Archive for September, 2013

ATTORNEY PLEADS GUILTY TO MISDEMEANOR CAMPAIGN FINANCIAL VIOLATION

Tuesday, September 24th, 2013

Bill Estep — bestep@herald-leader.com
A well-known Eastern Kentucky disability lawyer pleaded guilty this month to a campaign-finance violation. Eric C. Conn pleaded guilty Sept. 5 to a misdemeanor charge of attempting to give money to another person in February 2012 to give to a candidate on his behalf.The charge said the donation was intended for a candidate for the Kentucky Supreme Court. That candidate was not identified in Conn’s plea. However, state records show Conn contributed $1,000 in his own name to Justice Will T. Scott’s re-election effort in February 2012.Scott returned the donation in March, state records show. Scott defeated Appeals Court Judge Janet Stumbo to retain his seat on the high court.
Conn was sentenced to 12 months in jail, conditionally discharged for two years. Conn also agreed to pay $5,600 to Kentucky Attorney General Jack Conway’s office to cover the cost of investigating the case.An attorney who has represented Conn, Beverly R. Storm, said Conn cooperated in the investigation.”Mr. Conn said he deeply, deeply regrets this mistake” and apologizes, Storm said.
Read more here: http://www.kentucky.com/2013/09/23/2839382/kentucky-disability-lawyer-eric.html#emlnl=AM_update#storylink=cpy

FEN PHEN DEFENDANT SEEKS WRIT OF MANDAMUS ORDERING KBA TO RELEASE FINANCIAL INFORMATION

Friday, September 20th, 2013

The following Petition for a Writ of Mandamus seeks information about an attorney employed by the KBA who participated in William Gallion’s criminal trial. It is alleged that the attorney Jane Graham, had an ex parte meeting with Federal Judge Danny Reeves, and may have billed the KBA for this meeting. When Judge Reeves was asked to explain what happened at this ex parte meeting with the KBA’s counsel, he reportedly replied, “You can ask but I don’t have to tell.”

Sept. 20, 2013

COMMONWEALTH OF KENTUCKY
SUPREME COURT OF KENTUCKY CASE NO. 2013-SC-_________
WILLIAM GALLION PETITIONER

VS: PETITION FOR WRIT OF MANDAMUS

KENTUCKY BAR ASSOCIATION RESPONDENT

Comes now the Petitioner by counsel and for the Petition says as follows.

On February 8, 2013, Petitioner requested the Kentucky Bar Association to provide the unredacted billing records of Jane Graham, counsel for the KBA. (The letter to the KBA (Ex. 1) and (Redacted billing records of Ms. Graham are attached. (Ex.2) Ms. Graham presented a Motion to the US District Court in the trial of William Gallion and Shirley Cunningham precluding the Defense from cross examining prosecution witnesses on ethical misconduct charges made against them by the KBA. (A copy of the Motion is attached (Ex.3)
Ms. Graham’s redacted billing records came to light due to Mr. Chesley request to see an itemized list of costs the KBA incurred during his disbarment proceedings. Ms. Graham’s billing records show she billed the KBA for time spent on 2/24/09 the day she presented the Motion, and for time spent on 2/23/09, both in reference to the Phen-fen trial. Ms. Graham was seen entering Judge Reeves chambers on 2/23/09. The Petitioner is entitled to know the information shown by Ms. Graham’s billing records.
On February 26, 2013, the KBA responded. The request was denied, citing attorney-client privilege, SCR 3.130(1.6), and work product. (A copy of the letter is attached Ex. 4) As a consequence of the Motion made by the KBA the Defendants were denied access to exculpatory evidence in the files of Judge Bamberger and Stan Chesley. The KBA knew that Chesley’s Response to Inquiry Commission Complaint contradicted testimony he was giving in the criminal trial of William Gallion and Shirley Cunningham.
The United States, in no small measure, premised the conviction of the Defendants on Chesley’s false testimony. (Attached are excerpts of closing argument, first trial (Ex.5); Chesley’s KBA file, pages, # KBA 5894, 5895, 5897, 5900-5902, 5908 (Ex. 6); and Chesley’s testimony in the second trial that convicted the Defendants.(Ex.7)
The entire line of testimony given by Chesley was pure fabrication, and the government knew it, as evidence by Grand Jury questioning of Judge Bamberger on March 8, 2007. (Copies of pp. 2, 26-28, & 51 are attached (Ex.8); (The KBA Inquiry Commission Complaint is attached (Ex.9.)
Gallion contends he has been wrongfully convicted. Excerpts from the criminal trials are set out in this Petition to justify the need to obtain the unredacted billing records of Ms.Graham. References to the trial are attached.
In Ms. Graham’s presentation to the Court she stated the following: “The concern of the Court — excuse me, of the Bar Association and of Ms. Gosnell, who is Chief Bar Counsel, is that while we don’t anticipate it would be relevant or – or people — and counsel would be inquiring into it, out of an abundance of concern, we would ask the Court to issue a protective order preventing any inquiry into the identity of or the existence of an investigation of a lawyer which has not reached the — a finding of an ethical violation.” (Volume 6A, p. 14 (Ex. 10)

Did Ms. Graham, on her own initiative, seek out a meeting with Judge Reeves the evening before she made this Motion or was she summoned by the Court?

The Defense questioned the District Judge on Ms. Graham’s ex parte contact with the Court:
“MR. ALMAND: … And Judge, I would also ask, has there been—I’m not aware of how the courts work in Kentucky in regards to communication with judges by the Bar Association, and I didn’t know whether there had been any communications with the Court or not directly concerning this matter that we’re not aware of, but if there were, I would just ask that question. And I’m assuming there’s not, but I just ask.
THE COURT: You’ve asked the question.
MR. ALMAND: Yes sir.
THE COURT: It doesn’t mean I have to answer it.
We’ll take a five-minute recess.” (Vol. 6A, p.23 (Ex.11)
The Court’s Jury instruction was tantamount to a Directed Verdict that compelled the jury to find the Defendants guilty. .

The Court’s Instructions:

Your second duty is to take the law that I give you,
apply it to the facts, and decide if the government has
proved each defendant guilty beyond a reasonable doubt. It
is my job to instruct you about the law. You are bound by
the oath that you took at the beginning of the trial to
follow the instructions that I give you, even if you
personally disagree with them. This includes the
instructions that I gave you before and during trial and
these instructions. All the instructions are important, and
you should consider them together as a whole.

You have heard testimony about the Settlement Agreement
between the defendants and American Home Products. I have
advised you that this settlement was an aggregate settlement
of 440 claims.

Aggregate settlements are governed by Supreme Court Rule1.8 (g), which I read to you earlier. Rule 1.8(g) requires that a lawyer obtain each individual client’s informed consent before negotiating an aggregate settlement for multiple individual clients. To obtain this informed consent, the lawyer must disclose to each client the overall terms of the settlement. This disclosure, at the very least, should include the total amount of the settlement, the number of claimants, and the method by which the allocations were determined.
(Vol. 28B, pp. 91, 92,120 (Ex.12)

Judge Reeves would not allow the Defendants to offer expert testimony on the interpretation of the language of the Settlement Letter.

Professor Erichson testified:

Q Professor Erichson, when we left, I had asked you based
15 upon your review of various documents and information, we’ll get
16 into that specifically, did you formulate an opinion on how this
17 case was settled? And when I say “this case,” I mean the case
18 involving 440 clients.
19 A You mean the Kentucky settlement in May of 2001?
20 Q Correct.
21 A Yes, I did.
22 Q And what is that opinion?
23 A It was a settlement of the claims of 440 named claimants
24 who are listed in the settlement agreement.
(Vol.18A, p.106 (Ex.13)

Q. Now, Professor Erichson, in your opinion upon review of all
of the information that you have done, in this aggregate
settlement that you have described of $220 million for 440
clients, would there be excess funds?

A. No. There is $200 million. That’s the amount that the
lawyers have to work with. If the plaintiffs’ lawyers have to
do the allocation themselves, then they take that money, they
divide it up, they allocate it among their clients.
(Vol. 18B, p. 16 (Ex.14)

Professor Erichson and the Government misinterpreted the Settlement Letters. Erichson couldn’t figure out any reason for it.The expressed language of the Settlement Letter says the Agreement was contingent on the execution of this Side Letter. (Vol. 18 B, pp. 4, 5 (Ex.15)

Gallion’s good faith reliance on the advice of counsel was crippled by Chesley perjured testimony and by the Disbarment Orders that were improperly admitted by Judge Reeves. Judge Reeves at sentencing stated: “ I did not find Mr. Chesley to offer false or misleading testimony. I found him to be a credible witness.. Mr. Gallion was the primary mediator.” The government went on to say at sentencing “the jury soundly rejected that defense” i.e., the advice of counsel defense. (Docket Entry 1179, pp. 7, 15 (Ex.16) The government knew and was contesting the defendants’ allegations that Chesley was intimately involved in the settlement process. Judge Reeves, more as an advocate than a judge, scrutinized the testimony of Mr. Robbins in preparation for the ruling denying its use. Did Gallion receive a fair trial? (Vol. 18A, pp. 3,4,20 (Ex.17)
The government, as shown by the excerpts of closing argument in the first trial, emphasized the failure of the Defendants to properly inform the clients of the settlement terms. Chesley was charged with ethical misconduct prior to the first Indictment of the Defendants for not following Class Action Law. The civil litigation was pending. Chesley was distancing himself from involvement in the Boone County settlement. (KBA 5908 (See Ex.6)
In the trial that convicted Gallion, the government, with the assistance of the Court, hid from the jury Chesley’s involvement in the Boone Co. settlement.
The KBA monitored the first trial and knew Judge Bamberger testified that William Gallion told him the clients were thrilled to put $20 million into the Charity. The Kentucky Bar Association knew that information in Judge Bamberger’s KBA file contradicted his testimony Gallion told him the clients were “thrilled put $20 million into a Charity.” The KBA knew that Judge Bamberger approved the Charity; knew the clients signed Releases; and knew Judge Bamberger believed the clients had been fairly compensated.
Since releases were in hand, Judge Bamberger approved attorneys’ fees. He knew he had several options concerning excess funds. Gallion recommended giving additional funds to the clients. In his discretion, Judge Bamberger distributed one-half of the remaining funds to the clients and held the other half pending potential claims in accordance with the Side Letter. Gallion, in good faith, believed the clients were fairly compensated. (From Judge Bamberger’s file, pages # KBA 2848, 2850 (Ex.18)
The KBA knew that Judge Bamberger’s file contained an interview given by David Schaefer that stated the plaintiffs’ attorneys, during the Mediation of the Settlement in April/May 2001, discussed putting left over monies [i.e. Excess funds] into a charity. This discussion took place in the presence of Mr. Schaefer and two other American Home Products attorneys. This, it should be noted, contradicts Judge Reeves’ aggregate settlement instruction and the government’s claim that the $200 million settlement was for only 440 clients. (From Judge Bamberger’s file, pages # KBA 2211, 2212 (Ex.19)
Mr. Schaefer’s memory is corroborated by David Helmers’ notation during Mediation concerning $50 million to Charity. The exhibit showing the reference was admitted in the first trial by Judge Bertlesman. Judge Reeves would not admit the exhibit, however he allowed Helmers to testify concerning the issue, but once Helmers could not identify who was present during the discussion, and Judge Reeves directed the jury to disregard the reference to $50 million. (Volume 13B, pages 48-61 (Ex.20)
According to Schaefer, the excess was discussed at mediation and this correlates with Judge Bamberger’s testimony that he was told at the May 9, 2001, Settlement meeting, in the presence of Schaefer, that indemnification was unlimited. Schaefer, at the criminal trial, testified that he did not recall a discussion concerning Unlimited Indemnification at the May 9, 2001, Settlement meeting among counsel and Judge Bamberger. (Volume 16A, pp. 32, 33 (Ex. 21))
Gallion proferred testimony at the trial concerning Mr. Vardaman’s credibility.

BY MR. ALMAND:
10 Q Mr. Gallion, I asked you were you aware of any information that would cause you to raise a question as to the credibility of Mr. Vardaman?
13 A Yes.
14 Q Do you remember that?
15 A Yes, I remember that question.
16 Q And the reason he would testify as he has in court?
A Yes. Q All right. And what was that? A Well, AH — the problem AHP had in this case, which is a problem that Mr. Vardaman’s office had, is that they gave a broad indemnification at the last minute for Dr. Duff. They gave a blanket indemnification, which they had not done for any other physicians. And it was an indemnification that was the subject of a dispute within their law office that whoever was asked to do the indemnification did it the night before the
PROFFER – MR. ALMAND 38
deposition of Dr. Duff. This was discussed with Mr. Chesley, this was something that he was well aware of, and he talked about this constantly, that this was a problem that they had, that the indemnification had no limits on it whatsoever. Then the reason — one of the reasons given for them not wanting to put in the settlement agreement the fact of the indemnification and all of the details, they wanted it done by side letter so it would not be disclosed that they had made this decision that they felt exposed the law firm. So consequently, they wanted us to assume the obligations outside of the settlement, and this was a problem for them.
(Vol. 28A, pp.37, 38 (Ex.22)

The Side Letter calling for Personal Indemnification was created by Stan Chesley and Jack Vardaman. Gallion was the unfortunate recipient of the ethical quagmire it created. Richard Robbins testified he had never seen a settlement agreement that made the attorneys representing the plaintiffs accept financial obligations. He faulted Vardaman in the first trial for putting the Appellees in that position. (Docket # 540, p. 108, 114 (Ex. 23)

Mr. Robbins testified: Case: 2:07-cr-00039 Docket # 519

p. 27 typically, this settlement process is a joint effort by the plaintiff and defense counsel …

Q. Contrary to what AHP did in this case by just walking away totally.
A. … AHP said were done here…. That was an unusual situation.

On cross examination Robbins testified, p. 73-76 :
Q. You said Vardaman knew better…. What did he know better?

A. It’s a certified class action at that point. It couldn’t be simply a discussion of 400 and something claimants. Mr. Varaman would have known that.

Q. Did you ever determine how many were in this class that was settled? ….

A. What I said was when you went into the mediation, it was a class action. Mr. Vardaman knew it was a class action. The outcome of the mediation was to pay 400 some odd people, have indemnification obligations, and decertify the class so there would no longer be a class…. All you would have to be dealing with were these individuals….
The way the settlement was structured was that the claims of the 440 were settled. The class, everybody else who may have a claim, was decertified….. And the lawyers agreed to indemnify AHP if other people brought claims… That’s the way the settlement was structured.
Q. OK. You said Mr. Vardaman misspoke or knew better?… Because he said that this case was settled for 440 people.
A. No…. what I said was his concept that he was only there on behalf of the 440 and he wasn’t dealing with a class action, that is wrong and he knows that is wrong. When he went into the settlement, there was a class action. You cannot ignore. … you can either deal with it by settling those class claims, or… by decertifying the class….
(Docket # 519, pp. 27, 73-76 (Ex. 24) & Docket # 540, pp. 96-98 (Ex.25)
The government’s claim that Ex. 3 was money allocated for the clients was a mistaken interpretation of the Settlement Letter per Kenneth Feinberg’s affidavit and the trial testimony of Tracey Curtis. Ms. Curtis saw a physician once in 1999. According to the government’s case and Judge Reeves opinion Ms. Curtis was entitled to $181,000 as shown on Ex. 3. (Vol. 2B, pp. 86-89 (Ex.26)
It was Chesley and the attorneys for American Home Products who fashioned the settlement requiring Decertification and Personal Indemnification obligations to the defendant (AHP) for future claims. Gallion and the other attorneys accepted the settlement. Judge Bamberger approved the settlement tendered by the parties which was negotiated by skilled attorneys and a nationally recognized expert in Class Action/ Mass Tort litigation. (Volume 4A, pages 54-57(Ex. 27)
Gallion does not contest the charges of ethical misconduct. He is contesting charges that the settlement was for 440 claimants. He did not steal monies negotiated for only 440 claimants. He was involved with the settlement of a complicated Mass Tort. He did not have criminal intent to defraud the clients. Judge Lisabeth Hughes Abramson was quoted in the news saying “There are a whole lot of more issues raised when attorneys are representing hundreds of clients. It’s just a different type of relationship than was envisioned 30 to 50 years ago.”
Civil litigation is pending to settle the dispute concerning the handling of settlement funds and retaining of legal fees. Medical evidence is necessary for a jury to decide whether the clients were or were not fairly compensated. Angela Ford in the criminal trial made a Motion to deny access to clients’ medical records. Judge Reeves granted the Motion citing the aggregate settlement as a matter of law ruling dictated that result. (Vol. 7A, pp. 2, 18, 19(Ex.28)
Judge Reeves, like Judge Wehr in the civil case, did not find the settlement to be complex. Judge Reeves determined that the Settlement Documents standing alone revealed that the settlement made in Boone County State Court was, as a matter of law, an Aggregate Settlement for 440 clients. The Settlement belonged to 440 clients, less a potential $7.5 million set aside. Judge Reeves would not allow testimony showing the $7.5 million limitation was related to attorney fees for defending potential claims filed by the Duff Class which had been dismissed as not settled. (Volume 13A, pages 66-69(Ex.29)
Judge Reeves invaded the province of the Jury. He instructed the Jury that the settlement was for 440 clients which was a fact disputed by the Defendants. Judge Reeves’ instruction followed Professor Erichson’s trial testimony disputed by the Defendants. (Volume 15A, pp. 46-48 (Ex. 30)
Prior to Mediation, AHP had made an offer of settlement of $20 million. As a result of Mediation, they settled 440 known claims and scattered to the wind some 60,000 potential claims of individuals in Kentucky for whom Dr. Duff had prescribed the diet drug medication. Vardaman testified he told the FBI that AHP wanted decertification to keep clients from coming out of the woodwork, suing AHP over the claims it had agreed on indemnify Dr. Duff. (Volume 3B, page 102 (Ex.31)
Professor Erichson gave no consideration to the fact that the Appellees agreed to indemnify some 60,000 potential claims against Dr. Duff for medical malpractice. (Vol. 18A, pp. 117-119 (Ex.32)
There was conflicting evidence concerning the Settlement mediated in May 2001. Conflicts in the testimony were not relevant to Judge Reeves’. In his opinion, Settlement Documents were dispositive on the law applicable to the Settlement.
Judge Reeves’ instruction to the Jury compelled a guilty verdict.
It was fundamental error to overlook and deny the significance of AHP’s requirement to decertify the Class Action in order to avoid giving Public Notice to the Duff Class of the existence of medical malpractice claims against Dr. Duff.
At the onset of the trial, prior to Opening Statement, Judge Reeves stated three times: “I disagree with that” in response to defense counsel commenting to the Court that Judge Bertlesman, in the first trial, had ruled it was a Class Action Settlement. (Vol. 2A, p. 46 & 69 (Ex.33) The trial judge has a duty to be impartial. Prejudging the nature of the settlement prior to hearing argument and evidence shows Judge Reeves was not impartial. Two trials by different Federal Judges disclosed factual disputes over the terms of the settlement that a jury was required to resolve.
Gallion was denied the right to offer expert testimony at trial. Richard Robbins testified in the first trial that the value of the 440 client’s claims did not exceed $50 million. (Docket # 540, p.100, 112,113 (Ex.34)
Mr. Robbins also testified that the Side Letter was poorly drafted and it made no sense for the agreement to call for Full Indemnity in the second paragraph, and by the way, in the last paragraph limit Indemnity to $7.5 million. He believed Gallion’s testimony was more credible that the $7.5 million was a limit on attorney fees. In any event it was a jury issue in the trial that 10 jurors voted to acquit the Defendants. (Docket # 540, pp. 105-107(Ex.35)

David Schaefer’s interview with the JCC concerning excess monies discussed during Mediation and David Helmer’s notation of “$50 million to Charity” call into question Judge Reeves matter of law instruction that the $200 million Aggregate Settlement was for 440 clients.
Mr.Chesley and Judge Bamberger were prosecution witnesses. Gallion did not tell Judge Bamberger the clients were thrilled with putting $20 million into a Charity. Documents corroborate Judge Bamberger relied on the advice of Mr. Chesley that funds remaining were Excess and could properly be given to Charity. It is of utmost importance to Gallion to show Judge Bamberger in his Judicial Discretion established the Charity. It was not an overt act by Gallion in furtherance of a Conspiracy. But for the extension of the Statute of Limitations by transactions in the Kentucky Fund for Healthy Living, Gallion has a viable argument that limitations would have bar the charges made in the Superceding Indictment against him.
All of the above raises a number of questions:
• Is it reasonable to believe Stan Chesley, Bill Gallion and American Home Products knew the $200 million settlement was only for 440 claimants? What did Mr. Chesley stand to gain by advising Judge Bamberger that Excess funds could be transferred to a Cy Pres trust?
• The Drug Co.’s lack of oversight and verification of the payment of settlement funds would subject them to civil liability had Ex. 3 in fact been settlement monies belonging to the 440 Clients.
• Are there insurance attorneys and claims agents in Kentucky who know of any settlement where the Insurance Co. wanted a Release but did not want to know the claimant was paid the settlement that had been made?
• Had Chesley known the settlement was only for 440 claimants why, then, was his participation in the settlement not criminally culpable?
• If there was a “conspiracy”, did he not participate in it?
• Why wasn’t Chesley indicted for wire fraud?
• Why was Judge Bertlesman, in the first trial, so inept that he did not see that the attorneys had stolen their clients’ money?
• Did Judge Bertlesman not understand the settlement was for only for 440 claimants?
The same fact witnesses testified in both trials concerning what was agreed to at the mediation meeting. Same fact witnesses disputed the meaning of Exhibit 3; however, in the second trial the Court interpreted the settlement document to mean the parties negotiated an Aggregate Settlement for only 440 clients.

The Petitioner is seeking relief from a 25-year prison sentence and $127 million Restitution Order. It is respectfully urged, thus, that the impropriety of the KBA’s interference in the trial of Gallion warrants an Order directing the KBA to provide the Petitioner with the unredacted billing records of Ms. Graham.

Respectfully submitted

_______________________
Michael R Dowling
PO Box 1689
Ashland, Kentucky 41105
dowlinglaw@msn.com
606 325 7682

The undersigned hereby certifies that a copy of this Petition was served by mail on John D. Meyers, Executive Director of the Kentucky Bar Association, 514 W. Main Street, Frankfort, Kentucky 40601-1812 on this the ___ day of September, 2013.

________________________
Michael R. Dowling
Attorney at Law
P.O. Box 1689
Ashland, Kentucky 41105
606 325 7682
Attorney for William Gallion

KENTUCKY SUPREME COURT ETHICS DECISIONS FOR AUGUST 2013

Friday, September 20th, 2013

The Supreme Court of Kentucky took disciplinary actions in the following matters noted below. The following pages were extracted from the August 2013 Monthly Summary of Published Decisions from Kentucky Supreme Court with links and more information on each of the cases.
ATTORNEY DISCIPLINE:
A. Kentucky Bar Association v. Thomas Edward Keating
2013-SC-000313-KB August 29, 2013
Opinion of the Court. All sitting; all concur. Keating represented a client in a personal injury matter that arose from a car accident. Keating told the client that the matter could take several years and to expect periods of inaction. During one point of the representation, the client was unable to reach Keating by telephone for several months. In November 2009, Keating told the client that the case had been settled; that she would be getting a settlement check soon; and because she had been so patient, Keating would advance her a check for $5,000. In November 2010, Keating admitted to the client that he failed to file her personal injury case in a timely manner. Without advising her to seek independent legal advice, Keating asked the client whether she would accept a promissory note from him in the amount of $35,000 to settle her potential legal malpractice case against him. The client accepted the offer. Thereafter, Keating failed to make monthly payments to the client.
The Inquiry Commission issued a five-count charge against Keating, and Keating failed to file an answer. The charge alleged Keating violated: (1) SCR 3.130-1.3; (2) SCR 3.130-1.4(a) (in effect through July 15, 2009) and SCR 3.130-1.4(a)(3); (3) SCR 3.130-1.8(h)(2); (4) SCR 3.130-8.3(c) (in effect through July 15, 2009) and current SCR 3.130-8.4(c); and (5) SCR 3.130-8.1(b). The matter was submitted to the Board as a default case pursuant to SCR 3.210(1). The Board unanimously found Keating guilty on all five counts and recommended that the Court suspend Keating for eighteen months and set the suspension to run consecutively to his current suspension. The Board also recommended that Keating be referred to KYLAP. The Supreme Court agreed with the Board’s findings and adopted its recommendation.
B. Barbara D. Bonar v. Kentucky Bar Association
2013-SC-000335-KB August 29, 2013
Opinion of the Court. Minton, C.J.; Abramson, Cunningham, Keller, Scott and Venters, JJ., concur. Noble, J., not sitting. Bonar moved the Court to issue a public reprimand for her admitted violations arising from two separate disciplinary files. With respect to the first matter, which involved Bonar’s representation of clients against the Roman Catholic Diocese of Covington, the Inquiry Commission issued a four-count charge, including allegations that she violated (SCR) 3.130-1.7(b) (a lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client, a third party, or by the lawyer’s own interest); SCR 3.130-1.9(a) (prohibiting a lawyer who has formerly represented a client in a matter from representing another person in the same or substantially similar matter); SCR 3.130-1.16(a)(1) (a lawyer shall withdraw from representing a client if the representation will result in a violation of the Rules of Professional Conduct); and SCR 3.130-1.3 (a lawyer shall act with reasonable promptness and diligence). Bonar admitted that her conduct violated SCR 3.130-1.7(b) and SCR 3.130-1.9(a), but claimed the violations of SCR 3.130-1.16(a)(1) and SCR 3.130- 1.3 were redundant.
The second disciplinary file arose from Bonar’s conduct while serving as President of the Kentucky Bar Association. Bonar dismissed four members of the Ethics Commission with personal and/or professional connections with the Diocese case before their terms had expired. An investigation by the Board of Governors revealed that Bonar made a series of false and misleading representations concerning her knowledge and actions relating to the controversial dismissals. The Inquiry Commission issued a one-count charge against Bonar, alleging that she violated SCR 3.130(8.3)(c) (lawyers shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation). Bonar admitted that her conduct violated SCR 3.130(8.3)(c).
Bonar moved the Court for a public reprimand based on her admitted violation of SCR 3.130-1.7(b), SCR 3.130-1.9(a), and SCR 3.130(8.3)(c). The KBA did not object to the sanction, which was negotiated pursuant to SCR 3.480(2). Bonar and the KBA also filed a joint motion to impose costs in the amount of $22,500. The Court agreed that the sanction was appropriate for Bonar’s misconduct. Accordingly, Bonar was publicly reprimanded and ordered to pay $22,500 in costs associated with the disciplinary proceedings.
C. Kent D. Mitchner v. Kentucky Bar Association
2013-SC-000339-KB August 29, 2013
Opinion of the Court. All sitting; all concur. Mitchner was charged in two separate disciplinary files for violating the Rules of Professional Conduct. The first charge stemmed from Mitchner’s representation of a client in a divorce and custody matter. The Inquiry Commission charged Mitchner with violating: (1) SCR 3.130-1.3 for failing to diligently represent his client in his child custody, child support and divorce matter when he let the matter sit for two and one-half years without filing necessary pleadings to move the matter forward; (2) SCR 3.130-1.4(a) by failing to respond to telephone calls, emails, and letters from his client; (3) SCR 3.130-1.4(b) for failing to provide copies of pleadings to the client and failing to explain the matter to the extent reasonably necessary to enable his client to make decisions regarding the representation; and (4) SCR 3.130-1.16(d) for failing to provide copies of all materials (notes, financial information, etc.) that were part of the client file.
The second charge stemmed from Mitchner’s representation of a client in a child custody modification proceeding. The Inquiry Commission charged Movant with violating: (1) SCR 3.130-1.3 for failing to provide any legal services to his client in the time frame he advised his client the work would begin; (2) SCR 3.130- 1.15(a) for placing the unearned advance fee payment into a general operating account rather than his escrow account; (3) SCR 3.130-1.16(d) for failing to refund the client’s unearned advance fee payment for approximately twenty (20) months after termination of the representation; and (4) SCR 3.130-8.1(b) by failing to provide the KBA the requested information regarding his handling of the client’s funds.
Mitchner admitted to the above violations and negotiated a sanction with Bar Counsel for a 30-day suspension, probated for one year upon the condition that he attend and successfully complete the KBA’s Ethics and Professionalism Enhancement Program (“EPEP”). After reviewing the record and the applicable law, the Court found the negotiated sanction to be appropriate and suspended Mitchner from the practice of law for 30 days, probated for one year
D. Christopher L. Stansbury v. Kentucky Bar Association
2013-SC-000418-KB August 29, 2013
Opinion of the Court. All sitting; all concur. Stansbury moved the Court to sanction him for his violations of Supreme Court Rules (SCR) 3.130-1.3 (lack of diligence and/or promptness); SCR 3.130-1.4(a)(3) (failure to communicate with client); SCR 3.130-1.4(a)(4) (failure to comply with client’s request for information); SCR 3.130-1.4(b) (failure to explain matter to client); SCR 3.130- 3.2 (failure to expedite litigation); SCR 3.130-8.1(a) (making false statements in connection with a disciplinary matter); and SCR 3.130-8.4(c) engaging in acts of fraud, deceit, dishonesty or misrepresentation). The violations arose from two separate disciplinary files. Stansbury moved the Court to enter an order suspending him for 181 days, with 61 days to be served and the balance probated upon the condition that he successfully complete the next Ethics and Professionalism Enhancement Program, at his own expenses, within one year of the entry of the order. The KBA did not object to the proposed discipline, which was negotiated pursuant to SCR 3.480(2). The Court agreed that the proposed consensual discipline was appropriate and sanctioned Stansbury accordingly
August 2013 Monthly Case Summary of Published Decisions for the Kentucky Supreme Court
Posted: 19 Sep 2013 06:21 PM PDT

Click here for the August 2013 topical summaries of published decisions from the Supreme Court of Kentucky (SCOKY) which contains topical case summaries and attorney disciplinary decisions for this month.
Click here for list of all summaries for SCOKY by year and month at AOC.
Tort, insurance and civil cases:
TORTS.
Mildred Abbott, et al. v. Stanley M. Chesley, et al.
2011-SC-000291-DG
August 29, 2013
Opinion of the Court by Justice Venters. Minton, C.J., Abramson, Keller, Noble and Scott, JJ., concur. Cunningham, J., not sitting.
Questions presented: 1) Whether Appellants were entitled to a partial summary judgment against three attorneys responsible for representing them in an underlying litigation for violating their fiduciary duties; 2) Whether the Court of Appeals properly declined to review the circuit court’s denial of summary judgment against another attorney that represented Appellants in the underlying litigation; 3) Whether joint and several liability could be imposed on the three attorneys adjudged liable for damages; 4) Whether the Court of Appeals erred by failing to transfer the case from the Boone Circuit Court to the Fayette Circuit Court; and 5) Whether the trial court erred by deducting undocumented expenses from Appellants’ monetary judgment.
Held: 1) The trial court correctly granted partial summary judgment against three of the attorneys that represented Appellants in the underlying litigation because they violated their fiduciary duties to Appellants by collectively withholding attorneys’ fees from Appellants’ settlement in excess of the agreed to percentage provided for in their contingency fee agreements; 2) The Court of Appeals did not err in declining to review the denial of summary judgment against the attorney that secured the settlement for Appellants in the underlying litigation because a denial of a motion for summary judgment is interlocutory and not appealable; 3) The three attorneys adjudged liable for monetary damages may be held jointly and severally liable because they were engaged in a joint enterprise; 4) The Boone Circuit Court did not abuse its discretion by denying Appellants’ motion for transfer to the Fayette Circuit Court because after the case was transferred from Fayette Circuit Court to the Boone Circuit Court, the “receiving” judge, pursuant to KRS 452.090, retained adjudicative authority over the case; 5) The deduction of the undocumented expenses from Appellants’ monetary judgment was not ripe for summary judgment because questions of fact remain and therefore the trial court improperly included them in the partial summary judgment against the three attorneys adjudged liable for breaching their fiduciary duties.

KY Human Rights Commission issues September 2013 rulings on discrimination complaints

Thursday, September 19th, 2013

Commission on Human Rights

Press Release Date: Thursday, September 19, 2013
Contact Information: Victoria Stephens
Mobile – 502.641.0760
Commission Headquarters – 1.800.292.5566

The Kentucky Commission on Human Rights Board of Commissioners met today, Thursday, Sept. 19, at Louisville headquarters to rule on discrimination complaints for the Commonwealth of Kentucky.

The commission ruled to approve one conciliation agreement to settle a case in which there had been a determination of probable cause to believe illegal discrimination may have occurred.

The commission approved two case withdrawals giving complainants the right to file private suits, approved two case withdrawals resolved with private settlements, and dismissed eight complaints with findings of no probable cause to evidence that discrimination occurred. The commission successfully mediated three complaints with undisclosed settlements.

Conciliation agreements are similar to settlements and are negotiated by commission investigative and legal staff. The agreements resolve the discrimination complaints. The following is the summary of the conciliation agreement approved at today’s meeting:

Randi Reyna v. Melodee Thacker, in South Shore, Ky.: On Oct. 23, 2012, Randi Reyna alleged to the commission that she was the victim of unlawful discrimination based on disability in the area of housing. This would be a violation of the Kentucky Civil Rights Act (Kentucky Revised Statutes Chapter 344) and the United States Fair Housing Act. Reyna said she requested from her landlord, Thacker, the reasonable accommodation of being allowed to have a service animal, necessitated by a disability, live with her on the property. Reyna claimed that Thacker made unlawful requirements for proof and special insurance, for example, in order to consider the request. On March 15, 2013, the commission found probable cause to believe unlawful discrimination may have occurred. The parties chose to resolve the matter with a conciliation agreement rather than move forward with further litigation. Thacker denied any wrongdoing or violation of the law. She compensated Reyna in the amount of $3,500, agreed that she does and will comply with antidiscrimination law, and she agreed to undergo civil rights compliance training and submit to compliance monitoring for three years by the commission.

The Kentucky Civil Rights Act makes it illegal to discriminate against people in the areas of employment, financial transactions, housing and public accommodations. Discrimination is prohibited based on race, color, religion, national origin, gender, and disability. In employment, discrimination is further prohibited on the basis of age (40-years and over) and tobacco-smoking status. In housing, discrimination is further prohibited based on familial status, which protects people with children in the household under the age of 18-years old and protects women who are pregnant.

For more information, contact the commission at 1.800.292.5566. For details about civil rights and commission activities, visit the website at kchr.ky.gov. For news about civil rights and information pertaining to protected classes, visit the Kentucky Commission on Human Rights Facebook and Twitter sites.

U.S. SUPREME COURT JUSTICE KAGAN SPEAKS AT UK COLLEGE OF LAW

Thursday, September 19th, 2013

LEXINGTON, Ky. (AP) — University of Kentucky law students will get to spend some time hearing insights from the nation’s newest member of the U.S. Supreme Court.

Justice Elena Kagan is scheduled to speak on the Lexington campus Thursday evening.

Kagan, at age 53, is the youngest member of the nation’s highest court. She was appointed in 2010 by President Barack Obama. She previously served as solicitor general of the United States and dean of Harvard Law School, among other accomplishments.

Her visit is part of a UK College of Law lecture series.

Justice Clarence Thomas spoke at UK last year.

The Trial Court Erred by Denying Motion to Suppress the drug-related evidence seized during a routine traffic stop because its discovery was the product of a custodial detainment which extended beyond the scope of the original purpose of the traffic stop

Wednesday, September 18th, 2013

Turley v. Commonwealth (Ky., 2013) 2011-SC-000276-MR May 23, 2013

As grounds for relief Appellant contends, principally, that the trial court erred by denying his motion to suppress the drug-related evidence seized during a routine traffic stop because its discovery was the product of a custodial detainment which extended beyond the scope of the original purpose of the traffic stop in violation of the Fourth Amendment. See Florida v. Royer, 460 U.S. 491, 500 (1983) (“[A]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.”).

Because we conclude that the evidence was discovered after the purpose of the traffic stop had concluded, and no exception applied so as to permit the police officer to extend his encounter with Appellant beyond that time, we hold that the trial court erred in failing to suppress the illegally obtained drug evidence. Accordingly, we reverse Appellant’s conviction and sentence and remand for additional proceedings consistent with this opinion.

Moreover, in situations as we address here, many citizens do not perceive or understand a transition from a Terry-detention to a consensual encounter. Those who do must then make a decision that, as this case illustrates, can confound lawyers and judges: does the motorist risk being charged with the crime of resisting arrest or escape by assuming he is at liberty to leave and then doing so? Or, does he remain in place and create the appearance that he has consented to the continued intrusion upon his liberty? The stakes are too high for this Court to condone a police practice that fosters ambiguity about whether a suspect is “in custody.” Our view in this regard is consistent with the legislative purpose of KRS 431.025, which requires an officer making an arrest to “inform the person about to be arrested of the intention to arrest him, and of the offense for which he is being arrested.

SUPREME COURT LIKELY TO RULE ON OBAMACARE SECTION RE: CONTRACEPTIVES

Wednesday, September 18th, 2013

federal appeals court ruled on Tuesday that the owners of a Michigan company do not have legal standing to seek an exemption from providing certain forms of contraception required under Obamacare that company owners consider religiously offensive and immoral.

The ruling came in a lawsuit filed by the owners of Autocam Corp. and Autocam Medical asking the courts to block a government requirement that the company provide their 661 US-based employees with access to abortifacients and other forms of contraception that violate the owners’ religious beliefs.

The companies are owned by John Kennedy and other members of his family, who are devout members of the Roman Catholic Church. They say they seek to run their businesses in full accord with their Christian beliefs – including a commitment to provide their workers with medical benefits.

RECOMMENDED: Obamacare facts: How will the law affect you?

But they argue that the Obamacare contraception requirement forces them to pay for birth-control methods that are incompatible with their faith. The mandate requires them to choose between adhering to their Catholic beliefs or paying the Internal Revenue Service $19 million in annual fines.

The ruling by the Sixth Circuit Court of Appeals marks the third decision by a federal appeals court in an ongoing legal battle by more than 50 companies challenging the Obamacare contraception mandate on religious grounds.

So far two appeals courts have upheld the contraception mandate, while a third has agreed to a corporation’s request to block it.

Want your top political issues explained? Get customized DC Decoder updates.

The appeals-court split makes it likely that the US Supreme Court will eventually take up the issue.

The three-judge panel ruled that Mr. Kennedy and other members of his family cannot challenge the contraception mandate because it imposes a requirement on their corporations rather than on them personally.

After eliminating the Kennedys from the litigation, the court went on to rule that the lawsuit could not proceed on behalf of Autocam because a for-profit corporation is not a person capable of exercising the First Amendment right to free exercise of religion.

“The decision to comply with the mandate falls on Autocam, not the Kennedys,” the court said. “For this reason, the Kennedys cannot bring their claims in their individual capacities under [the Religious Freedom Restoration Act (RFRA)], nor can Autocam assert the Kennedys’ claims on their behalf.”

The court next addressed whether RFRA protects a corporation from government infringement of religious rights. The Sixth Circuit panel noted that RFRA established a right to sue for any “person” whose religious exercise has been burdened.

“We agree with the government that Autocam is not a ‘person’ capable of ‘religious exercise’ as intended by RFRA,” the panel said.

The appeals court said that if it agreed with lawyers for Autocam, such a ruling would “lead to a significant expansion of the scope of the rights the Free Exercise Clause protected.”

The court noted that the Supreme Court has recognized that sole proprietors enjoy the right to free exercise of religion. But it said the high court had “never recognized similar rights on behalf of corporations pursuing secular ends for profit.”

Lawyers for Autocam argued that the Supreme Court ruled in the 2010 case Citizens United v. Federal Election Commission that First Amendment free-speech protections apply to corporations. The free exercise of religion clause is also found in the First Amendment and should also apply to corporations, they said.

The appeals court rejected the argument. There was prior case law supporting the free-speech decision, the panel said, but no similar body of law supporting the view that a for-profit corporation could be deemed a “person” under RFRA.

The American Civil Liberties Union praised the panel’s decision.

“Religious liberty is a fundamental right, and everyone should be free to practice their beliefs as they see fit,” Brigitte Amiri of the ACLU Reproductive Freedom Project said in a statement.

“However, companies cannot break the law by withholding coverage for health services just because they have a religious objection,” Ms. Amiri said. “Nearly every woman uses contraception at some point in her life. This law ensures employers do not discriminate against their workers by making it difficult for them to obtain the care they need.”

The case is Autocam Corp. v. Sebelius (12-2673).

FEN PHEN DEFENDANT FILES BRIEF FOR RECONSIDERATION BY KY. SUP. CT. IN BOONE COUNTY CASE

Tuesday, September 17th, 2013

BRIEF FILED:

SUPREME COURT OF KENTUCKY
FILE NO. 2011-SC-000291-D

MILDRED ABBOTT, ET AL APPELLANTS
VS. PETITION FOR REHEARING
STANLEY M. CHESLEY, ET AL APPELLEES
ON REVIEW FROM THE COURT OF APPEALS,
CASE NOS. 2007-CA-1971, 2007-CA-1981, 2007-CA-2173
AND 2007-CA-2174, BOONE CIRCUIT COURT NO. 05-CI-OO436
COME NOW APPELLEES, GALLION AND CUNNINGHAM, BY COUNSEL,
AND RESPECTFULLY SUBMIT THE FOLLOWING PETITION FOR REHEARING.
. The Court states that the $200 million settlement was for 440 clients with a reserve of $7.5 million for future claims. How does the Court reach that conclusion? The Court never mentions Ex.3 that the Appellants alleged was the “smoking gun” that entitled them to the $200 million settlement. The Appellees disputed the Appellants’ allegations in both criminal trials.
There is no Record before the Court showing American Home Products (AHP) attorneys and the Appellees disagreement over the law and the interpretation of the Settlement and Side Letters concerning the extent of the Appellees’ undertaking to indemnify AHP for claims made by the Duff Class and the meaning of Exhibit 3.
Judge Reeves’ comment at trial is not of Record: “For example, Exhibit 3, the that’s been discussed so much in Exhibit 3. There’s been lots of conflicting testimony about this particular paragraph.” clause Ordinarily jurors decide conflicts in the evidence.
The contingency fee agreements and the receipts and disbursements were undisputed. These documents had no bearing on the dispute surrounding Ex. 3 and on the interpretation of the Settlement and Side Letters. The express language of the Settlement Letter, quoted below, does not support the Court’s interpretation of the Settlement Letter.
Kenneth Feinberg opined that the protocol necessary to implement the Settlement and reasonable inferences from the language of the Settlement Letter mean that settlement funds were provided for other purposes than compensating the known clients.
Kenneth Feinberg opined that the purpose for Ex. 3 was set out in paragraphs 7, 10 and 14. If the allocation in Ex. 3 was the Clients’ money, what was the significance in the Settlement Letter of the differences noted in the terms “allocation” and “appropriate” in paragraphs 5 and 6? Paragraph 5 says Ex. 3 concerned the allocation of the $200 million settlement fund, not its distribution. Paragraph 6 of the Settlement Letter states, “The settling attorneys [Appellees] represent that the appropriate amounts will be distributed promptly to the settling claimants.” In the Settlement Letter, paragraph 14 (a) (1) says that Ex. 3 “will be prepared, signed and notarized by the settling attorneys on or before the date that you first submit a batch of executed releases…and will be disclosed to AHP at such time.” Ex. 3 was not notarized.
How then would the Appellees know what the clients would receive on Ex. 3 prior to the clients signing a release? The Settlement Letter itself says AHP wanted no responsibility for distributing settlement funds. They did not even want to know how the funds were distributed. AHP just walked away totally from the settlement, once they obtained Releases and funded the Settlement.
According to the Court’s Opinion AHP should be liable to the clients for entrusting settlement funds to the attorneys that the clients, who having no notice, did not receive . Was it really AHP’s intent to give 440 clients virtually $200 million dollars without verifying the clients received the money? That is the reasonable deduction one must make from the Courts opinion.
The Record before the Court does not show, and it should, the comparison of the settlements in Boone Co. with the Fairness Values established in the National Settlement.
Why would AHP settle 263 claims for $95,000 in Boone County, when they were settling comparable claims for $500.00 in the National Settlement? Where was the $200 million dollars going if not just for 440 clients? The Appellees are entitled to a jury trial to answer this question.
The State Court Judge certified a class action against Dr. Duff for Medical Malpractice. AHP agreed to indemnify Dr. Duff for claims against him. Did AHP anticipate it would be indemnifying Dr. Duff for malpractice claims?
The Appellees evidence would substantiate the following details of the Settlement.
The parties, in April/May 2001, went to Mediation in order to settle a Certified Class Action. They did not go to Mediation to settle an Aggregate Settlement. Client consent was not required. The Clients knew the value of their claims in the National Settlement and willing signed Releases for settlements greatly exceeding National Settlement Fairness Values.
A trial date had been scheduled. Notice had not been given to some 60,000 Kentucky residents who had taken the diet drugs prescribed by Dr. Duff. Had the case not settled, notice would have been given to the 60,000. Stan Chesley used the malpractice claims as leverage to increase the settlement demands.
There is no record before the Court, and there should be, explaining what the Settlement funds were for besides the 440 known clients
Testimony in the second trial confirmed by Ms. Madonick that prior to mediation Stan Chesley and Jack Vardaman had reached a tentative agreement that the case would be settled for $200 million. AHP had a problem. The solution fashioned by Stan Chesley and Jack Vardaman, counsel for AHP was two- fold:
Decertification of the Class Action; Personal Indemnification by the Plaintiff Attorneys for claims made against Dr. Duff for a period of one year.
The troubling Side Letter calling for Personal Indemnification by the Appellees was created by Stan Chesley and Jack Vardaman. Gallion was the unfortunate recipient of the ethical quagmire it created. Richard Robbins testified in the first trial that he had never seen a settlement agreement that made the Attorneys representing the plaintiffs accept financial obligations. He faulted Vardaman in the first trial for putting the Appellees in that position. (Docket # 540, p. 108, 114)
Jack Vardaman testified in the second trial that they wanted Decertification to prevent Notice from going out to Kentucky residents of the malpractice claims certified against Dr. Duff:”…that would bring more plaintiffs out of the woodwork…And so if you are going to have to give notice, I think that’s one of the–one of the problems that we had in the case.”
Judge Reeves misinterpreted paragraph 3 of the Settlement Letter, saying the Settlement Letter only provided compensation for 440 known clients. The Settlement Letter set out three groups of Settling Claimants. The “which” in paragraph 3 in the Settlement Letter referred to by Judge Reeves covers the known clients of the Appellees who have opted out of the National Settlement. There are two additional groups of Settling Claimants, most prominently including the Malpractice claims against Dr.Duff Class, feared by Mr. Vardaman from “coming out of the woodwork” that were not compensable in the National Settlement.
The Settlement Letter required Releases to be provided by September 1. This afforded the Appellees four months to obtain Releases. The Duff Class Indemnity obligations ended in June 2002. The National Settlement was approved on appeal in January 2002. The settlement itself was structured to provide Excess Funds if the National Settlement on appeal was affirmed and if no claims were filed by the Duff Class.
The Record before the Court does not show, and it should, excess funds was discussed at the Mediation by the plaintiffs’ counsel in the presence of David Schaefer and two other Counsel for AHP which was corroborated by a notation of $50 million to Charity made at Mediation by David Helmers.
The documents saying this were created prior to litigation when there was no reason to fabricate. These documents support a finding of fact that the settlement in Boone County was not just for 440 clients.
In a meeting on 2/28/02, Gallion informed Ms. Gosnell of the details of the Boone County Settlement: the fee was $100 million divided among five law firms; clients received approximately $50 million; there would be a second distribution to the clients; there were potentially excess funds for promoting health issues.
The Appellees case, if permitted, would establish the following.
Several months after this meeting Ms. Gosnell, in reviewing the Settlement Letter and Ex. 3, concluded (and the Court accepted her conclusions) that Ex. 3 was money directly allocated and belonging to the 440 clients. Gosnell’s interpretation was inaccurate. It was made without knowledge of the medical conditions of the clients, the Fairness Values of their claims in the National Settlement, and the criteria for evaluating claims used by the Appellees that corresponded with the criteria used in the National Settlement. Claims were valued individually on a one-to-one basis. They were not grouped in the manner shown on Ex.3. Age was a factor in the Boone County settlements; age was not a factor in grouping claims on Ex. 3.
The Record does not show, and it should, that David Helmers prepared Ex. 3 in about 1 hour. Is it reasonable to believe that these 440 claims would be properly addressed in one hour?
In disbarment proceedings the Court did not know the Appellees’ explanation of the Settlement. AHP attorneys’ version of what was agreed to was not challenged. The Appellees challenged Mr. Vardaman’s testimony in both criminal trials that the allocations on Ex. 3 were monies intended for 440 clients.
The universe where these disputes occurred was comprised of the small group of individuals present at the Mediation meetings on April 30 and May 1, 2001. The parties went to Mediation to settle a Certified Class Action. A trial date had been scheduled. AHP had opposed the Appellees’ efforts to give Notice to some 60,000 Kentucky residents who had taken the diet drugs prescribed by Dr. Duff.
The Record before the court does not show that Tracey Curtis, who testified for the government, saw a physician only one time in connection with the diet drug. Ms. Curtis was allocated $181,000 in Ex.3.
In a fair jury trial in Covington, 10 jurors voted to acquit the Appellees of fraud (i.e., of stealing their clients’ money). The Court is asked to take Judicial Notice of the juror split in this Covington trial. The Appellees contend that the trial that convicted them was not fair. Their conviction will be challenged in post-conviction proceedings.
The Record before the Court is devoid of the details of the Boone County Settlement. The Appellees were indicted by the United States in June 2007 for not following Class Action law. There was a plenary trial lasting several weeks. It is beyond dispute that this trial where 10 jurors were unable to find the Appellees guilty of fraud shows the existence of genuine issues of fact concerning what the parties agreed to at the Mediation.
The same fact witnesses describing what occurred during Mediation testified in both trials disputing the interpretation of the agreements and the meaning and purpose of Ex.3. Apart from legal rulings, the principal difference in the second trial was the introduction of the Disbarment Orders and the testimony of the Kentucky Bar Counsel.
The Court, on page 9 of its Opinion, makes findings that the Appellees negotiated a $200 million settlement for 440 clients and knowingly engaged in willful misconduct to steal clients’ settlement funds—and the Court does so without giving the Appellees an opportunity to be heard. AHP and the Appellees gave diametrically opposed testimony concerning the Settlement and Side Letters and concerning what the parties had agreed to. Where there is diametrically opposed testimony, it goes to a jury to decide. How can this not be a jury issue?
The Court writes: “It is beyond rational dispute that CGM breached their fee agreements with Appellants by claiming excessive fees and, in doing so, that CGM failed to ensure that each Appellant received his or her share of the settlement.”
The Court’s statement decides a fact disputed in both criminal trials. In the first trial that was fair the government did not establish the truth of what the court says is beyond rational dispute. There were facts on the Defendants side that caused the mistrial. For the Court to decide that the $200 million settlement was an aggregate settlement for only 440 clients without a trial is a Miscarriage of Justice.
If the facts recited by the Court on page 9 of its Opinion were true, there would be no need to address issues of fiduciary duty or contract law. Were this true and Gallion and Chesley both knew they negotiated a $200 million settlement for only 440 clients, they belong in prison. It would not be a question of fiduciary duty or contract law, its simply stealing . That’s what Professor Erichson, whose opinion Judge Reeves would not allow to be challenged, testified to in the trial that convicted the Appellees. In Kenneth Feinberg’s opinion Professor Erichson did not know what he was talking about.
If an attorney settles a claim for a $10,000 and tells the client it was settled for $5,000 that is a just plain stealing. The contingency fee contract issue would be unnecessary. Whether the clients were informed or not informed would not matter. How the settlement funds were apportioned would not matter. An attorney who steals money from a client is not entitled to a fee. A party guilty of fraud forfeits all rights and benefit from the transaction surrounding the fraud.
The Record does not show the cross examination of Professor Erichson or the testimony given by Richard Robbins in the first trial.
Professor Erichson testified he did not understand the Side Letter, i.e., Indemnification that was an essential condition of the Settlement Letter. Indemnification was to solve AHP’s problem. AHP had given Dr. Duff unlimited indemnity.
Richard Robbins testified at the first trial concerning the Side Letter: Docket # 540, pp 105,107. What struck me about this letter is, it’s not very well written…. Williams & Connolly is one of the best law firms in the country. I don’t have a full indemnity that is in the second paragraph in the letter and then just throw in , oh, by the way, its limited to $7.5 million. Particularly doesn’t make sense if you’re paying an extra $150 million to settle the case but to limit the indemnity to 7.5 million. In the second trial there was confusion over who prepared the Side Letter.
Mr. Robbins testified: Case: 2:07-cr-00039 Docket # 519
Q. Contrary to what AHP did in this case by just walking away totally.
A. … AHP said were done here…. That was an unusual situation.
On cross examination Robbins testified, p. 73-76 :
A. What I said was when you went into the mediation, it was a class action. Mr. Vardaman knew it was a class action. The outcome of the mediation was to pay 400 some odd people, have indemnification obligations, and decertify the class so there would no longer be a class…. All you would have to be
dealing with were these individuals….The way the settlement was structured was that the claims of the 440 were settled. The class, everybody else who may have a claim, was decertified….. And the lawyers agreed to indemnify AHP if other people brought claims… That’s the way the settlement was structured.
Q. OK. You said Mr. Vardaman misspoke or knew better?… Because he said that this case was settled for 440 people.
A. No…. what I said was his concept that he was only there on behalf of the 440 and he wasn’t dealing with a class action, that is wrong and he knows that is wrong. When he went into the settlement, there was a class action. You can not ignore. … you can either deal with it by settling those class claims, or… by decertifying the class….
Q. What did these claimants and their attorneys have to do to get $150 million released to them?
A. They had to get releases of a certain number of people. When you got releases from the settling claimants, from all of them in 2A and half of them in 2B, you got $150 million. It doesn’t say of course, you have to pay those people those amounts…. It’s a payment mechanism.
A. …you can’t possibly know what should be paid to each up front. AHP is making it very clear they did not care what you were paying each person. Id. 116
A. … And AHP, in the Side letter , was saying if he’s sued, we’re responsible, and you three guys are responsible for that. They were buying peace in Kentucky by paying money to these three gentlemen. They were not only buying peace with these 431 people, they were buying peace period, in Kentucky is how I read the settlement and how it was explained as I read the documents.
Q. Now was there any limitation placed on this Indemnification ?
A. Well, as I interpret this, and as I have read testimony on it and reading it in context, there’s a limit on the indemnification for attorneys’ fee and expenses of $7.5 million.
Professor Erichson testified he did not know, one way or another, whether the medical malpractice claims or consumer product claims against Dr. Duff were settled by the National ClassAction. The 60,000 members of the Duff Class that AHP scattered to the wind by decertifying the Class were of no importance to Professor Erichson or to the government for that matter. The most critical part of Feinberg and Robbins opinions was the interpretation of the Settlement Letter that addressed Contract Language and the purpose of Ex. 3 not whether it was an Aggregate or Class Action settlement.
What is the significance of the near acquittal in the first trial, in the face of horrid adverse pre-trial publicity? Contrary to this Court, ten jurors and Judge Bertlesman did not believe the $200 million settlement was for only 440 clients. Was Judge Bertlesman so inept he did not see the Appellees stole their Clients money? There remain genuine issues of fact for a jury to decide regarding the distribution of the $200 million settlement.
For the reasons stated in this Petition, the Court’s decision to affirm Judge Wehr’s Summary Judgment denies the Appellees Due Process of Law and Equal Protection of the Law under the 14th Amendment of the United States Constitution. Truax v Corrigan, 257 US 312, 331, 425 S.Ct. 1234, 66 L.Ed. 2d 254 (1921). The decision reversing the Court of Appeals is manifestly unjust. Durham v Copley, Ky. 818 S.W.2d 610 (1991)
.
RESPECTFULLY SUBMITTED
MICHAEL R. DOWLING
ATTORNEY AT LAW

EVIDENCE OF OUT OF STATE CONVICTION NOT ADMISSIBLE IF UNCERTIFIED…HEARSAY RULE APPLIES

Tuesday, September 17th, 2013

Magyar v. Commonwealth (Ky. App., 2013) 2011-CA-001892-MR May 24, 2013

Next, Magyar claims the trial court abused its discretion by admitting into evidence uncertified court documents from Ohio during the sentencing phase of his trial, thereby violating KRS 422.040 and the rule against hearsay. We agree.

Magyar preserved this issue for review by objecting to the introduction of the Ohio court documents at trial, thus we review for an abuse of discretion. See Meece v. Commonwealth, 348 S.W.3d 627, 645-46 (Ky. 2011).

KRS 422.040 requires that out of state records and judicial proceedings be certified by the presiding judge of that court in order to be given full faith and credit in a Kentucky court. The Commonwealth argues the Ohio records were admissible under Hall v. Commonwealth,817 S.W.2d 228 (Ky. 1991), in which the Supreme Court of Kentucky held that certified Kentucky State Police computer printouts were admissible during the sentencing phase of the trial as proof of a defendant’s prior convictions. The court in Hall stressed that the sentencing phase of trial was governed by KRS 532.055, which permits the admission of background information that assists the jury in its penalty-fixing responsibility. Id. at 229. Due to KRS 532.055, the strict proof requirements normally affixed to evidence did not apply during sentencing proceedings. Id. The court emphasized that the accuracy of the printouts was not challenged, and the printouts were introduced through the testimony of a probation officer who stated the record was kept in the ordinary course of business of the state police. Id. at 230. As a result, the court determined the record fell within the business record exception to the hearsay rule. Id. See also KRE 803(6) (records kept in the ordinary course of a regularly conducted business activity are admissible hearsay exceptions).

Hall was distinguished in Robinson v. Commonwealth, 926 S.W.2d 853 (Ky. 1996), in which our highest court determined that a computer printout from Ohio listing the defendant’s convictions and dismissed charges was erroneous and cause for a new sentencing proceeding. The court acknowledged that, as in Hall, the Ohio records were certified, but noted that the records contained dismissed charges, thereby violating KRS 532.055(2), which only permits the introduction of prior convictions. Id. at 854. The court further distinguished Hall by pointing out that the certified records in Hall were introduced by a Kentucky state police officer with knowledge of their authenticity and the manner in which the printouts were compiled and kept in the ordinary course of business. Id. In Robinson, the Ohio records were introduced by the investigating officer in the Kentucky case, who had no knowledge of the Ohio records’ authenticity or manner in which the printouts were compiled or maintained. Id.

We find the circumstances of this case analogous to Robinson. Most important to this issue, the Ohio records were not certified, and thus their admission violated KRS 422.040. Additionally, the Ohio records were introduced by Magyar’s probation officer from Kentucky, who did not possess knowledge of their authenticity or the manner in which they were compiled or maintained. Therefore, the records do not fall within the business records exception of KRE 803(6). The Commonwealth asserts that any error was harmless because Magyar’s probation officer could properly testify that Magyar was on probation at the time he committed the assault. However, this argument overlooks the difference between evidence of a defendant’s probation status and evidence of the defendant’s specific prior convictions. Thus, we adhere to the reasoning set forth in Robinson and reiterate, “that to allow any further relaxation in the rules of evidence is inappropriate and dangerous to both our system of justice and the right of a defendant to have only admissible evidence presented to the jury.” 926 S.W.2d at 854. Accordingly, the trial court erred by admitting this evidence during the sentencing proceeding, and we remand the matter with instructions to conduct a new sentencing proceeding.

Gwen Billingsley

DNA EVIDENCE….CONDITIONS THAT REQUIRE RELIEF TO DEFENDANT

Tuesday, September 17th, 2013

BEFORE: ACREE, CHIEF JUDGE; DIXON AND VANMETER, JUDGES.

Virgil v. Commonwealth (Ky. App., 2013) 2011-CA-001673-MR May 17, 2013

VANMETER, JUDGE:

On appeal, Virgil argues the trial court erred by granting the Commonwealth’s motion to reconsider its order granting post-trial DNA analysis. We agree, albeit on grounds different from those argued by the parties.

We acknowledge the role both Potter and Gross play in elucidating the discretionary authority retained by the trial court to amend a judgment beyond the date of finality expressed under CR 59.05, however, we find the case controlled by the recently amended KRS 422.285. At the time Virgil filed his motion, KRS 422.285 only provided a right to post-trial DNA testing for persons convicted of a capital offense and sentenced to death in the Commonwealth. Since Virgil was not sentenced to death, KRS 422.285 did not provide him with a means to seek DNA analysis of evidence from his trial. However, KRS 422.285 was recently amended to now provide any person convicted of a “capital offense, a Class A felony, a Class B felony, or any offense designated a violent offense under KRS 439.3401″ the right to seek post-trial DNA testing and analysis of any evidence in possession or control of the Commonwealth involved in the investigation or prosecution that resulted in the conviction. The right is conditioned upon the trial court’s finding that:

(a) A reasonable probability exists that the petitioner would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing and analysis;

(b) The evidence is still in existence and is in a condition that allows DNA testing and analysis to be conducted;

(c) The evidence was not previously subjected to DNA testing and analysis or was not subjected to the testing and analysis that is now requested and may resolve an issue not previously resolved by the previous testing and analysis;

(d) Except for a petitioner sentenced to death, the petitioner was convicted of the offense after a trial or after entering an Alford plea;

(e) Except for a petitioner sentenced to death, the testing is not sought for touch DNA, meaning casual or limited contact DNA; and

(f) The petitioner is still incarcerated or on probation, parole, or other form of correctional supervision, monitoring, or registration for the offense to which the DNA relates.

KRS 422.285(5) (as amended by 2013 Ky. Acts ch. 77).

We are compelled to note that the pre-amended version of KRS 422.285 was held to infringe on the rule-making power of the courts, and thus in violation of the constitutional principle of separation of powers. See Taylor v. Commonwealth, 175 S.W.3d 68, 77 (Ky. 2005). In spite of this, the court in Taylor upheld the statute by way of comity. Id. The court recognized that the operation of KRS 422.285 does not “unreasonably interfere with the ‘orderly functioning of the courts.’” Id. (quoting Commonwealth v. Reneer, 734 S.W.2d 794, at 797 (Ky. 1987)). The court further stressed that the Commonwealth has a public policy interest in ensuring our courts do not follow through with putting an innocent to death. Id.The recently enacted amendment to KRS 422.285 does nothing to change the reasoning applied by the court in Taylor. In fact, the amendment broadens the scope of KRS 422.285 to afford noncapital felons the right to DNA testing under the appropriate circumstances. Now, the statute extends the Commonwealth’s public policy interests to insure our court’s judgments are correct and innocent defendants do not remain in prison.

Since the amended statute reflects a strong public policy of the Commonwealth, we find that Virgil’s motion to release the evidence for DNA testing should be considered under the recently amended KRS 422.285. We acknowledge that the effective date of an amendment is ninety days following the adjournment of the legislative session which, in this case, was on March 26, 2013. See Ky. Const. § 55. Therefore, the effective date of the amendment is June 25, 2013. However, the general rule is that “where the amendment represents a procedural or remedial change only . . . ‘legislation has been applied to causes of action which arose before its effective date.’” Schmidt v. S. Cent. Bell, 340 S.W.3d 591, 595 (Ky. App. 2011) (quoting Spurlin v. Adkins,940 S.W.2d 900, 901 (Ky. 1997)). Legislation is remedial if it seeks to reform or extend existing rights aimed at the “promotion of justice and the advancement of the public welfare and of important and beneficial public objects.” Kentucky Ins. Guar. Ass’n v. Jeffers ex rel. Jeffers, 13 S.W.3d 606, 610 (Ky. 2000) (quoting 73 Am.Jur.2d Statutes § 11 (1974)). In fact, the term remedial applies to statutes which give a party a remedy where he previously had none. Id. Because the statute reflects a public policy vested in extending the right to seek post-trial DNA testing to noncapital felons and is enforceable by way of comity, no good reason exists for not applying the statute on remand to the trial court. Therefore, we find the trial court’s decision to deny the release of the evidence for DNA analysis on the belief it lacked the authority to do so to be in error, and thus reverse the August 12, 2011, order. We remand this matter to the trial court with directions to apply the amended statute, KRS 422.285 to Virgil’s motion, and enter an appropriate order.

The Campbell Circuit Court’s August 12, 2011, order is reversed and this case is remanded for further proceedings consistent with this opinion.

FREE COPY OF MEDICAL RECORDS RULING

Tuesday, September 17th, 2013

BEFORE: ACREE, CHIEF JUDGE; DIXON AND THOMPSON, JUDGES.

Eriksen v. Gruner & Simms, PLLC (Ky. App., 2013) 2012-CA-000563-MR May 17, 2013

ACREE, CHIEF JUDGE:

This appeal concerns the interpretation of Kentucky Revised Statutes (KRS) 422.317(1),…
In granting summary judgment to Gruner, the circuit court relied on an opinion of the Attorney General which addressed which charges were permissible under the statute and whether a patient had the ability to assign his or her right to obtain a free copy of the records. See OAG 09-009 (Dec. 11, 2009) (2009 WL 4917549). The circuit court held that a patient could authorize a third party to pick up or receive the free copy of the medical records. The circuit court further held that the health care provider could charge a reasonable fee to cover the cost of sending the free record to a patient, by mail, fax or other means, as long as the patient was also provided with a free option, such as pick-up from the health care provider’s office.

On appeal, Eriksen contends that the statute only requires the release of the first, free copy of the medical records to the patient, and the patient alone. He argues that the plain language of the statute makes no provision for the assignment of the first free copy to an agent. He does state that he is not opposed to authorized parties picking up a free copy of the records, although he does not believe the statute requires this. Eriksen further contends that the plain language of the statute directing health providers to “provide” the medical records does not mandate the mailing or faxing of the free copy.

The OAG states in pertinent part that in a situation where a patient is requesting their one free copy allowed under KRS 422.317, providers must make a complete copy of the records available in some manner without requiring additional payments of any type. While KRS 422.317 requires hospitals and physicians to “provide” one copy of the records to the patient without charge, it does not set forth the manner in which records are to be delivered. In our view, a provider must make some arrangement for a patient to receive copies of their medical records without cost, whether that is to make them available for pickup, mailing, faxing or some other form of delivery. However, it does appear that the statute may allow a provider to charge additional fees for mailing, faxing or otherwise delivering the records to a patient if the patient is afforded some alternative method of delivery which does not include charges. For example, if a provider allows the patient an opportunity to pick up a copy of the records at the place where the treatment was rendered, but the patient or requesting party asks for those copies to be mailed or faxed, the provider could charge for that additional service.

While not binding on the courts, opinions of the Attorney General are generally considered persuasive. York v. Commonwealth, 815 S.W.2d 415, 417 (Ky.App. 1991). We agree with the circuit court and with the opinion of the Attorney General that the first, free copy of the records must be made available to an agent of the patient if the patient expressly so requests. Any other interpretation would mean that an incapacitated patient could face insurmountable obstacles to obtaining his or her medical records. We also agree that any reasonable expenses incurred by the medical provider in mailing, faxing or otherwise transmitting the records can be charged to the patient.
Finally, Eriksen argues that KRS 422.317 violates Section 2 of the Kentucky Constitution, which states that “absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority.” “In order to pass constitutional muster in this regard, a statute must be rationally related to a legitimate state objective.” Commonwealth v. Louisville Atlantis Community/Adapt, Inc., 971 S.W.2d 810, 816 (Ky. App. 1997). “[A] strong presumption exists in favor of a statute’s constitutionality. The [party] who questions the validity of an act bears the burden to sustain such contention.” TECO Mechanical Contractor, Inc. v. Commonwealth, Environmental and Public Protection Cabinet, 366 S.W.3d 386, 392-93 (Ky. 2012).

Eriksen argues that KRS 422.317 “enslaves” health care providers by requiring them to expend time, money and property in replicating a copy of their patients’ records without compensation. He argues that most, if not all patients, attorneys, insurers, and other third parties are easily capable of providing reimbursement for the records to the provider. He argues that it was an arbitrary and artificial decision of the Kentucky legislature to place the entire burden for the provision of medical records upon health care providers, and represents an unlawful extension of the legislature’s power.

Furthermore, state government often passes laws that increase the cost of doing business. Whether health care providers factor into their pricing the possibility of incurring expenses associated with statutory compliance is a business decision the government usually does not make for a business. At least it has not in this case. These constitutional arguments, therefore, necessarily fail.

SIXTH CIRCUIT RULES: Crossing the yellow center line does not justify traffic stop – 4th. amendment warrants suppression of evidence if the statute was not violated.

Tuesday, September 17th, 2013

The Kentucky Traffic Code permits a driver to travel left of the yellow center line if no oncoming vehicle IS affected. Touching or crossing of the yellow center line does not justify a traffic stop. When the blue light is turned on then a traffic stop has been made, and merely crossing the yellow center line is a violation of the 4th. Amendment if that is the only justification for crossing the yellow center line.

See: KRS 189.300Vehicles to keep to right.

(1) The operator of any vehicle when upon a highway shall travel upon the right
side of the highway whenever possible, and unless the left side of the highway
is clear of all other traffic or obstructions for a sufficient distance ahead to
permit the overtaking and passing of another vehicle to be completed without
interfering with the operation of any vehicle approaching from the opposite
direction or any vehicle being overtaken. The overtaking vehicle shall return to
the proper traffic lane as soon as practicable and, if the passing vehicle enters
the oncoming traffic lane, before coming within two hundred (200) feet of any
approaching vehicle.
(2) The operator of any vehicle moving slowly upon a highway shall keep his
vehicle as closely as practicable to the right-hand boundary of the highway,
allowing more swiftly moving vehicles reasonably free passage to the left.
Effective:July 12, 2006

The Sixth Circuit Court of Appeals grated suppression of a traffic stop based on an alleged crossing of the yellow center line.

See:

550 F.3d 578
UNITED STATES of America, Plaintiff-Appellee,
v.
Michael GROSS (07-5971); Shamone Wilkins (07-5972), Defendants-Appellants.
No. 07-5971.
No. 07-5972.
United States Court of Appeals, Sixth Circuit.
Argued: December 4, 2008.
Decided and Filed: December 22, 2008.
[550 F.3d 579]
ARGUED: C. Eugene Shiles, Spears, Moore, Rebman & Williams, Chattanooga, Tennessee, Leonard M. Caputo, Phillips, Caputo & Brown, Chattanooga, Tennessee, for Appellants. Robert C. Anderson, Perry H. Piper, Assistant United States Attorneys, Chattanooga, Tennessee, for Appellee. ON BRIEF: C. Eugene Shiles, Spears, Moore, Rebman & Williams, Chattanooga, Tennessee, Leonard M. Caputo, Phillips, Caputo & Brown, Chattanooga, Tennessee, for Appellants. Robert C. Anderson, Assistant United States Attorney, Chattanooga, Tennessee, for Appellee.
Before MERRITT, MOORE, and COLE, Circuit Judges.
OPINION
KAREN NELSON MOORE, Circuit Judge.
Defendants-Appellants Michael Gross and Shamone Wilkins appeal the district court’s denial of their motions to suppress evidence obtained by law-enforcement officers during a traffic stop. The defendants were traveling northbound on Interstate 75 through Hamilton County, Tennessee, when their vehicle, driven by Gross, was pulled over for allegedly straddling lanes in violation of Tennessee law. After obtaining Gross’s consent, the officers searched the vehicle and found a brick of powder cocaine in the trunk, leading to the defendants’ arrest and indictment on drug charges.
Each defendant filed a motion to suppress evidence and statements obtained during the search, and the district court denied the motions, finding that the stop was neither unlawful at its inception nor unreasonably prolonged. The defendants subsequently pleaded guilty to conspiracy to possess with intent to distribute cocaine hydrochloride, but reserved the right to appeal the denial of the motions to suppress.
On appeal, Gross and Wilkins argue that the district court erred in denying their motions to suppress because the search was unlawful for two alternate and independent reasons: (1) the initial stop was not supported by probable cause and (2) consent to search the vehicle was obtained unlawfully because the stop was unreasonably prolonged. Because we conclude that the initial stop was unlawful, we REVERSE the judgment of the district court and REMAND for further proceedings consistent with this opinion.
[550 F.3d 580]
I. BACKGROUND
On the afternoon of May 8, 2006, Gross and Wilkins, African-American males ages 24 and 26, respectively, were driving northbound on Interstate 75 through Hamilton County, Tennessee, when they were pulled over by Deputy Henry Ritter of the Hamilton County Sheriff’s Office. During the subsequent search of the vehicle, one kilogram of powder cocaine was found in the trunk of the defendants’ vehicle. On May 23, 2006, a federal grand jury indicted the defendants on one count each of possessing with intent to distribute 500 grams or more of a mixture containing cocaine hydrochloride, in violation 21 U.S.C. § 841(a)(1), (b)(1)(B). A superseding indictment was returned on July 27, 2006, adding a count for conspiracy to commit the above substantive offense, in violation of 21 U.S.C. § 846, and a count for aiding and abetting each other in committing the above substantive offense.
In June 2006, Gross and Wilkins each filed a motion to suppress evidence and statements collected subsequent to the stop and search of the vehicle, both arguing that there was no lawful basis for stopping the vehicle and that, regardless of the legality of the initial stop, the subsequent search and questioning were unlawful because the purpose of the initial stop had already been completed. After the government filed a response, the district court conducted an evidentiary hearing on the motions, at which Deputy Ritter was the only witness. The government also introduced several exhibits, including a videotape of the stop and two videotapes depicting vehicles traveling the stretch of Interstate 75 on which defendants were stopped. The district court found Deputy Ritter to be a credible witness and summarized his relevant testimony as follows:
On the afternoon of Monday, May 8, 2006, Officer Ritter was assigned to perform interdiction duties on Highway I-75. Although trained to perform drug interdiction duties, Officer Ritter’s interdiction duties involve crimes of all sorts. On that afternoon, Officer Ritter was standing on the shoulder of I-75 North, near the 13-mile marker, talking with Phillip McClain, an officer of the Chattanooga Police Department. During their conversation, Officer Ritter’s attention was diverted to a green 2006 Nissan Altima which was traveling northbound on I-75 and which was occupied by two individuals who were later determined to be the Defendants. Officer Ritter testified that his attention was drawn to that particular vehicle because the occupants had leaned back, or were “slouching” in their seats, so that their heads were positioned behind the center post of the vehicle. Officer Ritter stated that this aroused his suspicion because, based on his training and experience, parties sometimes assume such a posture in an attempt to conceal their identities.
His suspicion thus aroused, Officer Ritter decided to follow the green Nissan Altima, and he caught up to it near the 15-mile marker on I-75 North. This is an area of road near White Oak Mountain where, in an attempt to accommodate the slowing of traffic occasioned by the beginning of a relatively steep ascent, the highway widens from two to three lanes. As he neared Defendants’ vehicle, Officer Ritter observed it to “straddle” two lanes of traffic—which he believed constituted a violation of Tennessee Code Annotated § 55-8-123—and he decided to stop it. In order to effectuate the stop, Officer Ritter activated the emergency equipment (i.e., blue lights, etc.) installed in his patrol car, which in turn automatically activated the on-board videotaping equipment. Officer Ritter testified that after thus signaling the green Nissan Altima to
[550 F.3d 581]
pull over, both vehicles came to a stop on the right shoulder of I-75 North at approximately the 17-mile marker.
. . . .
Officer Ritter stated that, after reviewing the documents which Defendants handed to him, he indicated to Defendants that it appeared to him that they did not know in which lane they were supposed to be driving. He testified that they responded by indicating that they were simply attempting to change lanes.
. . . .
During the search of Defendants’ automobile, which was conducted by Officer Ritter and another Sheriff’s Deputy, Officer Higdon (who had joined Officers Ritter and McClain at the scene), and assisted by a drug detection dog, Officer Ritter found and seized what was subsequently identified as one kilogram of cocaine hydrochloride which had been concealed in a compartment behind the trunk of the automobile. Following such discovery, both Defendants were placed under arrest, and Officer Ritter, who, as previously noted, had begun to fill out, but did not complete, a warning citation to Defendant Gross with respect to the lane straddling violation, completed a Tennessee Uniform Traffic/Misdemeanor Citation Affidavit of Complaint, introduced as Government Exhibit No. 8, which actually charged Defendant Gross with such violation.
Joint Appendix (“J.A.”) at 19-22 (Dist. Ct. Order at 2-5) (footnotes omitted).
Because the on-board video equipment did not begin recording until the emergency signals were activated, there is no videotape of Gross’s alleged lane-straddling violation. During Deputy Ritter’s testimony, he was questioned specifically about what he observed. Deputy Ritter testified that, as the vehicle approached the mountain where a third lane opens up to the right for trucks and slower traffic, the vehicle was in this far right lane, but then straddled the lane between this lane and the center lane for “as far as if not longer than a football field” while driving sixty to seventy miles per hour. J.A. at 176 (Hr’g Tr. at 18). Deputy Ritter was then asked about two videos: Exhibit 6, which shows a black truck straddling lanes for approximately five seconds while changing from one lane to another, and Exhibit 7, which shows cars traveling on the stretch of Interstate 75 where the road becomes three lanes. Deputy Ritter agreed that the action of the black truck in Exhibit 6 “is basically what [the defendants] did.” J.A. at 227 (Hr’g Tr. at 69). He stated that the black truck in the video “appeared to have made a lane change, however, it straddled the line the same distance, if not more than Mr. Gross’s did that day.” J.A. at 208 (Hr’g Tr. at 50). Deputy Ritter later testified, however, that Gross’s lane straddling was “as far as if not more than that pick-up truck.” J.A. at 213 (Hr’g Tr. at 55).
Although Deputy Ritter testified that he did not remember the exact number of seconds that either the black truck or the defendants were straddling the lanes, he testified that taking four seconds to change lanes is a traffic violation “[i]f you straddle that lane for a considerable distance,” as he claimed the defendants had done. J.A. at 229 (Hr’g Tr. at 71). Deputy Ritter admitted that the defendants were not driving erratically when the dashboard video camera was turned on, and at no point during his testimony did he indicate that he witnessed the vehicle being driven erratically or otherwise improperly.
The district court denied the defendants’ motions to suppress, concluding “that the stop of Defendants’ vehicle on the afternoon of May 8, 2006, was supported by probable cause, and that the ensuing
[550 F.3d 582]
search of said vehicle and arrest of Defendants were reasonable within the meaning of the Fourth Amendment.” J.A. at 29 (Dist. Ct. Order at 12). Regarding the initial stop, the district court found Deputy Ritter had probable cause to believe that a violation of Tenn.Code Ann. § 55-8-128 occurred. The relevant portion of § 55-8-123 provides as follows:
Whenever any roadway has been divided into two (2) or more clearly marked lanes for traffic, the following rules, in addition to all others consistent herewith, shall apply:
(1) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety….
Tenn.Code Ann. § 55-8-123. The district court found that “[c]ertainly, the movements of Defendants’ vehicle which [Ritter] describes fit well within the conduct proscribed by the clear language of the statute.” J.A. at 25 (Dist. Ct. Op. at 8). The district court rejected the defendants’ argument that no traffic violation had occurred under relevant Tennessee and Sixth Circuit case law:
While Defendants point to a number of cases in which both Tennessee and federal courts have found no violation of Tenn.Code Ann. § 55-8-123, obviously none of these cases deal with precisely the same set of facts with which Officer Ritter was dealing on the afternoon of May 8, 2006. Accordingly, the cases cited by Defendants are of only limited assistance to the Court in dealing with such a fact-intensive inquiry.
Id. Regarding the validity of Gross’s consent to search the vehicle, the district court found that the questioning of Gross was not unreasonable and that his consent was given voluntarily because the officers were merely completing the initial purpose of the stop at the time that consent was given.
After the motions to suppress were denied, Gross and Wilkins each entered a conditional guilty plea to the conspiracy charge, but both reserved their rights to appeal the denial of their motions to suppress. Gross was sentenced to the mandatory minimum of 60 months of incarceration, and Wilkins was given the mandatory-minimum sentence of 120 months, which was higher due to a prior drug conviction. The district court entered a judgment in both cases on July 24, 2006, and both defendants now appeal the denial of their motions to suppress.
II. ANALYSIS
A. Standard of Review
“When reviewing the denial of a motion to suppress, we review the district court’s findings of fact for clear error and its conclusions of law de novo.” United States v. Simpson, 520 F.3d 531, 534 (6th Cir.2008) (internal quotation marks omitted). “In doing so, we consider the evidence in the light most favorable to the United States.” United States v. Freeman, 209 F.3d 464, 466 (6th Cir.2000).
B. Legality of the Stop
“Stopping a vehicle and detaining its occupants amounts to a seizure under the Fourth Amendment.” Id. (citing Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979)). Whether the seizure is reasonable is determined by considering first “`whether the officer’s action was justified at its inception,’ and second `whether it was reasonably related in scope to the circumstances which justified the interference in the first place.’” Id. (quoting Terry v. Ohio, 392 U.S. 1, 19-20,
[550 F.3d 583]
88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Neither party disputes that if either the initial traffic stop or the scope and duration of the stop was unlawful, the evidence and statements obtained from that illegality must be excluded as “fruit of poisonous tree.” Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Because we conclude that the initial stop was not lawful, we need not consider the legality of the scope and duration of the stop.
The district court erred in finding that Deputy Ritter had probable cause to stop the vehicle, because, viewing the facts in the light most favorable to the government, Deputy Ritter could not have reasonably believed that the defendants’ conduct amounted to a violation of Tenn. Code Ann. § 55-8-123. Regardless of the subjective motivations of the officer, “so long as the officer has probable cause to believe that a traffic violation has occurred or was occurring, the resulting stop is not unlawful.” Freeman, 209 F.3d at 466 (quoting United States v. Ferguson, 8 F.3d 385, 391 (6th Cir.1993) (en banc), cert. denied, 513 U.S. 828, 115 S.Ct. 97, 130 L.Ed.2d 47 (1994)); see also Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).1 “The requirements of probable cause are satisfied where the facts and circumstances within their (the officers’) knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.” United States v. Davis, 430 F.3d 345, 352 (6th Cir.2005) (internal quotation marks omitted).
We conclude that Deputy Ritter did not have probable cause to believe that a violation of Tenn.Code Ann. § 55-8-123 occurred under the circumstances described in his testimony. What Deputy Ritter described is essentially a slow lane change: the vehicle straddled two lanes for a few seconds while changing from one lane to the other, in an area where the highway began a steep incline and changed from two to three lanes. Without some further allegation of erratic or improper driving, this simply is not within the scope of the statute. Section 55-8-123 does not require vehicles strictly to maintain the lane at all times, but requires that “[a] vehicle shall be driven as nearly as practicable entirely within a single lane.” Both this court and the Tennessee courts have found no violation of § 55-8-123, and therefore no probable cause, when a vehicle has veered from its lane but is not otherwise driving erratically. See, e.g., Freeman, 209 F.3d at 466 (finding no violation of § 55-8-123 and no probable cause when the officer observed “one isolated incident of a large motor home partially weaving into the emergency lane for a few feet and an instant in time”); State v. Binette, 33 S.W.3d 215, 220 (Tenn.2000) (concluding that a vehicle that had crossed the yellow line twice and made a hard swerve did not violate § 55-8-123 and holding that an officer does not have “reasonable suspicion to stop a driver whose driving it found not to be erratic or in any way improper”); see also State v. Carl Martin, No. W2002-00066-CCA-R3-CD, 2003 WL 57311, at *4 (Tenn.Crim.App. Jan. 2, 2003); State v. Ann Martin, No. E1999-01361-CCA-R3-CD,
[550 F.3d 584]
2000 WL 1273889, at *6 (Tenn.Crim. App. Sept. 8, 2000). But see State v. Richie, No. E2005-02596-CCA-R3-CD, 2007 WL 10449, at *3 (Tenn.Crim.App. Jan. 3, 2007).
Deputy Ritter testified that the vehicle straddled the center lane for at least one hundred yards while changing lanes, which, when traveling at sixty-five miles an hour, amounts to just over three seconds. The truck in Exhibit 6, which, according to Deputy Ritter’s testimony, did essentially what the defendants’ vehicle did, seems to have straddled the lane for approximately four to five seconds while changing lanes. Gross was changing lanes, while rounding a curve and going up a mountain where the highway increases from two to three lanes, and he was not otherwise driving erratically or improperly. It clearly is not practicable to change lanes without straddling the lanes for some amount of time. Particularly given the Tennessee courts’ lenient interpretation of § 55-8-123 where a driver is not driving erratically, we simply cannot conclude that the slow lane change observed by Deputy Ritter amounted to a violation of the statute. We further cannot conclude that the driving witnessed by Deputy Ritter gave him probable cause to believe that a violation occurred. The government urges that probable cause existed because Deputy Ritter believed that Gross’s driving constituted a traffic violation. Probable cause, however, requires that the officer’s belief be reasonable. See Davis, 430 F.3d at 352. Here, it was not objectively reasonable for Deputy Ritter to believe that a driver violated § 55-8-123 by slowly changing lanes under the circumstances described in his testimony.2 Because Deputy Ritter did not have probable cause to believe that he witnessed a violation of Tenn.Code Ann. § 55-8-123, the stop of the defendants was unlawful at its inception. We therefore
[550 F.3d 585]
need not consider whether the stop was unreasonably prolonged beyond its purpose.
III. CONCLUSION
Because Deputy Ritter did not have probable cause to stop the defendants’ vehicle, we REVERSE the judgment of the district court and REMAND for further proceedings consistent with this opinion.
—————
Notes:
1. We have previously noted that “[t]here is a degree of confusion in this circuit over the legal standard governing traffic stops.” United States v. Sanford, 476 F.3d 391, 394 (6th Cir.2007); see also Simpson, 520 F.3d at 538-41 (noting that Freeman requires probable cause and controls with respect to violations that are not ongoing). We need not address this question, however, because both parties use the probable-cause standard, and neither argues that a lower standard, such as reasonable suspicion, should apply.
2. Although this court has not directly decided whether an officer’s good-faith mistake of law, as opposed to a mistake of fact, can support probable cause or reasonable suspicion to conduct a stop, see United States v. Bias, No. 3:08-cr-52, 2008 WL 4683217, at *8 n. 3 (E.D.Tenn. Oct. 20, 2008) (citing United States v. Westmoreland, 224 Fed.Appx. 470, 475 (6th Cir.2007) (unpublished)), we note that the vast majority of our sister circuits to decide this issue have concluded that an officer’s mistake of law, even if made in good faith, cannot provide grounds for reasonable suspicion or probable cause, because an officer’s mistake of law can never be objectively reasonable. United States v. McDonald, 453 F.3d 958, 961-62 (7th Cir.2006); United States v. Tibbetts, 396 F.3d 1132, 1138 (10th Cir.2005); United States v. Chanthasouxat, 342 F.3d 1271, 1279 (11th Cir.2003); United States v. Twilley, 222 F.3d 1092, 1096 (9th Cir.2000); United States v. Miller, 146 F.3d 274, 279 (5th Cir.1998); accord United States v. Coplin, 463 F.3d 96, 101 (1st Cir.2006) (“Stops premised on a mistake of law, even a reasonable, good-faith mistake, are generally held to be unconstitutional.”), cert. denied, 549 U.S. 1237, 127 S.Ct. 1320, 167 L.Ed.2d 130 (2007). But see United States v. Washington, 455 F.3d 824, 827 (8th Cir.2006). As the Fifth Circuit explained,
The rule articulated by the Supreme Court in Whren provides law enforcement officers broad leeway to conduct searches and seizures regardless of whether their subjective intent corresponds to the legal justifications for their actions. But the flip side of that leeway is that the legal justification must be objectively grounded.
Miller, 146 F.3d at 279 (citing Whren, 517 U.S. at 812-14, 116 S.Ct. 1769) (footnote omitted). Other courts have noted that “[a]n officer cannot have a reasonable belief that a violation of the law occurred when the acts to which an officer points as supporting probable cause are not prohibited by law,” McDonald, 453 F.3d at 961, because “failure to understand the law by the very person charged with enforcing it is not objectively reasonable,” Tibbetts, 396 F.3d at 1138. Because we conclude that Deputy Ritter did not have an objectively reasonable belief that the defendants violated Tennessee law, we need not determine whether it is ever possible for an officer’s mistake of law to be objectively reasonable.

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs November 23, 2010
STATE OF TENNESSEE v. CARLIE D. SCHOENTHAL
Appeal from the Criminal Court for Hamilton County
No. 268237 Barry A. Steelman, Judge
No. E2010-01312-CCA-R3-CD – Filed April 27, 2011
TENNESSEE TRAFFIC CODE
At the hearing, Officer David Allen of the Chattanooga Police Department testified that in the early morning hours of November 11, 2007, he observed the Defendant driving northbound on Chestnut Street near a local bar. Officer Allen began to follow the Defendant’s vehicle after he saw it “straddling the double yellow center line.”
Officer Allen testified that the Defendant’s car was “partially into the left-hand lane” and that “for a brief time she was driving down the center of the roadway, and then she moved over into the right-hand lane.”
The Fourth Amendment to the United States Constitution and article I, section 7 of the Tennessee Constitution protect against unreasonable searches and seizures. Any warrantless search or seizure is presumed to be unreasonable and requires the State to prove by a preponderance of the evidence that the search or seizure was conducted pursuant to an exception to the warrant requirement. State v. Simpson, 968 S.W.2d 776, 780 (Tenn. 1998).
However, a police officer may make an investigatory stop based upon reasonable suspicion, supported by specific and articulable facts, that a criminal offense has been or is about to be committed. Terry v. Ohio, 329 U.S. 1, 20-21 (1968); Binette, 33 S.W.3d at 218.
A police officer must have such a reasonable suspicion in order to stop a vehicle without a warrant. State v. Randolph, 74 S.W.3d 330, 334 (Tenn. 2002). Our supreme court has stated that “when an officer turns on [his] blue lights” a stop has occurred. State v. Pulley, 863 S.W.2d 29, 30 (Tenn. 1993). Reasonable suspicion is determined by an examination of the totality of the circumstances. Binette, 33 S.W.3d at 218. Circumstances relevant to an analysis of reasonable suspicion include “the officer’s objective observations [and any] [r]ational inferences and deductions that a trained officer may draw from the facts and circumstances known to him.” State v. Yeargan, 958 S.W.2d 626, 632 (Tenn. 1997).
Id. at 219-20 (alterations in original). Additionally, this court has stated that “we do not think that a momentary drift out of a lane constitutes driving a vehicle outside of a single lane.” State v. Ann Elizabeth Martin, No. E1999-01361-CCA-R3-CD, 2000 WL 1273889, at *6 (Tenn. Crim. App. Sept. 8, 2000).
Tennessee Code Annotated section 55-8-123(1) provides that:
Whenever any roadway has been divided into two (2) or more clearly marked lanes for traffic . . . [a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from that lane until the driver has first ascertained that the movement can be made with safety.
The Tennessee Supreme Court has held that “occasionally drift[ing] from the center of the
lane” does not create a reasonable suspicion to justify a traffic stop. Binette, 33 S.W.3d at
219. To hold otherwise would create a “stop at will” standard for police since it is the rare motorist indeed who can travel for several miles without occasionally varying speed unnecessarily, moving laterally from time to time in the motorist[’]s own lane, nearing the center line or shoulder[,] or exhibiting some small imperfection in his or her driving.
(Note: this suppression moton was denied because the defendant totally drove on the wrong side of the road for some distance, but a momentary crossing of the yellow center line is found not to justify a probable cause stop.)

BRITISH COURT RULES THAT MUSLIM FEMALE DEFENDANT MUST REMOVE HER VEIL WHILE ON THE WITNESS STAND

Monday, September 16th, 2013

Martin Bentham
Published: 16 September 2013

A Muslim woman from London who had demanded the right to stand trial wearing a niqab was today told that she must remove it to give evidence to stop a “coach and horses” being driven through British justice.

Judge Peter Murphy told Blackfriars Crown Court that it was “essential” for jurors to be able to see the woman’s reactions as she gave evidence and responded to cross-examination.

He said it would also be “unfair” to other participants in the case for the woman to remain veiled and that the courts could not apply the law differently on the basis of a person’s religion.

But in a ruling which is likely to attract criticism and intense public debate, the judge also ruled that the woman would be permitted to wear her niqab during other parts of the trial.

Today’s judgment follows an appearance in court last week by the 22-year-old woman, from Hackney, who is charged with intimidating a witness in Finsbury Park in June.

She entered a not guilty plea last week after being allowed to appear in court while wearing a niqab after a temporary compromise under which the judge agreed that her identity could be confirmed before the hearing by a police officer.

At today’s hearing, however, Judge Murphy said that the principles of open justice and the rule of law meant that the woman, who was wearing her niqab again today, would have to remove it to give evidence when her trial begins.

He said he had “no doubt” about the “sincerity” of her religious belief and her conviction that she should not display her face in public, even though she had only begun wearing a niqab last year.

But he said that although the courts had a “proud record” of defending religious freedom, which was protected under common law and the European Convention on Human Rights, allowing the woman to wear a niqab would hinder “communication” and “shield” her from parts of the trial process.

He added that the ability of jurors to see the defendant was of “cardinal importance” and that to grant an exemption on grounds of religious belief would effectively “immunise” her from the impact of cross-examination by prosecution lawyers.

The judge said that to be “proportionate” he would allow the woman, who is not being named for legal reasons, to remain in her niqab during the remainder of her trial.

She would also be allowed to give evidence from behind a screen or via videolink to prevent her being viewed by members of the public present at the hearing.

Judge Murphy said he hoped that Parliament or a higher court – such as the Court of Appeal or the Supreme Court – would now review the issue and provide a clear statement of the law that could guide judges in future cases.

Today’s ruling follows a hearing last week at which Judge Murphy allowed the woman to enter the dock in a niqab after she had been identified in a private room by a female police officer.

The Met constable, who was present when the defendant was photographed following her arrest in June, then swore on oath that it was the same woman under the niqab in the dock. The only part of her face that was visible was a narrow horizontal stripe showing her eyes.

Supreme Court Justice Antonin Scalia notes capitalism ‘more Christian than socialism’

Monday, September 16th, 2013

Published On: Sun, Sep 15th, 2013
Kaye Wonderhouse

Supreme Court Justice Antonin Scalia has riled critics, allegedly mixing “church and state” is some of his recent comments.
Speaking at the Lanier Theological Library in Houston, Texas he claimed that the success of capitalism was deeply tied to the nation’s religious values.
“While I would not argue that capitalism as an economic system is inherently more Christian than socialism … it does seem to me that capitalism is more dependent on Christianity than socialism is,” Scalia, a devout Catholic, said during his speech,according to the Houston Chronicle. “For in order for capitalism to work — in order for it to produce a good and a stable society — the traditional Christian virtues are essential.”
Scalia went on to suggest that expanding government involvement in charity came at the expense of the power of Christian churches.
“The governmentalization of charity affects not just the donor but also the recipient. What was once asked as a favor is now demanded as an entitlement,” he said. “The transformation of charity into legal entitlement has produced donors without love and recipients without gratitude. … It’s not my place or my purpose to criticize these developments, only to observe that they do not suggest the expanding role of government is good for Christianity.”
Later, during Q&A, the Chronicle reported that Scalia railed against the Constitution’s establishment clause, which declares that “Congress shall make no law respecting an establishment of religion.”
“The most disreputable area of our law is the establishment clause,” he said, responding to a question about “the greatest miscarriage of constitutional justice” during his tenure. “A violation of the establishment clause that does not affect someone’s free exercise — there is no reason why you should have standing.”

FINALITY OF ARBITRATION AGREEMENT

Sunday, September 15th, 2013

Swetnam Design Constr., Inc. v. Saurer, 382 S.W.3d 73 (Ky. App., 2012)

Swetnam Design Constr., Inc. v. Saurer, 382 S.W.3d 73 (Ky. App., 2012) October 12, 2012

Moreover, the sufficiency of the evidence supporting an arbitration award is specifically nonreviewable. Taylor, 618 S.W.2d at 432 (internal citations omitted). “This is so because when a court examines the evidence and imposes its view of the case it substitutes the decision of another tribunal for the arbitration upon which the parties have agreed and, in effect, sets aside their contract.” Id. at 433.

With this said, the Kentucky Uniform Arbitration Act (hereinafter “KUAA”), and specifically Kentucky Revised Statutes (KRS) 417.160, provides that a court may vacate an arbitration award pursuant to five specific grounds:

(e) There was no arbitration agreement and the issue was not adversely determined in proceedings under KRS 417.060 and the party did not participate in the arbitration hearing without raising the objection; but the fact that the relief was such that it could not or would not be granted by a court is not ground for vacating or refusing to confirm the award. KRS 417.160(1) (a)–(e).

With respect to all arbitration agreements entered into after the effective date of the KUAA (July 13, 1984), a court may only set aside an arbitration award pursuant to those grounds set forth in KRS 417.160. 3D Enterprises Contracting Corp. v. Lexington–Fayette Urban County Government, 134 S.W.3d 558, 562–63 (Ky.2004).

Thus, if an award is to be changed, both the arbitrator and the court are restricted to doing so only in situations where there has been an evident miscalculation of figures, an evident mistake in the description of a person, thing, or property, or if the arbitrators have awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted. KRS 417.170 and 417.130. Sub judice, we cannot discern where any of the aforementioned criteria would permit the arbitrator to modify his original award. While the arbitrator determined that the original award was “improperly determined” such is not a permitted reason to modify the award per statute; by the arbitrator exceeding the enumerated statutory powers, the trial court erred in so confirming the modification of the original award. Moreover, while the arbitrator stated that no new evidence was considered, we believe that the modification was one that could only have been made by a reconsideration of the evidence. This is not allowed. As such, we must reverse the trial court’s order confirming the modification of the arbitrator’s award of August 6, 2010, and remand this matter to the trial court with instructions to reinstate the award of July 16, 2010. The trial court and the arbitrator may then consider any statutory factors properly brought before them by the parties for modification of the arbitrator’s award of July 16, 2010.

In light of the foregoing, we reverse and remand this matter for further proceedings consistent with this opinion.

Justice Minton Decision Comparing Old Practice Code to KRS – Enforcement of Judgment

Friday, September 13th, 2013

Wade v. Poma Glass & Specialty Windows, Inc. (Ky., 2012)

Wade v. Poma Glass & Specialty Windows, Inc. (Ky., 2012) 2010-SC-000572-DG December 20, 2012
Because the term execution is subject to various interpretations, which in turn change the application of KRS 413.090(1), we must look beyond the text of the statute to the statutory scheme concerning actions on judgments and to relevant case law.

B. The Enforcement of Judgments in the Old Civil Code of Practice.
Before the current statutory scheme for the enforcement of judgments found in the Kentucky Revised Statutes, the Civil Code of Practice provided for attachments, writs of execution, and equitable actions under Section 439. “‘Attachment’ is a legal process which seizes and holds the property of the defendant until the rights of the parties are determined in the principal suit.” At or after commencing an action, a plaintiff could seek a writ of attachment against the defendant’s property as security for the satisfaction of the judgment the plaintiff might recover. The plaintiff could also pursue an attachment on the defendant’s property being held by third parties, known as garnishees. After a court rendered a judgment in their favor, plaintiffs could seek attachments against the judgment debtor and garnishees only in connection with a suit filed under Section 439 of the Civil Code.

The relevant text of KRS 413.090(1) dates back to 1852. At that time, the Civil Code of Practice of Kentucky was in effect, rather than the Kentucky Revised Statutes. The Civil Code used the term execution, and various forms of the word, in both the narrow and broad sense. The 1876 Civil Code repeatedly referred to executing various types of writs, other than writs of execution. For example, Section 203 of the Civil Code delineated the situations in which an “order of attachment shall be executed.” On the other hand, Section 212 of the Civil Code used execution to mean a writ of execution: “An attachment binds the defendant’s property . . . in the same manner as an execution would bind it.”
So even as early as 1876 the meaning of the term execution in the statute of limitations for actions on judgments was ambiguous. And its meaning has been litigated in Kentucky courts. This Court’s predecessor held that writs of execution and actions under Section 439 of the Civil Code toll the fifteen-year statute of limitations on the enforcement of judgments.

Slaughter and Thierman are instructive on the definition of execution. The purpose of the statute of limitations was to save “the right of the judgment creditor for [fifteen] years within which to enforce the collection of his judgment.” In Thierman and Slaughter, the Court did not limit the definition of execution in the statute of limitations to a writ of execution. On the contrary, the Court recognized that by enforcing a judgment after it was rendered through either a writ of execution or an action under Section 439 of the Civil Code, the judgment creditor tolls the statute of limitations. This supports the conclusion that execution should be defined broadly in KRS 413.090(1).

We hold that in the fifteen-year statute of limitations for actions on judgments, the term execution is defined as an act of enforcing, carrying out, or putting into effect a judgment.

Passing of Attorney H. Lawson Walker II

Thursday, September 12th, 2013

We sadly share with you the passing of attorney H. Lawson Walker, II

Henry Lawson Walker, II, age 64, died September 9th at his residence. He was an attorney and a resident of Crescent Springs.

Survivors include his wife Peggy Walker of Crescent Springs, and his children Erin and Jonathan.

Visitation will be Thursday 4:00 – 8:00 p.m. at Lakeside Christian Church 195 Buttermilk Pike, Lakeside Park, KY 41017.

Funeral Services will be Friday, 10:00a.m at the Church.

Memorial contributions are requested to:

· Dan Beard Council Boy Scouts of America, 10078 Reading Rd., Cincinnati, OH 45241

· Lakeside Christian Church, 195 Buttermilk Pike, Lakeside Park, KY 41017.

For the full obituary notice you can visit http://www.legacy.com/obituaries/cincinnati/obituary.aspx?n=henry-lawson-walker&pid=166898732&fhid=20590#fbLoggedOut

INTERESTING CASE ON LOSS OF CONSORTIUM OF CHILD – STATUTE OF LIMITATIONS – Excellent Dissent by Court of Appeals Judge Sara Combs

Wednesday, September 11th, 2013

From LawReader annotations:

Potter v. Boland (Ky. App., 2012) 2011-CA-001336-MR
December 7, 2012

We begin with our standard of review. The standard of review on appeal of a summary judgment is “whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App. 1996); CR 56.03. “The record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor.” Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991).

KRS 411.135 provides for a parent’s loss of consortium for the death of a minor child. It states:
In a wrongful death action in which the decedent was a minor child, the surviving parent, or parents, may recover for loss of affection and companionship that would have been derived from such child during its minority, in addition to all other elements of the damage usually recoverable in a wrongful death action.

We agree with the Potters’ observation that a loss of consortium claim is often discovered simultaneously with the wrongful death claim and not until after the child’s personal representative is appointed and pertinent records obtained. If more than one year has elapsed, but less than two years from the personal representative’s appointment, the loss of consortium claim is barred.

Thus, an attorney for the parents is in the unenviable position of filing a loss of consortium claim without knowledge of the legitimacy of the underlying wrongful death claim. Moreover, it is questionable whether the loss of consortium action could survive a motion to dismiss for failure to state a cause of action when a wrongful death action has not been filed.

Logic and clarity should not be strangers to the law. However, we have no authority to deviate from the established law. The only limitation period set forth by the General Assembly for loss of consortium is contained in KRS 413.140. KRS 413.180 cannot be extended by judicial fiat. Because this issue was definitively resolved by the Kentucky Supreme Court in Gaylor, we are bound by its holding and the current statutory law.

COMBS, JUDGE, DISSENTING: Respectfully, I dissent. While I wholly concur that this Court must refrain from extending a limitations period “by judicial fiat,” I believe that the language and reasoning of Conner, supra, are broad enough to encompass this particular claim for loss of consortium.
KRS 411.135 explicitly combines a loss of consortium claim with a wrongful death action. In overruling cases to the contrary, Conner construed KRS 413.180 to allow one year for appointment of a personal representative and then essentially allowed him the statutory one-year limitation period to evaluate, to assess, and to decide whether to pursue a lawsuit for wrongful death. Conner provided as follows:
It is reasonable to conclude the General Assembly intended for the personal representative to have the same amount of time to prosecute all claims resulting from injury to the decedent including injuries resulting in death. Id. at 654.
In this case, the loss of consortium claim indisputably arose from the death of the child. Therefore, Conner permits the personal representative to pursue this claim as part and parcel of the claim for wrongful death. Conner’s holding is clearly expansive rather than restrictive and serves the “logic and clarity” that the majority opinion fears are estranged from the law. In fact, a reasonable and literal application of Conner should save this claim for loss of consortium and would avoid the “confusion over varying time limitations” which Conner specifically sought to eliminate.
Therefore, I would vacate and remand on this one issue and permit this claim to be litigated.

LETTER TO THE EDITOR OF THE COURIER JOURNAL RE: DUTY OF PROSECUTORS

Wednesday, September 11th, 2013

Prosecutors, not just in Louisville, but across the nation, seem to have a misunderstanding of exactly what their job is or lose their focus in the process.
Their job is to provide justice for their community. That should mean justice for the victims and justice-due for the guilty.
Too often prosecutors get so intense in their opposition to individuals that they do stupid things. To often prosecutors get so ambitious that they are more interested in winning than they are in exposing the truth.
And worse, too often prosecutors are more interested in running for office than they are in justice.
All of them need to pause, reflect, reload and remember that their primary job is to enforce and execute the law, in search of truth, not winning.
There is no shame in standing before a judge and asking that charges be dismissed or that a not guilty decision is appropriate, all in the process for the search for the truth.
Theodore R. Wade, Jr.
Edmonton, Ky. 42129

Senate panel holds hearing on bill to create new federal judgeships

Wednesday, September 11th, 2013

By JESSICA M. KARMASEK
WASHINGTON (Legal Newsline) — A hearing on legislation that would create 91 new federal judgeships in two federal circuits and 32 federal districts across 21 states was held Tuesday before a U.S. Senate subcommittee.

The Senate Judiciary Subcommittee on Bankruptcy and the Courts conducted a hearing on Senate Bill 1385, also known as the Federal Judgeship Act of 2013.
Witnesses included Judge Timothy Tymkovich, for the U.S. Court of Appeals for the Tenth Circuit and chair of the Standing Committee on Judicial Resources for the U.S. Judicial Conference; Judge Sue Robinson, for the U.S. District Court for the District of Delaware; Jay Sekulow, chief counsel for the American Center for Law and Justice; and Michael Reed, chair of the Standing Committee on Federal Judicial Improvements for the American Bar Association and partner at Philadelphia law firm Pepper Hamilton.
U.S. Sen. Chris Coons, who is chairman of the subcommittee, presided over the hearing.
Coons, D-Del., also is the co-sponsor of the legislation, which was introduced in July. U.S. Sen. Patrick Leahy, D-Vt., also sponsored the bill.
Both Coons and Leahy have said they based their Federal Judgeship Act on recommendations of the nonpartisan Judicial Conference, which is headed up by U.S. Supreme Court Chief Justice John Roberts.
“Congress has left the judicial staffing of our federal courts essentially unchanged for 23 years, despite rapidly growing caseloads,” Coons said in July. “This bill would provide much-needed relief to our overburdened courts, ensuring that they are better prepared to administer justice quickly and efficiently.
“Increasing the number judgeships will help cases move more quickly, reduce uncertainty preventing businesses from creating jobs, and permit every American who has been wronged to get their day in court.”
Leahy, who chairs the Senate Judiciary Committee, agreed.
“Federal judges are working harder than ever, but in order to maintain the integrity of the federal courts and the expediency that justice demands, judges must have a manageable workload,” he said in July.
“This good government bill will improve the effectiveness of our federal courts and provide federal judges with the resources to promptly render the justice that Americans so desperately need and deserve.”
Per the Judicial Conference’s recommendations, the Federal Judgeship Act of 2013 creates five permanent judgeships and one temporary judgeship to the courts of appeals; creates 65 permanent judgeships and 20 temporary judgeships to the district courts; and gives permanent status to eight temporary district court judgeships.
Coons and Leahy point to a letter from Judicial Conference Secretary Thomas Hogan in April:
“Nationwide, our Article III district courts have experienced a 38 percent growth in caseload since 1990 (the last time Congress passed a comprehensive judgeship bill) while seeing only a 4 percent increase in judgeships during this same period of time,” Hogan wrote.
“This situation has created enormous difficulties for many of our courts across the nation.”
From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.