Archive for December, 2014

Chief Justice Roberts Promises Greater Access to Court Filings

Wednesday, December 31st, 2014
By Tony Mauro, Legal Times, @Tonymauro 

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The U.S. Supreme Court is developing an electronic filing system that will make all case filings available to the public online, Chief Justice John Roberts Jr. announced in his annual year-end report issued Wednesday.

Roberts said the new system “may be operational as soon as 2016,” even as a “next generation” case management and electronic case filing system is under development for lower federal courts.

Advances in electronic filing may seem mundane compared to “vivid gaming technologies that entice adolescents and the young-at-heart,” Roberts said. But he asserted they are “vitally important to the cause of justice because [they] can make the courts more accessible, and more affordable, to a diverse body of litigants, drawn from every corner of society, who often enter the courthouse reluctantly, apprehensively, and only as a last resort.”

The Supreme Court system will still require paper as well as electronic submissions, at least in the beginning, and pro se petitioners will be allowed to use paper only. Their filings will be scanned and posted by Supreme Court personnel. The court’s current web site  reports docket information, but posts no briefs or other filings, leaving that task to the American Bar Association and other online sites.

The revamped electronic filing system for lower federal courts will make logging in easier and will let interested parties sign up for automatic calendaring notices, Roberts said.

The chief justice, responding to increasing calls for greater transparency of the judicial branch, in effect asked the public to be patient with an institution that is—and, in his view, should be—slow to embrace technological change.

“The courts will often choose to be late to the harvest of American ingenuity,” Roberts said, in his most detailed explanation of the judiciary’s thinking on transparency issues. He made no mention of the long-running debate over camera access to the federal courts.

Because of the judiciary’s limited constitutional role as “neutral arbiters of concrete disputes,” Roberts said the federal courts place their focus on measures that will advance the goal of “fairly and efficiently adjudicating cases.” Use of new information technology must always be viewed through that lens, Roberts wrote. Any innovations must work for the entire public, he said, “from the most tech-savvy to the most tech-intimidated,” not just lawyers or the press.

The chief justice also cited “important security concerns” that require some otherwise public documents to be shielded from view to protect witnesses in criminal cases, and sensitive information in bankruptcy, malpractice, discrimination and patent cases.

Roberts’ report drew criticism from Fix the Court, a group launched in 2014 to press the Supreme Court on issues of accountability. “Chief Justice Roberts pays lip service to the idea that transparency is critical, but does not signal a willingness to make the court truly transparent,” executive director Gabe Roth said.

Senate Judiciary Chairman Patrick Leahy, D-Vt., said in a written statement Wednesday evening that “the federal courts have made little progress in providing greater access to its public proceedings.” Leahy said:

I agree with the Chief Justice that the judiciary must continue to do more to employ technology so that Americans have access to their courts. Not mentioned in his report, however, is the failure of the Supreme Court to allow even old technology, like photographs of the Supreme Court in session or live streaming of its oral arguments online.

The report issued Wednesday was the tenth for Roberts, who became chief justice in 2005. The tradition of issuing annual reports on the federal judiciary began with the late chief justice Warren Burger in 1970.

Many perennial issues that Roberts has touched on in the past—including judicial pay raises and budget needs—have receded in 2014. Roberts made no direct mention of them.

To support his argument that courts should move slowly on technological change, Roberts told the story of the court adopting a new method of releasing its opinions when its new court building opened in 1935. Pneumatic tubes were installed in the courtroom to allow reporters sitting there to deliver opinions quickly to waiting colleagues a floor below. But even then the court was behind the times, Roberts said, noting that pneumatic technology was available in the late 1800s.

Roberts also pointed out that the court’s architect, Cass Gilbert, incorporated the slow-moving tortoise into several aspects of the building’s design. A tortoise and hare are featured at the edges of the court’s east pediment, Roberts said.

“Perhaps to remind us of which animal won that famous race,” Roberts added, “Cass Gilbert placed at the bases of the court’s exterior lampposts sturdy bronze tortoises, symbolizing the judiciary’s commitment to constant but deliberate progress in the cause of justice.”

In an appendix to the report, statistics on the federal judiciary’s workload show that filings decreased in 2014 in appeals and bankruptcy courts as well as at the Supreme Court.

District court filings grew less than one percent to 376,536 compared to the year before, and appeals courts cases fell three percent to 54,988. At the Supreme Court, 7,376 cases were filed last term, a decrease of 1.77 percent.

Read more: http://www.nationallawjournal.com/legaltimes/id=1202713715464/Chief-Justice-Roberts-Promises-Greater-Access-to-Court-Filings#ixzz3NX6xBaWx

KBA Attorney discipline statistics

Wednesday, December 31st, 2014

Supreme Court of Kentucky / Kentucky Bar Association
Disciplinary Statistical Comparison
Total for Prior Fiscal Years Compared to Total of FY 2012-2013
FY
06-07
FY
07-08
FY
08-09
FY
09-10
FY
10-11
FY
11-12
FY
12-13
I.
A.
1,297 1,285 1,199 1,223 1,075 1,160 1,057
B.
Complaints authorized* 26 60 74 69 64 54 68
Investigations authorized 46 60 61 69 62 51 55
1,369 1,405 1,334 1,361 1,201 1,265 1,180
Disciplinary Intake Statistics
Complaints received by KBA and reviewed by Bar Counsel, pursuant to
SCR 3.160
Disciplinary cases initiated by Inquiry Commission, based upon
information presented by Bar Counsel, pursuant to SCR 3.160(2)
NUMBER OF COMPLAINTS RECEIVED AND INVESTIGATIONS
OPENED AT END OF EACH PERIOD
* Certain of these Complaints arose from Investigative Files
Prepared by the Kentucky Bar Association’s Office of Bar Counsel June 30, 2013Supreme Court of Kentucky / Kentucky Bar Association
Disciplinary Statistical Comparison
Total for Prior Fiscal Years Compared to Total of FY 2012-2013
FY
06-07
FY
07-08
FY
08-09
FY
09-10
FY
10-11
FY
11-12
FY
12-13
II.
A. 376 396 346 252 140 234 226
B. Closures by OBC through diversion or informal
resolution under SCR 3.160(3)(C) or which were
declined under SCR 3.160(3)(
E).^
466 538 694 779 632 668 682
C. Complaints dismissed by Inquiry Commission,
pursuant to SCR 3.170, including conditional
dismissals and warning letters. Also includes closed
Investigative files as well as those closed due to death
or disbarment in other cases. †
361 288 181 149 228 286 228
D. Private Admonitions authorized by Inquiry
Commission, pursuant to SCR 3.185, including
conditional Private Admonitions.
49 43 25 52 31 45 64
E. Supreme Court Renditions (disbarment, suspension,
reprimand, and dismissed) 64 136 101 74 84 101 133
1,316 1,401 1,347 1,306 1,115 1,334 1,333
Disciplinary Disposition Statistics
Complaints returned as insufficient, pursuant to SCR
3.160
NUMBER OF DISCIPLINARY FILES CLOSED AT END OF
EACH PERIOD
† Years prior to 2010-2011 did not include the closed Investigative files, nor those closed due to death or disbarment.
^ Years prior to 06-07 represent cases dismissed by the Chair without investigation. In 07-08, a few complaints were still under that category. Also, the totals
from 04-05 through 07-08 include Client Assistance Diversion (CAP) dismissals which were counted separately in previous years. CAP dismissals were
phased out on April 1, 2007 with the adoption of the diversion program.
Prepared by the Kentucky Bar Association’s Office of Bar Counsel June 30, 2013PERCENTAGE OF LAWYERS IN KENTUCKY WITH DISCIPLINARY CASES AGAINST THEM
FY06-07 to FY12-13
Complaints Filed Against Lawyers Licensed to Practice in Kentucky
06-07 07-08 08-09 09-10 10-11 11-12 12-13^
Lawyers Licensed in the State of Kentucky* 15316 15581 15947 16330 16712 17150 17432
Lawyers With Complaints Filed This Year 695 683 677 751 736 709 688
Lawyers Without Complaints Filed This Year 14621 14898 15271 15579 15976 16441 16744
% of KY Lawyers With Complaints Filed This Year 4.54% 4.38% 4.25% 4.60% 4.40% 4.13% 3.95%
Charges Against Lawyers Licensed to Practice in Kentucky
06-07 07-08 08-09 09-10 10-11 11-12 12-13^
Lawyers Licensed in the State of Kentucky* 15316 15581 15947 16330 16712 17150 17432
Lawyers With Charges Pending 87 105 83 102 88 82 68
Lawyers Without Charges Pending 15229 15476 15864 16228 16624 17068 17364
% of KY Lawyers With Charges Pending 0.57% 0.67% 0.52% 0.62% 0.53% 0.48% 0.39%
% of Lawyers With Charges Pending
Who Have Multiple Char
ges Pendin
g 35.89% 37.14% 36.14% 32.35% 41.00% 41.46% 33.82%
Mean Number of Charges Per Lawyer
Who Have Multiple Char
ges Pendin
g 4.42 3.67 3.97 3.55 3.25 3.65 2.78
* Since the number of lawyers registered to practice in Kentucky changes on an almost daily basis, this number is an average.
^ Approximately 4,381 lawyers included in this figure are licensed to practice in the state of Kentucky, but do not live here.
Prepared by the Kentucky Bar Association’s Office of Bar Counsel June 30, 2013Initial Intake Rule Violations Recorded in Disciplinary Files As Opened
RULE
VIOLATION 06-07 07-08 08-09 09-10 10-11 11-12 12-13
Rule 1.1 Competence 46 77 77 117 67 74 36
Rule 1.3 Diligence 212 304 269 331 316 287 275
Rule 1.4 Communications 168 293 262 349 332 272 273
Rule 1.5 Fees 64 85 80 119 178 119 173
Rule 1.6 Confidentiality of information 14 13 9 15 17 24 17
Rule 1.7-1.9 Conflict of Interest 67 78 68 69 86 70 40
Rule 1.15 Client Property 158 140 180 202 244 226 76
Rule 1.16 Termination 64 75 69 81 48 35 65
Rule 3.1 Meritorious Claims 4 11 7 8 18 5 4
Rule 3.3 Candor 22 22 31 32 57 36 26
Rule 3.4 Fairness to Opposing Party 23 52 39 50 65 41 45
Rule 4.1 Truthfulness 9 21 30 40 21 23 21
Rule 4.2 Communications with Represented Persons 4 5 6 9 12 12 9
Rule 4.3 Dealing with Unrepresented Persons 5200110
Rule 4.4 Respect for Right of 3rd Person 10 23 23 39 25 20 11
Rule 5.3 Responsibility of Non-Lawyer Assistant 0106573
Rule 5.5 Unauthorized Practice 5 7 11 23 26 10 13
Rule 8.1 Candor in Discipline Process 1000125
Rule 8.4(b)* Criminal Conduct 14 11 4 32 34 29 28
Rule 8.4(c)* Dishonest Conduct 62 91 33 74 56 51 44
Other 20 72 142 161 163 148 90
*Effective Jul
y 15, 2009, SCR 3.130 8.3(b) and 8.3(c) were renumbered SCR 3.130 8.4(b) and 8.4(c) without substantive chan
ges.
The alleged Rule Violation with the greatest frequency is highlighted in red.
The next four most frequent alleged Rule Violations are highlighted in gold.
Prepared by the Kentucky Bar Association’s Office of Bar Counsel June 30, 2013Private Admonition Rule Violations in Disciplinary Files as Determined by the Inquiry Commission
RULE
VIOLATION 06-07 07-08 08-09 09-10 10-11 11-12 12-13
Rule 1.1 Competence 3213156
Rule 1.3 Diligence 13 12 7 11 7 13 14
Rule 1.4 Communications 12 10 8 22 8 25 26
Rule 1.5 Fees 1607352
Rule 1.6 Confidentiality of information 1100001
Rule 1.7-1.9 Conflict of Interest 3 4 5 5 4 6 22
Rule 1.15 Client Property 11 354254
Rule 1.16 Termination 9719598
Rule 3.1 Meritorious Claims 0001007
Rule 3.3 Candor 0000107
Rule 3.4 Fairness to Opposing Party 1618421
Rule 4.1 Truthfulness 0001000
Rule 4.2 Communications with Represented Persons 1000030
Rule 4.3 Dealing with Unrepresented Persons 0000000
Rule 4.4 Respect for Right of 3rd Person 2002002
Rule 5.3 Responsibility of Non-Lawyer Assistant 1300210
Rule 5.5 Unauthorized Practice 1006641
Rule 8.1 Candor in Discipline Process 4813625
Rule 8.4(b)* Criminal Conduct 0101115
Rule 8.4(c)* Dishonest Conduct 0053032
Other 4 16 7 5 1 15 11
*Effective July 15, 2009, SCR 3.130 8.3(b) and 8.3(c) were renumbered SCR 3.130 8.4(b) and 8.4(c) without substantive changes
The specified Rule Violation with the greatest frequency is highlighted in red.
The next five most frequent specified Rule Violations are highlighted in gold.
Prepared by the Kentucky Bar Association’s Office of Bar Counsel June 30, 2013Disposition Rule Violations in Disciplinary Files as Determined by the Supreme Court
RULE
VIOLATION 06-07 07-08 08-09 09-10 10-11 11-12 12-13
Rule 1.1 Competence 3564366
Rule 1.3 Diligence 19 27 25 18 19 23 21
Rule 1.4 Communications 26 28 31 19 22 37 41
Rule 1.5 Fees 3 9 10 13 6 8 19
Rule 1.6 Confidentiality of information 0000001
Rule 1.7-1.9 Conflict of Interest 1 3 12 7 8 8 13
Rule 1.15 Client Property 6 17 15 11 15 14 31
Rule 1.16 Termination 12 25 20 15 16 22 23
Rule 3.1 Meritorious Claims 1011001
Rule 3.3 Candor 3 5 3 2 11 7 5
Rule 3.4 Fairness to Opposing Party 6 16 15 15 12 17 18
Rule 4.1 Truthfulness 2111010
Rule 4.2 Communications with Represented Persons 0002000
Rule 4.3 Dealing with Unrepresented Persons 0000000
Rule 4.4 Respect for Right of 3rd Person 2321111
Rule 5.3 Responsibility of Non-Lawyer Assistant 2064025
Rule 5.5 Unauthorized Practice 2 6 6 4 10 11 10
Rule 8.1 Candor in Discipline Process 13 21 25 14 21 25 26
Rule 8.4(b)* Criminal Conduct 5 11 8 4 8 15 17
Rule 8.4(c)* Dishonest Conduct 19 17 13 20 15 25 34
Other 17 14 17 25 8 13 25
*Effective July 15, 2009, SCR 3.130 8.3(b) and 8.3(c) were renumbered SCR 3.130 8.4(b) and 8.4(c) without substantive changes
The specified Rule Violation with the greatest frequency is highlighted in red.
The next five most frequent specified Rule Violations are highlighted in gold.
Prepared by the Kentucky Bar Association’s Office of Bar Counsel

NEW EDITION FOR 2015 – KY. DRIVING UNDER THE INFLUENCE LAW by Wilbur Zeveley and Judge Stan Billingsley (Ret.)

Wednesday, December 31st, 2014

Kentucky Driving Under the Influence Law, 2014-2015 ed.

 

By Wilbur Zevely and Judge Stan Billingsley (Ret.)

 

NEW EDITION This book is a comprehensive guide to Kentucky laws relating to driving under the influence.

 

Book   $425.00 $293.25

 

To order online go to:

 

http://legalsolutions.thomsonreuters.com/law-products/search?q=kentucky+driving+under+the+influence+law&r=13001&s=KEYWORDSEARCH&x=0&y=0

Judge delays bribery trial of state Rep. Keith Hall

Tuesday, December 30th, 2014

 

Kentucky lawmaker’s trial date moved to April

The Associated PressDecember 30, 2014 Updated 2 hours ago

 

Keith Hall is accused of paying $46,343 to retired mine inspector Kelly Shortridge.

 

PIKEVILLE, KY. — A federal judge has moved the trial date of an outgoing Kentucky lawmaker and a retired state mine inspector who are facing bribery charges.

The Appalachian News Express (http://bit.ly/14aOGYt) cited court documents in reporting that the trial date of state Rep. W. Keith Hall and retired inspector Kelly Shortridge is now set to begin on April 13 in Pikeville instead of Jan. 5. U.S. District Judge Karen Caldwell set aside five days for the trial.

Prosecutors accuse Hall of paying Shortridge more than $46,000 to ignore repeated violations at Hall’s Pike County coal mines. Shortridge is also accused of trying to extort more money from Hall.

Both men have pleaded not guilty.

Hall, a Democrat who represented Pike County for 14 years, lost in the May primary.

Read more here: http://www.kentucky.com/2014/12/30/3616862_kentucky-lawmakers-trial-date.html?rh=1#storylink=cpy

 

Jefferson District Judge Sandra L. McLaughlin, given public reprimand for inappropriate comments from bench.

Tuesday, December 30th, 2014

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

 

For Immediate Release

 

Agreed Order of Public Reprimand

 

In re the matter of:  Sandra L. McLaughlin, District Judge, 30th Judicial District

 

FRANKFORT, KY., December 29, 2014 –

The Judicial Conduct Commission makes public the Agreed Order of Public Reprimand In Re the matter of: Sandra L. McLaughlin, District Judge, 30th Judicial District.  The Jefferson County District Judge made “inappropriate comments” from the bench.

To access the order, use this link: http://courts.ky.gov/commissionscommittees/JCC/Documents/Public_Information/PublicReprimandMcLaughlin.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.

Dumping judges at the polls emerges as a high-stakes political drama

Tuesday, December 30th, 2014

 

 BY BRAD COOPER

THE KANSAS CITY STAR

12/29/2014 6:00 AM

12/29/2014 9:08 PM

 

Kansas voters this year came close to doing something they never have before: booting a state Supreme Court justice off the bench.

Justices Eric Rosen and Lee Johnson ultimately kept their jobs in an unusually high-profile retention election, the kind that ordinarily tends to draw scant attention at the bottom of the ballot.

Yet judges usually win elections deciding whether they should remain on the bench — and by margins often ranging upward of 70 percent.

This year, Rosen and Johnson only received 53 percent of the vote, the least support for a Kansas Supreme Court justice in a retention election.

The election marked a new era in Kansas where judicial retention elections could become high-stakes political battles, similar to what’s already happening across the country — and where millions are poured into judicial races.

“There will be more of these,” predicted Overland Park lawyer Greg Musil. “There’s still an agenda out there that perceives that the Supreme Court and the appellate courts of Kansas are way too liberal to be trusted.”

Political battles over the courts will likely intensify in Kansas because state campaign finance laws don’t cover retention elections for the Supreme Court, clearing the way for more “dark” money to filter into the state.

Some fear the loophole in the campaign finance law potentially puts even more pressure on justices to succumb to public opinion, perhaps tempting them to bend jurisprudence to appease an often angry electorate.

“This spells trouble for fair and impartial courts,” said Jim Robinson, a Wichita lawyer who leads the Kansas Bar Association’s legislative committee.

Once considered boring and sedate, elections over retaining judges are now becoming hotly contested battles stemming from controversial court decisions over same-sex marriage, abortion, school choice, crime and taxes.

Hard-fought judicial retention elections are hardly new. Voters knocked three California Supreme Court justices off the bench in 1986. But their potency is increasing nationally and in Kansas.

“Everything suggests they’re going to become increasingly more contentious where they look more like real elections,” said Vanderbilt University law professor Brian Fitzpatrick, who studies how judges are picked. “For a long time, they didn’t look like elections. They were coronations.”

This year, a national Republican group spent $200,000 unsuccessfully trying to unseat a Democratic circuit court judge in Missouri’s Cole County, where lawsuits are typically brought challenging the constitutionality of state laws and regulations in Missouri.

Iowa, Alaska, Colorado, Florida and Tennessee are among the states where campaigns have been run to remove Supreme Court justices from the bench.

Consider these examples:

A watershed moment may have come in 2010 when Iowa voters removed three Iowa justices who supported legalizing same-sex marriage. The campaign drew nationwide attention and cost $1.3 million.

Three Tennessee Supreme Court justices appointed by a Democratic governor won retention elections in August after they were the targets of conservative groups, including the same one involved in the Missouri election. More than $1.4 million was spent in that election. The justices were accused of being light on crime and biased against business.

Two years ago in Florida, the state Republican Party, backed by the conservative group Americans for Prosperity, campaigned to remove three state Supreme Court justices. All three were put back on the bench, but only after $5 million was raised to keep them there. Among other things, the justices were criticized for overturning a death penalty case and blocking a ballot proposal for slowing down the health care law known as Obamacare.

A similar campaign was waged in Kansas four years ago when abortion opponents took aim at Kansas Supreme Court Justice Carol Beier, who had been highly critical of former state Republican Attorney General Phill Kline’s handling of abortion investigations.

Beier, appointed to the court by Democratic Gov. Kathleen Sebelius, still finished with support from 63 percent of voters.

This year’s retention election in Kansas was fueled by the state Supreme Court’s decision last summer to set aside the death sentences of two brothers convicted of a quadruple murder in Wichita.

The justices ruled that Jonathan and Reginald Carr should have been given separate sentencing hearings and sent the case back to district court.

Angry over the court’s decision, a small group of family members and friends of the victims mounted a campaign against Rosen and Johnson, who also were appointed to the court by Sebelius.

The group’s cause was aided by Republican Gov. Sam Brownback’s re-election campaign, which produced ads linking his Democratic challenger to the court’s controversial decision overturning the death sentences.

In just a matter of weeks, Rosen’s and Johnson’s popularity eroded from the 70 percent they received the last time they stood for retention in 2008 to just under 53 percent in this year’s election.

An analysis by The Associated Press found that no Kansas justice — until this year — had received less than 62 percent of the vote in a retention election.

Observers believe this will not be the last high-profile retention election, especially because state law has an unusual gap that does not require disclosing who bankrolls a retention campaign for the appellate courts.

Utah is believed to be the only other state where similar campaigns for retaining judges don’t have to disclose the sources of their money. The group opposing the two Kansas justices declined to make that information available.

The fact that Kansas’ campaign finance law doesn’t cover retention elections for the Supreme Court opens the door to big-time spending to influence the court, especially in 2016 when two more justices will be up for retention.

Beier will be back on the ballot in 2016 along with Chief Justice Lawton Nuss, who’s openly feuded with lawmakers about court funding. Both could be exposed to the same type of campaign run against Rosen and Johnson.

“You’re going to have more judges looking over their shoulder wondering whether there’s going to be an outside deluge targeting them depending on their rulings,” said Bert Brandenburg, executive director of Justice at Stake, a nonpartisan group that advocates for impartial courts.

And some lawyers believe that ultimately could undermine an independent judiciary and force judges to worry more about politics than the law.

“We do not want a basketball referee to reverse his call when the crowd boos,” said Robinson, the Wichita lawyer. “And we do not want courts to bend to political criticism and pressure.”

Some worry the dynamic could also put judges in the position of needing to raise money from special interests that might some day have issues before the court. “There are real concerns about judges becoming politicians in robes,” said Alicia Bannon, counsel at the Brennan Center for Justice.

The political climate is already precarious for the Kansas Supreme Court, which has been at odds with the conservative-controlled Legislature in recent years.

Conservatives, led by Brownback, have criticized the justices for authoring decisions colored by their political views. There have already been legislative moves to lower their mandatory retirement age and water down their power.

“There is a lot of concern about how the judiciary operates in this state and the country,” Brownback said in an interview. “People are getting more and more concerned and vocal.”

Conservatives have criticized the Kansas Supreme Court for overstepping its power in a landmark decision directing the Legislature to put hundreds of millions in additional funding into schools. They believe the Legislature — not the court — makes spending decisions.

Supreme Court justices in Kansas are appointed by the governor, who chooses from a panel of three candidates recommended by a screening panel made up of five lawyers and four nonlawyers.

The justices stand for retention at the first general election after serving one year. They’re then up for retention every six years.

Brownback unsuccessfully tried changing that process for picking Supreme Court justices so he could appoint candidates with Senate consent.

Brownback is expected to renew those efforts next year.

“As long as you have retention elections and you have controversial decisions angering the right side of the Republican Party, the justices are going to be in for very difficult times,” said University of Kansas political scientist Burdett Loomis.

Some scholars attribute the higher profile of retention elections to the way states like Kansas pick their judges.

The say those systems, which employ a screening process for candidates, are influenced too much by lawyers with liberal inclinations.

About half the states choose their Supreme Court judges using screening committees similar to Kansas.

“These commissions are sending the governor names that are maybe not reflective of the political orientation of the state as a whole,” Fitzpatrick said.

When the courts block initiatives passed by conservative legislatures in deeply red states, the judges start attracting criticism.

“They are acting as a superlegislature,” said Matt Walter, president of the Republican State Leadership Committee, which helped fund campaigns against the retention of the Tennessee judges.

“Instead of testing whether or not something comports with the letter and spirit of the law,” he said, “they are inserting political ideology.”

To reach Brad Cooper, call 816-234-7724 or send email to bcooper@kcstar.com.

Read more here: http://www.kansascity.com/news/government-politics/article5146323.html#storylink=cpy

 

Federal judge rules Obama overstepped his authority in issuing executive order on immigration – ruling questioned by many…

Tuesday, December 23rd, 2014

 

Posted: Wednesday, December 17, 2014 8:15 am | Updated: 9:10 am, Wed Dec 17, 2014.

By Torsten Ove Pittsburgh Post-Gazette

PITTSBURGH — A federal judge in Pittsburgh ruled Tuesday that President Barack Obama overstepped his authority and violated the Constitution when he issued an executive order last month to delay deportation for millions of people living in the U.S. illegally.

In an opinion issued in a local case of a Honduran man who illegally re-entered the country, U.S. District Judge Arthur J. Schwab said the president cannot use his executive powers to bypass Congress.

 

The judge, who was appointed to the bench by former President George W. Bush, said the president’s order in November amounts to “unilateral legislative action” and is unconstitutional.

 

“Congress’ lawmaking power is not subject to presidential supervision or control,” the judge wrote in a 38-page opinion that quickly made its way to national news websites.

He said inaction by Congress on immigration does not endow the president with legislative powers to enact law, even temporarily.

 

“Presidential action may not serve as a stop-gap or a bargaining chip to be used against the legislative branch,” he wrote.

 

Although the opinion doesn’t direct the government to take any action and would seem limited to the local case, it was quickly denounced by the U.S. Department of Justice.

“The decision is unfounded and the court had no basis to issue such an order,” a Department of Justice spokesperson said. “No party in the case challenged the constitutionality of the immigration-related executive actions and the department’s filing made it clear that the executive actions did not apply to the criminal matter before the court. Moreover, the court’s analysis of the legality of the executive actions is flatly wrong. We will respond to the court’s decision at the appropriate time.”

 

The case involves Elionardo Juarez-Escobar, 42, a Honduran native who was arrested in April for drunken driving in New Sewickley.

 

He was later indicted in federal court in Pittsburgh for illegally returning to the U.S. after he’d been deported from New Mexico in 2005 after being caught there by the Border Patrol.

 

After 2005, he sneaked back into Texas from Mexico, then paid a van driver to take him to New York, where a friend drove him to Pittsburgh to be reunited with his brother, who runs a landscaping business.

 

He entered a guilty plea here in October and remains jailed pending sentencing.

In his ruling, the judge said he would typically sentence someone like Juarez-Escobar to time served and order him to be turned over to the U.S. Department of Homeland Security for deportation. But he delayed sentencing in this case because he said the president’s action might give Juarez-Escobar new rights to fight removal from the U.S.

The judge gave him until Jan. 6 to decide if he wants to withdraw his plea.

 

The U.S. attorney’s office will then have until Jan. 12 to respond to Juarez-Escobar’s decision.

 

Central to the case is a debate over whether the president’s executive order applies at all.

 

The president issued his order on Nov. 20. Four days later, without prompting from either side, Judge Schwab requested Juarez-Escobar’s McKeesport lawyer, Alonzo Burney, and the U.S. Attorney’s Office to submit briefs on whether the decision would affect the case.

 

Burney said he didn’t have the expertise to answer, but brought in an immigration attorney, Robert Whitehill, who said the new policy might be a factor.

 

“The government could decline to seek his removal after the instant criminal matter is resolved or exercise prosecutorial discretion to grant him relief from removal,” wrote Whitehill.

 

Federal prosecutors said the president’s policy would not matter because the Justice Department already has said the president’s policy does not apply to criminal cases such as Juarez-Escobar’s.

 

But the judge sided with the defense.

 

He said that while deportation is imposed by an immigration judge in a civil proceeding, that civil proceeding often arises as a result of the individual being convicted of a crime. And that crime can be re-entry of a removed alien, as it was in the case of Juarez-Escobar.

 

“Thus, this court, which arguably has no control over the imposition of the ‘deportation sanction,’ cannot ignore the fact that what happens here, in this criminal proceeding, significantly and determinatively impacts what happens there, in a civil proceeding.”

The judge’s opinion regarding the president’s authority or lack of it is similar to the arguments made by 24 states in their challenge to President Obama’s immigration policy.

 

Republican politicians predictably lauded the judge’s decision.

 

U.S. Rep. Lou Barletta, R-Pa., a strong voice against the president’s immigration stance, said the ruling validated what he has been saying for weeks.

 

“It is clear that the president has overstepped his authority by creating new laws and granting sweeping amnesty to millions of illegal immigrants,” he said.

U.S. Rep. Bill Shuster, R-Pa., had a similar reaction.

 

“I have been and will continue to fight back at any attempts by President Obama to grant amnesty to millions of illegal immigrants,” he said. “When he announced his executive actions he turned his back on the American people and our system of government.”

 

But many legal observers took Judge Schwab to task, with some saying he was wrong to even solicit briefs on an issue that neither party raised.

 

David Leopold, former president of the American Immigration Lawyers Association, said that the judge improperly inserted himself into a national debate when he had no business doing so because the Juarez-Escobar case is a criminal matter.

 

“It’s shocking that a federal judge would use an unrelated criminal case to take it upon himself to declare the lawful, discretionary decisions of a sitting president unconstitutional,” he said in a statement. “I’m confident that this ill-advised and poorly reasoned opinion will be corrected by the (3rd Circuit) Court of Appeals.”

 

Most legal observers said the judge’s ruling is certain to be the first of many coming debates in the federal judiciary over Obama’s immigration policy.

 

“Given the position the Justice Department took, they would be wanting to appeal this, and is there a possibility that the Supreme Court would weigh in at some point? Sure,” said Bruce Antkowiak, a former federal prosecutor and director of the criminology, law and society program at St. Vincent University. “At a minimum you’re going to see various federal circuit courts weighing in on this executive action.”— Read more online at SentinelSource.com

GALLION REPLY TO U.S. REPLY TO HIS MOTION FOR CERTIFICATE OF APPEALABILITY

Sunday, December 21st, 2014

Comes now the Petitioner, by counsel, and for the Reply to the United States Opposition to Gallion’s Motion for Certificate of Appealability says as follows:

On May 14, 2007 the Kentucky Supreme Court gave the United States access to “ the documents, evidence and information it has gathered or collected in connection with any disciplinary matter arising from the Darla Guard, et al, or Joneta Moore, et al v. A.H.Robbins, et al., Case No. 98-CI-796 “ by the Kentucky Bar Association.

Gallion was indicted in June 2007 after this Order had been made. In May 2007  there was no defendants and no witnesses. The United States argument and the District Judge’s reasoning that somehow they were limited by a Rule applicable only to targets of their investigation in accessing and gathering such information was not true.

The Inquiry Commission charged Mr. Chesley with ethical violations in December of 2006. Mr. Chesley’s Response was made March 1, 2007.

The Commission charged the following: (D.E. 139, 140)

 

F. COMPLAINT PARAGRAPH Several months after the funds from the Guard

settlement had been distributed to the plaintiffs and the attorneys, you

attended a hearing before Judge Bamberger in a room in the Boone Circuit Court

which was adjacent to the courtroom on or about February 15, 2002. At that

time, knowing that the case had been concluded and all funds distributed, you

provided the Court with material relating to the use of the cy pres doctrine in

class actions and suggested to the Court the propriety of its use in the Guard case.

You and your co-counsel also sought the Court’s approval of your collective plan

to distribute (from money that was described to the Court by you and your co-

counsel as having been “set aside”) an additional amount to the clients, retain

some funds for charitable purposes and to pay yourselves an additional amount

of fees.

 

Judge Bamberger’s Grand Jury Testimony: (D.E. 340,341)

“I was in a jury trial, and we generally quit at 4:30, and I have this vague

memory that we quit a little bit later than that. It was in the old courthouse

and there was what they called a jury room, and it’s — you go down a long hall

past my secretary’s office and my office, a copy room, and there’s a room

that’s 25 percent the size of this room, and to my memory, Stan Chesley was

there, Bill Gallion was there, Shirley Cunningham was there, and I think

Mark Modlin was there. And so I got in the room, and to my memory this

was an occasion when we started to conversation with Stan Chesley speaking

about the Cy pres and his experience with Cy pres money, and he gave me a

memo relative to Cy pres and –“

 

The Inquiry Commission Complaints against Mr. Chesley was exculpatory evidence. The United States violated the Brady rule in failing to disclose the same to the defense.

Exhibit A to this Reply is Mr. Chesley’s perjured trial testimony offered by the United States.

Judge Bamberger and David Schaefer’s Judicial Conduct Commission Interviews in 2005 were discovered in Judge Bamberger’s KBA Investigative file.  Both Interviews contained exculpatory evidence that the United States had access to and did not disclose. As noted in the Application (p. 14) it was discovered that the Kentucky Supreme Court on May 10, 2006 had given the United States access to the Judicial Conduct Commission file of Judge Bamberger. The Schaefer Interview filed with the Sect. 2255 Motion was paged KBA 2211, 2212.

The United States Response to the Motion to Vacate (Record No. 1408 p.16) states as follows: ” The United States was not provided with any other witness statements, impeaching, or exculpatory material by the KBA. Nor did the United States have the legal means to obtain such information.” The District Court relies on this argument to conclude the government did not withhold exculpatory evidence from the Petitioner. (Record No. 1433 p.16)

The District Court states: (Id.) “ Nor is there any support for the inference that the government had information that should have been disclosed to him.” (Id.)Accordingly there was no need for discovery.

The Petitioner filed the Schaefer Interview in the Sect.2255 Motion to Vacate. The District Court does not mention Schaefer or the Bamberger Interviews albeit these documents along with other critical arguments showing Gallion was denied a fair trial were in the supplemental filing in the Petitioner’s Objections to the Magistrates Report. (Docket # 1424, Attachments A & B)

The United States makes the alarming statement (id.) that “ There is no rule that allows disclosure of disciplinary information relating to a witness.” If the information is exculpatory evidence Brady v US mandates its disclosure.

In discussing Schaefer the United States does not refer to Shaefer’s statement “ there was talk by some of the plaintiffs’attorneys, of the establishment of a charitable fund to receive any left over monies as part of the settlement” in relation with the Helmer’s $50 million to Charity notation made during mediation or Gallion’s disclosure to Linda Gosnell in February 2002. Counsel for the Petitioner thought the  Helmer’s notation was highly relevant to the defense. The District Court would not admit the Exhibit and instructed the Jury to disregard Helmer’s number $50 million because it was not discussed in the presence of the attorneys for American Home Products.

 

In discussing Schaefer the United States does not refer to the argument that the Schaefer Interview challenges the District Court’s instruction on the Aggregate Settlement Rule. There are no Excess funds in an Aggregate Settlement according to the testimony of the United States expert witness.

 

In discussing Schaefer the United States does not realize that the Schaefer interview challenges the District Court’s matter of law interpretation of the Settlement documents that made Exhibit 3 monies allocated to 440 claimants.

 

The District Court prejudged Gallion.

 

Gallion’s Theory of Defense. (D.E. 177-179)

 

“Mediation was successful resulting in a settlementof $200 million dollars,

however conditions imposed by Defendant AHP upon the settlement made this

case unique without any equal in the case law and presented unique challenges to

the settling attorneyson how best to administer the settlement. Among the

conditions imposes was 1. decertification of the class, 2. a strict confidentiality

requirement with strict penalties for violation and 3. sweeping indemnities that

had to be assumed by the settling attorneys –indemnity of AHP for any claims

that might arise within the state of Kentucky for a one year period.

Additionally, stringent time limits were placed upon the attorneys to comply with

other requirements of the settlement, including, among other things, providing

proof of ingestion, medical conditions and acceptance of settlement by signed

releases. The settlement was a take it or leave it proposition. In compliance with

the terms of the settlement agreement, attorney’s for both the plaintiffs and

defendants appeared before Judge Bamberger on May 9, 2001 requesting

decertification of the class including dismissal with prejudice for all the claimant’s

who settled their case and dismissal without prejudice to those who did not.

Thereafter, the plaintiff’s attorneys devised a settlement mechanism for the

clients that resulted in each client receiving by many multiples an amount far in

excess of the value of their claim. Each claimant was required to sign a joint

release and confidentiality agreement on a form prescribed by Defendant AHP,

which contained a full release of AHP.

The government’s Exhibit #177 identified as Exhibit 3 to the Settlement

Agreement was not intended to reflect actual payments that clients would receive

from the settlement. Rather, it was a payment mechanism to comply with the

requirements of the settlement agreement relating to deadlines for the settling

attorneys to meet specific contingencies imposed upon them.

 

Exhibit #3 was prepared solely for the purpose of obtaining the funds from AHP in

accordance settlemen agreement. It was never intended or devised to be the

amount that each client would receive. You have heard testimony that AHP did

not care what each client received. It was a settlement for $200 million, it was

not a settlement based on individual amounts for these clients. There was a huge

continegnecy in that therewere potentially individuals who could have made a

claim. Mr. Gallion, Mr. Cuninhgam and Mr. Mills assumed a tremendous risk.”

Respectfully this Honorable Court is asked to reconsider its holding that the

jury had enough information to access the defense theory of the case.

 

Volume 26B pp. 14,15

MR. ALMAND: Your Honor, from what I understand you’re telling me, and it goes

back to something you said just a moment ago, is that because you’ve made up

your mind that what Professor Erichson said is correct, you are going to instruct

the jury as a matter of law. Now, Judge, in all due respect, I think that’s an

improper approach to for you to take in this case. We’ve got the right to present

both sides. You haven’t heard all of the evidence yet from our side. You have

made up your mind early before the conclusion of the case. You have done the

very thing that you have told the jury not to do.

THE COURT: “No, no, Mr. Almand, I have not done that. What I have done is I’ve

listened to testimony over the course — this is the seventh week now. I have

reviewed hundreds, if not thousands, of pages of documents in order to

understand the positions of the parties in this case. I have performed research on

these issues as to the legal issues in the case. I have considered all the testimony

that’s been presented to this point. And that testimony has allowed me to

conclude, as a matter of law, certain things. At certain points of this case, I have

been able to reach conclusions, legal conclusions, as to certain issues. At later

points in the case, I have been able to reach other conclusions in the case.”

 

During the Opening Statement of defense counsel the Court gave a limiting instruction to the Jury.

Mr. Almand’s Opening Statement, Vol 2A, pp. 68,69

Also, the way they looked at the case, this was not a

3 case where you divide up 200 million among the clients. What

4 you did was you looked at each of the cases of the client and

5 evaluated the injury and the value of each case. And when you

6 did that and when you paid the full and fair value of the claim,

7 when you paid everything that the client could expect, then the

8 client had no further claim to the 200 million.

9 Now, there is dispute, there’s even dispute among

10 lawyers, about how this should be handled. But there will be no

11 evidence in this case, there will be no evidence, that each

12 client did not receive the full and fair value of his case; not

13 only the full and fair value as determined by the national

14 settlement, because that was considered by a court finding to be

15 full and fair, what the national settlement said, but these

16 lawyers paid the clients not what the national settlement said,

17 but 50 times more than that; 50 times more than that.

 

18 MR. WALBOURN: Objection, Your Honor.

 

19 THE COURT: I’ll sustain the objection. I’m going to

20 give a limiting instruction at this time.

21 Ladies and gentlemen, from time to time, the Court

22 rules on matters prior to the trial actually starting, and this

23 is one of those issues, and that is this matrix, this national

24 matrix. And let me give you an instruction that I will be

25 giving you later as to how you can consider evidence concerning

1 that matrix.

2 You will be hearing evidence the defendants used a

3 matrix to establish in the national — established in the

4 national settlement to base a payment structure in the Boone

5 Circuit Court action. This evidence will be admitted for the

6 limited purpose of determining whether or not defendants had the

7 specific intent to defraud. Whether or not a claimant would

8 have received more or less money in the Boone County action than

9 he or she would have received in the national settlement is

10 irrelevant and should not be considered by you. You must

11 determine whether or not the defendants had the specific intent

12 to defraud their clients, and you may use the evidence of the

13 national matrix, as well as other evidence which will be

14 admitted during the course of trial, in making that

15 determination.

 

16 MR. ALMAND: Thank you, Judge.

 

(Volume 15 B p. 50)

MR. ALMAND: May I make a proffer?

THE COURT: Yes, sir.

MR. ALMAND: What I want to ask him is is in July of 2002, was it his opinion as a

Judge that was dealing with this case that the claimants had already received

more money for their compensation than the injuries justified.

 

THE COURT: I have already in a pretrial ruling ruled on this issue. It’s a relevancy

issue.

MR. ALMAND: Your Honor, I’m sorry, I don’t know of that

opinion. Maybe I missed something on that.

THE COURT: It’s part of the ruling that the Court made.

Whether they would or would not have received more or less money

than they would have received in a National Settlement is not relevant. Same

criteria. This person’s opinion as to whether these folks received fair

compensation is not relevant. The issue in the case is whether they were

defrauded out of money that these defendants negotiated for them on their

behalf.

 

 

The United States does not discuss the argument that the District Court interpreted the Settlement in Boone County the same as Judge Wehr in the civil case. Exhibit 3 was monies allocated solely for the known claimants subject to a set aside limited to $7.5 million for other potential claims.

The Jury did not consider the truthfulness of the Petitioner’s explanation of the Settlement. The Jury was instructed that the Petitioner’s explanation of the Settlement was an explanation of how he defrauded the claimants.

The Petitioner believed the claimants were fairly compensated. Exhibit B to this Reply are excerpts of cross examination on the medical conditions of the claimants called by the government. Was Tracey Curtis defrauded? She saw a physician once. According to Exhibit 3 Tracy Curtis was entitled to $181,000.

 

In the Petitioner’s Motion to Recuse Judge Reeves it is stated:

 

“ Ms. Graham was seen entering Judge Reeves chambers on 2/23/09. The

 

Petitioner is entitled to know the information shown by Ms. Graham’s billing

 

records. Gallion asks that a Subpoena be directed to the Kentucky Bar Association

 

to  produce Ms. Graham’s unredacted billing records.” The United States does not

address this allegation.

The United States in multiple instances argues that the Petitioner’s

arguments were vague and conclusory overlooking that in the Sect. 2255 Motion

the Petitioner was seeking  discovery and an evidentiary hearing.

 

WILLIAM GALLION FILES BRIEF IN EFFORT TO SEEK RIGHT TO APPEAL HIS FEN PHEN CONVICTION – ALLEGES IMPROPER SECRET CONVERSATION BETWEEN KBA ATTORNEY AND U.S. DISTRICT JUDGE

Sunday, December 21st, 2014

 

Dec. 15, 2014

 

Comes now the Petitioner, by counsel, and for the Reply to the United

States Opposition to Gallion’s Motion for Certificate of Appealability says as

follows:

The United States mischaracterizes the Petitioner’s Sect. 2255 Motion.

DEFENDANT’S REPLY TO THE UNITED STATES’ RESPONSE TO DEFENDANT’S MOTION TO VACATE SENTENCE AND DEFENDANT REQUEST TO CONDUCT DISCOVERY

Mr. Gallion requests the Court grant him leave pursuant to Rule 6 of the

Rules Governing Section 2255 Proceedings to conduct discovery in the interest of

justice so that he can establish further facts in support of his claims.

The Schaefer Interview was filed with the Section 2255 Motion. Did the

United States read the Interview? The Magistrate and District Court do not

mention the Schaefer Interview. The United States for the first time discusses

Schaefer in the Response in Opposition to the Petitioner’s Application for a

Certificate of Appealability. As discussed in the Application the Schaefer Interview

in light of Helmer’s trial testimony and the Petitioner’s explanation of the

Settlement to the KBA counsel on 2/28/02 corroborates the Petitioner’s

explanation of the Settlement

 

It was alleged in the Motion to Recuse that Ms. Graham was seen entering

Judge Reeves chambers on the evening before making the Motion for a Protective

Order. The reason the ex parte contact was not raised in the direct appeal was

due to Appellant Counsel reasoning that it was not known what Judge Reeves and

Ms. Graham discussed. Discovery of the billing records disclosed Ms. Graham

billed the KBA for work on the Phen-Fen trial on the same day she was seen

entering the Judge’s chambers. This information persuaded counsel that this issue

should be raised in the Sect.2255 Motion.

Chesley’s perjury was fully revealed by the Disbarment Order entered by

the Kentucky Supreme Court. Had the United States disclosed the KBA charges

against Mr. Chesley this issue would have been fully vetted in the Petitioner’s

trial. In support of the Petitioner’s argument that the United States knowingly

offered Chesley’s perjury to convict  the Petitioner’s Reply to the United States

cites: Napue v. Illinois, 360 U.S. 264 (1959); See Also, Fall 2011 Penn State Law

Review, pg. 331-401-Convictions Based on Lies: Defining Due Process Protection.

 

On May 14, 2007 the Kentucky Supreme Court gave the United States access to “ the documents, evidence and information it has gathered or collected in connection with any disciplinary matter arising from the Darla Guard, et al, or Joneta Moore, et al v. A.H.Robbins, et al., Case No. 98-CI-796 “ by the Kentucky Bar Association. The Kentucky Supreme Court had a broader view of targets than the United States.

Gallion was indicted in June 2007 after this Order had been made. In May 2007  there was no defendants and no witnesses. The United States argument and the District Judge’s reasoning that somehow they were limited by a Rule applicable only to targets of their investigation in accessing and gathering such information was not true. It is unreasonable to believe the United States would not consider the KBA files of Chesley, Bamberger and Helmers relevant to the charges brought against the Petitioner, Cunningham and Mills.

The Motion to Recuse states the following:

Ms. Voorhees, AUSA, concerning the Jencks material given the defense relating to

Mr. Chesley, stated:“Your Honor, I’m sorry, it was given to us with much of it

blacked out. I don’t know if there was an investigation regarding Mr. Chesley. I

don’t know if it was in relation to an investigation of Mr.Cunningham or Mr.

Gallion. I’m not sure where it comes from.” 2/25/2009 Jury Trial, Vol. 7B.p. 4

Mr. Almand stated to the Court: “I think you can read it and get pretty quickly it is

a complaint against him [Chesley].” Id. “Now we would request that before Mr.

Chesley testifies that we be provided the whole document not just the redacted

version we have here.” Id. Ms. Voorhees also stated: “I believe the Supreme

Court, or Linda Gosnell, after she received the order allowing her to provide

documentation, and there were some limitations in it. My “guess” is that these

were things they needed to redact according to the order.” Id. p. 5.

The United States knew Chesley had advised Judge Bamberger that Excess

funds could be transferred to a Cy Pres Trust. Chesley’s trial testimony was

perjury  that he told the Petitioner to hold back the Excess funds and if no further

claims were made to give the remaining funds to the claimants. The Petitioner’s

sentence was increased due to alleged perjurious testimony. The Petitioner did

not know the KBA accusations against Chesley. The United States and the District

Judge did.

 

The Inquiry Commission charged Mr. Chesley with ethical violations in

December of 2006. Mr. Chesley’s Response was made March 1, 2007. The

Petitioner was indicted in June 2007.

The Commission charged the following: (D.E. 139, 140)

 

F. COMPLAINT PARAGRAPH Several months after the funds from the Guard

settlement had been distributed to the plaintiffs and the attorneys, you

attended a hearing before Judge Bamberger in a room in the Boone Circuit Court

which was adjacent to the courtroom on or about February 15, 2002. At that

time, knowing that the case had been concluded and all funds distributed, you

provided the Court with material relating to the use of the cy pres doctrine in

class actions and suggested to the Court the propriety of its use in the Guard case.

You and your co-counsel also sought the Court’s approval of your collective plan

to distribute (from money that was described to the Court by you and your co-

counsel as having been “set aside”) an additional amount to the clients, retain

some funds for charitable purposes and to pay yourselves an additional amount

of fees.

 

Judge Bamberger’s Grand Jury Testimony: (D.E. 340,341)

“I was in a jury trial, and we generally quit at 4:30, and I have this vague

memory that we quit a little bit later than that. It was in the old courthouse

and there was what they called a jury room, and it’s — you go down a long hall

past my secretary’s office and my office, a copy room, and there’s a room

that’s 25 percent the size of this room, and to my memory, Stan Chesley was

there, Bill Gallion was there, Shirley Cunningham was there, and I think

Mark Modlin was there. And so I got in the room, and to my memory this

was an occasion when we started to conversation with Stan Chesley speaking

about the Cy pres and his experience with Cy pres money, and he gave me a

memo relative to Cy pres and –“

 

The Inquiry Commission Complaints against Mr. Chesley was exculpatory evidence. The United States violated the Brady rule in failing to disclose the same to the defense.

Exhibit A to this Reply is Mr. Chesley’s perjured trial testimony offered by the United States.

Judge Bamberger and David Schaefer’s Judicial Conduct Commission Interviews in 2005 were discovered in Judge Bamberger’s KBA Investigative file.  Both Interviews contained exculpatory evidence that the United States had access to and did not disclose. As noted in the Application (p. 14) it was discovered that the Kentucky Supreme Court on May 10, 2006 had given the United States access to the Judicial Conduct Commission file of Judge Bamberger. The Schaefer Interview filed with the Sect. 2255 Motion was paged KBA 2211, 2212.

The United States Response to the Motion to Vacate (Record No. 1408 p.16) states as follows: ” The United States was not provided with any other witness statements, impeaching, or exculpatory material by the KBA. Nor did the United States have the legal means to obtain such information.” The District Court relies on this argument to conclude the government did not withhold exculpatory evidence from the Petitioner. (Record No. 1433 p.16)

The District Court states: (Id.) “ Nor is there any support for the inference that the government had information that should have been disclosed to him.” (Id.)Accordingly there was no need for discovery.

The Petitioner filed the Schaefer Interview in the Sect.2255 Motion to Vacate. The District Court does not mention Schaefer or the Bamberger Interviews albeit these documents along with other critical arguments showing Gallion was denied a fair trial were in the supplemental filing in the Petitioner’s Objections to the Magistrates Report. (Docket # 1424, Attachments A & B)

The United States makes the alarming statement (id.) that “ There is no rule that allows disclosure of disciplinary information relating to a witness.” If the information is exculpatory evidence Brady v US mandates its disclosure.

In discussing Schaefer the United States does not refer to Shaefer’s statement “ there was talk by some of the plaintiffs’attorneys, of the establishment of a charitable fund to receive any left over monies as part of the settlement” in relation with the Helmer’s $50 million to Charity notation made during mediation or Gallion’s disclosure to Linda Gosnell in February 2002. Counsel for the Petitioner thought the  Helmer’s notation was highly relevant to the defense. The District Court would not admit the Exhibit and instructed the Jury to disregard Helmer’s number $50 million because it was not discussed in the presence of the attorneys for American Home Products.

 

In discussing Schaefer the United States does not refer to the argument that the Schaefer Interview challenges the District Court’s instruction on the Aggregate Settlement Rule. There are no Excess funds in an Aggregate Settlement according to the testimony of the United States expert witness.

 

In discussing Schaefer the United States does not realize that the Schaefer interview challenges the District Court’s matter of law interpretation of the Settlement documents that made Exhibit 3 monies allocated to 440 claimants.

 

The District Court prejudged Gallion.

 

Gallion’s Theory of Defense. (D.E. 177-179)

 

“Mediation was successful resulting in a settlementof $200 million dollars,

however conditions imposed by Defendant AHP upon the settlement made this

case unique without any equal in the case law and presented unique challenges to

the settling attorneyson how best to administer the settlement. Among the

conditions imposes was 1. decertification of the class, 2. a strict confidentiality

requirement with strict penalties for violation and 3. sweeping indemnities that

had to be assumed by the settling attorneys –indemnity of AHP for any claims

that might arise within the state of Kentucky for a one year period.

Additionally, stringent time limits were placed upon the attorneys to comply with

other requirements of the settlement, including, among other things, providing

proof of ingestion, medical conditions and acceptance of settlement by signed

releases. The settlement was a take it or leave it proposition. In compliance with

the terms of the settlement agreement, attorney’s for both the plaintiffs and

defendants appeared before Judge Bamberger on May 9, 2001 requesting

decertification of the class including dismissal with prejudice for all the claimant’s

who settled their case and dismissal without prejudice to those who did not.

Thereafter, the plaintiff’s attorneys devised a settlement mechanism for the

clients that resulted in each client receiving by many multiples an amount far in

excess of the value of their claim. Each claimant was required to sign a joint

release and confidentiality agreement on a form prescribed by Defendant AHP,

which contained a full release of AHP.

The government’s Exhibit #177 identified as Exhibit 3 to the Settlement

Agreement was not intended to reflect actual payments that clients would receive

from the settlement. Rather, it was a payment mechanism to comply with the

requirements of the settlement agreement relating to deadlines for the settling

attorneys to meet specific contingencies imposed upon them.

 

Exhibit #3 was prepared solely for the purpose of obtaining the funds from AHP in

accordance settlemen agreement. It was never intended or devised to be the

amount that each client would receive. You have heard testimony that AHP did

not care what each client received. It was a settlement for $200 million, it was

not a settlement based on individual amounts for these clients. There was a huge

continegnecy in that therewere potentially individuals who could have made a

claim. Mr. Gallion, Mr. Cuninhgam and Mr. Mills assumed a tremendous risk.”

Respectfully this Honorable Court is asked to reconsider its holding that the

jury had enough information to access the defense theory of the case.

 

Volume 26B pp. 14,15

MR. ALMAND: Your Honor, from what I understand you’re telling me, and it goes

back to something you said just a moment ago, is that because you’ve made up

your mind that what Professor Erichson said is correct, you are going to instruct

the jury as a matter of law. Now, Judge, in all due respect, I think that’s an

improper approach to for you to take in this case. We’ve got the right to present

both sides. You haven’t heard all of the evidence yet from our side. You have

made up your mind early before the conclusion of the case. You have done the

very thing that you have told the jury not to do.

THE COURT: “No, no, Mr. Almand, I have not done that. What I have done is I’ve

listened to testimony over the course — this is the seventh week now. I have

reviewed hundreds, if not thousands, of pages of documents in order to

understand the positions of the parties in this case. I have performed research on

these issues as to the legal issues in the case. I have considered all the testimony

that’s been presented to this point. And that testimony has allowed me to

conclude, as a matter of law, certain things. At certain points of this case, I have

been able to reach conclusions, legal conclusions, as to certain issues. At later

points in the case, I have been able to reach other conclusions in the case.”

 

During the Opening Statement of defense counsel the Court gave a limiting instruction to the Jury.

Mr. Almand’s Opening Statement, Vol 2A, pp. 68,69

Also, the way they looked at the case, this was not a

3 case where you divide up 200 million among the clients. What

4 you did was you looked at each of the cases of the client and

5 evaluated the injury and the value of each case. And when you

6 did that and when you paid the full and fair value of the claim,

7 when you paid everything that the client could expect, then the

8 client had no further claim to the 200 million.

9 Now, there is dispute, there’s even dispute among

10 lawyers, about how this should be handled. But there will be no

11 evidence in this case, there will be no evidence, that each

12 client did not receive the full and fair value of his case; not

13 only the full and fair value as determined by the national

14 settlement, because that was considered by a court finding to be

15 full and fair, what the national settlement said, but these

16 lawyers paid the clients not what the national settlement said,

17 but 50 times more than that; 50 times more than that.

 

18 MR. WALBOURN: Objection, Your Honor.

 

19 THE COURT: I’ll sustain the objection. I’m going to

20 give a limiting instruction at this time.

21 Ladies and gentlemen, from time to time, the Court

22 rules on matters prior to the trial actually starting, and this

23 is one of those issues, and that is this matrix, this national

24 matrix. And let me give you an instruction that I will be

25 giving you later as to how you can consider evidence concerning

1 that matrix.

2 You will be hearing evidence the defendants used a

3 matrix to establish in the national — established in the

4 national settlement to base a payment structure in the Boone

5 Circuit Court action. This evidence will be admitted for the

6 limited purpose of determining whether or not defendants had the

7 specific intent to defraud. Whether or not a claimant would

8 have received more or less money in the Boone County action than

9 he or she would have received in the national settlement is

10 irrelevant and should not be considered by you. You must

11 determine whether or not the defendants had the specific intent

12 to defraud their clients, and you may use the evidence of the

13 national matrix, as well as other evidence which will be

14 admitted during the course of trial, in making that

15 determination.

 

16 MR. ALMAND: Thank you, Judge.

 

(Volume 15 B p. 50)

MR. ALMAND: May I make a proffer?

THE COURT: Yes, sir.

MR. ALMAND: What I want to ask him is is in July of 2002, was it his opinion as a

Judge that was dealing with this case that the claimants had already received

more money for their compensation than the injuries justified.

 

THE COURT: I have already in a pretrial ruling ruled on this issue. It’s a relevancy

issue.

MR. ALMAND: Your Honor, I’m sorry, I don’t know of that

opinion. Maybe I missed something on that.

THE COURT: It’s part of the ruling that the Court made.

Whether they would or would not have received more or less money

than they would have received in a National Settlement is not relevant. Same

criteria. This person’s opinion as to whether these folks received fair

compensation is not relevant. The issue in the case is whether they were

defrauded out of money that these defendants negotiated for them on their

behalf.

 

 

The United States does not discuss the argument that the District Court interpreted the Settlement in Boone County the same as Judge Wehr in the civil case. Exhibit 3 was monies allocated solely for the known claimants subject to a set aside limited to $7.5 million for other potential claims.

The Jury did not consider the truthfulness of the Petitioner’s explanation of the Settlement. The Jury was instructed that the Petitioner’s explanation of the Settlement was an explanation of how he defrauded the claimants.

The Petitioner believed the claimants were fairly compensated. Exhibit B to this Reply are excerpts of cross examination on the medical conditions of the claimants called by the government. Was Tracey Curtis defrauded? She saw a physician once. According to Exhibit 3 Tracy Curtis was entitled to $181,000.

 

In the Petitioner’s Motion to Recuse Judge Reeves it is stated:

 

“ Ms. Graham was seen entering Judge Reeves chambers on 2/23/09. The

 

Petitioner is entitled to know the information shown by Ms. Graham’s billing

 

records. Gallion asks that a Subpoena be directed to the Kentucky Bar Association

 

to  produce Ms. Graham’s unredacted billing records.” The United States does not

address this allegation.

The United States in multiple instances argues that the Petitioner’s

arguments were vague and conclusory overlooking that in the Sect. 2255 Motion

the Petitioner was seeking  discovery and an evidentiary hearing.

 

U.S. appeals court dismisses DA immunity request –Policeman can sue DA

Sunday, December 21st, 2014

Appears to clear way for trial on Singer lawsuit

Posted: Friday, December 19, 2014 7:12 pm

By SALESHA WILKEN STAFF REPORTER

 

The U.S. 10th Circuit Court of Appeals in Denver has rejected a bid by District Attorney Janice Steidley and her former assistant, M. Bryce Lair, to dismiss Claremore Police Detective John Singer’s civil lawsuit against them on grounds they are entitled to immunity from legal action as government prosecutors.

 

The decision appeared to clear the way for a federal trial on the case that was prompted by prosecutor claims that Singer misled the district attorney’s office about an interview he conducted with a sexual assault suspect and could not be trusted as a court witness.

 

The court said it lacked jurisdiction to consider the appeal on the Steidley and Lair immunity argument as they had not raised that issue in the federal district court in Oklahoma after Singer amended his complaint to include defamation, libel and slander as well as First Amendment violations.

 

The appeals court noted U.S. District Judge Gregory K. Frizzell had dismissed several other legal aspects of Singer’s original filing on claims of prosecutor immunity, but the judge allowed the suit to proceed on his contention Steidley and Lair violated his free speech rights by retaliating against him.

 

The appeals court said the lower court would need to make a ruling on whether or not Steidley or Lair could invoke immunity on that contention before the appellate court could review that challenge.

 

Steidley and Lair argued unsuccessfully that the appellate court could take up the issue for the first time.

Judge Frizzell declined to dismiss Singer’s amended suit, prompting Steidley and Lair to appeal to the higher court to intervene. Singer filed his original suit in February of 2013.

 

Singer’s suit contends the district attorney’s office manufactured evidence against him, then reported to police, defense attorneys and the Claremore Progress that he could not be trusted to testify truthfully in cases he had investigated.

 

Steidley said at the time she was mandated by the U.S. Supreme Court’s so-called Giglio rule to report Singer made inaccurate statements in search warrant and arrest affidavits in a sexual assault case. The rule requires prosecutors to disclose to criminal defendant information about witness credibility that may be material to guilt or punishment.

U.S. GOVERNMENT BRIEF AGAINST WILLIAM GALLION’S APPLICATION FOR CERTIFICATE OF APPEALABILITY

Friday, December 19th, 2014

CASE NO. 14-5763

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

WILLIAM J. GALLION PETITIONER-APPELLANT

V. RESPONSE OF UNITED STATES IN OPPOSITION

TO GALLION’S MOTION FOR CERTIFICATE OF APPEALABILITY

UNITED STATES OF AMERICA RESPONDENT-APPELLEE

* * * * *

The United States objects to William J. Gallion’s motion for a certificate of appealability because he has failed to make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A certificate of appealability is a jurisdictional prerequisite to this Court’s review. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). To make “a substantial showing of the denial of a constitutional right,” Gallion must establish that “reasonable jurists could debate” whether “the petition should have been resolved [by the district court] in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).

Gallion was convicted at trial of conspiracy to commit wire fraud and wire fraud in violation of 18 U.S.C. §§ 1343 and 1349. [R. 599: Superseding Case: 14-5763 Document: 22 Filed: 12/18/2014 Page: 1

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Indictment at 10,837; R. 820: Verdict at 14,216.] The district court sentenced him to twenty-five years in prison and entered a restitution award of $127,678,834.05. [R. 955: Judgment at 16,696, 16,699.] This Court affirmed Gallion’s conviction. United States v. Cunningham, 679 F.3d 355 (6th Cir. 2012). The Supreme Court denied his petition for a writ of certiorari. Gallion v. United States, 133 S. Ct. 772 (2012).

Last year, Gallion filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. [R. 1406: Motion to Vacate at 24,882.] He alleged that he was denied the effective assistance of trial counsel because (1) his counsel suffered from severe health conditions that prevented him from performing at a constitutionally effective level; (2) his counsel did not seek a continuance to retain an expert witness and did not hire Kenneth Feinberg as an expert witness; (3) his counsel permitted him to testify in his own defense; (4) his counsel failed to demand that the jury determine the amount of loss and the defendant’s role in the offense; and (5) his counsel failed to petition the Kentucky Supreme Court to inspect the Kentucky Bar Association’s (“KBA”) disciplinary files of three witnesses, Stanley Chesely, Joseph Bamberger, and David Helmers. [Id. at 24,897-98.] He further alleged his due process rights were violated denying him a fair trial (1) because the government allegedly failed to disclose impeachment Case: 14-5763 Document: 22 Filed: 12/18/2014 Page: 2

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materials from the KBA relating to Chesley, Bamberger, and Helmers, and (2) because Judge Reeves was allegedly biased against him and was believed to have engaged in an ex parte communication with counsel for the KBA’s Office of Bar Counsel. [Id. at 24,899-900.] The magistrate judge recommended denying of Gallion’s claims. [R. 1419: Report and Recommendation at 25,008.] Gallion filed objections to the report and recommendation as it related to the denial of his ineffective assistance of counsel claim relating to (1) his trial counsel’s health, (2) his trial counsel’s failure to secure an expert witness, and (3) his trial counsel’s failure to seek KBA investigatory records relating to Chesely, Bamberger, and Helmers. Gallion further objected to the magistrate’s findings he was not denied a fair trial relating to the alleged withholding of impeaching material by the government for Chesely, Bamberger, and Helmers, and the alleged judicial bias of Judge Reeves. [R. 1422: Objections at 25,030.]

Gallion also moved to recuse the trial judge, Danny C. Reeves, and to transfer the § 2255 motion to the Western District of Kentucky. Gallion’s motion included arguments already made and, in an effort to sidestep the one-year period of limitations of 28 U.S.C. § 2255(f), additional arguments that he failed to raise in his motion to vacate. [R. 1427: Motion to Recuse at 25,496.] Judge Reeves overruled Gallion’s objections and adopted the report and recommendation. The

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district court further found the motion to recuse to be out of time and alternatively without merit. The district court also denied Gallion a certificate of appealability. [R. 1433: Opinion and Order at 25,540.]

Gallion now seeks a certificate of appealability as it relates to his claims that (1) Judge Reeves was biased against him, (2) the government allegedly withheld exculpatory evidence, (3) the government allegedly knowingly used perjured testimony to convict, (4) Gallion was denied a fair trial, and (5) Gallion was denied effective assistance of counsel. See Gallion’s Motion at 19-44. Gallion fails to make a substantial showing of a denial of a constitutional right, even after giving his convoluted arguments their most expansive reading.*

Judge Reeves was not biased against Gallion

Gallion’s argument that Judge Reeves was biased against him fails because, as Judge Reeves properly recognized, Gallion’s motion for recusal was an attempt to argue matters that were not presented in his § 2255 petition and were outside the time restrictions for habeas petitions. See 28 U.S.C. § 2255(f). Judge Reeves properly found that the claim of judicial bias was not argued on direct appeal and,

*Throughout Gallion’s motion, he cites to the district court record using “D.E.” cites. Apparently, those cites relate to the appendix that he filed in district court with his notice of supplemental filing. [See R. 1424: Notice at 25,063-439.]

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therefore, were procedurally barred. [R. 1433: Opinion and Order at 25,544 (citing United States v. Frady, 456 U.S. 152, 168 (1982)).]

Regardless, Gallion’s allegations of judicial bias lack any basis. As Judge Reeves properly explained, the standards for judicial disqualifications are:

First, judicial rulings alone almost never constitute a valid basis for a bias or partiality motion. In and of themselves (i.e., apart from surrounding comments or accompanying opinion), they cannot possibly show reliance upon an extrajudicial source; and can only in the rarest circumstances evidence the degree of favoritism or antagonism required . . . when no extrajudicial source is involved. Almost invariably, they are proper grounds for appeal, not for recusal.

[R. 1433: Opinion and Order at 25,545 (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)).] Gallion argues that bias is shown because of an alleged ex parte communication with Jane Graham, counsel for the KBA. He presumes that such a meeting took place for the improper purpose of limiting the availability of impeachment evidence for Chesley and Bamberger.

Gallion completely fails to advance any credible evidence that Judge Reeves engaged in an improper ex parte communication with Graham for any purpose. KBA Chief Bar Counsel, Linda Gosnell, testified at trial on February 24, 2009. [R. 1160: Linda Gosnell, TR (Vol. 6-A) at 20,460-87.] The billing records that Gallion submitted show that Gosnell’s counsel, Jane Graham, attended the trial on that day. [See R. 1406: Motion at 24,923.] During the morning, Graham filed Case: 14-5763 Document: 22 Filed: 12/18/2014 Page: 5

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a motion for a protective order and, outside the presence of the jury, argued that the court should prohibit any questioning of Gosnell about whether any attorneys, other than the defendants, were the subject of an investigation by the KBA Inquiry Commission. [R. 728: Motion at 11,500; see R. 1160: Colloquy, TR (Vol. 6-A) at 20,432-36.] After considering the parties’ positions, the court granted the motion based on the law. [R. 1160: Colloquy, TR (Vol. 6-A) at 20,436-40.]

Moments later, Gallion’s counsel, O. Hale Almand, Jr., addressed Judge Reeves:

MR. ALMAND: If it please the Court, I would just like to finish my record. I understand that the Court has ruled, but if I could just put this on the record.

The fact that one of the witnesses, Mr. Chesley, we know of the investigation on him because we have been contacted directly by the Bar asking us to provide information on him. So that is a matter that’s already been disclosed to us. So that’s no secret as far as that is concerned. So we are fully aware of that, which means that that being the case, we certainly as to him should have the ability to inquire into that.

And Judge, I would also ask, has there been – I’m not aware of how the courts work in Kentucky in regards to communication with judges by the Bar Association, and I didn’t know whether there had been any communications with the Court or not directly concerning this matter that we’re not aware of, but if there were, I would just ask that question. And I’m assuming there’s not, but I just ask.

THE COURT: You’ve asked the question.

MR. ALMAND: Yes, sir. Case: 14-5763 Document: 22 Filed: 12/18/2014 Page: 6

7

THE COURT: It doesn’t mean I have to answer it.

[R. 1160: Colloquy, TR (Vol. 6-A) at 20,441-42.]

Almand’s questions to the court had nothing to do with Gosnell or Graham. Instead, Almand was attempting to find out if the KBA had contacted Judge Reeves for the purpose of obtaining information about Chesley. Thus, Gallion’s assertion that Graham had potentially made an ex-parte communication with the court relating to Gosnell and Graham’s motion for a protective order lacks any support in the record. Nevertheless, Gallion argues he is entitled to an evidentiary hearing for the purpose of questioning Graham. See Gallion’s Motion at 25-26. A hearing is not necessary, however, when a petitioner’s claims “‘cannot be accepted as true because they are contradicted by the record, inherently incredible, or [are] conclusions rather than statements of fact.’” Valentine v. United States, 488 F.3d 325, 333 (6th Cir. 2007) (quoting Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)).

Gallion cannot show judicial bias merely because the district court granted Graham’s motion for a protective order. This Court upheld the ruling because disciplinary proceedings are confidential in Kentucky until there is a final determination that an ethical violation has occurred. Cunningham, 679 F.3d at 384 (citing Ky. Sup. Ct. R. 3.150(1)). Gallion has failed to show that this ruling is Case: 14-5763 Document: 22 Filed: 12/18/2014 Page: 7

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indicative of bias. See Caravalho v. Pugh, 177 F.3d 1177, 1179 (10th Cir. 1999) (mere disagreement with merits of court’s decision does not support recusal of judge). Because recusal was unnecessary and would have been a waste of valuable judicial resources, the district court properly denied Gallion’s motions to recuse and to transfer. [R. 1433: Opinion and Order at 25,544-46.]

The government did not withhold exculpatory evidence

Gallion’s claim that the government withheld exculpatory evidence from the KBA that he claims existed at the time of trial in files allegedly relating to the disbarment of Chesley, Bamberger, and Helmers also lacks any basis. Gallion claims that the government had this information because the Kentucky Supreme Court issued an order allowing the government access to the KBA files of defendants, Gallion, Cunningham, and Mills. See Gallion’s Motion at 26. Nothing in the record indicates that the government was provided with any other witness statements or any impeaching or exculpatory material by the KBA that was not provided as part of the files pertaining to Gallion, Cunningham, and Mills. The KBA provided information to the government only because the government successfully moved for an order to obtain the release of documents relating to the disciplinary case it had against Gallion, Mills, and Cunningham. [R. 1406: Motion, Exhibit B at 24,920-22.] The Kentucky Supreme Court rule allows for

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disclosure only where, as here, a law enforcement agency is conducting an investigation into a criminal matter relating to the target and the information is believed to be essential to that investigation. Ky. Sup. Ct. R. 3.150(4)(c).

For the first time, Gallion now accuses the government of failing to provide a summary of the interview of David Schaefer, an attorney for American Home Products, which Gallion alleges is exculpatory. See Gallion’s Motion at 27. Nowhere in his original § 2255 petition, his objections, or his motion to recuse does he mention Schaefer in the context of this argument. [See R. 1406: Motion at 24,882; R. 1422: Objections at 25,030; R. 1427: Motion to Recuse at 25,496.] Because he failed to raise this claim either on direct appeal or in his § 2255 motion, the Court should ignore his allegation. See Frady, 456 U.S. at 164 (holding that issues not raised on direct appeal are waived); Hewlett v. United States, No. 91-5832, 1991 WL 253308, at *1 (6th Cir. Nov. 26, 1991) (holding that claims not raised in prior § 2255 motion “not reviewable”).

Although Gallion does not explain when he received the Schaeffer interview summary, he claims that the use of the summary during the trial would have caused the jury to accept his advice-of-counsel defense. Gallion’s Motion at 27. But the portion of the interview upon which Gallion relies merely provides:

Schaefer recalled that during the mediation sessions (2001), there was talk by some of the plaintiffs’ attorneys, of the establishment of

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a charitable fund to receive any left over monies as part of the settlement. Although he could not remember exactly which attorneys participated in this discussion, Schaefer believed that Pierce Hamblin, David Helmers, Shirley Cunningham, William Gallion and Stanley Chesley were present, along with Schaefer’s two co-counsel.

[R. 1406: Motion, Exhibit A at 24,918-19.] Schaefer also stated that in his experience he had never heard of a charitable fund being established by plaintiffs’ attorneys. [Id. at 24,919.] Schaefer’s trial testimony does not contradict his interview summary statements. Schafer testified that although he was present at times during the mediation, he was not involved in the negotiations. [R. 1171: David Schaefer, TR (Vol. 16-A) at 21,421, 21,431.] At best, he recalled that Chesley, among others, were present. [Id. at 21,424-25.] Thus, Gallion’s claim that the interview “contradicts Judge Reeves[‘s] interpretation of the Settlement Documents and the ruling that denied the defense right to offer Expert Testimony,” Gallion’s Motion at 27, fails.

Much of Gallion’s argument is simply a rehashing of his complaints about legal rulings in the case. For example, he continues to attack Judge Reeves’s ruling that the case resulted in an aggregate settlement and repudiates this Court for upholding this ruling. See Cunningham, 679 F.3d at 376. He argues that Judge Reeves misinterpreted the settlement letter and nullified Gallion’s trial testimony that the limitation was on attorney’s fees citing to the affidavit of Kenneth Case: 14-5763 Document: 22 Filed: 12/18/2014 Page: 10

11

Feinberg. In so doing, he improvidently ignores that Feinberg disavowed his earlier opinion once he acquired more details surrounding the defendants’ actions. See Ky. Bar Ass’n v. Chesley, 393 S.W.3d 584, 593 (Ky. 2013). Gallion could not show that Almand was deficient by failing to call an expert witness on an issue that was no longer before the jury. See Cunningham, 679 F.3d at 380 (noting that such an expert would be “irrelevant and confusing to the jury.”) Moreover, Gallion could not provide that he was prejudiced by the failure to retain an expert such as Feinberg. As the district court recognized, “it is highly likely that Feinberg’s testimony would have harmed Gallion’s case after he had been fully apprised of the circumstances surrounding the settlement. In short, there is no reasonable probability that, but for the decision not to call an expert such as Mr. Feinberg, the outcome of Gallion’s trial would have been different.” [R. 1433: Opinion and Order at 25,552.]

Gallion makes an impermissible argument regarding the district court’s ruling on the side letter relating to indemnification. He argues that the court wrongfully applied the parole evidence rule. Gallion’s Motion at 28. Gallion did not raise this argument on appeal. See Cunningham, 679 F.3d at 380. Further, nowhere in his motion to vacate or in his objections does he make this argument. Thus, this argument also cannot support a certificate of appealability. Case: 14-5763 Document: 22 Filed: 12/18/2014 Page: 11

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The government did not use perjured testimony to convict Gallion

Gallion’s argument that the government knowingly used perjured testimony to convict him, see Gallion’s Motion at 38, is yet another argument raised for the first time in his motion for a certificate of appealability. Again, such a claim cannot support a certificate of appealability. See Frady, 456 U.S. at 164 (holding that issues not raised on direct appeal are waived); Hewlett, 1991 WL 253308, at *1 (holding that claims not raised in prior § 2255 motion “not reviewable”). Gallion fails to support his claim that government presented perjured testimony.

The argument is based on a mishmash of conjecture and unsupported allegations of bad faith primarily directed at the government (1) because Chesley testified that he simply did not recall being at a meeting where attorney’s fees were discussed with Judge Bamberger, Gallion, and Cunningham, and (2) because Bamberger testified that Gallion told him that the claimants were thrilled to learn that a cy pres trust had been created. See Gallion’s Motion at 38-41. But the government presented the full testimony of Chesley and Bamberger, and the defendants thoroughly cross-examined these witnesses. [R. 998: Joseph Bamberger, TR (Vol. 14-B) at 17,369-408; R. 1175: Stanley Chesley, TR (Vol. 22-A) at 21,771-845.]

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Gallion was not denied a fair trial

To prevail on his claim, Gallion must demonstrate a constitutional error that was of such a magnitude that it had a substantial and injurious effect or influence on the jury’s verdict. Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003) (citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). Gallion would be entitled to relief only by showing “a fundamental defect which inherently results in a complete miscarriage of justice.” Davis v. United States, 417 U.S. 333, 346 (1974). His argument that disbarment orders were admitted into evidence by the government, see Gallion’s motion at 42-43, cannot succeed because this Court rejected this argument on direct appeal. See Cunningham, 679 F.3d. at 383-84 (finding that any error would have been harmless in light of overwhelming and independently-supported evidence of guilty).

Gallion did not receive effective assistance of counsel

In his last argument, Gallion claims that his trial counsel’s poor health compromised his effectiveness in several respects. He alleges that his counsel was ineffective for not contacting Kenneth Feinberg as a replacement expert when his proposed expert, Richard Robbins, was not permitted to testify, or for failing to request a continuance to obtain another expert. He claims that his counsel was ineffective for acquiescing in the court’s suppression of the disciplinary files of

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Chesely, Bamberger, and Helmers. He further complains that he was wrongfully denied an evidentiary hearing on his ineffective assistance of counsel claim. Gallion’s Motion at 43-44. Again, each of Gallion’s arguments fail.

Prior to the second trial before Judge Reeves, Gallion’s counsel, O. Hale Almand, Jr., moved to withdraw due to conflicts in his schedule; however, Gallion opposed this request. Instead, Gallion personally asked for a two-week continuance to accommodate Almand’s schedule. [R. 694: Motion to Withdraw at 11,226; R. 695: Minute Entry at 11,251, R. 710: Colloquy, TR (Final Pretrial Conference) at 11,333-38.] The court later granted Gallion’s pro se motion for a continuance. [See R. 703: Order at 11,273.] Moreover, during the trial, Judge Reeves allowed several continuances to give Almand the opportunity to address medical issues relating to dizzy spells. [R. 1165: Court, TR (Vol. 10) at 20,975; R. 1166: Court, TR (Vol. 11) at 20,985; R. 1167: Court, TR (Vol. 12) at 20,989; R. 1002: Court, TR (Vol. 18-B) at 17,749-50.] Judge Reeves stated his concern about Almond’s health and not wanting to do anything to jeopardize it, and Almand expressed his appreciation to the court for the personal consideration he had been given. [R. 1167: Court, TR (Vol. 12) at 20,991, 20,994.]

Later, during the trial, Judge Reeves appointed Willis Coffey as stand-by counsel to consult with Gallion regarding the best manner to proceed in light of

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Almand’s illness. [R. 1173: Court, TR (Vol. 19) at 21,625.] During that consultation, Almand conversed intelligently about the case and stated that he wished to continue as Gallion’s counsel. Gallion agreed. Coffey requested a short continuance to give Gallion the opportunity to decide how he wished to proceed. [R. 1173: Colloquy, TR (Vol. 19) at 21,628.] This Court found no error with the procedure employed by the Judge Reeves. Cunningham, 679 F.3d at 385-86.

Judge Reeves recognized the high level of effectiveness that Almand provided despite his health issues:

THE COURT: To this point, Mr. Almand has provided very effective and very zealous advocacy on behalf of Mr. Gallion. I don’t think anyone could argue to the contrary on that, sir.

[THE GOVERNMENT]: We do not certainly disagree with that.

THE COURT: I want to make sure that he’s able to do that as the case proceeds. I don’t want Mr. Gallion to be prejudiced by a medical condition that obviously is not the choosing of Mr. Almand. It is what it is. We’re faced with the situation that we’re faced with.

[R. 1004: Colloquy, TR (Vol. 20-B) at 17,781].

Judge Reeves requested a medical opinion from Almand’s physician. Judge Reeves determined that the immediate concern was determining whether Almand was able to proceed “over the next ten days in representing Gallion and do so in an effective and zealous manner – not overly zealous, but in a zealous manner that’s Case: 14-5763 Document: 22 Filed: 12/18/2014 Page: 15

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expected of all attorneys.” [Id. at 17,782-83.] When trial resumed, Coffey announced that Almand was able to proceed.” [R. 1174: Colloquy, TR (Vol. 21-A) at 21,642.]

In his opinion denying Gallion’s § 2255 petition, Judge Reeves correctly stated:

The record establishes that Gallion was aware of Mr. Almand’s health problems but preferred that Almand continue as his attorney. The Court thoroughly considered Mr. Almand’s advocacy and granted several continuances to ensure that Almand could effectively represent Gallion. When appointed for this very purpose, Coffey agreed that Almand could competently represent Gallion. In short, Gallion has not shown that his counsel’s performance was deficient because of his health condition.

[R. 1433: Opinion and Order at 25,549.]

Even if Gallion could demonstrate that Almand’s representation fell below the standard of reasonableness, he cannot show that that he suffered any prejudice as required by Strickland v. Washington, 466 U.S. 668, 694 (1984). As previously explained, see supra, any failure to contact Feinberg did not prejudice Gallion, and Gallion was not entitled to the KBA disciplinary files of Chesely, Bamberger, and Helmers. Additionally, Gallion’s argument that Almand should have requested a continuance to obtain another expert is equally unfounded because Gallion cannot show that the testimony of such an expert would have affected the outcome of the trial in light of the overwhelming evidence of his guilt. Case: 14-5763 Document: 22 Filed: 12/18/2014 Page: 16

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Accordingly, this Court should deny Gallion’s motion for a certificate of appealability

SIXTH CIRCUIT COURT OF APPEALS STRIKES DOWN FEDERAL GUN LAW AS UNCONSTITUTIONAL

Friday, December 19th, 2014

 

By: John Hayward
12/19/2014 10:02 AM

 

It might not get the news coverage it deserves with everything else going on at the moment, but the unanimous ruling by a three-judge panel of the 6th U.S. Circuit Court of Appeals in Cincinnati against a federal gun law is a very big deal.  The court held that the federal ban on gun ownership by people who have been committed to a mental institution is an unconstitutional violation of the Second Amendment.  Rulings of that caliber (if you’ll pardon the pun) don’t come down all that often.  The previous instance was the Supreme Court’s Heller ruling against Washington D.C.’s firearms ban in 2008, which those on both sides of the gun control debate would agree was a very big deal.

Today’s ruling was prompted by the efforts of 73-year-old Clifford Charles Tyler to purchase a gun.  His application for a permit was denied because he spent one month in a mental institution, in 1986, due to emotional problems following his divorce.  (According to the background material in the 6th Circuit Court decision , his ex-wife allegedly cleaned out his bank accounts and ran off with another man, leaving Tyler so despondent that he wept incessantly, couldn’t sleep, and had suicidal thoughts.  He was committed for treatment after his fearful daughters called the police.  He never did anything more violent than pound on his own head in despair.)

The law provides individuals with such troubles in their distant past with an opportunity to prove they have recovered from their disability, but unfortunately federal funding for programs to demonstrate relief was terminated over 20 years ago, and Tyler’s home state of Michigan never set up a program of its own.  Tyler, and other Michigan residents, were therefore left with a theoretical concession to their Second Amendment rights that was impossible to take advantage of in practice.  He passed screenings by both his physician and a psychologist, who agreed that his depressive episode decades previously had been an isolated incident, and he has since remarried, but none of that was good enough to satisfy the federal gun law.

That didn’t pass muster with Judge Danny Boggs, who drew a sharp distinction between the need to keep guns away from the mentally ill, and an unconstitutional burden placed upon rehabilitated individuals with brief periods of difficulty in their distant past.  Somehow I suspect gun-control zealots will spectacularly fail to draw that distinction, and parody the 6th Circuit Court’s decision as “putting guns in the hands of madmen,” which they claim is an unwritten bullet point in the hidden agenda of the National Rifle Association.  (Once again, pardon the pun.)

This attitude would seem difficult to square with the Left’s general enthusiasm for restoring the rights of criminals as quickly as possible – especially their voting rights – on the grounds that no one’s life should be permanently ruined for anything less than the most heinous offense.  The gun-control movement will cast those principles aside in order to argue that public safety is unacceptably compromised by allowing a 73-year-old man who spent a month in an institution for emotional distress when he was 45 to buy a gun… something even the law as written would have permitted, if the government had given him a reasonable opportunity to demonstrate his rehabilitation.

Judge Boggs went pretty hard on the regulatory trap Tyler was caught in, comparing it to the bureaucratic nightmares satirized in the novel “Catch-22.”  Boggs wrote that “under this scheme, whether Tyler may exercise his right to bear arms depends on whether his state of residence has chosen to accept the carrot of federal grant money and has implemented a relief program.  His right thus would turn on whether his state has taken Congress’s inducement to cooperate with federal authorities in order to avoid losing anti-crime funding.”  The cooperation in question involves states contributing information to the federal background-check system, in exchange for which grants would be issued to finance various state anti-crime programs.  The fact that federal law allows previously-committed non-felons to petition for gun licenses clearly indicates that the government doesn’t think they’re dangerous enough to warrant permanent suspension of their Second Amendment rights, which means setting up a system that makes it effectively impossible for them to actually petition for the relief they are theoretically entitled to is constitutionally unacceptable.

The new decision quotes the Supreme Court’s Heller decision extensively – see, it was a very big deal! – comtrasting the restrictions that Tyler ran afoul of against various other constitutionally acceptable restrictions, including the one that forbids illegal aliens to possess firearms.  “In light of Heller’s characterization of the right at issue as one of ‘law-abiding, responsible citizens’ and case law permitting Congress to distinguish among citizens, aliens, and illegal aliens, these holdings are not difficult,” writes Boggs.  Oh, I don’t know about that, Your Honor.  Give Emperor Obama some more time to wipe out the distinction between legal citizens and illegal aliens with his magic memorandums, and it might become very difficult indeed.  How long will it be before one of Obama’s new above-the-law imported super-constituents becomes embroiled in a gun case?

Boggs also draws distinctions between the restriction struck down by his court and a variety of broadly similar gun restrictions by noting that the permissible ones aretemporary.  The Second Amendment can endure temporary restrictions, but the permanent loss of gun rights is a very serious business, which cannot be justified by vague concerns about increased risk.  “It is certain that there is a non-zero chance that a previously institutionalized person will commit gun violence in the future,” writes Boggs, “but that is true of all classes of persons.”  Furthermore, the nature of the bureaucratic trap Tyler found himself snared in amounted to disparate treatment under federal law for an entire class of people based on “whether they reside in a state that has chosen to participate in a joint federal-state administrative scheme.”

The overall thrust of the 6th Circuit’s decision is to affirm that the Second Amendment, along with the rest of the Bill of Rights, stakes out some very valuable individual real estate, where the government must fear to tread.  Gun rights remain a contentious issue because the government cites the needs of public safety when it restricts the ownership of firearms, but Boggs challenges the government to provide compelling reasons for those infringements, especially when they are permanent.  He finds it unsurprising that legal fallout from the Heller decision is still raining down, since that ruling was only handed down six years ago, but notes that “provisions of our Constitution do not lose their force even with the passage of decades.”  Oooh, that’s not going to go over well with the “living Constitution” crowd – a group that overlaps rather heavily with gun-control zealots.

 

Heien v. North Carolina – SCOTUS docket no. 13-604 Dec. 17, 2014 – REASONABLE SUSPICION FOR TRAFFIC STOP BASED ON IGNORANCE OF THE LAW

Thursday, December 18th, 2014

 

 

See complete ruling at: http://www.supremecourt.gov/opinions/14pdf/13-604_ec8f.pdf

 

*****

Docket No., 13-604

QUESTION PRESENTED:

Whether a police officer’s mistake of law can provide the individualized suspicion that the Fourth Amendment requires to justify a traffic stop.

Merit Briefs

Amicus Briefs

 

ALSO SEE SUPREME COURT BLOG:

http://www.scotusblog.com/case-files/cases/heien-v-north-carolina/

Term:

Location: Interstate 77

Facts of the Case 

On April 29, 2010, Sergeant Darisse of the Surry County Sheriff’s Department observed Maynor Javier Vasquez driving north on I-77 with a broken brake light. When Darisse pulled over the vehicle, he noticed another man, Nicholas Heien, lying under a blanket in the backseat. Darisse spoke with the two men, felt that their stories did not match up, and was concerned that Heien had not gotten up from the back seat. Darisse asked for permission to search the vehicle. Heien agreed, and Darisse found a bag containing 54.2 grams of cocaine in the car.

A grand jury indicted Heien for two counts of trafficking cocaine. Heien filed a motion to suppress the evidence discovered during the search of his vehicle, and the trial court denied the motion. The North Carolina Court of Appeals reversed the trial court and held that the traffic stop was not objectively reasonable because North Carolina law only required one working brake light. The North Carolina Supreme Court reversed and held that when an officer’s mistake of the law is reasonable, it may give rise to the “reasonable suspicion” required for a warrantless search of a vehicle under the Fourth Amendment. That North Carolina Supreme Court sent the case back to the state Court of Appeals.

The North Carolina Court of Appeals found no error in the trial court’s judgment. A dissenting judge, however, stated that the North Carolina Supreme Court’s ruling created “fundamental unfairness” because it held citizens to the traditional rule that “ignorance of the law is no excuse” while allowing police to be ignorant of the law. Based on this dissent, Heien again appealed to the North Carolina Supreme Court which rejected Heien’s appeal.

Question 

Does a police officer’s mistake of law provide the individualized reasonable suspicion that the Fourth Amendment requires to justify a traffic stop?

Argument

Heien v. North Carolina – Oral Argument

Go to:  http://www.oyez.org/cases/2010-2019/2014/2014_13_604

 

 

Ignorance Is No Excuse For Wrongdoing…Unless You’re A Cop

Thursday, December 18th, 2014

 

U.S. Supreme Court deals another blow to Bill of Rights.

JOHN W WHITEHEAD — DECEMBER 17, 2014

“[I]f the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can ‘seize’ and ‘search’ him in their discretion, we enter a new regime.”—U.S. Supreme Court Justice William O. Douglas, dissenting in Terry v. Ohio (1968)

With Orwellian irony, the U.S. Supreme Court chose December 15, National Bill of Rights Day, to deliver its crushing blow to the Fourth Amendment. Although the courts have historically held that ignorance of the law is not an excuse for breaking the law, in its 8-1 ruling in Heien v. State of North Carolina, the Supreme Court gave police in America one more ready excuse to routinely violate the laws of the land–this time under the guise of ignorance.

The Heien case, which started with an improper traffic stop based on a police officer’s ignorance of the law and ended with an unlawful search, seizure, and arrest, was supposed to ensure that ignorance of the law did not become a ready excuse for government officials to routinely violate the law.

It failed to do so.

In failing to enforce the Constitution, the Court gave police the go-ahead to justify a laundry list of misconduct, from police shootings of unarmed citizens to SWAT team raids, roadside strip searches, and the tasering of vulnerable individuals with paltry excuses such as “they looked suspicious” and “she wouldn’t obey our orders.”

When police handcuffed, strip-searched, and arrested a disabled man for no reason other than he sounded incoherent, it was chalked up as a mistake. Gordon Goines, a 37-year-old disabled man suffering from a Lou Gehrigs-type disease, was “diagnosed” by police and an unlicensed mental health screener as having “mental health issues,” apparently because of his slurred speech and unsteady gait, and subsequently handcuffed, strip searched, and locked up for five days in a mental health facility against his will and with no access to family and friends. This was done despite the fact that police had no probable cause to believe that Goines had committed any crime or was a danger to himself or others; nor did they have any other legitimate lawful reason to seize, arrest, or detain him. When Goines was finally released, police made no attempt to rectify their “mistake.”

“I didn’t know it was against the law” was the excuse police used to justify their repeated tasering of Malaika Brooks. Eight-months pregnant and on her way to drop her son off at school, Brooks was repeatedly tasered by Seattle police during a routine traffic stop simply because she refused to sign a speeding ticket. The cops who tasered the pregnant woman insisted they weren’t aware that repeated electro-shocks qualified as constitutionally excessive and unreasonable force. The Supreme Court gave the cops a “get out of jail” card.

“I thought he was reaching for a gun.” That was the excuse given when a police officer repeatedly shot 70-year-old Bobby Canipe during a traffic stop. The cop saw the man reaching for his cane and, believing the cane to be a rifle and fearing for his life, opened fire.  Police excused the shooting as “unfortunate” but “appropriate.”

“He was resisting arrest.” That was the rationale behind Eric Garner’s death. Garner, placed in a chokehold by police for allegedly resisting their attempts to arrest him for selling loose cigarettes, screamed “I can’t breathe” repeatedly, until he breathed his last breath. A grand jury ruled there was no “reasonable cause” to charge the arresting officer with Garner’s death.

And then you have the Heien case, which, while far less traumatic than Eric Garner’s chokehold death, was no less egregious in its defiance of the rule of law.

In April 2009, a police officer stopped Nicholas Heien’s car, allegedly over a faulty brake light, and, during the course of the stop and subsequent search, found a sandwich bag’s worth of cocaine. In North Carolina, where the traffic stop took place, it’s not actually illegal to have only one working brake light. However, Heien—the owner of the vehicle—didn’t know that and allowed the search, which turned up drugs, and resulted in Heien’s arrest. When the legitimacy of the traffic stop was challenged in court, the arresting officer claimed ignorance–and the courts deemed it a “reasonable mistake.”

I’m not sure which is worse: law enforcement officials who know nothing about the laws they have sworn to uphold, support, and defend, or a constitutionally illiterate citizenry so clueless about their rights that they don’t even know when those rights are being violated.

This much I do know, however: going forward, it will be that much easier for police officers to write off misconduct as a “reasonable” mistake.

Understanding this, Justice Sotomayor, the Court’s lone dissenter, warned that the court’s ruling “means further eroding the Fourth Amendment’s protection of civil liberties in a context where that protection has already been worn down.” Sotomayor continues:

Giving officers license to effect seizures so long as they can attach to their reasonable view of the facts some reasonable legal interpretation (or misinterpretation) that suggests a law has been violated significantly expands this authority. One wonders how a citizen seeking to be law-abiding and to structure his or her behavior to avoid these invasive, frightening, and humiliating encounters could do so.

There’s no need to wonder because there is no way to avoid these invasive, frightening, and humiliating encounters, not as long as the courts continue to excuse ignorance and sanction abuses on the part of the police.

Whether it’s police officers breaking through people’s front doors and shooting them dead in their homes or strip searching innocent motorists on the side of the road, these instances of abuse are continually validated by a judicial system that kowtows to virtually every police demand, no matter how unjust and no matter how in opposition to the Constitution.

Indeed, as I point out in my book A Government of Wolves: The Emerging American Police State, the police and other government agents have, with the general blessing of the courts, already been given the authority to probe, poke, pinch, taser, search, seize, strip, and generally manhandle anyone they see fit in almost any circumstance.

Just consider the Court’s pro-police state rulings in recent years:

In Plumhoff v. Rickard, the Court declared that police officers can use lethal force in car chases without fear of lawsuits. In Navarette v. California, the Court declared that police officers can stop cars based only on “anonymous” tips.  This ruling came on the heels of a ruling by the Tenth Circuit Court of Appeals in U.S. v. Westhoven that driving too carefully with a rigid posture, taking a scenic route, and having acne are sufficient reasons for a police officer to suspect you of doing something illegal, detain you, search your car, and arrest you—even if you’ve done nothing illegal to warrant the stop in the first place.

In Maryland v. King, a divided Court determined that police can forcibly take your DNA, whether or not you’ve been convicted of a crime. The Supreme Court’s ruling in Arizona v. United States allows police to stop, search, question, and profile citizens and non-citizens alike. And in an effort to make life easier for “overworked” jail officials, the Court ruled in Florence v. Burlington that police can subject Americans to virtual strip searches, no matter the “offense.”

In an 8-1 ruling in Kentucky v. King, the Supreme Court placed their trust in the discretion of police officers, rather than in the dictates of the Constitution, when they gave police greater leeway to break into homes without a warrant, even if it’s the wrong home. In Hiibel v. Sixth Judicial District Court of the State of Nevada, a majority of the high court agreed that it’s a crime to not identify yourself when a policeman asks your name.

And now we’ve got Heien v. North Carolina, which gives the police a green light to keep doing more of the same without fear of recrimination. Clearly, the present justices of the Supreme Court have forgotten that the Constitution, as Justice Douglas long ago recognized, “is not neutral. It was designed to take the government off the backs of people.”

Given the turbulence of our age—with its police overreachmilitary training drills on American soildomestic surveillanceprofit-driven prisonsasset forfeiture schemes, wrongful convictions, and corporate corruption—it’s not difficult to predict that this latest Supreme Court ruling will open the door to even greater police abuses.

We’ve got two choices: we can give up now and resign ourselves to a world in which police shootings, chokeholds, taserings, raids, thefts, and strip searches are written off as justifiable, reasonable, or appropriate; OR we can push back—nonviolently—against the police state and against all of the agencies, entities, and individuals who march in lockstep with the police state.

As for those still deluded enough to believe they’re living the American dream—where the government represents the people, where the people are equal in the eyes of the law, where the courts are arbiters of justice, where the police are keepers of the peace, and where the law is applied equally as a means of protecting the rights of the people—it’s time to wake up.

We no longer have a representative government, a rule of law, or justice. Liberty has fallen to legalism. Freedom has fallen to fascism. Justice has become jaded, jaundiced, and just plain unjust.

The dream has turned into a nightmare.

The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by WesternJournalism.com.
Read more at http://www.westernjournalism.com/ignorance-no-excuse-wrongdoing-unless-youre-cop/#kXaX4P4OBDaMqQOK.99

SCOTUS backs NC Supreme Court about traffic officer’s mistake about the law

Tuesday, December 16th, 2014

Posted by  @JH_Tucker on Mon, Dec 15, 2014 at 7:12 PM

The U.S. Supreme Court today affirmed the validity of traffic stops made by officers who administer them based on a mistaken understanding of the law—provided the mistake was reasonable.

The case, Heien v. North Carolina, originated in Surry County, when an interdiction officer pulled over a car with a broken taillight, mistakenly believing that the law required two functioning taillights when in fact it did not. The officer, who searched the car, discovered cocaine, and the motorist was charged and convicted with drug trafficking. The N.C. Court of Appeals reversed the ruling, but the N.C. Supreme Court reversed it back. The U.S. Supreme Court heard oral arguments on the case in October.

The Supreme Court justices sided with the State in an 8-1 split, with Justice Sonia Sotomayor voicing the lone dissent. In his majority opinion, Chief Justice John Roberts wrote that because the officer’s mistake of the law was reasonable, it did not violate the motorist’s 4th Amendment rights.

“To be reasonable is not be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them ‘fair leeway for enforcing the law in the community’s protection,’ ” Roberts wrote.

The notion that the law “is definite and knowable sits at the foundation of our legal system,” Sotomayor said in her dissenting opinion. ”And it is courts, not officers, that are in the best position to interpret the laws.”

Andrew Beshear won’t disclose his work for companies that run afoul of attorney general

Sunday, December 14th, 2014

 

BY JOHN CHEVES

jcheves@herald-leader.comDecember 13, 2014 Updated 11 hours ago

Andrew Beshear

RECENT HEADLINES

 

 

FRANKFORT — In early 2010, scores of homeowners complained to Kentucky Attorney General Jack Conway about official-looking letters sent by a Miami company, Home Service USA, urging them to provide their bank account numbers and insure their water lines for $59.88 a year.

“Indication is given at the top of the page that this mailing is from the State of Kentucky,” a manager at Boyle County’s Parksville Water District wrote to Conway. “The wording below the customer’s address implies the customer is required to have this insurance and must do so by Feb. 1, 2010. Some have indicated to us they understood they had no choice but to sign up for this insurance.”

To resolve the matter, Conway’s office cut a deal with Andrew Beshear, the lawyer for Home Service USA who is now seeking to replace Conway.

The company did not admit to false trade practices, but it agreed to pay $7,500 in fines and costs and adjusted its sales pitch to clarify that it’s not a government agency and its product is optional. Still, complaints continued, alleging deceptive marketing and poor service, but the attorney general took no further action.

“I believe it is clear that Home Service USA intended to accurately portray itself and its services,” Beshear wrote to the attorney general as they finalized the February 2010 settlement.

Beshear, the son of Gov. Steve Beshear, practices “attorney general defense” at Stites & Harbison in Louisville, helping companies that have run afoul of the state’s top law-enforcement officer. He’s also the only declared candidate for attorney general in 2015.

Although Andrew Beshear wants voters to make him responsible for protecting Kentuckians from civil and criminal offenses, the Democratic candidate won’t discuss his legal work or identify any of the clients he has represented before the attorney general.

“Under the Rules of Professional Conduct published by the Kentucky Supreme Court, identifying clients in this situation could constitute a legal ethics violation that could result in sanctions,” Andrew Beshear’s campaign manager, Jared Smith, wrote in an email to the Herald-Leader last week. Andrew Beshear himself did not return calls seeking comment.

However, Stites & Harbison publicly identifies 53 of its corporate and government clients on its website. Some of those clients, such as OxyContin manufacturer Purdue Pharma, have battled Kentucky’s attorney general in court. Stites & Harbison has represented Purdue Pharma against Kentucky’s pending claim that it illegally marketed its painkiller and caused an opioid addiction epidemic.

Smith referred questions about client disclosure to one of Beshear’s campaign backers, retired state trial judge Stan Billingsley of Carrollton, who runs a law blog. In an interview, Billingsley said Kentucky lawyers can identify their clients with the clients’ permission. The Supreme Court rule states: “In the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation.”

“The rule clearly has exceptions in it, and as long as he follows the rules of those exceptions, then he should have no trouble with the (Kentucky Bar Association) on it,” Billingsley said.

‘Voters should insist’

Any lawyer running for attorney general should expect questions about his clients, particularly with cases involving the attorney general’s office, said attorney Jon Fleischaker, chairman of the First Amendment and Media Practice Group at the Louisville law office of Dinsmore & Shohl.

“It’s perfectly legitimate to demand that sort of information from a candidate who is seeking to enforce the laws of the commonwealth, because you want to know where their allegiances lie,” said Fleischaker, who helped draft Kentucky’s open government laws and often represents the Kentucky Press Association and other news organizations.

“It’s what I would call a political obligation, to let people know what you’ve been doing before you ask for their vote — what you’ve been doing and who you’ve been doing it for,” Fleischaker said. “Voters should insist on it.”

The Herald-Leader obtained information about the Home Service USA case from two sources: the “miscellaneous file” at Franklin Circuit Court, where a paper copy of the settlement is shelved but the case isn’t listed in the court’s public computer database, and documents from a Kentucky Open Records Act request to the attorney general’s office. Andrew Beshear’s role as defense lawyer was disclosed in both.

But the attorney general’s office refused the Herald-Leader’s request to release all of its correspondence with Andrew Beshear from recent years, calling that request “overly broad in nature.”

‘Most favorable … rulings’

Without disclosure by Andrew Beshear or the attorney general’s office, voters next year won’t have much information about the candidate’s activities in Frankfort. Many of his cases are resolved outside the courtroom, leaving none of the public paper trail produced by a lawsuit or criminal prosecution.

On the Stites & Harbison website, Andrew Beshear is identified as one of the firm’s two “practice leaders,” along with Richard Vance, in “antitrust, consumer protection and attorney general defense.” The firm does not identify its specific clients on the website, but it says the practice leaders’ cases include:

■ “Ongoing representation of international pharmaceutical companies … In these cases, the attorney general has sued manufacturers alleging conspiracy to inflate reported drug prices and thereby defraud state Medicaid programs. Stites & Harbison served as lead counsel in what has become one of the most favorable … rulings in the country.”

■ “Numerous successful pre-suit negotiations and mediations with Kentucky’s attorney general concerning alleged statewide deceptive advertising.”

■ “Achieving dismissal of antitrust counts against a state contractor accused of employing unfair trade practices.”

■ “Successfully representing Kentucky banks in defending and blocking acquisitions involving competitive issues.”

■ “Achieving a successful preemption defense of a Kentucky attorney general ‘Do Not Call’ civil penalty action against a national bank.”

Andrew Beshear also represented Boardwalk Pipeline Partners as it unsuccessfully fought in Frankfort for the right to invoke eminent domain powers and build a natural gas liquids pipeline across private property against landowners’ wishes.

Andrew Beshear last year spoke for the company at the Kentucky Public Service Commission, the utility-regulating agency whose three commissioners are appointed by his father, the governor. After much debate and a Franklin Circuit Court ruling against the proposed Bluegrass Pipeline, plans for the project were suspended in April.
Read more here: http://www.kentucky.com/2014/12/13/3592106_andrew-beshear-wont-disclose-his.html?rh=1#storylink=cpy

 

May a lawyer call another lawyer unethical? Spate of inquiries spurs ethics opinion

Friday, December 12th, 2014

POSTED DEC 08, 2014 06:15 AM CST

BY DEBRA CASSENS WEISS


Image from Shutterstock.

Is it unethical for a lawyer to label another lawyer unethical? The Iowa State Bar Association has received so many inquiries about the issue that its Ethics and Practice Guidelines Committee addressed the topic.

“The purpose of this ‘back to basics’ opinion,” the committee said, “is to give the bar a closer focus on the line and the ability to discern real unethical behavior from that which merely reflects professional differences.” The ABA/BNA Lawyers’ Manual on Professional Conduct has this report.

According to the ethics opinion, issued Oct. 24, allegations of unethical conduct are serious. A lawyer who knows another lawyer has violated the ethics rules is required to inform the state’s lawyer disciplinary board. “The rule is mandatory, not discretionary,” the opinion says.

Allegations that another lawyer has engaged in dishonesty, fraud, deceit, or misrepresentation are serious, because such conduct is a violation of the ethics rules, according to the opinion. “Consequently these allegations should never be made to obtain a tactical advantage or to coerce action,” the opinion says.

Some lawyers try to avoid the duty to report by warning opposing counsel of the “potential” for an ethics violation. When the warning is issued as a threat, or to influence the opposing counsel to act a certain way, the lawyer is violating Iowa Supreme Court rules calling for courtesy and discouraging uncivil, abrasive and abusive conduct, the opinion says.

The Iowa opinion points to a 1994 opinion by the ABA’s Standing Committee on Ethics and Professional Responsibility. It advised that a lawyer can’t threaten an ethics complaint as a bargaining point in a civil case when the alleged misconduct raises a substantial question about honesty, trustworthiness or fitness as a lawyer. In such circumstances, the ABA opinion said, the lawyer is ethically required to report such misconduct. The opinion also said such threats are improper if the alleged misconduct is unrelated to the civil claim; is not well-founded; or has the effect of embarrassing, delaying or burdening the opposing counsel.

According to the Lawyers’ Manual, the reporting duty in Iowa’s ethics rule is broader than the ABA model ethics rule, which limits the reporting duty to ethics violations that raise a serious question about the lawyer’s honesty, trustworthiness or fitness to practice.

US Corporations Are Using A Supreme Court Ruling To Fend Off Human Rights Abuse Lawsuits

Friday, December 12th, 2014

 

 

  • LAWRENCE HURLEY, REUTERS
  • DEC. 12, 2014, 2:21 AM

WASHINGTON (Reuters) – A landmark U.S. Supreme Court decision in 2013 that made it all but impossible to sue foreign companies in U.S. courts for alleged roles in overseas human rights abuses is proving to be a boon for U.S. firms too, court documents show.

In the roughly year and a half since the ruling in Kiobel v. Royal Dutch Petroleum Co, U.S. companies such as Chiquita Brands International Inc, IBM Corp and Ford Motor Co have successfully invoked the Supreme Court’s reasoning to fend off lawsuits alleging they were involved in human rights abuses in South Africa, Colombia and elsewhere.

In the seven cases involving U.S. companies that federal appeals courts have decided since the Supreme Court rulings, corporate defendants have won five, according to a Reuters review of the court documents. Only one ruling was an outright win for plaintiffs.

A similar pattern has played out in lower courts, with judges citing the Kiobel decision in favor of defendants in seven of eight human rights cases involving U.S. companies that have been decided since the ruling

With rulings tending to favor companies, human rights lawyers are thinking twice before filing new lawsuits. The Reuters review shows only one new human rights lawsuit filed against a U.S. company since the ruling came down in April 2013. In the 1990s and 2000s, up to half a dozen cases were filed every year against U.S. or foreign corporations.

Paul Hoffman, a leading Venice, California-based human rights lawyer who argued Kiobel for the plaintiffs, said he has been fighting to keep his existing cases alive rather than planning new ones. He has been presenting legal arguments explaining why the Supreme Court decision does not mean his lawsuits should be dismissed.

“People are waiting to see what the landscape is going to look like,” he said.

Lawyers on both sides of the issue say the Supreme Court might yet have to take another case to clarify exactly when U.S. companies can be sued.

TORTURE, MURDER

In the Kiobel case, the court unanimously threw out a lawsuit by 12 people from Nigeria that accused British and Dutch-based Royal Dutch Shell Plc of aiding state-sponsored torture and murder.

The court said the law under which the Nigerians brought the case, the 1789 Alien Tort Statute, was presumed to cover only violations of international law occurring in the United States. Violations elsewhere, Chief Justice John Roberts wrote, must “touch and concern” U.S. territory “with sufficient force to displace the presumption.”

Before the Kiobel ruling in April 2013, the law had been the primary vehicle for bringing human rights cases for more than 30 years, not just in the United States but globally.

“Human rights litigators have lost a significant weapon,” said John Bellinger, a Washington-based lawyer at the Arnold & Porter law firm who has played a prominent role advocating for corporate defendants. Bellinger was the top legal adviser to the U.S. State Department under President George W. Bush when it filed briefs in various cases arguing that the scope of the law should be pared back.

OTHER OPTIONS

The Supreme Court ruling means human rights lawyers now have to look more seriously at alternative ways to seek redress for alleged abuses.

Human rights lawyers can sue multinational companies in other countries, which has happened in Canada, the United Kingdom, and a handful of other countries, but that option is usually only viable if the defendant is based in one of those countries. Bringing suit in a developing country where alleged violations occurred is often less appealing to plaintiffs, as such countries often have troubled judicial systems.

In theory, some of the major cases against U.S. companies filed before the Supreme Court ruling could go ahead on other grounds because the lawsuits cite other legal claims.

There is also the possibility that alleged human rights victims could sue companies in U.S. state courts, under common law theories of wrongdoing such as assault and battery. But that too has its drawbacks for plaintiffs, including a shorter window in which to file lawsuits, which are often based on alleged conduct that doesn’t come to light until years after it occurs.

Also, lawyers on both sides say such cases would lack the headline-grabbing punch of a case filed under the Alien Tort Statute alleging human rights violations.

A limited number of Alien Tort Statute cases could still move forward in the United States even under the new restrictive interpretation.

In the one clear victory for plaintiffs since the Supreme Court ruling, an appeals court in Virginia said in June that Iraqi nationals who complained of mistreatment at Abu Ghraib prison near Baghdad could sue a subsidiary of U.S.-based CACI International Inc, a military contractor that worked at the site.

Judge Barbara Keenan wrote that the plaintiffs had alleged sufficient connection to the United States to “require a different result than that reached in Kiobel.”

(Reporting by Lawrence Hurley; Editing by Amy Stevens and Ross Colvin)

Read more: http://www.businessinsider.com/r-us-corporations-winning-fight-over-human-rights-lawsuits-2014-12#ixzz3Lh8ssG00

Court Overturns Insider-Trading Convictions, a Blow to Justice Department

Thursday, December 11th, 2014

 

Judges Narrow Definition of Insider Trading, Say Prosecutors Took Too Broad a View in Wall Street Crackdown

By

CHRISTOPHER M. MATTHEWS

Updated Dec. 10, 2014 7:18 p.m. ET

In a blow to the Justice Department’s Wall Street crackdown, a federal appeals court overturned two insider-trading convictions and ruled it isn’t always illegal to buy or sell stocks using inside information.

The ruling raised the bar for prosecutors on a crime that is already hard to prove, and it will likely limit the types of cases the government can pursue.

Specifically, the three-judge panel of the Second U.S. Circuit Court of Appeals said prosecutors must prove traders knew that the person who provided an inside tip gained some sort of tangible reward for doing so. The judges also said it may be legal to trade on inside information, even if it gives an investor an unfair advantage in the markets, as long as the tipper didn’t commit an illegal breach of his or her duty.

Judge Barrington D. Parker said the Supreme Court had rejected the notion that insider-trading law prohibits all trading using confidential information, writing that, “although the government might like the law to be different,” not every instance of financial unfairness constitutes fraud.

The ruling is a disappointing denouement for prosecutors winding down their recent run of insider-trading cases, a closely watched effort that has featured charges against high-level traders at some of the country’s biggest hedge funds. The push sent a chill through Wall Street trading rooms and landed Manhattan U.S. Attorney Preet Bharara on the cover of Time magazine.

The unanimous decision overturned the December 2012 convictions of former hedge-fund traders Todd Newman and Anthony Chiasson in New York federal court. The judges said prosecutors have been too aggressive in their interpretation of the law.

Marc Powers, a partner at law firm Baker & Hostetler LLP, said the U.S. attorney and the Securities and Exchange Commission “have been pushing the boundaries of the law and the facts in insider-trading cases, beyond fairness and reason.”

“The Second Circuit appears now to be setting the government straight,” he said. Baker & Hostetler wasn’t involved in the matter before the court.

In the case at hand, jurors deliberated for two days before finding Messrs. Newman and Chiasson guilty of using confidential information to make $72 million trading on stock in technology companies Dell Inc. and Nvidia Corp. The pair hadn’t received the information directly. Instead, the tips they got were passed through a network of investor-relations representatives and analysts before reaching analysts who worked for the two men.

The appeals-court panel ruled that, in order to be found guilty of insider trading, a defendant must know a tip was illegally disclosed in exchange for a reward of “some consequence.” The court also dismissed prosecutors’ contention that career advice or friendship constituted a reward, saying that, under that logic, “practically anything would qualify.”

The U.S. attorney’s office had planned to retry the cases if they lost the appeal, according to people familiar with the matter. But the court dismissed the indictments altogether, which prevents a retrial. In a statement, Mr. Bharara said his office was considering options for further appeals.

“Today’s decision by the Court of Appeals interprets the securities laws in a way that will limit the ability to prosecute people who trade on leaked inside information,” Mr. Bharara said.

A common view of insider trading is of a plugged-in trader using a confidential tip to make lucrative trades. But the legal reality is more nuanced. Courts have long held that tippers must violate a duty of some sort in disclosing material nonpublic information, and the trader needs to know that that’s the case.

At issue in the appeal was whether the trial judge made an error in telling the jurors in Messrs. Newman and Chiasson’s trial that it was enough for the government to show that the men knew the information was disclosed in breach of a fiduciary duty and not necessarily in exchange for a reward.

The appeals court said that instruction was wrong, clarifying that the trader also needs to know that the tipper benefited tangibly from breaching the duty, something that might not apply to a person who trades on a tip from an old classmate, for instance.

On Wednesday, a lawyer for Mr. Chiasson praised the opinion. “Today’s decision is a resounding victory for the rule of law and for Anthony Chiasson personally,” Gregory Morvillo said in a statement. Stephen Fishbein and John Nathanson, lawyers for Mr. Newman, said the “vindication comes after four years of unnecessary prosecution including a trial in which the Second Circuit held that the wrong legal standard was applied.”

The office of Judge Richard J. Sullivan, who presided over the trial, declined to comment.

Legal observers said the decision could also provide grounds to overturn the marquee conviction of a former SAC Capital portfolio manager Michael Steinberg. The confidant of SAC founder Steven A. Cohen was found guilty of trading using confidential information that reached him via a chain of analysts and traders, and he plans to appeal his conviction on similar grounds. A spokesman for SAC Capital, now known as Point72 Asset Management, declined to comment.

The ruling won’t affect the overwhelming majority of insider-trading convictions in the past five years. Prosecutors relied on a handful of cooperators to testify against Messrs. Newman and Chiasson. Legal experts said the cooperators, who all pleaded guilty, could seek to withdraw their pleas in the wake of the ruling but would face a steep climb in doing so.

Lawyers also don’t expect the highest-profile convictions by Mr. Bharara’s office—including the convictions of Raj Rajaratnam, former Galleon Group hedge-fund manager; or Rajat Gupta, the former Goldman Sachs Group Inc. director who provided Mr. Rajaratnam with information—to be jeopardized by the decision.

“We note that the government has not cited, nor have we found, a single case in which tippees as remote as Newman and Chiasson have been held criminally liable for insider trading,” Judge Parker wrote.

David Ganek, who co-founded the hedge fund Level Global with Mr. Chiasson, said Wednesday’s opinion called into question the government’s entire probe into the fund, which shut down after 2010 raids by the Federal Bureau of Investigation. Mr. Newman’s hedge fund, Diamondback Capital, was also raided and wound down operations in 2012.

This isn’t the first time the courts have rebuked prosecutors for overreaching in insider-trading cases. Rudolph Giuliani was criticized by lawyers and some on Wall Street for pushing the boundaries of insider-trading cases in the late 1980s, after two Kidder Peabody employees were arrested only to see the charges dropped. Later, the Second Circuit court threw out the conviction by Mr. Giuliani’s office of investment manager John Mulheren, who was accused of a stock-manipulation scheme.

David Miller, a former New York federal prosecutor who handled multiple insider-trading cases, said the most significant consequence of the ruling is that it will make it particularly difficult to go after people who allegedly traded using inside information but were one or more layers removed from the source. Messrs. Newman, Chiasson and Steinberg fall under that category.

“The bottom line is this is going to have a major effect on downstream tippee investigations and prosecutions,” said Mr. Miller, who is now a partner at Morgan, Lewis & Bockius LLP. “If the tippee doesn’t even know of the tipper, how can you prove they knew there was a benefit?”

Mr. Bharara’s team had enjoyed a nearly untarnished winning streak since he took office in 2009, securing 89 convictions.

The appeals court not-so-subtly suggested that the Justice Department has strayed too far from the real villains. “Recent insider trading prosecutions,” the Second Circuit said, “are increasingly targeted at remote tippees many levels removed from corporate insiders.”

—Michael Rothfeld and Susan Pulliam contributed to this article

Write to Christopher M. Matthews at christopher.matthews@wsj.com

 

MEDIATION RULING –BOTH PARTIES SHALL HAVE PERSON WITH AUTHORITY TO SETTLE ATTEND THE MEDIATION

Tuesday, December 9th, 2014

 

SEE:

136 S.W.3d 455

KENTUCKY FARM BUREAU MUTUAL INSURANCE COMPANY, Appellant,
v.
The Honorable Samuel T. WRIGHT, Presiding Judge, Letcher Circuit Court, Appellee and
Meryl Adams and Roger Fields Real Parties in Interest.

No. 2003-SC-0023-MR.

Supreme Court of Kentucky.

June 17, 2004.

[136 S.W.3d 456]

Michael J. Schmitt, Porter, Schmitt, Jones & Banks, Paintsville, Counsel for Appellant.

Samuel T. Wright, Judge, Letcher Circuit Court, Whitesburg, Counsel for Appellee.

Daniel F. Dotson, Whitesburg, Counsel for Real Party in Interest, Meryl E. Adams.

Deborah Lewis Bailey, Engle & Lewis, Hazard, Counsel for Real Party in Interest, Roger Fields.

OPINION AND ORDER

        LAMBERT, Chief Justice.

Appellant, Kentucky Farm Bureau Mutual INSURANCE COMPANY (“Farm Bureau”), appeals to this Court from the Court of Appeals’ denial of its petition for writ of prohibition or mandamus. In the petition, Farm Bureau sought to vacate the Mediation Order entered by the Letcher Circuit Court on April 15, 2002 REQUIRING written disclosure of the extent of settlement authority prior to mediation and directing

[136 S.W.3d 457]

mandatory fines, costs, and penalties if the claims were settled following the conclusion of the mediation. This Court hereby grants a limited writ striking the language of the trial court mediation order mandating sanctions if the case is settled after the conclusion of mediation.

This case arose from a motor vehicle accident where Roger Fields hit Meryl Adams who in turn hit an oncoming vehicle driven by Timothy Wright. The accident occurred in the dark morning hours of December 14, 2001, when Adams was trying to turn left onto a side road from a two-lane U.S. Highway. Fields, who hit Adams from the rear, said that he could not see the Adams vehicle because neither the taillights nor the turn signal were working. Fields and Adams were both insured by Farm Bureau. Wright, the oncoming driver who was struck by Adams, filed a civil action for damages against both Fields and Adams for the alleged negligence of both parties.1 Adams filed a civil action for damages against Fields and Farm Bureau claiming that Fields was negligent in causing the accident, and that Farm Bureau violated the Unfair Claims Settlement Practices Act.2

In March 2002, the trial court ordered the cases consolidated, and on April 15, 2002, the trial court ordered the consolidated cases to mediation in October 2002. The mediation order provided in part, as follows:

The parties and an adjustor of their insurers, if any, with full authority to settle shall attend a mediation conference. Full authority is defined as Plaintiff’s last demand or the extent of coverage, whichever is less. The full authority of any representative of an insurer shall be documented in writing prior to the commencement of the mediation. No telephone calls to seek additional authority are permitted. The mediation shall be held at the convenience of all parties and the mediator. Only the Court or the mediator may alter the terms of the time limits herein. The parties shall use their best efforts to resolve all issues. If a party fails to appear at a duly noticed mediation conference without good cause or fails to comply with this order in any manner, the Court may impose sanctions including, but not limited to, an award OF ATTORNEY’S fees and other costs against the party failing to comply.

….

If the case is settled after the conclusion of the mediation then additional costs, fines and penalties will be imposed for the disruption of the courts [sic] schedule and resources due to the parties [sic] failure to give timely or adequate work and consideration to this aspect of the case.

On April 24, 2002, Adams filed a motion to alter, amend or vacate the mediation order, and on April 29, 2002, Fields also filed a motion to alter, amend or vacate THE ORDER. The motions were filed on grounds that the trial court was without authority to order mediation and that the order improperly authorized imposition of sanctions. When the trial court had not ruled on the motion by September 16, 2002, Farm Bureau took action by contacting the Circuit Court Clerk and attempting to schedule a hearing regarding the pending motions to alter, amend or vacate the order. On September 19, 2002, Farm Bureau filed a motion to vacate the order

[136 S.W.3d 458]

because a hearing could not be scheduled prior to the mediation date due to the UNAVAILABILITY of the trial judge, and on that same date (September 19, 2002), the trial court overruled the previously filed motions to alter, amend or vacate the mediation order.

On October 1, 2002, Farm Bureau filed the instant petition for writ of prohibition or mandamus in the Court of Appeals. On December 11, 2002, the Court of Appeals denied the petition and held that “Petitioner has failed to make the threshold showing of irreparable harm and lack of an adequate remedy by appeal.” It relied on James v. Shadoan.3

Farm Bureau argues that the trial court is without authority to order mediation. It recognizes that CR 16(1)(f) grants the trial judge discretion to direct the parties to appear for conference to ADDRESS ”[s]uch other matters as may aid in the disposition of the action.” Yet it contends that the trial court was still without authority and acted outside its jurisdiction when it ordered the parties to mediation. Moreover, Farm Bureau contends that this type of order is not within the trial court’s inherent power even though there is no constitutional provision, statute, or Supreme Court rule expressly prohibiting such an order. Farm Bureau declares that the mediation order is not consistent with the Model Mediation Rules adopted by the Supreme Court of Kentucky.

Finally, Farm Bureau argues that the sanctions that will be imposed if it settles a claim following the mediation are improper leaving it with a “more illusory than real” remedy by appeal. It posits that providing a written declaration of the authorized settlement amount for its bad faith claim is a great injustice and nullifies the effect of the bifurcation of the cases.4 It declares that the “theoretical right to appeal, in reality, is not adequate to protect the interests of the defendant [Farm Bureau] under these circumstances.”

This matter is before this Court pursuant to CR 76.36(7)(a) allowing a matter of right appeal in original actions filed in the Court of Appeals. Writs of prohibition and writs of mandamus are extraordinary remedies and are reluctantly granted.5 A petitioner must show that the court is acting outside its jurisdiction or acting erroneously within its jurisdiction, and when the court is acting within its jurisdiction, the petitioner must show that it has no adequate remedy by appeal and it will suffer an irreparable injury if relief is not granted.6

With respect to the issue of trial court jurisdiction, “it has generally been recognized that courts (even without express authority given by the constitution, statute, or rule of a supreme court of a state) have inherent power to prescribe rules to regulate their PROCEEDINGS and to facilitate the administration of justice.”7 Additionally, “[t]he control over this inherent judicial power … is exclusively within the constitutional realm of the courts.”8 Moreover, CR 16(1)(f) appears to grant express authority to order mediation. For these reasons, the trial court was well

[136 S.W.3d 459]

within its jurisdiction to do what it deemed reasonably necessary to “aid in the disposition of the action”9 and to order the parties to mediation.

While a trial court order to mediate does not generally justify the extraordinary relief of a writ of prohibition, THE ORDER under review does REQUIRE relief of a limited nature on grounds of irreparable harm and lack of an adequate remedy by appeal. The order contains a provision that is troubling. It states in part, “if the case is settled after the conclusion of the mediation then additional costs, fines and penalties will be imposed for the disruption of the courts ….” Although Farm Bureau concedes that it may have a remedy by appeal, relief under this rule is appropriate due to the risk a party would have to encounter to ripen the issue for appellate review. Under the trial court’s order, parties who settled after the conclusion of mediation, despite a belief in their right to do so, would be required to face mandatory fines and penalties, a route most reasonable parties would avoid. We conclude that the post-mediation settlement provision imposing additional costs, fines and penalties exceeds trial court discretion and results in irreparable harm without an adequate remedy by appeal. This conclusion eliminates the need to address whether the provision runs afoul of the Model Mediation Rules or the parties’ constitutional rights. Accordingly, a limited writ of prohibition will be granted and the trial court will be prohibited from enforcing the following language in its mediation order:

If the case is settled after the conclusion of the mediation then additional costs, fines and penalties will be imposed for the disruption of the courts [sic] SCHEDULE and resources due to the parties [sic] failure to give timely or adequate work and consideration to this aspect of the case.

The final issue we must address is that portion of the trial court’s mediation order requiring the appearance of the parties and their adjustor at the mediation conference “with full authority to settle.” The order provides, “Full authority is defined as plaintiff’s last demand or the extent of coverage, whichever is less.” Some have interpreted this language to require an insurer to pay plaintiff’s last demand or the extent of its coverage, whichever is less. We reject this interpretation. The language used does not mean that parties must actually settle; that the insurer must pay plaintiff’s last demand, or its policy limit; or that it abandon its good faith belief in the settlement value of the case, if any. The order merely requires the appearance of parties with “full authority to settle” to prevent the pernicious practice of negotiations by “an agent without authority.” If mediation is to accomplish its intended purpose, and if the mediation conference is to be the main event, there must be participation by persons possessed of immediate decision-making authority. The process is irreparably harmed if final settlement authority rests elsewhere.

The order under review contains no language that forces the insurer to pay or forces the plaintiff to accept any settlement and should not be interpreted as to require such actions. The order merely requires that the parties participate in a mediation conference ordered by the court and that those persons involved be cloaked with “full authority to settle.” This Court has adopted Model Mediation Rules and henceforth all Mediation Orders should be in conformity with those rules. Requiring mediation participants to have full authority

[136 S.W.3d 460]

to settle does not violate our Rules; rather allowing mediation to take place without parties possessing full authority to reach an agreement is the real violation. In accordance with the language of the order under review, the parties are free to mediate, AGREE on a settlement, or disagree and proceed to trial.

For the foregoing reasons, the Court of Appeals’ denial of the petition for a writ of prohibition is affirmed in part and reversed in part, and this cause is remanded to the trial court for further consistent proceedings.

IT IS SO ORDERED.

All concur.

—————

Notes:

1. Farm Bureau states that this case settled prior to the filing of the petition for writ of prohibition.

2. KRS 304.12-230(6), (7), and (8).

3. Ky., 58 S.W.3d 884 (2001).

4. The trial court bifurcated the bad faith claim against Farm Bureau asserted by Adams.

5. Bender v. Eaton, Ky., 343 S.W.2d 799, 800 (1961).

6. Id. at 800-01.

7. Craft v. Commonwealth, Ky., 343 S.W.2d 150, 151 (1961).

8. Smothers v. Lewis, Ky., 672 S.W.2d 62, 64 (1984).

9. CR 16(1)(f).