Archive for May, 2014

POWERS OF KBA BAR COUNSEL’S ABILITY TO APPEAL LIMITED

Wednesday, May 28th, 2014

POWERS OF KBA BAR COUNSEL’S ABILITY TO APPEAL LIMITED

Ky. Bar Ass’n v. Hines, 399 S.W.3d 750 (Ky., 2013) June 20, 2013

The simple fact is that it would be unfair to allow the KBA or Bar Counsel to obtain review of counts the Board would find the lawyer not guilty of without formally requesting review under the rules. Without such a notice of review, the lawyer does not have formal notice that Bar Counsel is challenging the Board’s recommendation and thus may not address the issue in his brief, which is filed first when he seeks review. Moreover, if the lawyer has sought review, as in this case, the lawyer is not allowed to reply to Bar Counsel’s brief, see SCR 3.370(7), and thus would have no real opportunity to rebut Bar Counsel’s claims.

Additionally, if Bar Counsel can obtain review of not-guilty counts by simply raising the issue in its brief where the lawyer has asked for review, as it has done in this case, then we could see a substantial chilling effect on lawyers who wish to challenge the Board’s recommendation. Such lawyers might be unwilling to ask for review if there is a danger that Bar Counsel will ask for review of the not-guilty counts on the back end of the process.

This Court concludes it is only fair that for Bar Counsel to obtain review of not-guilty counts, it must file a notice of review under SCR 3.370(7). If this Court has not independently decided to review the case under SCR 3.370(8) and only the lawyer has filed a notice of review, this Court will review only the aspects of the Board’s recommendation that are adverse to the lawyer and for which the lawyer has sought review, and will adopt the other aspects of the recommendation of the Board.

Lawyer charged with felony intimidation over Facebook message to client’s ex-husband

Wednesday, May 28th, 2014

Law Practice Management

Posted May 23, 2014 2:10 PM CDT
By Martha Neil

Attorney James Allen “Jim” Hanson says he was just trying to send a message to his client’s ex-husband to expect a vigorous defense.

But his profanity-laced Facebook post to the man, which concludes “I’ve got you in my sights now,” conveyed more, Indiana prosecutors say. They have charged the 41-year-old lawyer with felony intimidation, according to the Associated Press. If convicted in the Allen County case, he could get jail time and a fine of as much as $10,000.

WANE provides the full text of the Facebook post, which states:

“You pissed off the wrong attorney. You want to beat up women and then play games with the legal system … well then you will get exactly what you deserve. After I get [my client] out of jail I’m going to gather all the relevant evidence and them I’m going to anal rape you so hard your teeth come loose. I tried working with you with respect. Now I’m going to treat you like the pond scum you are. Watch your ass you little [expletive deleted]. I’ve got you in my sights now.”

Hanson admitted writing the post in a Fort Wayne police interview and said the language he used was equivalent to what his client’s ex-husband had used, the station reports. However, he said he had not meant to threaten the man, but simply convey that he would gather all relevant evidence to defend his client.

Hanson represented his client in both the divorce and the misdemeanor domestic battery case brought against her by her ex-husband.

Court’s decision no sweeping victory – separation of church and state ruling

Saturday, May 24th, 2014

By Katherine Green Robertson 6:12 p.m. CDT May 23, 2014

Earlier this month, the Supreme Court upheld the practice of Greece, a small town in the state of New York, to open monthly town meetings in prayer. The two plaintiffs (one a Jewish woman and the other an atheist woman) filed suit in a New York federal district court complaining that the prayers were “offensive,” “intolerant” and were in violation of the Establishment Clause of the U. S. Constitution.

The Establishment Clause of the First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The plaintiffs argued that the town’s pattern of having Christian clergymen lead the prayer was, in effect, establishing Christianity as the preferred religion. Similar to the Alabama Legislature and nearly every other state legislature in the union, the town board of Greece invites an unpaid, volunteer clergyman to deliver the prayer before meetings. Because the town is filled with predominantly Christian congregations, the majority of the volunteer clergymen have been Christians.

The U.S. District Court held that there was no violation of the Establishment Clause because leading the prayer was not exclusively open to Christians. The court also concluded that the prayers did not have to be nonsectarian and that references to Jesus were acceptable as long as such references were not used for purposes of proselytizing or disparaging any other faith or belief. On appeal, the Second Circuit Court of Appeals reversed, concluding that, in light of the circumstances, the town’s practice appeared to endorse Christianity.

The U.S. Supreme Court, relying primarily on its reasoning in “Marsh v. Chambers,” reversed the Second Circuit for two reasons: that history supports the conclusion that legislative prayers are compatible with the Establishment Clause; and the Establishment Clause does not require religiously neutral prayer in this context, as long as the opportunity to lead prayer is open to clergymen of all religions.

The court refuted the theory that religious diversity was necessary to render the prayer constitutional and held that the town should not be forced to recruit non-Christian clergy from “beyond its borders.” As for the content of the prayer itself, the court was unwilling to require that clergymen drop the phrase “in Jesus’ name” or other specific references to a particular faith. It is worth noting that a Wiccan priestess was allowed to open one of the town’s meetings, invoking the help of the goddess Athena and the god Apollo.

Writing for the majority, Justice Kennedy explained, “once it invites prayer into the public sphere, government must permit a prayer giver to address his or her own God or gods as conscience dictates, unfettered by what an administrator or judge considers to be nonsectarian.”

The jurisprudence established in this case will certainly come as a disappointment to advocates of absolute separation of church and state, but may also be slightly disappointing to advocates of religious liberty. Liberal secularists should be concerned about the court’s continued distancing from the aggressive Lemon test — a three-part analysis that is unfavorable to nearly any overlap between government and religion — with a bent toward a coercion-based analysis instead.

If the court continues in this direction, Establishment Clause violations will become much harder to prove in instances where the government’s act is of a passive nature. The coercion test limits a court’s analysis of an activity to whether or not it is being used by the government to coerce the public to support or participate in the favored religion.

On the other hand, Justice Kennedy’s heavy reliance on the historic nature of legislative prayer to justify its exception to deeper scrutiny under the Establishment Clause is a fairly narrow win for religious expression through public prayer that does not extend to, for instance, a public school graduation. While undoubtedly a victory, the 5-4 split by the court on the constitutionality of actions that even the liberal 9th Circuit has upheld provides limited comfort to watchdogs of religious freedom.

Katherine Green Robertson is senior policy counsel for the Alabama Policy Institute. Send email to katheriner@alabamapolicy.org.

Whose Burden is it Anyway? DOJ Gets It Wrong

Friday, May 23rd, 2014

Whose Burden is it Anyway? DOJ Gets It Wrong
U.S. Attorney General Eric Holder pauses at a news conference at the Justice Department in Washington
By
Geoffrey Surtees

Today, the ACLJ filed a friend of the court brief with the Tenth Circuit Court of Appeals in support of Reaching Souls International, Truett-McConnell College, and GuideStone Financial Resources of the Southern Baptist Convention. These entities are challenging the HHS Mandate (which requires non-exempt health plans to include abortion-causing drugs and devices) and, in doing so, are also challenging the administration’s so-called “accommodation” for religious non-profits that object to the Mandate.

As explained in more detail here and here, the government’s “accommodation” is not really an accommodation at all. The “accommodation” requires objecting non-profits, under pain of ruinous financial penalties, to execute a form that empowers a third party (such as an insurance carrier or third party administrator) to provide the very drugs and services to which the non-profits object. Thus, just like the Mandate itself, the “accommodation” requires direct employer participation in the provision of the objectionable drugs and devices despite the objections of these employers. The government’s so-called “accommodation” is like telling a religious hospital or homeless shelter, “you don’t have to pay for your employees’ abortions, but you must authorize someone else to do so — or pay a penalty.” In other words, as with the Mandate, the religious employer’s own action triggers the provision of the abortion-causing drugs (and, in the employer’s eyes, moral culpability). Is this an accommodation of sincerely held religious beliefs on a matter of fundamental, moral concern? Hardly. In challenging the Mandate and the “accommodation,” these non-profits are not seeking to prevent anyone from using their own money, or government funding, to obtain any drug or device; they simply cannot in good conscience play a direct, active role in the process themselves.

The district court in this case rejected the government’s argument that the “accommodation” doesn’t substantially burden religious exercise. Judge DeGiusti of the Western District of Oklahoma wrote that “the accommodation scheme applies substantial pressure on Plaintiffs to violate their belief that participating in or facilitating the accommodation is the moral equivalent of directly complying with the contraceptive mandate.” (To date, 22 out of 24 religious non-profit employers have obtained preliminary injunctions against the government.) Not surprisingly, the government appealed.

One of the government’s arguments in its appellate brief is that when a court evaluates whether one’s religious exercise has been burdened by a rule or regulation, the court shouldn’t just consider the burden on the religious claimant, but how the religious claim allegedly burdens others — here, how the claim of a religious non-profit might burden its employees and their beneficiaries. That is nonsense.

As we point out in our amicus brief, none of the Supreme Court decisions cited by the government supports its position. In fact, as we explain, those very same cases say the opposite: when evaluating a burden in the religious freedom context, a court looks no further than the challenged rule’s impact on the claimant’s religious exercise. Any other concerns, harms, burdens, and so forth should be considered in deciding whether the burden is permissible — after a burden has been found.

If the law is so firmly established on this point, then what is the government up to? The answer is clear: because the government cannot overcome the strict scrutiny that is applied once a burden on religious exercise is demonstrated, the government has to sneak its third party harm argument in elsewhere — here, at the very threshold stage of determining whether there is a burden on religious exercise in the first place. (Another tactic the government has been trying — to keep for-profit corporations and their owners from asserting any religious freedom claims at all — is described here.) While all this might seem like abstract legalese, if the government’s position is accepted, it will have a direct and negative impact on individuals, groups, and corporations asserting religious freedom claims in the future.

We are confident, however, that the Tenth Circuit will reject the government’s efforts on this legal front. Not only do Supreme Court decisions stand in the government’s way, so too does the Tenth Circuit’s own decision in Hobby Lobby, which the Supreme Court will rule upon by the end of the June.

Briefing is still underway at the Tenth Circuit and oral argument has yet to be scheduled. We’ll keep you posted as this important case continues through the appeals stage.

LegalZoom hits a legal hurdle in North Carolina

Friday, May 23rd, 2014

legal Technology

Posted May 19, 2014 5:27 PM CDT
By Terry Carter

While the purveyor of online self-help documents LegalZoom was still probably celebrating the South Carolina Supreme Court’s approval of its business model in March, two weeks later, just over the border in North Carolina, a judge breathed extended life into a case claiming the company engages in the unauthorized practice of law, Robert Ambrogi’s Lawsites reports.

Judge James L. Gale, a Special Superior Court Judge for Complex Business Cases, issued an order and opinion March 24 concerning various motions in a suit involving claims and counterclaims between LegalZoom and the North Carolina State Bar, which argues that the company engages in unauthorized practice of law and also failed to meet filing requirements in seeking approval to run a prepaid legal services plan in the state.

Gale ruled (PDF) that the company had not exhausted administrative remedies for the prepaid legal services plan, and said the UPL issue is so complex he wants to know more before deciding.

Gale looked at a variety of screenshots of LegalZoom’s website provided by both parties, and at North Carolina statutes concerning the unauthorized practice of law. LegalZoom’s digitized self-help document preparation has been compared to TurboTax for consumers doing their own tax returns, with a series of questions taking users step-by-step along logic trees. What becomes the next branch depends on the answer given at the last one.

Gale notes, for example, the statutory right to self-representation (including with purchased documents) but asks “does its premise require only that the unlicensed individual make choices in drafting a legal document, and that the choice or risk of an incorrect choice about which portions of a form to include must belong exclusively to the individual? Is there then a legally significant difference between how on engaging in self-representation uses a form book versus LegalZoom’s interactive branching software?”

Acknowledging “a current policy-oriented dialogue” over deregulating the practice of law because many or most people can’t afford lawyers for basic matters, Gale wrote that unless those arguments become a necessary part of a constitutional analysis for him to undertake, “such policy changes are more appropriately addressed to the legislature and are not now before the court.

But concerning the issues presented to him on LegalZoom’s self-help technology, Gale wrote: “The court is not yet comfortable that it understands the overall process of preparing more complex documents.”

Just about two weeks earlier, the South Carolina Supreme Court had determined that LegalZoom’s logic-tree documents worked just like ones already offered by various state and local agencies, and thus were approved. The court signed off on a report and recommendations by Judge Clifton Newman, an at-large judge for the state’s circuit courts who considered arguments and expert testimony.

LegalZoom offers online, self-help legal documents in all 50 states and has faced a number of legal challenges along the way. Besides North Carolina, the company still faces challenges in Arkansas and Alabama, Ambrogi reports, and is registered to operate prepaid legal plans in 41 states and the District of Columbia.

Five Ways to Improve Your Law Practice

Friday, May 23rd, 2014

A Message from the American Bar Association

Posted May 20, 2014 2:01 PM CDT

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Participate in the ABA’s world-class Continuing Legal Education programs. The ABA Free CLE Series offers 18 hours of FREE CLE through programs featuring influential legal practitioners both live and on-demand. Plus, the ABA’s newest member benefit, the Free Career Advice Series offers practical tips from legal experts.

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*This complimentary ABA and Section membership is only available to non-ABA members who are currently licensed to practice law in the United States. You may not use the complimentary membership offer if you were enrolled as an ABA member for the 2013-2014 membership year. Your complimentary membership will end on August 31, 2014.
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Supreme Court Holds that Laches Defense Cannot Bar a Claim for Copyright Infringements Brought Within the Statute of Limitations

Wednesday, May 21st, 2014

Barnes & Thornburg LLP – a national law firm of more than 550 professionals

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Intellectual Property Department
Barnes & Thornburg LLP
posted on: Tuesday, May 20, 2014
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The Supreme Court held yesterday that the equitable defense of laches does not bar relief on a copyright infringement claim brought within the three-year statute of limitations period.

Frank Petrella wrote two screenplays and a book about the career of boxer Jake LaMotta. Petrella registered the copyrights for the screenplays in 1963 and 1973 and for the book in 1970. The case, Paula Petrella v. Metro-Goldwyn-Mayer, Inc., No. 12-1315 (2014), centers on a claim for copyright infringement relating to one of the screenplays.

In 1976, Petrella and LaMotta assigned their rights in the screenplays and book, including the renewal rights, to Chartoff-Winkler Productions, Inc. Those rights were subsequently acquired by a subsidiary of Metro-Goldwyn-Mayer (MGM). MGM created the award-winning film Raging Bull based on LaMotta’s life.

Petrella died in 1981 during the initial terms of the copyrights in the screenplays and book. As a result, his heirs obtained the renewal rights to the works unencumbered by the previous assignments, Stewart v. Abend, 495 U.S. 207 (1990). Paula Petrella, Petrella’s daughter, renewed the copyright in the 1963 screenplay in 1991 and is now the sole owner of the copyright in that work. In 1998, Ms. Petrella informed MGM that she had obtained the copyright to the 1963 screenplay. Nine years later, Ms. Petrella sued MGM for copyright infringement. She sought relief only for acts of infringement occurring within the three-year statute of limitations period mandated by 17 U.S.C. §507(b).

MGM moved for summary judgment on the equitable defense of laches, arguing that Paula Petrella’s 18-year delay from the time of renewing the copyright until filing suit was unreasonable and prejudicial to MGM. The district court granted MGM’s motion with respect to the laches defense and the U.S. Court of Appeals for the 9th Circuit affirmed.

Writing for a 6-3 majority, Justice Ginsburg found the 9th Circuit failed “to recognize that the copyright statute of limitations, §507(b), itself takes into account delay,” (Slip Op. at 11). Because the statute limits relief to those acts occurring within three years of filing suit, the defendant in a copyright infringement case can retain the profit made in the prior years. Additionally, even if infringement is shown within the three-year period, the defendant can offset against profits its deductible expenses, as well as any profits attributable to factors other than use of the copyrighted work. The defendant thus “may retain the return on investment shown to be attributable to its own enterprise, as distinct from the value created by the infringed work,” (Slip Op. at 12). The court further explained the laches defense had been developed by courts in equity and it traditionally applied “to claims of an equitable cast for which the legislature has provided no fixed time limitation,” (Slip Op. at 12). Supreme Court Justice Ruth Bader Ginsburg noted that the court had “never applied laches to bar in their entirety claims for discrete wrongs occurring within a federally prescribed limitations period,” (Slip Op. at 12).

Despite its holding on the laches defense, the court went on to explain that in extraordinary circumstances, the “consequences of a delay in commencing suit may be of sufficient magnitude to warrant . . . curtailment of the relief equitably awardable,” (Slip Op. at 20). Thus, courts can take delay into account when determining injunctive relief and assessing profits.
© 2014 BARNES & THORNBURG LLP

JUDICIAL CAMPAIGN VIOLATIONS RAMPART IN KENTUCKY ELECTION

Tuesday, May 20th, 2014

Today’s judicial elections will demonstrate the public’s reaction to judicial campaign statements wherein candidates have advertised their membership in the NRA, have endorsed the Right to Life platform, have donated money to political parties, and have at least one candidate who identifies himself as a Republican or Democrat (judicial races are non-partisan) and proclaims that “We need a Republican Judge”, and the old standby claim that the judge if elected he will “be tough on crime”.
If a judicial candidate, before becoming judge, actively campaigns on partisan issues in violation of the Judicial Conduct Code, and if a candidate for judicial office pledges to be biased in favor of the prosecution by promising to be “tough on crime”, then the respect for the judiciary will suffer.
The introduction of the right to life issue in a judicial race is a flagrant violation of the Ethics Code.
If you have evidence that any judicial candidate violated there or other issues you may report it to the Judicial Conduct Commission at:
P.O. Box 4266
Frankfort, KY 40604
Phone: 502-564-1231
Fax: 502-564-1233

Justice Scalia Fears America’s Best Law Schools Are Turning Out ‘Ignorant’ Attorneys

Tuesday, May 20th, 2014

Corey Adwar Today at 6:53 AM
Antonin Scalia

Supreme Court Justice Antonin Scalia sharply criticised law school at, of all places, his recent commencement speech at William & Mary Law School.

Scalia said prestigious law schools around the country are not adequately preparing law students because they’re letting them take questionable electives in place of more important traditional courses. He attacked schools that let their second- and third-year law students to “study whatever strikes his or her fancy — so long as there is a professor who has the same fancy.”

He complained that some of those electives “have a distinct non-legal flavour,” such as a Harvard course called “The Philosophical Reinvention of Christianity,” and the University of Chicago’s “Contemporary Virtue Ethics.”

“This elimination of a core curriculum, and the accompanying proliferation of narrow (not to say silly) elective courses has not come without its costs,” he said.

He singled out the University of Chicago Law School, asserting that it’s possible to graduate from that school without ever studying the First Amendment.

“Can someone really call himself an American lawyer who has that gap in his compendious knowledge of the law?” he said. “And can a society that depends so much upon lawyers for shaping public perceptions and preserving American traditions regarding the freedom of speech and religion, afford so ignorant a bar?”

This is not the first time Scalia has criticised law school education or law school electives. At the University of New Hampshire Law School in 2013, he told students to “take the bread and butter” classes.

“Do not take, ‘law and women,’ do not take ‘law and poverty,’ do not take ‘law and anything.”

Justice Scalia: The Current Law School Model Is ‘Not Sustainable’

Saturday, May 17th, 2014

By David Lat

Justice Antonin Scalia

[I]f law school is to remain three years, costs have to be cut; the system is not sustainable in its present form. The graduation into a shrunken legal sector of students with hundreds of thousands of dollars of student debt, nondischargeable in bankruptcy, cannot continue. Perhaps — just perhaps — the more prestigious law schools (and I include William and Mary among them) can continue the way they are, though that is not certain. But the vast majority of law schools will have to lower tuition.

– Justice Antonin Scalia, in his commencement speech at William & Mary School of Law. More highlights from Justice Scalia’s remarks, after the jump.

Legal education is a hot topic among Supreme Court justices these days. Not long ago, Justice Samuel Alito told us what he really thinks about the U.S. News law school rankings.

Back to Justice Scalia’s speech. After getting in some digs at Judge Richard Posner and President Barack Obama for supporting proposals to make law school two years, Justice Scalia declared:

I vigorously dissent. It seems to me that the law-school-in-two-years proposal rests on the premise that law school is — or ought to be — a trade school. It is not that. It is a school preparing men and women not for a trade but for a profession — the profession of law.

Now this makes it sound like Justice Scalia, a former law professor himself, is down with the “law is fascinating,” don’t worry about the loans school of thought. But in fairness to the justice, he is concerned about cost, as reflected in the quotation above.

What are some of the consequences of lower tuition? They’re not necessarily bad, according to His Honor:

[Lower tuition] probably means smaller law-school faculties — though not necessarily one-third smaller. That would be no huge disaster. Harvard Law School, in the year I graduated, had a faculty of 56 professors, 9 teaching fellows, and 4 lecturers; it now has a faculty of 119 professors, 53 visiting professors, and 115 lecturers in law. A total of 69 then and 287 now.

And cutting back on law-school tuition surely means higher teaching loads. That also would not be the end of the world. When I got out of law school, the average teaching load was almost 8 hours per week. Currently it is about half that.

And last but not least, professorial salaries may have to be reduced, or at least stop rising. Again, not the end of the world. To use Harvard again as an example: Faculty salaries have much more than doubled in real terms since 1969.

While judicial salaries have dropped in real terms since then, as noted by Chief Justice John Roberts. If his former colleagues in academia were to complain to him about slower growth or even drops in compensation, Justice Scalia might reply, “Welcome to my world.”

Scalia v. Posner (& Obama), Round XXIV – Nino “Vigorously Dissents” From 2-Years of Law School
[Josh Blackman's Blog]
Justice Scalia’s commencement speech at William & Mary Law School
[Volokh Conspiracy / Washington Post]
Reflections on the Future of the Legal Academy [William & Mary School of Law]

ALLEGATIONS OF JUDICIAL CAMPAIGN RULE VIOLATIONS FLY IN NORTHERN KENTUCKY

Friday, May 16th, 2014

KENTUCKY LEGAL NEWS
WWW.LAWREADER.COM (502) 732-4617 – 314 7th. St., – Carrollton, Ky. 41008

By Stan Billingsley Senior Editor of LawReader.com May 16, 2014

Kentucky judicial candidates have an unusual large number of challengers opposing incumbent judges. A number of these inexperienced challengers are apparently violating the Judicial Canons of Ethics by several means. Some of the most egregious violations of judicial campaign rules are being found in Northern Kentucky.

Allegations are flying that some candidates are contributing to the Republican Party in order to be “given the microphone” at Meet the Candidate rallies. Judicial candidates run in non-partisan races, and are to avoid claiming an affiliation with a political party. Judges are required to be fair and impartial, and a demonstration of partisanship to raise campaign funds or seek votes is improper. The Commentary to Canon (5) states that : “A judge must not be a speaker or guest of honor at an organization’s fund-raising event, but mere attendance at such an event is permissible if otherwise consistent with this Code.” Contributing to a political party in order to be able to speak to them, is a contribution nevertheless and violates the Judicial Code of Ethics.

We note that Judicial Canon 5. 1 (c) forbids the contribution of a judicial candidate to a political race. Such a donation violates Canon 5.
CANON 5: A JUDGE OR JUDICIAL CANDIDATE SHALL REFRAIN FROM INAPPROPRIATE POLITICAL ACTIVITY
A. Political Conduct in General.
(1) A judge or a candidate for election to judicial office shall not:
(a) act as a leader or hold any office in a political organization;
(b) make speeches for or against a political organization or candidate or publicly endorse or oppose a candidate for public office;
(c) solicit funds for or pay an assessment or make a contribution to a political organization or candidate, except as authorized in subsection A(2);

Another violation involves the advertising of a judicial candidates political affiliation.
the Judicial Code of Ethics states that:

“ A judge or candidate shall not identify himself or herself as a member of a political party in any form of advertising, or when speaking to a gathering. If not initiated by the judge or candidate for such office, and only in answer to a direct question, the judge or candidate may identify himself or herself as a member of a particular political party.”

In the Northern Kentucky race a challenger is advertising that he “is a Democrat and two of his opponents are Republicans”. That claim violates the Judicial Canons. He is not permitted to identify himself as a member of a political party unless he is asked a direct question…but this rule prohibits a judicial candidate from advertising his party affiliation otherwise. Further his claim of his opponent’s party membership is a violation of the Canons.

CANON 4: A JUDGE SHALL SO CONDUCT THE JUDGE’S EXTRA-JUDICIAL ACTIVITIES AS TO MINIMIZE THE RISK OF CONFLICT WITH JUDICIAL OBLIGATIONS
(2) A judge or a candidate for election to judicial office may purchase tickets to political gatherings for the judge or candidate and one guest, may attend political gatherings and may speak to such gatherings on the judge’s or candidate’s own behalf. A judge or candidate shall not identify himself or herself as a member of a political party in any form of advertising, or when speaking to a gathering. If not initiated by the judge or candidate for such office, and only in answer to a direct question, the judge or candidate may identify himself or herself as a member of a particular political party.

A third violation concerns a violation of Canon (5) of the Code of Judicial Ethics. This is the claim by a growing number of judicial candidates that they are members of the National Rifle Association. At least one judicial candidate advertises that he is members of the NRA and supports the 2nd. Amendment…. Other candidates are merely advertising that they are “NRA” members.
This is code for opposing any legislation attempting to regulate guns. This identification of a judicial candidate as a member of an organization which actively litigates 2nd. Amendment issues suggests that the judges bias in favor of the NRA if such a case comes before his court.
Canon 5 forbids a judicial candidate from “appeal(ing) to public social bias in order to gain a
political advantage.”

Wikipedia reports:
“In the late 1970s, the NRA shifted his focus to incorporate political advocacy, and started seeing their members as political resources rather than just as recipients of goods and services, and despite the impact on the volatility of membership, the politicization of the NRA has been consistent and the NRA-Political Victory Fund ranked as “one of the biggest spenders in congressional elections” as of 1998.”

“The organization expanded its membership by focusing heavily on political issues and forming coalitions with conservative politicians, most of them Republicans.”
The NRA opposes the limitation on ownership of assault weapons, and opposes back ground checks on felons and insane persons before they can be sold a gun.
When a judicial candidate advertises their membership in the NRA, they are encouraging the public to believe they are biased against any law regulating the ownership of guns, even assault weapons being sold to felons.

We would submit that this affiliation with the NRA is an “appeal to public social bias in order to gain a political advantage”, and this violates the commentary of the Judicial Code of Ethics, and brings into question the candidates ability to be independent and fair to all parties coming before his court..
We would suggest that there is an unusually large number of inexperienced lawyers running for judicial offices. One source told LawReader that the large number of judicial challengers is the result of an active program of the Tea Party who wish to place their members on the bench.
Every lawyer has the right to run for a judicial office if they have met the qualifications (as having been licensed for two years to run of District Court and eight years to run for the Circuit Court or the appellate courts.) But their blatant ignorance or indifference to the Canons of Judicial Ethics should be a warning sign that these candidates are not informed on the law, or worse, that they are willing to ignore the ethics rules if it gets them elected.

The Judicial Conduct Commission investigates and can sanction violations of the Judicial Code of Ethics.
Anyone having knowledge of a violation of the Judicial Ethics rules may report them to the Judicial Conduct Commission at:
P.O. Box 4266
Frankfort, KY 40604
Phone: 502-564-1231
Fax: 502-564-1233
**********

• The author discloses that he is a gun owner, was a judge for 25 years, and is a former alternate member of the Judicial Retirement and Removal Commission (now called the Judicial Conduct Commission. He is retired from the judiciary and is not a candidate for any political or judicial office.)

SOME JUDICIAL CANDIDATES ARE APPARENTLY VIOLATING THE JUDICIAL CODE OF CONDUCT IN THIS ELECTION.

Thursday, May 15th, 2014

By LawReader Senior Editor Stan Billingsley May 15, 2014

We are troubled by the campaign ads of several candidates for Judicial offices during the current
election cycle. If a candidate violates the Code of Judicial Conduct, then it is legitimate to question
their ability to serve as a fair and impartial judge.

One candidate has advertised that “he is a Democrat and both of his opponents are Republicans.”
Judicial races are non-partisan and if a candidate identifies himself or his opponents as
Democrats or Republicans, then he/she violates the requirement that judicial candidate be
“independent”. This introduction of partisanship into a non-partisan judicial race is questionable
Conduct and may violate Canon 5 of the Judicial Code of Conduct.

We note that Judicial races are listed on the ballot as non-partisan races and are not listed under
the heading of any political party. Identifying oneself as a member of a political party implies
he/she will follow the policies of their political party in their rulings, and that their opponents will
follow the policies of their political party.

Canon 1 requires a judicial candidate to be independent.

In another judicial race two candidates advertise that they are members of the NRA and support the
2nd. Amendment which is code for opposing any legislaltion regulation of guns.

Canon 5 forbids a judicial candidate from “appeal(ing) to public social bias in order to gain a
political advantage.”

his use of veiled suggestions that the judicial candidate is biased in favor of the NRA and it’s political views is very troubling. A
candidate for a judicial office cannot identify themselves with controversial political issues which
appear to commit them in future rulings on the issue.

JUDICIAL CODE OF CONDUCT – CANON 1

CANON 1: A JUDGE SHALL UPHOLD THE INTEGRITY AND INDEPENDENCE OF THE JUDICIARY

An independent and honorable judiciary is indispensable to justice in our society. A judge should
actively participate in establishing, maintaining and enforcing high standards of conduct, and shall
personally observe those standards so that the integrity and independence of the judiciary will be
preserved. The provisions of this Code are to be construed and applied to further that objective.

CANON 5

CANON 5: A JUDGE OR JUDICIAL CANDIDATE SHALL REFRAIN FROM NAPPROPRIATE POLITICAL ACTIVITY

A. Political Conduct in General.
(1) A judge or a candidate for election to judicial office shall not:
(a) act as a leader or hold any office in a political organization;
(b) make speeches for or against a political organization or candidate or publicly endorse or oppose a candidate for public office;
(c) solicit funds for or pay an assessment or make a contribution to a political organization or candidate, except as authorized in subsection A(2);

Commentary
A judge or candidate for judicial office shall encourage members of his or her family to adhere to the same standards of political conduct in support of the candidate that apply to the candidate. Family members are free to participate in other political activity.
B. Campaign Conduct.
(1) A judge or candidate for election to judicial office:
(a) shall maintain the dignity appropriate to judicial office, and shall encourage members of the candidate’s family to adhere to the same standards of political conduct;
(b) shall prohibit public officials or employees subject to the candidate’s direction and control from doing for the candidate what the candidate is prohibited from doing under this Canon; and except to the extent authorized under subsection B(2), the candidate should not allow any other person to do for the candidate what the candidate is prohibited from doing under this Canon;
(c) A judge or candidate for election to judicial office shall not intentionally or recklessly make a statement that a reasonable person would perceive as committing the judge or candidate to rule a certain way on a case, controversy, or issue that is likely to come before the court; and shall not misrepresent any candidate’s identity, qualifications, present position, or other facts.
Commentary
Section 5B(i)(c) prohibits a candidate for judicial office from making statements that appear to commit the candidate regarding cases, controversies or issues likely to come before the court, and prohibits campaigning on issues in a manner designed solely to appeal to public social bias in order to gain a political advantage. As a corollary, a candidate should emphasize in any public statement the candidate’s duty to uphold the law regardless of his or her personal views. See also Section 3(B)(9), the general rule on public comment by judges. Section 5B(1)(c) does not prohibit a candidate from making pledges or promises respecting improvements in court administration. Nor does this section prohibit an incumbent judge from making private statements to other judges or court personnel in the performance of judicial duties. (d) shall file the report referred to in Canon 4H(2).

Mayors Court Held Not To be Impartial….Will Supreme Court Precedent be ignored

Thursday, May 15th, 2014

Mayor’s Court Part 2: US Supreme Court Precedent Ignored

Three Acadiana towns get a substantial part of their revenue from fines imposed by mayor’s court, a controversial system where the mayor serves as both the town’s judge and administrator, a KATC Investigation has found.

In those towns and nearly 200 others across Louisiana, the mayor serves as the judge in courts that mostly see traffic violations. They also assess fines that sometimes make up a large part of the town’s budget, which is also overseen by the mayor.

This is done even with the U.S. Supreme Court ruling Ward v. Monroeville, that found a mayor cannot be an impartial judge if mayor’s court fines make up a “major part” of the town’s revenue. Over five years, fines made up 41.7 percent of Monoreville’s revnue.

Using that ruling and looking at the most recent audits available, statewide KATC found 20 towns that get 42 percent or more of their revenue from fines imposed by mayor’s courts.

In Acadiana, Fenton, in Jeff Davis Parish, brought in 89.4 percent of its revenue from fines imposed by mayor’s court; Washington in St. Landry Parish, 70.5 percent; and Henderson in St. Martin Parish, 49 percent.

Ohio Court Orders Deadbeat Father to Stop Having Children Until His Back Child Support Is Paid

Thursday, May 15th, 2014

CINCINNATI — Asim Taylor of Elyria, Ohio, has four kids by three women and owes them nearly $100,000 in child support. When Taylor got hauled into court, the judge gave him a simple order:
Don’t father any more kids until you pay child support. Or until your five-year probation is up.

But can the judge enforce it?
That probably will be for higher courts to decide.
For now, advocacy groups and lawyers are watching how this plays out.

Judge James Walther of Lorain County Probate Court told Taylor:
“The defendant is ordered to make all reasonable efforts to avoid impregnating a woman during the period control or until such time the defendant can prove to this court that he’s able to provide support for the children that he already has.”
The judge explained:
“This is a matter of common sense and personal responsibility.”‘
The judge has support from Ohio Family Rights, one of the group’s leaders says.
“Our organization and even me personally, we agree with the decision of the judge,” said Andy Davidson. “If a parent is not paying child support, where does that fall? That falls back on the taxpayers.”

As for the legality of the issue, Cincinnati lawyer Mark Krumbein doesn’t think the ruling has merit.

“It’s pretty extreme. It’s very unusual and there are a lot of issues that are brought up by it,” Krumbein said.

Particularly the man’s freedom to pursue happiness.

Taylor’s lawyer, Doug Merrill, said he plans to go to the Ohio Supreme Court. In 2004, that court ruled that a person could not be ordered to not procreate.
“The reason the supreme court (ruled) you couldn’t do it 10 years ago is because there wasn’t a contingency to end it,” Krumbein said.
Judge Walther gave Taylor a choice – pay the money or wait for community control to expire.

Taylor’s case could eventually land in federal court in Cincinnati.

District Judge Rebecca Ward Suspended by Judicial Conduct Commission

Wednesday, May 14th, 2014

Judicial Conduct Commission

P.O. Box 4266, Frankfort, Kentucky 40604-4266

502-564-1231

http://courts.ky.gov/commissionscommittees/JCC

Contact: Ms. Jimmy Shaffer, Executive Secretary, JimmyShaffer@KYCourts.net

For Immediate Release

Agreed Order of Suspension

In re the matter of: Rebecca S. Ward, District Judge, 55th Judicial District

FRANKFORT, Ky., May 14, 2014 –

The Judicial Conduct Commission makes public the Agreed Order of Suspension, In re the matter of: Rebecca S. Ward, District Judge, 55th Judicial District.

To access the order, click on or copy and paste this link: http://courts.ky.gov/commissionscommittees/JCC/Documents/Public_Information/Ward.pdf

Judicial Conduct Commission

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

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

Ms. Jimmy Shaffer

Executive Secretary, Judicial Conduct Commission

P.O. Box 4266

Frankfort, KY 40604-4266

Phone: 502-564-1231

Fax: 502-564-1233

State Churches? Justice Clarence Thomas Hears the Call

Saturday, May 10th, 2014

By Jess Bravin

While the rest of the Supreme Court argued Monday over the constitutional limits on official prayers at town board meetings, one justice said the question may be beside the point.

In a separate opinion, Justice Clarence Thomas wrote that while the First Amendment “probably prohibits Congress from establishing a national religion,” it wasn’t intended to restrict states from adopting their own official religions. Under this view, not only could state or local officials ordain religious exercises for their meetings, they could use tax dollars to fund an official church. He cites the clause “Congress shall make no law respecting an establishment of religion,” saying that “choice of language…effectively denied Congress any power to regulate state establishments.”

After all, “at least six States had established churches in 1789,” Justice Thomas wrote. Connecticut, Massachusetts and New Hampshire “maintained local-rule establishments whereby the majority in each town could select the minister and religious denomination (usually Congregationalism, or ‘Puritanism’).” Georgia and Maryland “permitted taxation in support of all Christian churches,” while South Carolina limited its subsidy to “all Protestant churches,” he added. And while Delaware, Pennsylvania and Rhode Island “had no history of formal establishments,” they “maintained religious tests for office.”

Such diversity regarding official religions “suggests that the First Amendment was simply agnostic on the subject of state establishments; the decision to establish or disestablish religion was reserved to the states,” he wrote.

Justice Thomas concedes that states dismantled their official churches following U.S. independence, with the last, Massachusetts, disestablishing in 1833. While he acknowledges that the 14th Amendment authorized the federal government to prevent states from violating individual rights—including the right to worship as one pleases, regardless of the official state religion—he suggests that the Establishment Clause protects not citizens but each state’s “right to establish a religion free from federal interference.”

Justice Thomas has been developing this argument at least since 2002, when he wrote a concurring opinion upholding a school voucher program. While he doesn’t fully commit himself to the conclusion that Hawaii, New Jersey or South Dakota hold the constitutional power to establish their own official religions today, he says that “the burden of persuasion” otherwise “rests with those who claim that the Clause assumed a different meaning upon adoption of the 14th Amendment.”

Sanford Levinson, a law professor at the University of Texas at Austin, said Justice Thomas’s position claims few adherents in the legal community—Not even Justice Antonin Scalia, who like Justice Thomas argues that the Constitution should be applied according to the original meaning of its text when ratified.

“It’s a bizarre argument to make in 2014, when it really has been accepted by almost everybody that whatever accommodation of religion means, it can’t mean the old-fashioned established church as it existed in the colonies or Great Britain at the time of the Revolution,” Mr. Levinson said. But “if a student were making that point in a seminar in American constitutional history, I would say it’s a gutsy, unconventional interpretation that isn’t stupid.”

Wisconsin ruling could alter campaign finance law

Friday, May 9th, 2014

By SCOTT BAUER and TODD RICHMOND, Associated Press
Updated 4:26 pm, Wednesday, May 7, 2014

MADISON, Wis. (AP) — A federal judge’s decision to halt a secret investigation into illegal coordination between conservative groups and Republican Gov. Scott Walker’s recent recall campaign could have far-reaching implications for campaign finance law, allowing candidates to direct a nearly unlimited flow of money.

Before an appeals court put the ruling on hold Wednesday, U.S. District Judge Rudolph Randa ordered prosecutors to halt their investigation, return all property seized and destroy all copies of information obtained in the probe. The judge acknowledged conservative groups aligned with Walker and other Republicans were trying to skirt campaign finance laws, but said he saw nothing wrong with that because their activities were protected by the First Amendment guarantee of free speech.

“The plaintiffs have found a way to circumvent campaign finance laws, and that circumvention should not and cannot be condemned or restricted,” Randa wrote in his Tuesday decision.

An appeals court on Wednesday said Randa should not have issued the order without first deciding another issue in the case. Prosecutors leading the secret probe said if his decision stands, it would allow independent groups that don’t have to disclose their donors to collaborate with candidates who do. Candidates would then have access to vast amounts of money without voters ever knowing the source.

“It just takes us one step further to a Wild West world of campaigns where unlimited contributions, corporate or individual, can be given at any time or in any way,” Patrick Guarasci, a Democratic consultant and fundraiser. “There will be a temptation for people to move forward in this gray area until they are pulled back.”

The decision is just the latest in a string of hot-button rulings Randa has issued since President George H.W. Bush appointed him to the bench in Milwaukee in 1992. Other decisions struck down the Freedom to Clinics Entrances Act, which prohibited people from blocking abortion clinic entrances; eliminated Wisconsin’s minimum markup on gasoline, which was meant to prevent stations from undercutting and driving competitors out of business; and declared more than $50 million off-limits to victims of clergy sexual abuse who were suing the Milwaukee archdiocese.

The 7th Circuit Court of Appeals in Chicago did not comment on the substance of Randa’s latest ruling when it issued its hold Wednesday. The court, which is also considering an appeal in the archdiocese case, has clashed with Randa before. Its judges reinstated the gas markup law and, in another case, admonished Randa for likening a drug dealer’s claims that he loved his family to Adolf Hitler’s love for his dog.

The appeals court gave attorneys a July 30 deadline for filing briefs in the so-called John Doe case. At issue is a civil lawsuit filed by Wisconsin Club for Growth, which says the secret probe violates its civil rights.

Sam Leib, the attorney representing the special prosecutor leading the probe, said he hoped Randa’s decision would eventually be overturned.

“If sustained, this ruling is the death of campaign finance law as we know it in the State of Wisconsin and across the nation,” said Leib, who noted the special prosecutor also was a Republican. “It will now be possible for a political candidate to personally conduct a campaign — soup to nuts — without disclosing a single campaign contribution.”

Under current law, political action committees that expressly advocate for or against a candidate are subject to campaign finance limits and can’t coordinate with the candidate. Other groups that advocate for or against specific issues but not candidates do not have to disclose their donors or how much they spend.

Reid Magney, a spokesman for the Wisconsin Government Accountability Board which oversees campaign finance laws in the state, declined to comment on the ruling.

Janine Geske, a Marquette University law professor and former Wisconsin Supreme Court justice who has known Randa for years, described him as a judicial conservative who typically keeps his rulings very narrow. The breadth of the John Doe rule surprised her.

“His decisions are very tight, normally,” Geske said. “To me it’s obviously a far-reaching decision and that’s not consistent generally with how he approaches cases.”

___

Associated Press writer M.L. Johnson in Milwaukee contributed to this report in Milwaukee.

Tolan v. Cotton — when should the Supreme Court interfere in ‘factbound’ cases?

Wednesday, May 7th, 2014

By Will Baude
May 7 at 9:40 am

On Monday, the Supreme Court issued a noteworthy summary reversal in Tolan v. Cotton, a case in which it said that the Fifth Circuit had wrongly granted summary judgment to a police officer in a civil rights case. (I call the case a summary “reversal” even though technically it only vacated the judgment below rather than reversing it, because it’s basically the equivalent.) I call the case noteworthy because by my count it’s the first time in 10 years that the court has ruled against a police officer in a qualified immunity case — (Hope v. Pelzer and Groh v. Ramirez are the most recent previous occasions, from 2003 and 2004).

It is also noteworthy because Justice Samuel Alito concurred in the judgment, noting that he thought this kind of error correction did not fit the court’s normal certiorari criteria:

[T]he granting of review in this case sets a precedent that, if followed in other cases, will very substantially alter the Court’s practice. … In my experience, a substantial percentage of the civil appeals heard each year by the courts of appeals present the question whether the evidence in the summary judgment record is just enough or not quite enough to support a grant of summary judgment. The present case falls into that very large category. There is no confusion in the courts of appeals about the standard to be applied in ruling on a summary judgment motion, and the Court of Appeals invoked the correct standard here. Thus, the only issue is whether the relevant evidence, viewed in the light most favorable to the nonmoving party, is sufficient to support a judgment for that party. In the courts of appeals, cases presenting this question are utterly routine. There is no question that this case is important for the parties, but the same is true for a great many other cases that fall into the same category.

Alito was joined in his concurrence by Justice Antonin Scalia. The odd thing about this is the contrast with Scalia’s dissent from denial (joined by Alito) in Cash v. Maxwell two years ago. There Scalia explained his willingness to take fact-specific AEDPA cases that had been decided in a defendant’s favor:

It is a regrettable reality that some federal judges like to second-guess state courts. The only way this Court can ensure observance of Congress’s abridgement of their habeas power is to perform the unaccustomed task of reviewing utterly fact-bound decisions that present no disputed issues of law. We have often not shrunk from that task, which we have found particularly needful with regard to decisions of the Ninth Circuit.

And on Monday, Alito again dissented from the court’s denial of cert. in a similar AEDPA case, citing his Tolan concurrence.

So what explains Alito’s and Scalia’s willingness to take “factbound” cases where lower courts have erroneously granted habeas relief to prisoners, but not factbound cases where lower courts have erroneously granted qualified immunity to officers? I see two hypotheses:

Possibility one. Alito and Scalia think there are different costs to the different kinds of errors. Put crudely, they like police officers and don’t like prisoners, so they care more about correcting windfalls for prisoners than for the police.

EX PARTE COMMUNICATIONS STRONGLY BANNED BY SCR 4.300

Wednesday, May 7th, 2014

Commonwealth v. Wilson, 384 S.W.3d 113 (Ky., 2012) December 20, 2012
We need to go no further to deplore this practice than Supreme Court Rule 4.300, Canon 3B(7), which prohibits ex parte contacts in these circumstances. That rule states that “with regard to a pending or impending proceeding, a judge shall not initiate, permit, or consider ex parte communications with attorneys and shall not initiate, encourage or consider ex parte communications with parties….” There are exceptions in this rule when dealing with certain matters that do not deal with “substantive matters.” SCR 3.130–3.5 also prohibits a lawyer from engaging in an ex parte contact with a judge “as to the merits of the cause except as permitted by law or court order.” A lawyer who seeks to have a summons substituted for an arrest warrant on the grounds that the prosecuting witness has recanted her statement to authorities is undoubtedly addressing a “substantive” matter and “merits of the cause.” There is other authority deeming ex parte contact between the trial judge and a defense attorney impermissible. Application of Storer Communications, Inc., 828 F.2d 330, 335 (6th Cir.1987) (“The public has a legitimate interest in criminal proceedings, and this interest is thwarted by ex parte proceedings…. Ex parte proceedings, particularly in criminal cases, are contrary to the most basic concepts of American justice and should not be permitted except possibly in most extraordinary cases involving national security.”); American Bar Association, Standards for Criminal Justice, 6–2.1 (2nd ed.1986) (“The trial judge should insist that neither the prosecutor nor the defense counsel nor any other person discuss a pending case with the judge ex parte, except after adequate notice to all other parties or when authorized by law or in accordance with approved practice. The judge should ensure that all such ex parte communications are subsequently noted on the record.”).
Wilson seems to justify this practice along a quid pro quo argument. Since the Commonwealth obtains an arrest warrant through ex parte communications with an issuing magistrate, the defense is justified in engaging in such one-sided communications with the court. This is both a fallacious and potentially disruptive interpretation of our criminal procedure as set down by statute and rule.
We forbid it.
One-sided contacts between judges and lawyers or parties regarding pending and impending cases are prohibited, even in matters where the legal stakes are lower than those at issue in this case. …… But Kentucky’s Judicial Canons forbid one-sided contacts relating to all judicial proceedings, except in regards to scheduling, initial fixing of bail, administrative purposes, or emergencies that do not deal with substantive matters or issues on the merits. SCR 4.300, Canon 3(B)(7)(a). …. It is the judge’s ethical responsibility to maintain the high standard for local practice, prohibiting improper ex parte contacts by lawyers and non-lawyers alike. It is the lawyer’s correlative ethical duty under SCR 1.130–3.5 to avoid engaging in one-sided practice.
We also acknowledge that most Kentucky prosecutors and defense lawyers—hopefully all—operate under a revered honor code. Under this procedure, the defense lawyer confers with the prosecutor first, who may very well allow the trusted adversary to convey his or her position to the court without the prosecutor appearing. This is particularly true when the prosecutor has no objection to the request of the defendant’s counsel. Rocky is the road of the lawyer who breaches that trust. Mutual respect is mandatory, not only for opposing counsel, but the interest they represent.
The law is so certified.

CONTINUING AUDIT OF JEFFERSON COUNTY SCHOOL SYSTEM RUMORED TO BE BOMB SHELL.

Wednesday, May 7th, 2014

Our readers suggest that an ongoing audit of the Jefferson County School System could be a bombshell. Claims of mishandled funds abound. Let us know if you have any comments on this topic this is developing.

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