Archive for October, 2013

WHY IS S.C. SUPREME COURT NOT FOLLOWING LAW ON TIMELY COURT DECISIONS?

Thursday, October 31st, 2013

by Corey Hutchins
According to state law, justices on the South Carolina Supreme Court have 60 days to file their decisions from the time a term ends after hearing a case. But ask any lawyer who’s had a case before the High Court if the turn-of-the-century law is always followed, and they’ll likely laugh in your face.
“I’ve never heard of that law being enforced,” says Bob Bockman, a University of South Carolina law professor who specializes in the appeals process. Furthermore, he says, “I’ve not seen any commentary about that.”
But it’s an issue some lawyers have been grumbling about in the days following the recent death of prominent Columbia attorney Steve Morrison. A titan of the South Carolina bar, Morrison played a central role in a school equity case that’s dragged on at the High Court for nearly 20 years without resolution.
“This is something that almost became his lifelong work, and he died before they ever gave a decision,” says House Democratic Minority Leader Todd Rutherford, a Columbia attorney.
The schools case is about whether the state of South Carolina gives enough money to poor, rural school districts to make sure they’re getting the same “minimally adequate” education as students in more well-off districts, as guaranteed by the state’s constitution. Morrison represented 36 rural school districts in the case. It was first filed in 1993. Last spring, the Supreme Court re-heard oral arguments in it because two justices had already retired since the last time arguments were made four years prior.
The school equity case “obviously is an extremely unusual circumstance in terms of the length of time the court has been considering the issues,” according to Bockman.
But the state Supreme Court has taken longer than 60 days to decide other cases, though certainly not as long. For instance, it took the court around 18 months to decide a high-profile public interest case filed in 2011 that challenged whether the state’s 78 special sales tax exemptions are constitutional. The court ruled they are. In the case of well-known Charleston talk radio host Rocky D, who appealed a decision by a lower court in a Freedom of Information lawsuit against a school association, it took several months for the court to eventually issue an opinion (in his favor) after the term ended in which the court had heard arguments.
Why isn’t the law being followed? It’s hard to say, because the Supreme Court’s justices can’t talk about it since it’s an issue that could one day come before them if someone were ever to challenge them on it. Getting South Carolina lawyers to talk openly about the issue is also tough, as practicing attorneys aren’t supposed to criticize the court.
As president of the limited-government S.C. Policy Council, Ashley Landess says the different branches of state government are notorious for ignoring what she describes as “old laws.” Her organization regularly points out how during the budget process each year lawmakers ignore a law requiring the appropriations committees of the House and Senate to meet in joint open sessions to consider the governor’s executive budget.
“I think one of the real flaws in the system is that all of these laws, the court, the legislature, the governor, all three branches of government are picking and choosing laws they want to ignore,” she says. “And there is no one who will step up to challenge them in the system itself. So that leaves citizens forced to hold the three branches accountable.”
But there might be a separation of powers issue at stake.
In the early 1970s, a constitutional amendment granted the Supreme Court the power to essentially make its own rules, says University of South Carolina law professor Jay Bender. Because of that, “My belief is that the General Assembly can’t tell the Supreme Court how it is to operate,” he says.
The history of the state statute on court decisions goes back to the late 1800s, and it was last updated in 1962. The constitutional amendment granting the court power to make its own rules came a decade later, Bender says, which in his opinion renders the state statute inoperative. And when it comes to Supreme Court justices making their decisions, he says, “Do you want the decision to be fast or do you want it to be right?”
Deadlines for when Supreme Court justices should make decisions can be tricky, and each state has its own rules, says Deborah Smith at the National Center for State Courts. In California, for instance, justices don’t get paid unless they issue opinions within 90 days.
According to time standards recommended by the American Bar Association, 50 percent of a state Supreme Court’s caseload should be resolved in 290 days or fewer after the date of filing the notice of appeal (or petition for review), and 90 percent should be resolved in one year or less.
How long South Carolina’s High Court justices should take in making decisions is something that could come up during this year’s rare race for who will lead the court. To the surprise of legal observers, current Chief Justice Jean Toal is facing a challenge from Associate Justice Costa Pleicones. A government judicial panel will begin a screening process Nov. 5, and the election will be held in February. In South Carolina, the 170 members of the General Assembly choose who leads the state’s High Court.
The race is a bit of a bizarre situation. The position of chief justice is usually decided behind the scenes by agreements on the court rather than elections. Pleicones says Toal told him she wouldn’t run for re-election, while Toal says she was surprised Pleicones challenged her when she decided to run again.
A legendary public defender, Pleicones says a periodic change in leadership has always been beneficial for the court, and he says the institution could benefit from a more expeditious processing time on cases.
“I think that there are some certain internal controls we could implement” to do that, he said, but declined specifics.
Asked if he planned to make the court’s decision times an issue in the race, Pleicones said, “I have said that I think we can improve our processing time. I don’t intend that, frankly, as an indictment of any individual or of the court generally.”
For her part, Toal, a former lawmaker and the state’s first female chief justice, says she doesn’t expect the length of time the court has taken to make decisions to come up in the race or the screening process. She’s said she’s running for re-election in part because there are a handful of important projects that began under her leadership she’d like to see through to completion. She regards technological reforms as the hallmark of her administration as chief, including the implementation of a statewide electronic filing system. Whoever wins likely won’t serve long as chief since they are both nearing the age of 72 when they’d have to retire from the bench in order to mainatain pension benefits.
Perhaps a larger question about the state statute on Supreme Court decision times is who would ever enforce the law. First, the court would probably have to face a challenge from an individual or business affected by a delay.
“I think it would be a rare lawyer that might take it upon herself or himself to do that,” says Bockman. And beyond that, the law professor says, “Who is it that’s going to order the Supreme Court to comply with that law? The Supreme Court is the Supreme Court. It’s the highest court in the state. What part of the judicial department would essentially be able to exercise that authority and tell the Supreme Court to issue an opinion within a certain period of time? I don’t know the answer to that one.”
Tom Fitton, president of Judicial Watch, a Washington, D.C.-based conservative group that watchdogs judicial officials, says the way to deal with such a law would be to challenge it, not ignore it.
“The idea of a relatively arbitrary 60-day limit doesn’t comport with getting the best decision from a court,” he says. “That being said, if the law is not being followed that’s a problem.”
For his part, Bockman says he believes South Carolina’s Supreme Court operates efficiently.
But for Rutherford, it’s a case of justice delayed, justice denied.
“One of the biggest issues that we deal with at the State House,” he says, “is trying to get government to do what government should because there are no penalties when the government doesn’t.”

WILL THE U.S. SUPREME COURT DEFEND FREE SPEECH FOR THE LITTLE GUY?

Wednesday, October 30th, 2013

Paul Sherman, Contributor October 30, 2013
Most campaign-finance cases that make their way to the U.S. Supreme Court involve big money. Citizens United v. FEC concerned the right of a well-funded nonprofit—and, ultimately, all corporations and unions—to spend unlimited amounts on political advocacy. McCutcheon v. FEC, which the Court heard earlier this month, concerns the right of wealthy individuals to make hundreds of thousands of dollars in political contributions.
Proponents of strict campaign-finance laws point to these facts as evidence that the benefits of robust protection for free speech in elections redound primarily to the wealthy. But this Friday, November 1, the U.S. Supreme Court will meet in private conference to decide whether to grant review in a case that challenges that assumption, and demonstrates the severe burden that campaign-finance laws impose on ordinary, grassroots groups of Americans.
The case, Worley v. Florida Secretary of State, involves three Florida residents, Nathan Worley, John Scolaro, and Pat Wayman, who in 2010 wanted to pool $600 to spend on radio ads opposing a controversial amendment to the Florida constitution regarding land-use regulations. They quickly learned, however, the campaign-finance laws aren’t just a problem for the wealthy.
Under Florida law, anytime two or more people spend as little as $500 to support or oppose a candidate or ballot issue, they are considered a “political committee.” That means they have to register with the state, open a separate bank account, pay for all expenses with checks drawn from that account and keep meticulous financial records, all of which are disclosed on the Internet. In other words, they have to comply with all of the requirements that political candidates hire lawyers and accountants to deal with.
As a practical matter, these regulations make spontaneous political speech effectively impossible for ad hoc, grassroots groups. Just as nobody would open a separate bank account for the proceeds of their office football pool, ordinary people aren’t going to do so to run a single newspaper ad or a handful of radio ads, either of which can easily push a group over the $500 threshold.
For those groups that do choose to speak out, Florida’s campaign-finance laws present a regulatory minefield filled with scores of potential violations. The state recommends that those wishing to comply with the law familiarize themselves with more than a thousand pages of constitutional provisions, laws, regulations, and advisory opinions. Failure to do so is treacherous; complaints to the state election commission about legal errors are common, and the state itself estimates that 98 percent of those complaints are politically motivated attempts to harass or punish one’s political opponents.
Faced with these burdens, Nathan, John and Pat—represented by the Institute for Justice—turned to the federal courts to vindicate their First Amendment rights.
They had good reason to be hopeful. The U.S. Supreme Court has repeatedly recognized that political committee requirements like Florida’s impose severe burdens on political speech that merit the highest level of judicial scrutiny. Indeed, in Citizens United, the Court held that forcing corporations and unions to speak through a political committee was so burdensome it amounted to an unconstitutional “ban on speech.” Nevertheless, a federal court in Florida and, later, the 11th U.S. Circuit Court of Appeals both upheld Florida’s political committee law.
Unfortunately, the 11th Circuit’s decision is not an outlier. Led by early decisions in the 9th Circuit, federal courts across the country have consistently ignored the Supreme Court’s ruling in Citizens United. As a result, in most states, grassroots groups are subject to campaign-finance laws that could not constitutionally be applied to ExxonMobil or the AFL-CIO.
That result cannot be squared with the First Amendment, which is why the Supreme Court should grant review in Nathan, John, and Pat’s case and reverse the decision of the 11th Circuit. Doing so wouldn’t just vindicate the plaintiffs’ rights, it would demonstrate the Court’s commitment to the principle that political participation is not a game reserved for the wealthy—it is the right of every American and every group of Americans, no matter how modest their resources or political goals.
The author is a senior attorney at the Institute for Justice, which represents that petitioners in Worley v. Florida Secretary of State.

Gov. Beshear, Attorney General Conway Warn Consumers of Potential Scams During Health Care Coverage Rollout

Wednesday, October 30th, 2013

Office of the Attorney General

Press Release Date: Tuesday, October 29, 2013
Contact Information: Allison Gardner Martin
Communications Director
502-696-5651 (office)

Governor Steve Beshear and Attorney General Jack Conway are warning consumers to protect themselves from fraud and to be vigilant of scams claiming to be associated with Kentucky’s rollout of the Affordable Care Act.

If Kentuckians have any questions or concerns, they should contact the AG’s Office of Consumer Protection or staff of the state’s health benefit exchange call center.

On Oct. 1, thousands of Kentuckians without health insurance began seeking information and shopping for insurance coverage using kynect, Kentucky’s health benefit marketplace created to provide simple, one-stop shopping for individuals and small businesses to purchase health insurance.

Unfortunately, scammers have seen this as an opportunity to try to collect consumers’ personal information or to make false claims.

The Cabinet for Health and Family Services, which oversees kynect, has been notified by consumers of suspicious websites that call consumers after they register information on the sites.

The Attorney General’s Office is investigating the websites. On Monday, it sent civil investigative subpoenas and cease and desist orders to the operators of two websites.

“It’s appalling to think there are individuals out there who would prey on Kentuckians during this process,” Gov. Beshear said. “Everyone should be on guard and report any questionable websites or businesses. There is a lot of misinformation on the Affordable Care Act, which is why we have qualified staff who can answer questions and point consumers in the right direction.”

Gov. Beshear said kynect is a secure website, and the call center staff is professionally trained.

Attorney General Conway’s Office of Consumer Protection is set up to handle questions and concerns by the public involving matters like Kentucky’s launch of the Affordable Care Act. The most common trick is scam websites trying to mimic legitimate government websites.

Kynect.ky.gov is the only website Kentuckians should use to sign up for the exchange, Attorney General Conway said, adding that anything with a “.com” or “.net” address is not a legitimate website for the exchange.

“My office is committed to protecting Kentuckians from these types of crimes,” Attorney General Conway said. “If something seems suspicious, do not share your personal information, and if you suspect fraud, report it immediately by calling our Consumer Protection Hotline at 888-432-9257.”

Attorney General Conway warns Kentuckians to be on guard for attempts by identity thieves to collect personal or financial information by email, phone or mail.

Scammers may additionally try to sell individuals bogus “discount medical plans” or mislead older consumers on Medicare by making false claims that Medicare coverage is affected by the new law, he said.

The Office of Consumer Protection recommends the following tips for consumers:

• Protect your personal information. Only a registered insurance agent, a certified kynector, or contact center customer service representative should ask for your personal information to help you apply. Keep personal and account numbers private to any others who offer assistance. Don’t give your Social Security number, credit card or banking information to companies or individuals you didn’t contact. Never give your information to someone whose identity you question.

• Make sure you’re working with a registered insurance agent or certified kynector. Only legitimate insurance agents and assisters, known as “kynectors,” are authorized to assist Kentuckians with signing up for health care. A list of approved agents and kynectors maintained by the Cabinet for Health and Family Services can be found online or by calling 1-855-4kynect (459-6328).

• Do not pay for help. Insurance agents and kynectors will not solicit money. There is no charge to use kynect services, either online or with the help of an insurance agent or certified kynector. If consumers receive an offer to register for a fee, they should hang up the phone or walk away. Consumers should not give their credit card or banking information to anyone they do not know or did not contact. Consumers should be very suspicious of anyone charging a fee in connection with enrollment.

• Remember that you can only get tax credits through kynect. Kentuckians who purchase insurance through kynect may qualify for tax credits to help cut the cost. No one but kynect can offer these credits, and there is no charge to apply for the credits.

• Beware of phishing scams online. Consumers should be cautious of any email claiming to be connected to the Affordable Care Act, including any emails claiming to be affiliated with kynect and asking for personal information.

• Ask questions. Don’t sign anything you don’t fully understand, and verify the answers you get with trained kynect representatives.

If people do think their personal information has been compromised, they can visit www.ag.ky.gov. The Attorney General’s website contains information about protecting your personal identity and an identity theft toolkit.

Kynect is a program run by the Kentucky Office of the Health Benefit Exchange within the Cabinet for Health and Family Services. Federal law requires each state to have an online health insurance marketplace to ensure that all Americans have access to quality healthcare.

SCOKY Amends CR 23 to Direct Some Residual Class Action Proceeds to Legal Aid for Low-Income Kentuckians

Wednesday, October 30th, 2013

David Kramer | dkramer@dbllaw.com

More Sharing ServicesShare|Share on facebookShare on twitterShare on emailShare on printIn Order 2013-14 (eff. 1/1/2014), the Kentucky Supreme Court adopted a new section of Civil Rule 23 governing class actions providing that not less than 25% of any residual funds remaining after payment of claims to class members be paid to the Kentucky IOLTA Fund for distribution to legal aid programs for low-income Kentuckians. The rest of the residual proceeds may be used for a cy pres trust, subject to the trial court’s discretion. The new Rule was patterned after similar rules adopted by a number of other jurisdictions that apportion excess or residual class action funds to legal aid programs. In so directing the disposition of a portion of excess class funds, some states in essence treat part of the excess funds in the same manner as abandoned or unclaimed property that is subject to escheat.

Residual funds from class action litigation have traditionally been used to establish cy pres trusts, which are intended to serve a charitable or beneficent purpose similar to the point of the underlying class action. The cy pres doctrine originated in the law of trusts and estates, where it has been applied to give comparable effect to the charitable intention of the grantor or testator (or to make “the next best use” of the property or funds) when the court determines it would be impossible or illegal to give literal effect to the donor’s original intent.

In the context of class actions, situations in which courts have approved establishment of cy pres charitable trusts or other cy pres settlements have included the following: (1) when class members have received full compensation for their damages, and excess funds remain (such as when the defendant has been compelled to disgorge excessive profits as a deterrent, and the disgorged funds exceed the total amount of the damages, fees and costs of the class); (2) when proof of individual class members’ claims would be overly burdensome or distribution of damages to individual class members would be too costly; or (3) when the class of persons who might otherwise qualify as class members is difficult to identify or evolves over time (a so-called “fluid class”) such that measuring or awarding damages would be impracticable or impossible, and the court determines that providing indirect or prospective benefit serves the interests of justice.

The new Rule, in enhancing the availability of legal services to low-income residents, will promote improved access to the civil justice system that allowed the class action to achieve recovery.

Note: The foregoing post includes commentary reprinted from the the main volume and the forthcoming 2014 supplement to 6 Phillips & Kramer, Rules of Civil Procedure Annotated, 6th ed. (Kentucky Practice Series), by David V. Kramer, with permission of the author and publisher. Copyright (c) 2013 Thomson Reuters. For more information about this publication please visit http://store.westlaw.com/rules-of-civil-procedure-annotated-6th-vols-6-7-kentucky/130503/11774808/productdetail.

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

DEMOCRATS THREATEN TO RENEW FILIBUSTER FIGHT IF REPUBLICANS BLOCK APPOINTMENT OF D.C. COURT OF APPEALS NOMINEE

Wednesday, October 30th, 2013

Posted Oct 30, 2013 By Debra Cassens Weiss
Senate Democrats say they will renew their fight over filibuster rules if Republicans block the nomination of Patricia Ann Millett to the U.S. Court of Appeals for the District of Columbia Circuit.
Millett, a partner at Akin Gump Strauss Hauer & Feld, was nominated to fill the seat left open when John Roberts left become chief justice of the U.S. Supreme Court. Millett is “a key flashpoint” for Republicans who say Obama is trying to push the important appeals court to the left, the Associated Press reports. The appeals court’s active judges are now split 4-4 between Democratic and Republican nominees.
If Millett does not get 60 votes to overcome a filibuster on Thursday, Democrats say they will be forced to revisit the so-called “nuclear option,” which involves changing Senate rules to limit filibusters, according to AP, the New York Times and The BLT: The Blog of Legal Times.
Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., said at a press conference on Tuesday that, if Millett is successfully filibustered, “the pressure to change the rules would be almost insurmountable.” He said Millett had argued 32 cases in the U.S. Supreme Court. “If we were dealing with logic and honesty and what’s best for the court, we’d have 100 votes,” he said.
Other Obama nominees to the D.C. Circuit are Georgetown law professor Cornelia “Nina” Pillard and U.S. District Judge Robert Wilkins. Republicans argue the court’s workload doesn’t justify the need for any of the nominees

Judge Richard Posner suggested in his new book that he was wrong to uphold Indiana’s voter ID law

Monday, October 28th, 2013

Judge Posner: I Never Said My Opinion Was Wrong

Richard Posner

By Jacob Gershman

Judge Richard Posner —Reuters
Judge Richard Posner generated quite the hullabaloo when he suggested in a book — and later confirmed to a reporter — that he was wrong to uphold Indiana’s voter ID law. For legal watchers, it was rare admission by one of America’s most famous judges, especially on such a polarizing issue.

But in the latest twist, Judge Posner now says he never disavowed the 2007 opinion he wrote for the 7th U.S. Circuit Court of Appeals in Crawford v. Marion County Elections Board. Writing in the New Republic, he says:

I did not say that my decision, and the Supreme Court’s decision affirming it (written, be it noted, by the notably liberal Justice Stevens), were wrong, only that, in common with many other judges, I could not be confident that it was right, since I am one of the judges who doesn’t understand the electoral process sufficiently well to be able to gauge the consequences of decisions dealing with that process.

He says the point he was trying to make in his new book, “Reflections on Judging”, was that “in many cases judges can’t have any confidence in the soundness of their decisions if they do not have empirical data concerning the likely consequences of deciding the case one way rather than another.”

The controversial passage in his book is just a single sentence on page 85: “I plead guilty to having written the majority opinion (affirmed by the Supreme Court) upholding Indiana’s requirement that prospective voters prove their identity with a photo ID—a type of law now widely regarded as a means of voter suppression rather than of fraud prevention,” he wrote.

The line didn’t get much attention until HuffPost Live’s Mike Sacks asked Judge Posner about it in an interview that aired Oct. 11 (fast-forward to the 8:40 mark). The reporter read the passage to the judge and asked him if he and the court had gotten the case wrong. “Yes, absolutely,” Judge Posner replied. Judge Posner doesn’t mention the interview in his New Republic piece.

The U.S. Supreme Court in 2008 affirmed the Seventh Circuit ruling by a 6-3 vote. Retired Justice John Paul Stevens, who wrote the opinion, told WSJ’s Jess Bravin that he believes he ruled correctly, but said he’s concerned by the proliferation of state laws tightening voter-identification requirements.

So what to make of Judge Posner’s latest turnabout? “I do not believe it is credible given his Huffington Post comments,” University of California-Irvine law professor Richard Hasen, an electoral law expert who was critical of Judge Posner’s opinion in Crawford, told Law Blog.

Law Blog has put in a request to speak to Judge Posner.

RETIRED SUPREME COURT JUSTICE WIL SCHRODER PASSES AWAY

Monday, October 28th, 2013

Justice Wilfrid Albert (Wil) Schroder, 67, of Fort Mitchell, Kentucky, passed away on Saturday, October 26, 2013. Wil is preceded in death by his first wife Nancy Quirk Schroder. Wil is survived by his wife Susan Wahlbrink Schroder; his children, Stephanie (Henry) Rosen, Lydia (Jeff) Austin and Wilfrid R. (Marci) Schroder and two grandchildren.

Wil started his legal career in private practice in 1975. He served on the judicial bench from 1983 until 2013. Wil served on Kenton County District Court from 1983 – 1991. He served on Kentucky State Court of Appeals from 1991 – 2006. In 2006, Wil was elected to the Kentucky Supreme Court, where he served until his retirement earlier this year.

Visitation will take place at Blessed Sacrament Church Ft. Mitchell, KY. Saturday, November 2, 2013 from 8 AM to 10 AM with Mass to follow at 10 AM.

A celebration of life will immediately follow the Mass of Christian Burial at the Oriental Wok 317 Buttermilk Pike, Lakeside Park, KY 41017

Memorial donations are requested to:

· Hospice of the Bluegrass 7388 Turfway Rd. Florence, KY 41042

· Justice Wil Schroder Scholarship at NKU Chase College of Law, NKU Chase College of Law 100 Nunn Dr., Suite 521 Highland Heights, KY 41099.

Online condolences may be made to www.linnemannfuneralhomes.com

To view the obituary notice in its entirety please visit http://www.legacy.com/obituaries/nky/obituary.aspx?pid=167747644
Nov. 28 2013
The Courier-Journal has announced the death of retired Kentucky Supreme Court Justice Wil Schroder. Schroder retired last year and announced that he had a cerebral tumor.
He was known for his excellent opinions and his mild disposition. He was a vigorous advocate for regulating the Kentucky Bar Association and opposed requests for unjustified increases in dues. LawReader wishes to express our condolences to his family.

High Court Test of Surveillance Law Could Be Ahead

Sunday, October 27th, 2013

WASHINGTON October 26, 2013 (AP)
By PETE YOST Associated Press
The Justice Department says for the first time that it intends to use information gained from one of the National Security Agency’s warrantless surveillance programs against an accused terrorist, setting the stage for a likely Supreme Court test of the Obama administration’s approach to national security.
The high court so far has turned aside challenges to the law on government surveillance on the grounds that people who bring such lawsuits have no evidence they are being targeted.
Jamshid Muhtorov was accused in 2012 of providing material support to the Islamic Jihad Union, an Uzbek terrorist organization that, authorities say, was engaging NATO coalition and U.S. forces in Afghanistan.
According to court papers in the case, the FBI investigated Muhtorov after his communications with an overseas website administrator for the IJU.
In a court filing Friday, the government said it intends to offer into evidence in Muhtorov’s case “information obtained or derived from acquisition of foreign intelligence information conducted pursuant to the Foreign Intelligence Surveillance Act of 1978.”
Last February, a sharply divided Supreme Court ruled in a 5-4 vote that a group of American lawyers, journalists and organizations could not sue to challenge the 2008 expansion of the law. The court those who sued could not show that the government would monitor their communications along with those of potential foreign terrorist and intelligence targets.
Last month, Supreme Court Justice Antonin Scalia, who had ruled with the majority in the earlier 5-4 decision, said the courts ultimately would have to determine the legality of the NSA surveillance program.
In the majority opinion last February, Justice Samuel Alito suggested a way for a challenge to be heard. He said if the government intends to use information from such surveillance in court, it must provide advance notice. In his argument before the court’s decision, Solicitor General Donald Verrilli had made similar comments to the justices on behalf of the administration.
Justice Department spokesman Brian Fallon declined comment Saturday on the new development beyond the court filing.
The program at issue in the Muhtorov case is commonly called “702,” a reference to the numbered section of the surveillance law on Internet communication.
In the Muhtorov case, after his contact with the IJU’s website administrator, the FBI went to court and obtained email from two accounts that Muhtorov used, according to the court papers.
The FBI also went to court to obtain communications originating from Muhtorov’s phone lines. In one call, Muhtorov told an associate that the Islamic Jihad Union said it needed support, an FBI agent said in an affidavit filed in the case. The associate warned Muhtorov to be careful about talking about a founder of group, the affidavit stated.
The FBI also said Muhtorov communicated with a contact in the group by email using code words, telling a contact that he was “ready for any task, even with the risk of dying.”
Muhtorov, a refugee from Uzbekistan, resettled in Aurora, Colo., in 2007 with the help of the United Nations and the U.S. government. He was arrested Jan. 21, 2012, in Chicago with about $2,800 in cash, two shrink-wrapped iPhones and an iPad as well as a GPS device.

TV Spending Rises In Judicial Races

Saturday, October 26th, 2013

Television advertising meant to sway the outcome of judicial elections surged during the 2012 election cycle, a national report released Friday says, as special-interest groups tried to capitalize on new rules that allowed unlimited spending.

TV spending on races for state Supreme Courts and other high courts jumped to $33.7 million in 2011 and 2012, an increase of more than $7 million from four years earlier, and more than a quarter of all spending came from organizations such as the National Rifle Association, Americans for Prosperity and America Votes.

Negative advertising aired in 10 states, including some spots that were misleading, according to researchers at New York University School of Law and the National Institute on Money in State Politics.

Their report, “The New Politics of Judicial Elections,” comes as Tennesseans prepare for a vote next year that could reopen the possibility of contested elections for Supreme Court and appeals court judges.

The report finds that $56.4 million was spent on high-court judicial races in the 2012 cycle, slightly less than the $57.1 million spent in the 2008 election cycle. Spending topped $1 million in 12 states, led by Michigan, where $13 million was spent.

Researchers said special interest groups took advantage of the U.S. Supreme Court’s 2010 ruling in the Citizens United case, which allowed independent groups to spend on behalf of candidates, provided they did so without coordinating with campaigns. Such organizations spent $15.4 million, accounting for 27 percent of all high-court spending.

“Special-interest spending in judicial elections has turned into an arms race,” said Alicia Bannon, counsel for the Democracy Program in NYU’s Brennan Center for Justice and the report’s lead author. “The American people need to know that judges are deciding cases based on the law, not on who spent the most money to support their campaign.”

Voters in Tennessee choose lower court judges, but the state has not held direct elections for the state Supreme Court since 1990 and for lower courts since 1971. These judges instead are chosen by the governor and stand in “retention elections,” yes-or-no votes held every eight years to determine whether they should be allowed to remain in office.

Critics of the system say retention elections violate the state constitution, which requires that Supreme Court justices “shall be elected by the qualified voters of the State” and that lower court judges must be elected by voters in their districts.

Voters will decide in 2014 on an amendment to the Tennessee constitution that would grant the governor explicit power to appoint judges and would give state lawmakers the power to review his choices.

If that amendment fails, it could strengthen legal challenges to the state’s judicial selection process.

But even one of the state’s most prominent supporters of contested judicial elections, former gubernatorial candidate John Jay Hooker, says he would not favor free spending on court races.

“All campaign contributions are potential bribes and therefore should be eliminated,” said Hooker, who has filed several lawsuits against the state’s system.

The Brennan Center argues that public financing for elections, as well as systems like Tennessee’s that are intended to select judges based on their merits, can help states resist the politicization of judicial elections.

BOONE CIRCUIT JUDGE TONY FROHLICH RELEASES BOOK ON KENTUCKY COURTS

Friday, October 25th, 2013

A Kentucky Court provides a history of the court system from the creation of the state, focusing on Boone County, which at one time on another shared a court system with fourteen other counties. It provides valuable information on the Circuit Court, District Court, Family Court, Court of Quarter Sessions, Court of Oyer and Terminer, County Court, Court of Appeals, Supreme Court, Commonwealth Attorneys, County Attorneys, Circuit Clerks, County Clerks, County Clerks, Master Commissioners and Domestic Relation Commissioners.
Judge FrohlichThe book has the history and photographs of the courthouses as well as a history of the hanging tree and mob lynchings. The book is inclusive from the formation of Boone County in 1798 to 2012 with biographies (including genealogical information) of its 157 court officials. The book includes 137 photographs.
*************
Judge Frohlich has been honored by the Ky. Legislature:
A RESOLUTION honoring Circuit Judge Anthony W. Frohlich.
WHEREAS, Anthony W. Frohlich graduated first in his class from Salmon P. Chase College of Law at Northern Kentucky University in 1980; and
WHEREAS, following his graduation, Anthony W. Frohlich was in private practice, then served as Boone County Master Commissioner, Domestic Relations Commissioner, Assistant Commonwealth’s Attorney, City Attorney for the City of Walton, and the Boone and Gallatin County Child Support Program Attorney prior to being elected as Circuit Judge; and
WHEREAS, Anthony W. Frohlich has served in the position of Circuit Judge for Boone and Gallatin Counties since 2004; and
WHEREAS, since his election, Judge Anthony W. Frohlich has been a leading judicial innovator in Kentucky, working to reduce caseloads in his Judicial Circuit and establishing innovative programs; and
WHEREAS, Judge Anthony W. Frohlich developed a felony mediation program, which is now being used throughout Kentucky courts and various areas of the United States; and
WHEREAS, Judge Anthony W. Frohlich explained his felony mediation program’s success in the March 2009 issue of the Bench & Bar magazine of the Kentucky Bar Association; and
WHEREAS, Judge Anthony W. Frohlich’s felony mediation program has been featured in the American Bar Association’s Dispute Resolution magazine and numerous law journals and publications; and
WHEREAS, Judge Anthony W. Frohlich has spoken on his felony mediation program at the Universidad Interamericana Law School in San Juan, Puerto Rico, and recently at the South Carolina Bar Association convention; and
WHEREAS, Judge Anthony W. Frohlich is presently the president of the Chase Inn of Court and serves on the Board of Advisors to the Chase Center of Excellence For Trial Advocacy; and
WHEREAS, the Kentucky Justice Association, the leading voice of trial attorneys in Kentucky, established the Henry V. Pennington Outstanding Trial Judge award in 1983 in honor of Circuit Judge Henry V. Pennington of Danville, who was one of the leading architects of the new judicial system following the enactment of the judicial article to the Constitution of Kentucky; and
WHEREAS, the Kentucky Justice Association recognized Judge Anthony W. Frohlich as the 2011 recipient of the Henry V. Pennington Outstanding Trial Judge award, citing Judge Frohlich as “a member of the bench who demonstrates a high standard of ethical conduct, fairness in all court proceedings and consistent understanding and appreciation for the art of trial practice and the right to trial by jury”;
NOW, THEREFORE,
Be it resolved by the Senate of the General Assembly of the Commonwealth of Kentucky:
Section 1. The Senate of the General Assembly of the Commonwealth of Kentucky recognizes the career achievements of Circuit Judge Anthony W. Frohlich and commends Judge Frohlich on his innovative felony mediation and other programs and the Kentucky Justice Association’s naming of Judge Anthony W. Frohlich as the 2011 recipient of the Henry V. Pennington Outstanding Trial Judge award.
Section 2. The Clerk of the Senate shall send a copy of this Resolution to Chief Circuit Judge Anthony W. Frohlich at the Boone County Court House, 6025 Rogers Lane, Suite 444, Burlington, Kentucky 41005.

The Delaware Court of Chancery’s four-year-old experiment with confidential arbitration appears to have come to an early end.

Wednesday, October 23rd, 2013

By Jacob Gershman

CONNECT

Chancellor Leo Strine. —Associated Press
The Delaware Court of Chancery’s four-year-old experiment with confidential arbitration appears to have come to an early end.

The 3rd U.S. Circuit Court of Appeals on Wednesday struck down the so-called judicial-arbitration procedure as unconstitutional, affirming a lower-court ruling from last year. In a 2-1 ruling, the appeals court said the public has a First Amendment right of access to the court’s arbitration proceedings.

The Delaware lawmakers enacted the arbitration program in 2009. The idea was to take all the advantages of arbitration as a means of settling complex business disputes — such as its speed, its relatively lower cost, and its controlled process — and match it with the expertise of Delaware’s chancellors. Leo Strine Jr. the top judge on the court, and his colleagues are regarded as among the brightest lights of corporate law.

The Delaware Coalition for Open Government, a citizen’s advocacy group, challenged the judicial arbitration as a First Amendment violation.

“The right of access to government-sponsored arbitrations is deeply rooted in the way the judiciary functions in a democratic society,” the Third Circuit said.

The appeals court also discounted concerns raised by the Chancery that opening the doors would effectively terminate the program. The court said that even without the benefit of confidentiality, Chancery arbitration still offers flexibility and speed lacking in a civil trial.

The argument failed to convince Judge Jane Roth, who offered her own history lesson in a dissent. She pointed to the example of how the New York Chamber of Commerce in the 18th century relied on arbitration’s privacy to settle disputes between American and British merchants.

Last year, as WSJ reported, U.S. District Judge Mary A. McLaughlin reasoned that it was “sufficiently” like a trial and therefore should be held to the same standards of transparency under the First Amendment’s “qualified right of access” to courts.

“This program was a dramatic example of a court trying to be innovative in providing a new means of dispute resolution,” Brian Farkas, an associate at Goetz Fitzpatrick LLP who has written about the case, told Law Blog. “The opinion will give courts who are trying to innovate clearer boundaries on what the First Amendment allows.”

He said it was probably unlikely that a court would implement an “open” arbitration program. “Confidentiality is one of the major distinguishing marks between arbitration and traditional civil litigation, where many records become public,” said Mr. Farkas.

The Delaware judges still have the option of appealing the case to the U.S. Supreme Court. The Delaware court is represented by Andrew J . Pincus, a veteran Supreme Court litigator who argued the 2011 case AT&T Mobility LLC v. Concepcion case involving class-action arbitration.

“Given the importance of this issue, we will be evaluating the appellate options after we have an opportunity to further study” the ruling, Mr. Pincus told Law Blog in a statement.

Attorney General Jack Conway announced today that Kentucky has reached an agreement with Kmart Corporation …

Wednesday, October 23rd, 2013

Attorney General Jack Conway announced today that Kentucky has joined with other states, territories, and the federal government in reaching an agreement with Kmart Corporation to settle allegations that the company submitted false claims and false statements through its Kmart Pharmacy Centers to the federal government, state governments, and territories for payments related to partial fills of prescriptions.

“I am pleased that we have reached this settlement and are recovering thousands of dollars for a vital state program and for taxpayers,” General Conway said.

Kmart will pay 30 states, Puerto Rico, the Virgin Islands, and the federal government a total of $2.55 million in civil damages and penalties to compensate Medicaid, Medicare, and various federal healthcare programs for harm suffered as a result of its conduct.

The lawsuit asserts that Kmart violated the federal False Claims Act by returning to stock and failing to delete or re-adjudicate prescriptions that were billed to federal health insurance programs, but were not picked up by customers.

This settlement is based on a whistleblower complaint against Kmart. The case was filed in the United States District Court for the Eastern District of Michigan by a private individual who filed the action under the federal false claims statute. As part of the settlement, Kentucky will receive $36,892 in restitution and other recovery.

A National Association of Medicaid Fraud Control Units team participated in the settlement negotiations with Kmart on behalf of the settling states. Team members included representatives from the Offices of the Attorneys General for the states of Florida, Indiana, New York, and North Carolina.

Lexington Author Tim Underwood Offers Razzle Dazzle and Ravenwood Novels

Tuesday, October 22nd, 2013

(UK law professors brother writes thrilling novels .)

Razzle Dazzle by Tim Underwood is for readers who enjoy action, adventure, conflict and romance. Just like the casino game for which the book is named, the players have almost no chance to win yet, somehow, they must risk everything to prevail. Old hatreds are re-kindled, new loves found, and indomitable adversaries…from the Mafia to treacherous allies to a hostile foreign government…must be overcome. The novel is available in trade paperback or as an e-book from Amazon®.

Contact the author in Lexington, Kentucky, for a historical thriller filled with adventure and romance.. www.timunderwoodbooks.com.

“Ravenwood” now available in print edition and as an e-book from amazon.com. coming in December, “The Acquarian”.

Tim Underwood of Lexington, Kentucky, specializes in historical fiction as well as modern thrillers, some with a touch of the paranormal. He has been a corporate executive, an entrepreneur, an award-winning investigative journalist, and a professional horseplayer. Razzle Dazzle is the author’s second novel.

Enticing History
Imagine yourself, a trained sharpshooter, in Cuba on April 14, 1961. The Bay of Pigs Invasion is about to begin. By quirk of fate you have Fidel Castro in your rifle sights and an opportunity to change the course of history.
While the new US President, John F. Kennedy, approved the doomed Bay of Pigs invasion, lax security among the Cuban exiles ensured that the Castro government knew the details of the invasion in plenty of time to prepare defenses.

A key element of the ill-fated plan was one of the many plots to assassinate the Castros and Che Guevara. The central character of Razzle Dazzle, an American gambler and one-time intelligence operative, Jake St. Aubin, is the most capable of the group of assassins assembled by the CIA and organized crime. With the invasion unfolding and the assassination plan abandoned Jake and his companions are on the run across the length of Cuba. In full flight, he finds himself with Fidel in his gunsights. He has plenty of incentive to pull the trigger having lost his Havana nightclub and his fortune when Castro ousted Batista. Betrayed Jake spent nearly a year in a Cuban prison camp. Now he can extract revenge and ensure the outcome of the invasion. Yet, by pulling the trigger, he risks losing everything he loves.

Set in a compelling period of political, technological, and social change, historical figures – some famous and some yet to be famous – play significant roles. Razzle Dazzle puts its characters through peril and passion. Old hatreds are rekindled, new loves found, and indomitable adversaries overcome.

One man caught up in America’s first great intelligence failure, Jake has only his skills, speed, courage…and love to see him through.

Ravenwood takes place in Lexington where he is trying to catch a serial killer who has lawyers as victims. Razzle Dazzle takes place in Newport in 1960-61 (the last years open gambling) and in Havana where many of the gamblers went as Newport was waning. It has some good Kentucky history to it though only two lawyers are mentioned: Jesse Kitchen Lewis who, as assistant attorney general of KY was the only law enforcement person to successfully close down the Newport casinos (however temporarily) and closed down the Covington gambling houses including the Lookout House by suing the sheriff in Federal Court for failing to enforce the gambling laws (argued before Judge Swinford); and Robert Lester who was the fixer in Newport. Still, it’s a fun book with some good lore.

ATTORNEYS FOR SENATORS FILE RESPONSE IN SEVEN COUNTIES CASE

Monday, October 21st, 2013

A sidelight to the Seven Counties bankruptcy case continues to play itself out in U.S. District Court in Louisville. Seven Counties is the regional mental health organization that provides services to the state and that has for years participated in Kentucky Retirement Systems. Last spring, Seven Counties filed for bankruptcy protection seeking to walk away from its pension obligations.

The case took an odd twist when Seven Counties sought to have Senators Damon Thayer and Christian McDaniel testify about the participation of non-government entities in KRS. Attorneys for the Senate sought to have the depositions quashed, saying the two senators lacked any specific expertise in the arcane legal question about what constituted a governmental unit in bankruptcy law. Moreover, the two enjoy legislative immunity.

U.S. Bankruptcy Joan Lloyd upheld Seven Counties’ motion, and Senate attorneys appealed the order to the U.S. District Court.

Seven Counties asserted that the senators don’t have the right to an appeal. In a response filed today, the Senate attorneys said Seven Counties continuously referred to “legislative privilege” rather than “legislative immunity” in its court documents. The Senate counsel responded: “…legislative immunity protections..are not mere evidentiary privileges…but are constitutional and common law immunities that are qualitatively superior to evidentiary privileges.”

KY Human Rights Commission issues October 2013 rulings on discrimination complaints

Monday, October 21st, 2013

The Kentucky Commission on Human Rights Board of Commissioners met Thursday, Oct. 17, at Louisville headquarters to rule on discrimination complaints for the Commonwealth of Kentucky.

The commission ruled to approve two conciliation agreements. Both cases had been determined by the agency to warrant probable cause issuances, indicating there was evidence to believe illegal discrimination may have occurred. The commission also approved two case withdrawals giving complainants the right to file private suits, approved one case withdrawal resolved with a private settlement, and dismissed 27 complaints with findings of no probable cause to evidence that discrimination occurred. The commission successfully mediated one complaint with an undisclosed settlement.

Conciliation agreements are similar to settlements and are negotiated by commission investigative and legal staff. The agreements resolve the discrimination complaints. The following are summaries of the conciliation agreements at the October meeting:

Anita Dowd v. Chakeres Theatres Inc., in Frankfort, Ky.: On July 26, 2011, Anita Dowd alleged to the commission that she was the victim of unlawful discrimination based on disability in the area of public accommodations. This would be a violation of the Kentucky Civil Rights Act (Kentucky Revised Statutes Chapter 344) and the United States Civil Rights Act. Dowd claimed that Chakeres Theatre in Frankfort failed to provide her with auxiliary aids or captioning services so that she could watch one of its movies. After an investigation by commission staff, Executive Director John J. Johnson issued a finding of probable cause, indicating there was evidence to believe discrimination occurred. Prior to holding a final hearing, the parties chose to resolve the matter with a conciliation agreement, which staff negotiated for the complainant. The theatre company denied any violation of the law and affirmed that it does and shall comply with civil rights law. The company agreed to compensate Dowd in the amount of $5,000. The company informed the commission that it plans to cease doing business in the Franklin Square Theater in Frankfort in January 2014. If the company does begin operations in Kentucky it is required to provide auxiliary aids and services as necessary to deaf and hard-of-hearing individuals and to comply with all civil rights law and undergo commission compliance monitoring for a period of time.

Jessica Morris v. Lakeway Tobacco Shop et. al., in Tompkinsville, Ky.: On March 15, 2012, Jessica Morris alleged to the commission that she was the victim of unlawful discrimination based on sex (pregnancy) in the area of employment. This would be a violation of the Kentucky Civil Rights Act and the U.S. Civil Rights Act. Morris claimed that while employed at the Lakeway Tobacco Shop as a cashier, the store manager expressed concern about whether she would be able to do her job due to the fact that she was pregnant; she claimed that when she later took leave due to an unrelated illness, she was terminated. She claimed other employees had been able to take leave due to illness without being terminated. After an investigation by commission staff, Executive Director Johnson issued a finding of probable cause to believe discrimination had occurred. Prior to holding a final hearing, the parties chose to resolve the matter with a conciliation agreement. The respondent denied any violation of the law. Shop owner Joe Glass reported to the commission that he no longer owns or operates any business with employees. If, within the next three years he should come to do so with eight or more employees, he will be required to comply with civil rights law as it pertains to employment and undergo compliance training and commission compliance monitoring for a period of time. He agreed to compensate Morris in the amount of $4,000.

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.

TEXAS VOTER SUPPRESSION LAW TAKES EFFECT 0ct. 21, 2013

Monday, October 21st, 2013

Texas’ voter ID law, a common voter suppression law that disproportionately targets students, low-income voters and people of color, will take effect Monday after a court battle that was ultimately resolved by the five Republican members of the Supreme Court. Both the Justice Department and lower federal courts agreed that the Voting Rights Act prevents this Texas law from taking effect due to its impact on minority voters. Just two hours after Chief Justice John Roberts and his fellow Republican justices nixed a key part of the Voting Rights Act, however, Texas Attorney General Greg Abbott (R) announced that the voter suppression law would take effect anyway.

Although Abbott announced that the law would immediately go into effect, the voter suppression law’s practical beginning is Monday, because that’s when early voting begins for next month’s election.

Voter ID’s proponents typically claim that such laws are necessary to prevent voter fraud at the polls, but such fraud is only slightly more common than dragons and wizards. One study of about 3 million Wisconsin ballots discovered that just seven were invalid — all of which were caused by felons who were unaware that they were bared from voting. Yet, while voter ID targets a non-problem, even conservative estimates suggest that between 2 to 3 percent of registered voters are disenfranchised by these laws.

Moreover, in addition to targeting minorities, students and low-income voters — all of which are groups that tend to be to the left of the electorate as a whole — Texas’ voter ID law will also make it harder for many women to vote. Because the law requires voters to show an ID with their current legal name in order to cast a ballot, many married women who changed their name upon taking their vows lack the identification necessary to vote. According to the Brennan Center for Justice, just “66 percent of voting-age women with ready access to any proof of citizenship have a document with [their] current legal name.”

SHOULD COURTS STRIKE DOWN MORE BAD LAWS….

Sunday, October 20th, 2013

Americans are constantly being told that a major problem with our courts today is “judicial activism,” which is often defined as courts wrongfully interfering with the other branches of government and blocking popularly enacted laws.

But a far more serious problem is judicial abdication: the persistent failure to fully enforce constitutional limits on government power.

Between 1954 and 2002, Congress passed 15,817 laws. Of those, the Supreme Court struck down 103 — just two-thirds of 1%. Of the more than 1 million state laws passed during that same time period, the Court struck down 452; less than 1/20th of 1%. In any given year, the Supreme Court strikes down just three out of every 5,000 laws passed by Congress and state legislatures.

But the idea that federal and state legislators are hitting the constitutional strike zone more than 99% of the time with the laws they pass is preposterous. Consider a handful of representative examples:

HOW YOU CARE FOR CATS
The powers of the federal government were supposed to be limited to those spelled out in the text of the Constitution, such as punishing pirates and counterfeiters.

But Americans were reminded last summer, when the Supreme Court upheld ObamaCare, that the Court has essentially given up trying to hold Congress to its constitutionally authorized powers.

A federal appeals court provided a humorous illustration of that fact a few months later when it held that the Department of Agriculture had the authority to tell the Hemingway Home and Museum, in Key West, Fla., how to care for the descendents of the author’s famous six-toed cat, Snowball. The Hemingway cats were, like their namesake, free spirits who preferred to sleep outside under the stars.

But Agriculture, citing the Constitution’s infinitely elastic commerce clause, claimed the authority to micromanage the cats’ living conditions. Noting that the cats were featured on the museum’s website and on merchandise in its gift shop, the appellate court concluded that the cats substantially affected interstate commerce and were therefore subject to federal control.

Agriculture already ordered up a taller fence for the house; museum caretakers worry what’s next.

WHO NEEDS A DEGREE
The same federal appeals court upheld a Florida law requiring a college degree, a two-year apprenticeship, and passing a two-day, $1,000 licensing exam — to be an interior designer.

Only two other states (Louisiana and Nevada, if that tells you anything) license the practice of interior design, and there has been no outbreak of mismatched couch cushions, wheelchair-swallowing shag carpets, or fire-exit-blocking couches in any of the 47 non-licensing states.

Consumers likely could decide for themselves if they trust an interior designer’s ability, whether or not he or she has a college degree.

But the court upheld the law anyway as a valid exercise of the state’s power to protect public health and safety.

TAKING YOUR LAND
In 2005, the Supreme Court handed down its notorious decision authorizing the city of New London, Conn., to use eminent domain to bulldoze the working-class neighborhood of Fort Trumbull and hand over the property to a private developer to build high-end houses for executives at the Pfizer facility next door.

The five-justice majority blithely disregarded the Fifth Amendment’s command that private property may only be taken for public use, and substituted the term “public purpose,” which they found includes the remote possibility of increased property taxes and new jobs.

But the only jobs created by that project were for the bulldozer operators who demolished acres of perfectly nice homes and businesses. Nothing was ever built on the property, and it remains a weed-choked brownfield to this day.

Besides a breathtaking disregard for individual liberty, these cases represent an abdication of the judiciary’s responsibility to fully enforce constitutional limits on government power.

The antidote for this kind of judicial abdication is judicial engagement, which means consistent, conscientious judging in all cases. Unfortunately, we are not getting that these days, which is why America has more government at every level than the Constitution permits. Only with a properly engaged judiciary can we enjoy the “blessings of liberty” that the Constitution was designed to secure.

Clark Neily is a senior attorney at the Institute for Justice, director of the Institute’s Center for Judicial Engagement and author of the new book, “Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government” (Encounter Books).

Kentucky attorneys can make a difference through Pro Bono

Saturday, October 19th, 2013

By Circuit Judge Roger Crittenden (ret.)
Chair of the Kentucky Access to Justice Commission
Guest Op/Ed Piece • Submitted October 18, 2013

Imagine facing serious, life-changing legal issues such as bankruptcy, foreclosure, domestic violence and wrongful eviction and not being able to afford an attorney.
That’s the reality for thousands of low-income Kentuckians.

As we celebrate National Pro Bono Week from Oct. 20-26, the Kentucky Access to Justice Commission is highlighting widespread demand for civil legal aid in Kentucky and recognizing attorneys who provide free legal counsel to those who need it most.

These acts of pro bono service – for the “public good” – are more important than ever as Kentucky’s four legal aid programs struggle to meet the growing call for legal assistance.
As Chief Justice John Minton mentioned during his recent State of the Judiciary address, the statewide legal aid programs have lost $3 million since 2007 due to a decrease in state and federal funding, filing fees and grants. That’s one-quarter of their budgets. The results are 16 fewer attorneys and five fewer offices at a time when the number of low-income Kentuckians increased by 27 percent. In spite of these financial setbacks, legal aid managed to help nearly 68,000 low-income people last year. Unfortunately, 55 percent of eligible applicants were denied legal services because there weren’t enough resources.
Although attorneys in Kentucky are not required to do pro bono work, they are stepping up to fill the gap. From 2007 to 2012, the number of attorneys donating legal services increased 47 percent and the number of hours donated went up 28 percent.

Pro Bono Week Op/Ed
October 18, 2013

That’s a move in the right direction and good news to those working to provide better access to legal services. In 2010, the Supreme Court of Kentucky formed the KAJC to expand access to civil legal aid to low-income Kentuckians. The Kentucky Bar Association and the Kentucky Volunteer Lawyer Program are also committed to that goal.

We’re taking a new approach to determine what we can offer, even in a limited capacity, for those turned away from more comprehensive legal assistance.

One example is online services. Kentucky’s self-help website, www.kyjustice.org, is designed for those who cannot afford an attorney and provides legal forms and information on a wide range of civil legal matters. More legal forms can be found on the Kentucky Court of Justice website at www.courts.ky.gov.

The KAJC has helped increase the informational materials available to the public. Individuals will soon be able to obtain copies of the new KAJC booklet titled “Your Day in Court,” a guide for self-represented litigants, at circuit court clerks’ offices across the state. The KAJC has also provided posters that list the legal guidance circuit court clerks can and cannot provide.
We’re also reaching across government agency lines to make sure this information is being distributed outside of the courthouses. This year the KAJC teamed up with the Kentucky Department for Libraries and Archives to offer a series of trainings to public librarians statewide on how to help individuals access and use legal resources. The KAJC has also distributed thousands of bookmarks listing legal resources for public libraries to make available to patrons.

The KAJC continues to find new ways to help attorneys get involved. For example, some civil legal aid programs offer Ask-A-Lawyer programs, legal clinics in some areas, referrals to private attorneys who donate legal services and educational programs on various legal matters.

And finally, the KAJC has worked with the Supreme Court to make a rule change that allows corporate attorneys with a limited license in Kentucky to donate legal services to low-income individuals through a legal aid program.

We’re serving a lot of people but many more still need our support. A well-known quote by Mother Teresa says, “If you can’t feed a hundred people, feed just one.” I commend the attorneys who make a difference by volunteering their services to people in need. I encourage other attorneys to begin answering the call to pro bono service by helping just one. You’ll be glad you did.
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Gov. Steve Beshear has made the following appointments to Kentucky boards and commissions:

Saturday, October 19th, 2013

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

Gov. Beshear has appointed Joseph D. Doebler to the Veterans’ Program Trust Fund Board of Directors to serve for a term expiring July 15, 2016.

Joseph D. Doebler, of Louisville, is a volunteer at American Veterans. He represents the American Veterans. The appointment replaces Sarepta L. Grizzle, whose term has expired.
Gov. Beshear has appointed Gerria Berryman to the Kentucky Commission on Proprietary Education to serve for a term expiring July 21, 2017.

Gerria Berryman, of Nicholasville, is the owner and director of education at Emergency Medical Training Professionals LLC. She represents privately owned for-profit postsecondary technical schools. The appointment replaces Harold G. Wilham, whose term has expired.
Gov. Beshear has reappointed Jim A. Jackson to the commission to serve for a term expiring July 21, 2017.

Jim A. Jackson, of Frankfort, is an instructor at the University of Kentucky. He represents the public at large.
Gov. Beshear has appointed Tim J. Flahive to the Elevator Advisory Committee to serve for the remainder of the unexpired term ending July 1, 2014.

Tim J. Flahive, of Louisville, is a business agent at IUEC Local 20. He represents organized labor. The appointment replaces Frank H. Hettinger, who has resigned.
Gov. Beshear has reappointed Kenneth K. Gould to the committee to serve for a term expiring July 1, 2016.

Kenneth Gould, of Louisville, is owner of Gould’s Elevator and Accessibility. He represents an accessibility or residential elevator company.
Gov. Beshear has reappointed the following members to the Kentucky Board of Pharmacy to serve for terms expiring Jan. 1, 2018. This order is effective Jan. 2, 2014.

Deborah L. Brewer, of Sandy Hook, is a pharmacist at Discount Drug Mart.

Scott A. Greenwell, of Louisville, is a pharmacist and director at Humana Inc.

Brian C. DeWire, of Paintsville, is a chiropractor at ABC Chiropractor.
Gov. Beshear has appointed Susan R. Ellis to the Big Sandy Community and Technical College Nominating Commission to serve for a term expiring April 15, 2016.

Susan R. Ellis, of Prestonsburg, is vice president of patient care services at Highlands Regional Medical Center. The appointment replaces Paulette Case, whose term has expired.
Gov. Beshear has reappointed the following members to the commission:

Gary W. Cox, of Inez, is president at the Association of Independent Kentucky Colleges and Universities. He shall serve for a term expiring April 15, 2016.

Craig S. Preece, of Lovely, is chief financial officer at Wright Management Services. He shall serve for a term expiring April 15, 2017 and is designated chairman of the commission.
Gov. Beshear has appointed Christine M. Robinson to the Kentucky Board of Licensure for Massage Therapy to serve for a term expiring July 16, 2016.

Christine M. Robinson, of Georgetown, is a real estate agent at Milestone Realty. She represents citizens at large. The appointment replaces Kathy Boehmer, whose term has expired.
Gov. Beshear has appointed the following members to the Kentucky Equine Health and Welfare Council to serve for terms expiring Aug. 19, 2017:

Lee C. Agee, of Lexington, is an animal cruelty investigator at the Lexington Humane Society. He represents members at large. The appointment replaces Robert L. Coleman, whose term has expired.

David Fugate, of West Liberty, is a veterinarian at West Liberty Veterinary Clinic. He represents the Kentucky Horse Council. The appointment replaces Becky Jo Reiter, whose term has expired.
Gov. Beshear has reappointed Kenneth G. Canter to the Water Transportation Advisory Board to serve for a term expiring Sept. 30, 2017.

Kenneth G. Canter, of Paducah, is port director at Paducah-McCracken County Riverport Authority. He represents the Commonwealth’s public riverports.
Gov. Beshear has appointed Jack Stickney to the Kentucky River Authority to serve for a term expiring Sept. 18, 2017.

Jack Stickney, of Irvine, is a farmer and a geologist at Kentucky Rural Water Association. He represents counties adjacent to either North Fork, Middle Fork, or South Fork of the Kentucky River. The appointment replaces Ronald M. Johnson, whose term has expired.
Gov. Beshear has reappointed the following members to the authority to serve for terms expiring Sept. 18. 2017:

Keith L. Cartier, of Lexington, is vice president of operations at Kentucky American Water. He represents counties adjacent to the main stem of the Kentucky River.

Pat A. Banks, of Richmond, is an artist. She represents counties adjacent to the main stem of the Kentucky River.
Gov. Beshear has appointed the following members to the State Board for the Certification of Librarians:

Louise E. Canter, of Villa Hills, is a retired librarian and a trustee of the Kenton County Public Library. She represents public library trustees. The appointment replaces Timothy F. Middleton, whose term has expired. Canter shall serve for a term expiring June 30, 2017.

Shannon M. Oltmann, of Lexington, is an assistant professor at the University of Kentucky. She represents professional librarians in a state university. The appointment replaces Dennis Carrigan, who has resigned. Oltmann shall serve for the remainder of the unexpired term ending June 30, 2014.
Gov. Beshear has appointed the following members to the Education Professional Standards Board to serve for a term expiring Sept. 18, 2017:

Shannon Treece, of New Castle, is principal at Eminence High School. She represents school administrators. The appointment replaces Lorraine G. Williams, whose term has expired.

Tolya L. Ellis, of Shelbyville, is a teacher for Shelby County Public Schools. She represents teachers of middle/junior high school. The appointment replaces Zenaida Smith, whose term has expired.
Gov. Beshear has reappointed David C. Whaley to the board to serve for a term expiring Sept. 18, 2017.

David C. Whaley, of Murray, is dean of the college of education at Murray State University. He represents postsecondary education.
Gov. Beshear has appointed the following members to the Commission on Small Business Advocacy to serve for terms expiring Aug. 22, 2017:

Michael E. Goldston, of Central City, is president at Brewco Inc. He represents the 1st Congressional District. The appointment replaces Kenneth R. Clayton, whose term has expired.

Jason F. Looman, of Villa Hills, is president and general manager at Steinert US Inc. He represents the 4th Congressional District. The appointment replaces Marvin R. Wischer, whose term has expired.

Patricia A. Krausman, of Radcliff, is center director of the University of Kentucky Small Business Development Center in Elizabethtown. She represents the 2nd Congressional District. The appointment replaces Patrick J. Clark, whose term has expired.

Jack McCann, of Middlesboro, is dean of the school of business at Lincoln Memorial University. He represents the 5th Congressional District. The appointment replaces Donna B. Vance, whose term has expired.
Gov. Beshear has appointed Mark W. McDonald as magistrate for the 7th District of Woodford County, to replace Bruce Gill, who is deceased.

Mark W. McDonald, of Versailles, is a self-employed builder and horse farm operator.
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SCOKY Amends Several Civil Rules, Including Providing Litigants the Option to Require Electronic ServiceBy David Kramer

Friday, October 18th, 2013

| dkramer@dbllaw.com

More Sharing ServicesShare|Share on facebookShare on twitterShare on emailShare on printThe Kentucky Supreme Court recently issued an order amending several of the Kentucky Rules of Civil Procedure effective January 1, 2014. The amended Civil Rules are as follows:

CR 4.01(1)(b) and (c): The amendment provides that upon the filing of a civil action (or upon the issuance of a new summons in a pending civil action), the clerk of the court where the civil action is filed may return the summons and complaint or other initiating document to the attorney or party who had the summons issued in order that the initiating party may achieve service (rather than “transferring them to any person authorized to deliver them….”). This has long been an accepted procedure in Kentucky practice, but some practitioners had questioned whether the existing Rule specifically authorized the procedure. The amendment removes any doubt.

CR 5.02: The amendment permits a litigant to require, rather than authorize, opposing parties to serve the litigant electronically (by email or fax) by serving a notice of election of electronic service. Exceptions may be requested from the court for good cause. Self-represented (pro se) litigants who are unable to utilize electronic means may continue to serve other parties by mail or hand-delivery, and productions that are too large to be made electronically may likewise be made by mail or hand-delivery.

CR 6.05: The amendment provides that the three extra days a receiving party has to respond or act when served by mail also applies to electronic service.

CR 7.03(1)(a): The amendment changes the privacy protections of the Rule by providing that all but the last four digits of a Social Security Number must be redacted, rather than the entire number as provided in the Rule when it was adopted in 2009.

Note: The foregoing post includes commentary reprinted from the forthcoming 2014 supplement to Rules of Civil Procedure Annotated, 6th ed. (Vols. 6 & 7, Kentucky Practice Series), by David V. Kramer, with permission of the author and publisher. Copyright (c) 2013 Thomson Reuters. For more information about this publication please visit http://store.westlaw.com/rules-of-civil-procedure-annotated-6th-vols-6-7-kentucky/130503/11774808/productdetail.

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

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