a judge.

SUPREME COURT COMMENTARY 2009:
(1) Many forms of improper influence upon a tribunal are proscribed by criminal law. Others are specified in the ABA Model Code of Judicial Conduct, with which an advocate should be familiar. A lawyer is required to avoid contributing to a violation of such provisions.
(2) During the proceeding a lawyer may not communicate ex parte as to the merits of the cause with persons serving in an official capacity in the proceeding, such as judges, commissioners or jurors, unless authorized to do so by law or court order.
(3) A lawyer may on occasion want to communicate with a juror or prospective juror after the jury has been discharged. The lawyer may do so unless the communication is prohibited by law or a court order but must respect the desire of the juror not to talk with the lawyer. The lawyer may not engage in improper conduct during the communication.
(4) The advocate’s function is to present evidence and argument so that the cause may be decided according to law. Refraining from abusive or obstreperous conduct is a corollary of the advocate’s right to speak on behalf of litigants. A lawyer may stand firm against abuse by a judge but should avoid reciprocation; the judge’s default is no justification for similar dereliction by an advocate. An advocate can present the cause, protect the record for subsequent review and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics.
(5) The duty to refrain from disruptive conduct applies to any proceeding of a tribunal, including a deposition. See Rule 1.0(m).

In 2002 the Supreme court discussed private meetings between prosecutors and judges.

Ex Parte Meetings between Prosecutors And Judges

KENTUCKY BAR ASSOCIATION Ethics Opinion KBA E-419
Issued: May 2002

Subject: Ex Parte Communication Issues in Meetings between Prosecutors and Judges

Question: May prosecutors (Commonwealth’s attorneys or county attorneys) arrange and conduct meetings with judges for the purpose of establishing informal policies or shared understandings on issues likely to influence outcomes in pending or future criminal cases?

Answer: No.

That opinion did not discuss letters to judges.

Other Supreme Court rules conflict with the rules being applied against O’Connell. For example the official commentary of the Supreme Court says that “a constitutional rights exists to communicate with the government …”

SCR 3.130(4.2) Communication with person represented by counsel
In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.
HISTORY: Amended by Order 2009-05, eff. 7-15-09; adopted by Order 89-1, eff. 1-1-90

SUPREME COURT COMMENTARY 2009:
(1) This Rule contributes to the proper functioning of the legal system by protecting a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client-lawyer relationship and the uncounselled disclosure of information relating to the representation.
(2) This Rule applies to communications with any person, who is represented by counsel concerning the matter to which the communication relates.
(3) The Rule applies even though the represented person initiates or consents to the communication. A lawyer must immediately terminate communication with a person if, after commencing communication, the lawyer learns that the person is one with whom communication is not permitted by this Rule.
(4) This Rule does not prohibit communication with a represented person, or an employee or agent of such a person, concerning matters outside the representation. For example, the existence of a controversy between a government agency and a private party, or between two organizations, does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separate matter. Nor does this Rule preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter. A lawyer may not make a communication prohibited by this Rule through the acts of another. See Rule 8.4(a). Parties to a matter may communicate directly with each other, and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make. Also, a lawyer having independent justification or legal authorization for communicating with a represented person is permitted to do so.
(5) Communications authorized by law may include communications by a lawyer on behalf of a client who is exercising a constitutional or other legal right to communicate with the government. Communications authorized by law may also include investigative activities of lawyers representing governmental entities, directly or through investigative agents, prior to the commencement of criminal or civil enforcement proceedings. When communicating with the accused in a criminal matter, a government lawyer must comply with this Rule in addition to honoring the constitutional rights of the accused.
(6) A lawyer who is uncertain whether a communication with a represented person is permissible may seek a court order. A lawyer may also seek a court order in exceptional circumstances to authorize a communication that would otherwise be prohibited by this Rule, for example, where communication with a person represented by counsel is necessary to avoid reasonably certain injury.
(7) In the case of a represented organization, this Rule prohibits communications to a constituent of the organization who supervises, directs or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. Consent of the organization’s lawyer is not required for communication with a former constituent. If a constituent of the organization is represented in the matter by his or her own counsel, the consent by that counsel to a communication will be sufficient for purposes of this Rule. Compare Rule 3.4(g). In communicating with a current or former constituent of an organization, a lawyer must not use methods of obtaining evidence that violate the legal rights of the organization. See Rule 4.4.
(8) The prohibition on communications with a represented person only applies in circumstances where the lawyer knows that the person is in fact represented in the matter to be discussed. This means that the lawyer has actual knowledge of the fact of the representation; but such actual knowledge may be inferred from the circumstances. See Rule 1.0(f). Thus, the lawyer cannot evade the requirement of obtaining the consent of counsel by closing eyes to the obvious.
(9) In the event the person with whom the lawyer communicates is not known to be represented by counsel in the matter, the lawyer’s communications are subject to Rule 4.3.

We believe that Judge Gold, Judge Sims, and the other advocates who have challenged Mike O’ Connell make a good legal argument. However their right to criticize O’Connell is apparently in violation of SCR 3.130 (8.2). After all O’Connell is a “public legal officer” who is protected against criticism by other lawyers. Will the KBA now go after these respected attorneys in Louisville for expressing their political opinions?? That would be a shame.

We don’t believe that Gold, Sims, or others should be sanctioned or restricted in their right to criticize O’Connell. We likewise don’t believe that O’Connell should be sanctioned for expressing his opinion about local court rulings. We don’t need the government limiting political speech. Nobody’s life has been threatened, no blood has been spilled , no defamation has occurred…where is the sting?.

My husband attended the Sixth Circuit Appellate hearing in the John M. Berry Jr. case in which the KBA sought to use SCR 3.130 (8.2) to sanction Berry for writing a letter.

A female judge, Judge Daugherty, one of the three judges on the Sixth Circuit panel, made the statement:

“We are often criticized for our rulings,…it hasn’t seem to hurt us at all.”

We believe that Judge Daugherty’s philosophy should be applied to the O’Connell case.

We sometimes think of the KBA as being like the Bourbon Kings. It was said that the Bourbon Kings, ”learned nothing and forgot nothing.”

We see that the ACLU is representing O’Connell. Imagine…the ACLU representing a hard nosed prosecutor!!!! That should send a message to the KBA that their continuing attempt to control political speech is in trouble. Buzz English a former KBA President is also representing O’Connell.

The Berry case cost the KBA $200,000 to hire their own outside counsel, and $200,000 in attorney fees awarded by the 6th. Circuit to the ACLU lawyers. Will the KBA learn nothing from the Berry case?

We are troubled by another issue that should be considered when the reasoning of the KBA is considered. In the Fen Phen case, one of the attorneys has sought discovery from the KBA about the conduct of one of the KBA’s employees conducting a private meeting with Federal Judge Danny Reeves during the trial. The ex parte meeting was in the judges office and conducted while other attorneys were in the court room for the criminal trial. The defense attorney for Stanley Chesley has sought discovery on whether such a hearing actually occurred and if so what was said. The KBA witness later testified in the Fen Phen criminal trial which was ongoing during the alleged ex parte meeting.

Will the KBA ever disclose what their own employee spoke to the Federal Judge about? Why is ex parte communications okay for the KBA but improper for a prosecutor?

Once again there are issues about the privileged status of the KBA. If the KBA Board does something it is okay and should be protected by the confidentiality rule…but if anyone else does the same thing, then they will be vigorously prosecuted for ethics violations.

The Kentucky Supreme Court is the author of the discipline rules. They are ultimately responsible for the conduct of the KBA and the application of Supreme Court Rules. Will the Supreme Court once again allow the KBA to savage the First Amendment?

O’Connell and the Jefferson District Judges apparently disagree on a complex legal issue regarding suppression motions. The Ky. Supreme Court could stop this fight by merely adopting a rule and clearly explaining what it means. The rule and procedures should be clarified….the best way to do this is not to start a war over the first amendment… this is the type of war the KBA and the Supreme Court has been loosing lately!

-Gwen Billingsley-

A SERIES OF COURT RULINGS HAVE SUPPORTED THE ACCESS OF THE PUBLIC TO PUBLIC RECORDS….

Sunday, June 16th, 2013

KRS 61.871 PERMITS ANY PERSON TO REVIEW ANY PUBLIC RECORD

Taylor v. Barlow, 378 S.W.3d 322 (Ky. App., 2012) September 14, 2012
In January of 2011, Michael Wayne Dunagan, a citizen of Tennessee, executed a Limited Power of Attorney authorizing Chester Taylor (“Taylor”) to act in his name for the purpose of pursuing information pertaining to his 2009 arrest and treatment while in the custody of the Monroe County Sheriff’s Department (“Sheriff”). Seven days after the execution of that document, Taylor filed a written Open Records Request with the Sheriff’s office. Taylor signed the request form, listing himself as the requester and describing himself and as “a lawful representative of Michael Wayne Dunagan.” (“Request to Inspect Public Records” at 1). The Sheriff failed to respond to Taylor’s request and, as a result, Taylor filed an Open Records Appeal with the Attorney General’s Office, pursuant to KRS 61.880. The Sheriff did not respond. The Attorney General’s Office issued its decision in favor of Taylor on March 15, 2011, stating that the Sheriff’s failure to release the requested documents constituted “a clear violation of KRS 61.880(1)” and requiring the Sheriff to remit “copies of any existing records in its custody which are responsive to [Taylor's] request” unless they met an exception under KORA. 11–ORD–038 at 3. The Sheriff did not appeal the Attorney General’s decision, instead deciding to disclose some, but not all, of the documents Taylor originally requested. Pursuant to KRS 61.880(5)(b), the Attorney General’s decision took on the force and effect of law on April 14, 2011. On May 2, 2011, believing he still had not received all documents, and seeking damages for the Sheriff’s lack of compliance with KORA, Taylor filed suit in Monroe Circuit Court.

Considering the plain meaning of KORA’s very inclusive language provided above, the trial court’s reasoning in dismissing Taylor’s suit is fundamentally flawed. In its order dismissing, the trial court relied heavily on the fact that Taylor was not the party whom the requested records concerned; rather he was someone requesting records which pertained to Michael Wayne Dunagan and was doing so on Mr. Dunagan’s behalf. However, KORA’s language does not permit such a factual distinction to inform a court’s ruling on standing. KORA’s provision for standing, as explicitly stated by the General Assembly in KRS 61.871, permits any person to review any public record, unless exempt or otherwise prohibited by law, and allows the person denied review of those records to seek relief with the Attorney General and in circuit court. Neither KORA, nor any other authority limits or amends KRS 61.871′s categorical language of “any person” to mean only those whom the requested records concern; nor does KORA prevent an individual from seeking records at the request or on behalf of another person. To read the plain language of KRS 61.871 and 61.872 any other way is to subvert the express intent of the General Assembly as it is stated in that provision.

Accordingly, Taylor has standing to sue under KORA. It is immaterial that Taylor seeks records pertaining to someone else. As the party requesting records held by a public agency, and as the sole plaintiff in the suit against the Sheriff, Taylor has “a real, direct, present and substantial right” in the disclosure, or at least a response regarding the withholding, of the records which he seeks. See Winn, supra. Taylor is the “any person” envisioned and provided for under KORA. As such, he is exercising his “right to appear and seek relief” as the provisions of KORA allow him to do. See Winn, supra. Therefore, we find that KORA granted Taylor standing to sue for damages to which a person requesting public records may be entitled pursuant to that act. Furthermore, we find that the trial court erred as a matter of law when it dismissed Taylor’s case for lack of standing, as such a result would certainly and “substantially prejudice” his case if not remedied. See Sublett, supra.

We briefly address the court’s finding that Taylor, by bringing a suit regarding records which pertained to another person, was engaged in the unauthorized practice of law. We hold that Taylor was not engaged in such activity and in finding he was, the trial court erred as a matter of law.

Commonwealth v. Lexington H–L Servs., Inc., 382 S.W.3d 875 (Ky. App., 2012) October 19, 2012
In a letter written on June 5, 2009, the Cabinet denied Estep’s request, claiming that the requested records were uniformly exempt from disclosure under various state and federal laws, including the confidentiality provisions of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the Open Records Act’s personal privacy exemption (KRS 61.878(1)(a)), the Act’s exemption for records or information prohibited from disclosure by state or federal law (KRS 61.878(1)(k) and ( l )), and other statutes that generally provide for the confidentiality of the Cabinet’s child abuse investigation records (KRS 194A.060, KRS 620.050(5)). The Herald–Leader appealed the Cabinet’s denial to the Attorney General pursuant to KRS 61.880(2), and on September 11, 2009, the Attorney General issued Open Records Decision 09–ORD–149, which determined that the Cabinet’s actions had not violated the Open Records Act.

The Attorney General determined that the Cabinet had properly withheld the requested information pursuant to KRS 61.878(1)( l ). That provision exempts from inspection “[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly[.]” The Attorney General found that the exemption applied in this case in light of KRS 194A.060(1), which generally “protect[s] the confidential nature of all records and reports of the cabinet that directly or indirectly identify a client or patient or former client or patient of the cabinet,” and KRS 620.050(5), which limits the individuals to whom a “report of suspected child abuse, neglect, or dependency and all information obtained by the cabinet or its delegated representative, as a result of an investigation or assessment made pursuant to this chapter” may be disclosed. Because Appellees did not fit within the categories of individuals permitted to review the subject records under KRS 620.050(5), the Attorney General concluded that the Cabinet had not acted improperly in declining to disclose those records.

We agree with the circuit court that the Cabinet’s failure to disclose the requested records in this case constituted a “willful” violation of the Open Records Act. Had the Cabinet considered Appellees’ requests on their merits and denied disclosure upon a reasonable basis, perhaps our opinion would be different. However, it is apparent that the Cabinet failed to make particularized analysis and instead relied on an all-encompassing policy of nondisclosure despite the purpose of the Act and despite the acknowledged applicability of KRS 620.050(12)(a) under these circumstances. The circuit court concluded that these denials were made in “bad faith,” and we see no grounds to disagree with that conclusion.

In light of our decision, and per Appellees’ request, we remand this matter to the circuit court for a supplemental award of attorneys’ fees and costs incurred on appeal. Under KRS 61.882(5), upon a showing of a willful withholding, Appellees are entitled to any fees and costs “incurred in connection with the legal action,” which would necessarily include fees and costs incurred in defending the judgment on appeal. Since Appellees have requested a determination on this issue, remand is appropriate. See Moorhead v. Dodd, 265 S.W.3d 201, 205 n. 1 (Ky.2008).

KENTUCKY DETENTION CENTERS MUST MAINTAIN PUBLIC RECORDS

Sunday, June 16th, 2013

Eplion v. Burchett (Ky. App., 2012) NO. 2009-CA-001741-MR February 16, 2012

The OAG determined that the detention center had committed a number of procedural and substantive violations of the Act and that the above response evinced a misunderstanding of the obligations of the agency and its officials.

In particular, the OAG concluded the detention center had failed to respond to Eplion’s request in a timely manner, KRS 61.880(1); had failed to provide him with a detailed explanation of why officials were unable to render a decision regarding production of the records within the three-day period, KRS 61.872(5); had failed to set a date certain when Eplion would be able to review the records, KRS 61.872(5); and had failed to maintain the records as required by KRS 171.680(1) and KRS 64.830.

The OAG informed the officials that the records requested belonged not to the past or present jailers as individuals, but to the agency, and that they had an obligation to maintain the records amassed by their predecessors. 07-ORD-020, 2007 WL 530212 (Ky.A.G.), p. 6 (citing 76 C.J.S. Records §2 (“[a] written memorial of a transaction in a public office, when made by a public officer, becomes a public record belonging to the office, and not his private property)).

As a result of the OAG’s order, detention center officials were required to complete training with the Kentucky Department for Libraries and Archives regarding their duties of recordkeeping and disclosure under the Act.

JUDGE STRIKES LAW BANNING DEMONSTRATIONS AT SUPREME COURT

Wednesday, June 12th, 2013

By Tony Mauro Contact All Articles The National Law Journal June 12, 2013

Departing from a long line of local court rulings, a federal judge in the District of Columbia on Tuesday struck down the 64-year-old law that prohibits demonstrations and displays on the grounds of the U.S. Supreme Court.

“The absolute prohibition on expressive activity in the statute is unreasonable, substantially overbroad, and irreconcilable with the First Amendment,” wrote U.S. District Judge Beryl Howell in a 68-page ruling issued late Tuesday in the case Hodge v. Talkin.

The law, which has been invoked to arrest individuals ranging from death penalty protestors to kneeling ministers and Princeton University scholar Cornel West, is so broadly worded, Howell found, that it could apply to groups of tourists, court employees, or even a “familiar line of preschool students … holding hands with chaperones, parading on the plaza on their first field trip to the Supreme Court.”

Howell also made short shrift of one of the key arguments that has been made in defense of the law, namely that it is necessary to preserve the image of the court as an institution “not swayed by external influence.”

“It is hard to imagine how tourists assembling on the plaza wearing t-shirts bearing their school’s seal, for example, could possibly create the appearance of a judicial system vulnerable to outside pressure,” Howell wrote. “While there may be a legitimate interest in protecting the decorum of the judiciary, the challenged statute is not a reasonable way to further that interest.”

If the government appeals the decision, Tuesday’s ruling could set the stage for the Supreme Court’s first review of the no-protest law in 30 years.

The decision came in the case of Harold Hodge Jr., a Maryland resident who was arrested on the court’s plaza in January, 2011 for standing on the court’s marble plaza while holding a small sign that read “The U.S. Gov. Allows Police To Illegally Murder and Brutalize African Americans And Hispanic People.” Court police told Hodge three times that he was in violation of 40 U.S.C. 6135 — the law Howell declared unconstitutional — and he refused to depart.

Hodge was charged with violating the law, which states that “it is unlawful to parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, or to display in the Building and grounds a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement.”

Later that year, charges were dropped after Hodge agreed to stay away from the court and its grounds for six months.

In January 2012, Hodge filed a suit in the U.S. District Court for the District of Columbia, stating that he wanted to return to the court to engage in “peaceful, non-disruptive political speech and expression.” With the aid of lawyers from the Rutherford Institute, Hodge challenged the constitutionality of the law. The court’s marshal, Pamela Talkin, is the named defendant, along with U.S. Attorney Ronald Machen Jr.

Tuesday night, Jeffrey Light who represented Hodge for the institute, praised the ruling in a statement. “Today’s district court decision striking down the law is well-reasoned and thorough, and relies on solid analysis rather than mere labels to reach its conclusion,” Light said.

In her detailed ruling, Howell reviewed the history of the Supreme Court statute and a similar law that barred demonstrations on the grounds of the nearby U.S. Capitol. That law was struck down on First Amendment grounds by a three-judge panel in 1972 in a ruling that Howell cited at length.

In 1983, the Supreme Court ruled on an earlier version of the law banning displays and assemblages on Supreme Court grounds. In U.S. v. Grace, the court ruled that the law was unconstitutional when applied to demonstrations on the public sidewalks around the court.

But the court sidestepped the broader issue of the constitutionality of the law’s ban on protests on court grounds. As a result, protests are a frequent occurrence on the sidewalk in front of the court, but as one court police officer once put it, “the First Amendment ends” where the sidewalk ends and the marble plaza begins.

Ever since the Grace decision, challenges to the law brought by those arrested on the plaza have been turned away by the local District of Columbia Court of Appeals.

But each time, Howell noted, that court has placed a “limiting construction” on the law to keep it within constitutional limits. That construction of the law confined the purpose of the law to protecting court property and personnel and preserving order, decorum, and the image of impartiality. But Howell rejected that narrowing construction, asserting that it was not rooted in the language of the law and amounted to rewriting it.

She also assumed, without deciding, that under First Amendment doctrine, the court grounds could be viewed as a “nonpublic forum” not traditionally used for public assemblies and communication. That designation usually allows restrictions on expression. But Howell said that status was “artificially induced” because of strict enforcement of the law against protests.

She also said “the physical features of the Supreme Court plaza — with its long benches and fountains and wide open space in front of an iconic American building open to the public — suggest a more welcoming invitation to the public and public expression than is suggested by the defendants or the statute.”

In addition, Howell noted that the plaza in front of the court is often the venue for media interviews with advocates involved in Supreme Court cases, and has also been used as the backdrop for movie segments.

But even though the court grounds are assumed to be a nonpublic forum, Howell said, the absolute ban on expression contained in the law is “not reasonable.”

Howell said she “does not find that an interest in allowing ‘unimpeded ingress and egress’ of visitors to the Court is a sufficiently significant interest to justify the absolute prohibition on expressive activity on the plaza enshrined in the two clauses of the statute.”

Local and federal laws that prohibit blocking the entrances to buildings, Howell said, are sufficient to protect the government’s interest in preserving access and decorum.

Tony Mauro can be contacted at tmauro@alm.com. Mike Scarcella, who contributed, can be reached at mscarcella@alm.com.

• Aloysious Farquart
June 12, 2013 11:44 AM
[Howell also made short shrift of one of the key arguments that has been made in defense of the law, namely that it is necessary to preserve the image of the court as an institution "not swayed by external influence."]

Who on earth manages to maintain that false image in their head… and how did Howell discover it…?

Pleading A Claim For Recovery of Attorney’s Fees

Wednesday, June 12th, 2013

By David Kramer | dkramer@dbllaw.com

More Sharing ServicesShare|Share on facebookShare on twitterShare on emailShare on printIn a May 3 post on this blog, we discussed the importance of having an award of attorney’s fees included in a judgment rather than treating it as a recoverable cost that may be resolved after entry of judgment. Today’s post raises the more preliminary issue of pleading a claim for attorney’s fees. The Kentucky Court of Appeals held in a 2011 case that, in order to recover attorney’s fees according to a statute, a party must make a claim for fees in the body of its pleading. See O’Rourke v. Lexington Real Estate Company LLC, 365 S.W.3d 584, 587 (Ky. App. 2011). In reversing the trial court’s award of attorney’s fees to a landlord for recovery under a lease agreement, the Court held that merely including a request for attorney’s fees as an item of recovery in the ad damnum clause of the complaint, a routine pleading practice for many litigators, is not sufficient to state a claim for attorney’s fees under statutes governing leases of real property. The decision implies the same rule governs a claim for attorney’s fees based on a contract and even suggests that the rule applies when entitlement to fees is premised on equitable grounds under the common law.

In light of that holding, the best practice for a party making a claim for recovery of attorney’s fees is to include either a separate count for attorney’s fees in the pleading (whether a complaint, counterclaim, cross-claim, or third-party complaint) or a separate paragraph making the claim for fees in the count to which the request for fees is related. In either event, the party should specify the legal grounds for the claim (statutory, contractual, and/or equitable). If a party seeking attorney’s fees has omitted a claim for such fees from its pleading and merely listed a request for fees under the prayer for relief, the party may seek leave to amend the pleading under CR 15.

The holding in O’Rourke did not specifically state that it is necessary to plead a claim for an equitable award of attorney’s fees based on Kentucky common law, such as Batson v. Clark, 980 S.W.2d 566 (Ky. App. 1998). On the other hand, it appears that the plaintiff in O’Rourke sought an equitable award of fees as an alternative to its claim for fees under Kentucky landlord-tenant statutes. O’Rourke distinguished Batson and held that the trial court does not have discretion to make an equitable award of fees where a controlling statute provides a limited basis for awarding fees (i.e., willful conduct of the opponent) that is not applicable to the facts of the case. The Court then held that the landlord’s failure to plead a claim for fees was an alternative basis to deny recovery of fees, and it did not limit this holding to a request for fees made pursuant to statute or contract. In light of that holding, it appears that even a claim for fees based on equitable principles should be pled with particularity. However, a party might assert that its equitable entitlement to recover attorney’s fees arose after the pleading stage, or even at trial, such that pleading the equitable claim beyond the routine request for fees should not be required. Rather than making such an argument, a party that did not include a specific claim for attorney’s fees in its pleading should consider seeking leave to amend its pleading to include the claim. Of course, equitable awards of attorney’s fees are rarely made by Kentucky trial courts, which generally hold firm to the precept that parties to litigation must bear their own attorney’s fees in the absence of entitlement under a statute or contract (the so-called “American Rule”).

Finally, the holding in O’Rourke v. Lexington Real Estate Co. does not necessarily indicate that Kentucky is moving toward a stricter or more technical pleading standard than the traditional “fair notice” standard that has been the rule in Kentucky for decades and that the federal courts had long followed until the adoption of the more rigorous Twombly/Iqbal standards by the U.S. Supreme Court in recent years. The Court in O’Rourke specifically noted that it did not believe adequate notice of the claim for attorney’s fees was provided by a request made in the prayer for relief. To date, the only Kentucky case specifically citing Twombly or Iqbal was Espinosa v. Jefferson/Louisville Metro Govt., 2009 WL 277488 (Ky. App. 2009), an unpublished decision of the Court of Appeals that cited Iqbal with approval and relied on it in part in affirming dismissal of a complaint for failure to state a claim. (See CR 76.28(4)(c) concerning citation of unpublished opinions.)

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/productdetail.

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

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JUSTICE DEPT. TO CRACK DOWN ON CHAPTER 11 BANKRUPTCY FEES

Wednesday, June 12th, 2013

By Jacqueline Palank June 12, 2013
The U.S. Department of Justice this fall will crack down on the millions of dollars of fees that attorneys charge for their work on large Chapter 11 bankruptcy cases.
Justice Department officials on Tuesday announced the first overhaul of existing attorney fee guidelines in 17 years will take effect Nov. 1. The product of months of deliberation and debate, the new guidelines seek to reflect the evolution in law-firm billing practices and technology that have since occurred.
More important, they also seek to confront a perception that lawyers, some of whose rates top $1,000 per hour, take advantage of a bet-the-company moment to charge higher rates.
“The cornerstone of the guidelines is a requirement that attorneys demonstrate they are not charging bankruptcy estates a premium above fees charged to clients outside of bankruptcy,” Clifford J. White III, who leads the Justice Department office that monitors all bankruptcy cases for potential abuse and to enforce the Bankruptcy Code, said Tuesday.
“Bankruptcy premiums are not allowed,” he said.
The role of those bankruptcy monitors, called U.S. trustees, includes scrutinizing the fees of the lawyers, advisers and other professionals working for a debtor, all of whom must publicly disclose and seek court approval for their fees and expenses.
Concerns about the adequacies of the information that firms currently disclose in bankruptcy cases, in which transparency is the price debtors pay to gain protection from their creditors, also helped drive the updated guidelines.
“We don’t think…that we do have sufficient disclosures today,” Mr. White said. “We think that this can make for a more efficient process that ensures and gets public confidence that the standard laid down by Congress has been satisfied.”
The new guidelines, which apply in Chapter 11 cases in which the debtor has at least $50 million in assets and at least $50 million in liabilities, will govern how and when trustees request additional disclosures or object to legal fees. Their provisions include a call for attorneys to submit budgets estimating the cost of the work they intend to perform. Significant deviations would have to be explained in subsequent court filings.
When first proposed, the budgets–standard for non-bankruptcy legal work–raised the hackles of most bankruptcy attorneys, who used the many months the guidelines were open to public comment to argue the unpredictability of most Chapter 11 cases would make budgets futile. They have also argued that such budgets could put them at a competitive disadvantage, revealing their bankruptcy game plan to their adversaries.
The U.S. Trustee Program held fast, though it conceded that budgets may be made public after the work has been performed and may be subject to limited redactions. If attorneys don’t agree to budgets, the individual trustee monitoring the case may ask the judge to order the attorneys to comply.
“We would not object to a fee application for lack of a budget, unless the court had first imposed the budget,” Mr. White said Tuesday.
The guidelines will roll out several months later than the original target date of July 1, which Mr. White said will allow time to make sure bankruptcy practitioners understand the new guidelines. Trustees will also use the time to encourage bankruptcy courts to make the guidelines, which aren’t automatically legally binding, part of the local rules that debtors must follow.
The new guidelines would solely apply to attorneys, though Mr. White expects the U.S. Trustee Program to later look at updating the fee guidelines when it comes to the “crowded field” of non-legal professionals who are typically employed in large Chapter 11 cases.
“Investment bankers, financial advisers and accountants are next,” Mr. White said, adding that there’s no set timeline for that process yet.
(Dow Jones Daily Bankruptcy Review covers news about distressed companies and those under bankruptcy protection. Go to http://dbr.dowjones.com)
Write to Jacqueline Palank at jacqueline.palank@dowjones.com

U.S. SUPREME COURT OUTLAWS RETROACTIVE CHANGE IN SENTENCING GUIDELINES

Tuesday, June 11th, 2013

By Robert Barnes, Jun 11, 2013 The Washington Post
A divided Supreme Court ruled Monday that tougher sentencing guidelines passed after someone commits a crime cannot be used to justify a longer sentence for the defendant.
The court ruled 5 to 4 that such a change would violate the Constitution’s prohibition against enacting laws that retroactively make an action illegal or call for greater punishment.
Even though the federal sentence guidelines are advisory, not binding, Justice Sonia Sotomayor wrote for the majority, the analysis is the same. She said the range of sentencing options contained in the guidelines “is intended to, and usually does, exert controlling influence on the sentence that the court will impose.”
In the case at hand, Marvin Peugh was accused of bank fraud and other financial crimes involving an Illinois farming business he owned with his cousin. The scheme took place in 1999 and 2000.
But Peugh was not convicted and sentenced until much later. The guidelines in place at the time of his crimes called for a sentencing range of 30 to 37 months. But when Peugh was sentenced in May 2010, the range had been toughened to 70 to 87 months.
Peugh argued that he should not be sentenced under the new regime. But a judge rejected the claim and sentenced him to 70 months. His conviction and sentence were upheld by the U.S. Court of Appeals for the 7th Circuit.
Sotomayor was joined in overturning that decision by the rest of the court’s liberals — Justices Ruth Bader Ginsburg, Stephen G. Breyer and Elena Kagan — plus Justice Anthony M. Kennedy.
Federal sentencing guidelines originally were enacted to be binding. But the court ruled in 2005 that that ran afoul of the Constitution. The remedy was to make them advisory. But Sotomayor said the guidelines still carry enormous weight.
“That a district court may ultimately sentence a given defendant outside the guidelines range does not deprive the guidelines of force as the framework for sentencing,” Sotomayor wrote.
“Indeed, the rule that an incorrect guidelines calculation” can be reason for appeal “ensures that they remain the starting point for every sentencing calculation in the federal system.”
The court rejected the government’s position that because the guidelines did not carry the legal effect of a “law,” they do not violate the ex post facto clause.
Justice Clarence Thomas, in dissent, largely agreed with the government’s view, and was joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Samuel A. Alito Jr.
Along the way, Thomas apologized for a previous court decision that he wrote and that the majority on Monday in part relied on: 1995’s California Dept. of Corrections v. Morales.
“As the author of Morales, failure to apply the original meaning [of the ex post facto clause] was an error to which I succumbed,” Thomas wrote in a footnote.
“The guidelines do not constrain the discretion of district courts and, thus, have no legal effect on a defendant’s sentence,” Thomas wrote. “We have never held that government action violates the Ex Post Facto Clause when it merely influences the exercise of the sentencing judge’s discretion.”
The case is Peugh v. United States.

“Statutory one-year deadline for inmates to file a habeas petition to challenge their conviction can be overlooked if they are attempting to present new evidence that could prove their innocence”

Saturday, June 8th, 2013

U.S. Supreme Court decision in Flint man’s case could have far-reaching impact

“…statutory one-year deadline for inmates to file a habeas petition to challenge their conviction can be overlooked if they are attempting to present new evidence that could prove their innocence”

By Gary Ridley |
June 08, 2013 at 10:07 AM
FLINT, MI — A Flint man’s legal fight that traveled all the way to the U.S. Supreme Court may help open doors for people convicted of crimes who have found new evidence proving their innocence.
The nation’s highest court ruled last week that a statutory one-year deadline for inmates to file a habeas petition to challenge their conviction can be overlooked if they are attempting to present new evidence that could prove their innocence.
The ruling was issued May 28 after Floyd Gene Perkins challenged his 1993 murder conviction.
Perkins was convicted of killing Rodney Henderson following a party in March 1993. Henderson was discovered stabbed to death on a wooded trail in Flint.
A prosecution witness testified that Perkins killed Henderson on his own while he looked on. Other witnesses testified that Perkins had admitted to committing the crime.
However, Perkins testified during the trial that it was actually the witness who killed Henderson and that Perkins later saw the witness standing under a street light with blood on his pants, shoes and plaid coat the night of Henderson’s murder.
Perkins claims that three affidavits, signed in 1997, 1999 and 2002 from witnesses who came forward after his conviction, prove that he did not kill Henderson and that the other man was the actual killer. This new evidence proving his innocence, Perkins contended, should be grounds for a new trial.
A federal district court denied Perkins’ argument for a new trial because he waited until 2008 to ask a federal judge to overturn his conviction, well outside the one-year deadline to seek relief after obtaining new evidence. However, the Sixth U.S. Circuit Court of Appeals ruled in March 2012 that Perkins should be given his day in court because the law is not clear on if the one-year deadline applies to those whose new evidence proves actual innocence.
The U.S. Supreme Court agreed to take the case when Michigan Attorney General Bill Schuette challenged the appeals court’s ruling.
Alan Gershel, a professor at Lansing-based Cooley Law School, said the Supreme Court’s decision, authored by Justice Ruth Bader Ginsburg, was important and will help open the doors to some inmates who are trying to challenge their convictions.
However, the Supreme Court’s ruling is tailored in such a way that it will still impose barriers to those seeking a habeas hearing, Gershel said.
Ginsburg’s opinion, which was supported by Justices Anthony M. Kennedy, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, states that the new evidence would have to show that “it is more likely than not that no reasonable juror would have convicted (the petitioner).”
Gershel said courts will still be able to take the timing of the petition into account to ensure that inmates aren’t excessively delaying their claim in an effort to affect their case — for example, waiting for the death of an elderly witness.
Justice Antonin Scalia authored a scathing dissenting opinion in the case, arguing that the court has overstepped its authority by overriding a timing barrier that is written into a statute approved by Congress.
“Where Congress has erected a constitutionally valid barrier to habeas relief, a court cannot decline to give it effect,” Scalia wrote.
Chief Justice John G. Roberts Jr. and Justice Clarence Thomas joined with Scalia in his dissent.
“The Court simply ignores basic legal principles where they pose an obstacle to its policy-driven, free-form improvisation,” Scalia wrote, additionally referring to the court’s decision as a “statutory-construction blooper reel.”
Perkins’ case has been referred back to the Sixth Circuit Court of Appeals for further proceedings in light of the court’s new interpretation.
Despite the remand, Gershel said the Supreme Court’s opinion does not necessarily give validity to Perkins’ new evidence.
In fact, Ginsburg in her ruling raised doubt that Perkins’ new evidence would be able to meet the threshold for review.
“…The proffered evidence, even if ‘new,’ was hardly adequate to show that, had it been presented at trial, no reasonable juror would have convicted Perkins,” Ginsburg wrote

THESE TEN STATES HAVE THE WORST LAW-GRAD GLUT

Friday, June 7th, 2013

Posted Jun 4, 2013 By Debra Cassens Weiss ABA JOURNAL
Updated: Overall there are more than two law grads for every estimated job opening, according to data compiled by a lawyer who is a legal blogger. But it’s much worse in some parts of the country.
At least one state has more than six law grads for each legal job opening, and several states have three or more grads per job, according to Matt Leichter, author of the blog Law School Tuition Bubble. He ranked the states with the worst law grad gluts, giving Mississippi an ignominious No. 1 rank after finding it had 10.53 law grads for each projected legal job opening.
Mississippi fared the worst because of a poor annual jobs outlook of just 30 legal openings per year between 2010 and 2020. But now Leichter is taking a closer look at the numbers, and he wonders if the figure is based on a typo by one of his sources, Career One Stop. Perhaps the number of estimated new jobs each year should have been 130, Leichter speculated in a blog post. He is awaiting word from Career One Stop on whether a mistake was made.
The Atlantic summarizes Leichter’s findings, reported at the Am Law Daily.
Leichter’s legal job statistics are based on estimates of job growth and replacement positions between 2010 and 2020 by the Bureau of Labor Statistics and state governments. The number of legal grads is from ABA-accredited law schools.
Mississippi’s rank may change, but at this point Leichter says these are the top 10 worst states, based on the number of law grads for each job opening:
• Mississippi (10.53 law grads for each job opening, according to initial numbers)
• Michigan (6.48 law grads for each job opening)
• Delaware (4.20 law grads for each job opening)
• Nebraska (4.04 law grads for each job opening)
• Vermont (3.50 law grads for each job opening)
• Massachusetts (3.27 law grads for each job opening)
• Indiana (3.03 law grads for each job opening)
• Oregon (2.98 law grads for each job opening)
• Louisiana (2.95 law grads for each job opening)
• New York (2.92 law grads for each job opening)
At first glance, the best states are Nevada and Wyoming, where there are fewer law grads than jobs. Alaska was also one of the best because it had no grads from ABA-accredited law schools. When Leichter ran the numbers based on new bar admittees, rather than law grads, there was still an oversupply of lawyers in those states. (Leichter may revise the admittee numbers for Nevada and a few other states, but it doesn’t change the basic conclusion that Nevada will have an oversupply of admittees.)
Leichter took another look at his figures after University of Mississippi law dean Richard Gershon suggested that Career One Stop made an apparent error. Gershon told the ABA Journal that Mississippi had 165 annual legal openings, rather than 30, but Leichter says Gershon’s figures are from a reporting period two years ago.
Gershon cites other evidence that Career One Stop is wrong: His school’s career services office is placing more students in the state per year than the 30 new jobs predicted for the entire state.
Updated on June 6 to include new information on the Mississippi statistics from Leichter.