Archive for April, 2006

Judge Boyce Martin of the 6th U.S. Circuit Court of Appeals based in Cincinnati supports bill to install cameras in Federal Courtrooms

Sunday, April 30th, 2006

“Laurence Tribe, a Harvard law professor who supports cameras at the high court, agreed, noting that only the “privileged few” get to witness the justices in court.

“Unfortunately, only the most naive idealist believes that the general public reads the court’s opinions,” said Tribe, whose first argument before the Supreme Court in 1980 established that the Constitution guarantees the public’s right to attend criminal trials.

The move to allow cameras comes after Chief Justice John Roberts Jr. said in his confirmation hearings that he would be willing to consider televising Supreme Court sessions.�

Courtroom camera bill stirs debate

By Matthew Chayes    Reprinted from the Chicago Tribune Washington Bureau
April 30, 2006
WASHINGTON — As far as opinions go, Justice David Souter has made it clear what he thinks of TV cameras in Supreme Court hearings.

“I think the case is so strong,” Souter told a House subcommittee in 1996, “that I can tell you the day you see a camera come into our courtroom it’s going to roll over my dead body.”

But now a bill sponsored by Sen. Arlen Specter (R-Pa.) and approved by the Senate Judiciary Committee he leads would force the Supreme Court to let cameras into its hallowed halls, one of the few public spaces in Washington, along with other federal courts, where cameras are banned.

That prospect miffed two other justices, Anthony Kennedy and Clarence Thomas, who told a House subcommittee early this month that if Congress authorized the use of cameras at the court, it would mar the Supreme Court’s decorum, endanger the justices’ personal security and raise constitutional questions over the proper role of each branch of government.

Supporters of cameras in the Supreme Court, including Sen. Dick Durbin (D-Ill.), say that opening the court to cameras would teach the nation an important civics lesson.

“Unfortunately, a lot of people think this is all about Judge Judy, and that is not how justice is handed down in America,” Durbin said, referring to the television judge. “This is an institution, one of the most important in our government, a government that prides itself on being open and accessible. Eliminating the mystery of these proceedings will help people understand what justice really means.”

Laurence Tribe, a Harvard law professor who supports cameras at the high court, agreed, noting that only the “privileged few” get to witness the justices in court.

“Unfortunately, only the most naive idealist believes that the general public reads the court’s opinions,” said Tribe, whose first argument before the Supreme Court in 1980 established that the Constitution guarantees the public’s right to attend criminal trials.

The move to allow cameras comes after Chief Justice John Roberts Jr. said in his confirmation hearings that he would be willing to consider televising Supreme Court sessions.

Demanding accountability

Last year, when the courts refused to step in to order that Terri Schiavo be kept alive, lawmakers demanded more accountability from the courts. When Specter introduced his camera measure in September, he complained that the Supreme Court has become a “virtual super legislature.”

The same week, Sen. Charles Grassley (R-Iowa) and Rep. James Sensenbrenner (R-Wis.), chairman of the House Judiciary Committee, proposed separate measures to install a watchdog over the nation’s courts, that would “provide for the detection and prevention of inappropriate conduct in the federal judiciary.”

Judge Boyce Martin of the 6th U.S. Circuit Court of Appeals based in Cincinnati said, “Televising proceedings is one of the more important new innovations that’s gonna help the judiciary be appreciated more by the public as a whole.”

Supporters of courtroom cameras dismiss Kennedy’s assertion on legal grounds that forcing cameras into the court would raise separation-of-powers concerns. They note that Congress sets the judiciary’s budget, its jurisdiction and the number of justices.

“For him to say that we couldn’t say that you have cameras in the courtroom is just idiotic,” said Grassley, who has proposed legislation that would let judges decide whether to televise proceedings in their courtrooms. The Specter measure would force the nine justices to admit cameras into the court although they could on a case-by-case basis have them banned.

Judge Alex Kozinski, who sits on the 9th U.S. Circuit Court of Appeals based in California, where cameras film some appellate proceedings, said he believes that giving jurists the choice is the right approach. But he opposes having legislators force it on the judiciary.

“I think cameras work fine if the judges involved are comfortable with having them there,” he said, but he insists it should be an evolution in their thinking, not a mandate.

The Supreme Court now makes audio recordings and transcripts of the oral arguments available later each term. Recordings for noteworthy cases are released immediately after a hearing.

Kozinski said that televising all federal court proceedings is probably inevitable but that the push should come from the judiciary.

At the state level, numerous states allow cameras and televising of trials; Illinois does not.
Several Supreme Court justices have at various times said they don’t want cameras in the courtroom because they value their privacy, helping protect them from people who might physically attack them because they disagree with decisions.

But attacks on Supreme Court justices are rare.

Justice Byron White, during a speech in Utah in 1982, was punched by a screaming man critical of the court’s decisions on school integration and pornography. Justice Ruth Bader Ginsburg and retired Justice Sandra Day O’Connor recently disclosed they got death threats.

White suffered minor bruising, but some attacks on judges have ended tragically, including last year’s murders in Chicago of the husband and mother of U.S. District Judge Joan Lefkow by a disgruntled plaintiff.

Disputing danger

But lawmakers pushing for televised court proceedings say judges would be in no more danger than members of the other two branches of government.

“Since I live in a world of televised Senate proceedings and vote on controversial bills and make speeches on a regular basis, I don’t think that that jeopardizes my security,” Durbin said.

Plus, camera supporters argue, the identities of most federal court jurists are publicly available anyway.

“Anybody who really wants to know what I look like can just put my name into Google,” Kozinski said, “and a Google image will come up with any number of pictures of what I look like.”


Are Jody Richards days as House Speaker numbered

Saturday, April 29th, 2006

Mark Nickolas of  reports that Democratic House Majority Whip Joe Barrows may withdraw from his race for re-election, and that his replacement in House leadership would be Rep. Rob Wilkey. (There are two Democrats in Barrows House race and the Democrats would not be giving up that seat if the other Democrat was elected in lieu of Barrows.)  Wilkey is described in the article as a “strong, progressive voice on leadership who is also articulate and not afraid to stand-up to the bullies.�   This may suggest that an effort by the House Democrats is afoot to replace Speaker of the House Jody Richards.
Richards is felt by some to have been no match for the strong willed Senator David Williams.  Many Democrats felt they were “rolled� on the state budget and Richards claims that Williams assured him there would be no vetos by Fletcher.  Instead of passing the state budget on time, Richards delayed the vote to allow members to go on Spring Break, thereby assuring that there would be no opportunity to consider vetos by the Governor.

Decisions of Ct. of Appeals for April 28 now posted on

Friday, April 28th, 2006

One sentence synopsis of Ky. Court of Appeals rulings for April 28, 2006.

The full synopsis and access to full text of each decision is available on to subscription members. We post all decisions and provide a synopsis without hours of the release of the decisions by the court.

Important cases:
1 under the clearly articulated precedent of the Kentucky Supreme Court, Lofton’s claims of ineffective assistance of counsel are not cognizable
2 an injured party can recover against the Commonwealth under the Board of Claims Act. KRS 44.073(2) “clearly establishes that any negligence claims against the Commonwealth or its subdivisions must be for the negligent performance of ‘ministerial acts.
3 By seeking and obtaining prospective enforcement of the covenant (not to compete within 50 miles), ARH waived its right to retrospective enforcement of the covenant as set forth in the contract.  -  ARH is not entitled to liquidated damages under the contract
4 TO BE PUBLISHED: the trial court erred in failing to instruct the jury on lesser included offenses,
5 Drawing all inferences in favor of the Commonwealth, the evidence presented to the jury appears to have been more than sufficient to induce reasonable jurors to believe beyond a reasonable doubt that Nevitt was guilty
6 No evidence presented to the court tended to indicate that the parties had worked together collusively in order to avoid compliance with the prevailing wage requirements governing a public authority.
7 delay (in recording deed) implicates appellants in the knowledge of the defects in the transactions, and so they cannot take advantage of the protection afforded good faith purchasers without knowledge
8 that the identification of Adams was reliable under the totality of the circumstances.
9 we believe the circuit court abused its discretion by not awarding prejudgment interest.
10(Court was correct to) award… a judgment of $129,160 in damages for the City’s breach of the implied duty of good faith and fair dealing in relation to a …written agreement… extending his probationary period.
11 joint accounts are not immune from garnishment by the creditor of one of the joint accountholders.
12 GRW’s current claims arise from the same indivisible contract as was litigated in GRW’s prior action
13 the motion to intervene (as authorized by KRS 342.700 and CR 24.01(2)) has to be by the real party in interest under CR 17.01, which would be the workers’ compensation carrier.
14 As Hawkins currently is serving a sentence for first-degree robbery, which is a “violent offense� as defined by KRS 439.3401, he clearly is ineligible to accumulate time credit for any work performed on or after June 24, 2003.
15 we are not persuaded by the claim that Samuel improperly engaged in dual representation of Marshall and her daughter.

16 TO BE PUBLISHED: MALICIOUS PROSECUTION- there is an obvious distinction between the dismissal of an indictment and simply “filing it away.� The latter is considered an “indefinite continuance,� while the former is not.

17 Admission of history of two prior felonies found to be harmless error.
18 the affiant stated the name and address for McCarty’s unknown spouse was “unknown.� We believe this statement constitutes adequate compliance
19 TO BE PUBLISHED: the circuit court misapplied the statutes pertaining to re-sentencing a youthful offender upon reaching the age of majority. Youthful offender eligible for probation consideration even if convicted of violent offense for which probation is not otherwise available.

20 None of appellant’s assignments of error were preserved for review and none rise to the level of palpable error
21 it is impossible for this Court to grant actual or practical relief to V.B., we dismiss the appeal as moot.
22 defendant not entitled to directed verdict since jury could reasonably infer a real and substantial risk of serious physical injury or death from his flight
23 Fourteen years too long a period of time for filing of 60.02 motion.

24 the United States Supreme Court abandoned the
rigid two-pronged test established by its previous holdings in Aguilar v. Texas, and adopted a “totality of the circumstances” approach for determining whether an informant’s tip provided probable cause for the issuance of a search warrant.
25 the family court abused its discretion in suspending S.T.’s supervised visitation with M.E.T
26 that there was substantial evidence that McIntyre sustained no permanent disability as a result of the work-related injury and that a different finding was not compelled.
27 We do not find an error in the assessment of the evidence in this case leading to flagrant error
28the ALJ erred in relying upon that particular testimony, and his finding
on the notice issue is not supported by substantial evidence of record.

New breath testing device only $19.95 –

Friday, April 28th, 2006

This device is based on centuries old principal recognized by the Kentucky legislature (See: KRS 223.425).  Environmentally friendly. Guaranteed to be accurate* and is admissible in many courts.

 Please click to read details of this amazing device The Billingsley Drunk Detector 2000 – only $19.95 

Please send your check to LawReader, Inc. at 314 7th. St., Carrollton, Ky. 41008 and enclose your check for $19.95 and shipping and handling of $3.95. No refunds at this low price.
*should meet the low admission standards of those appellate courts who ignore Daubert requirements.

NOTE: This product is a humorous comment on those appellate courts who will overlook almost every flaw in the Intoxilyzer 5000 admission procedures in order to assure their support for strict enforcement of DUI laws even when their rulings ignore laws regulating the use of BA machines.  Even though there are many questions regarding the science used by the BA machine, and the manufacturer refuses to honor supoenas to allow discovery which reveals their “code” which runs the machine,  operating procedures are virtually non-existent, and administrative regs regarding the proper use of the machine are ignored, the appellate courts almost never deny admission of BA results.  The Drunk Detector 2000 might just be admitted by many courts….sad…but almost true.

Judicial candidate profiles to be posted online

Friday, April 28th, 2006

Judicial candidates in contested primary races this spring are being asked to provide information about themselves to be posted on a Web site for Kentucky voters’ consideration. The profiles will be posted May 9 on for public review. Richard Beliles, Director of the Kentucky Chapter of Common Cause said this is a non-partisan project.
 Common Cause, a grass-roots organization that promotes open government, and Justice at Stake Campaign, a national, non-partisan effort for fair and impartial courts, sent out letters this week to the judicial candidates. They asked for name, place of residence, education, occupation, employer, date admitted to the Kentucky Bar Association, legal and judicial experience, a 150-word-limit personal statement and campaign Web site.
 Spencer Noe, a Lexington attorney who is chairman of the Kentucky Judicial Campaign Committee, said the requests by Common Cause and Justice at Stake “appear to be a legitimate thing for judicial candidates to do.”  He suggested that candidates should refrain from making any statement that would appear to commit the judicial candidate to a particular ruling in future cases.

No judicial elections for 9 new judgeships approved by legislature– Gov. Fletcher vetos election provision and instead will appoint judges to these new positions after Jan. 1, 2007. Democrats raise specter of court packing.

Thursday, April 27th, 2006

Gov. Ernie Fletcher used his line-item veto to strike provisions requiring nine new judges to be elected this November, a move that allows him to appoint them instead.
 Gov. Fletcher can appoint the new judges after Jan. 1. The seven circuit court judgeships are in the following counties: Hopkins; Hardin; Bourbon, Scott and Woodford; Breathitt, Powell and Wolfe; Allen and Simpson; Boone and Gallatin; and Russell and Wayne.
 The two district judgeships are in Warren County and Clark and Madison counties.
The development, which went unnoticed Monday April 24th, after Fletcher vetoed $370 million in projects in the state budget, angered House Democrats yesterday, who said the Republican governor took away the public’s right to elect those judges.
 ”Of all the vetoes across the executive branch and the judicial budget, that particular one is the most disturbing to me,” said House Majority Whip Joe Barrows, D-Versailles. He later added, “You could raise the whole specter of packing courts.”
 It is unclear if the judges appointed by Gov. Fletcher in January of 2007, will serve till the election in November of 2007 or 2008.
 The following article was published in the Lexington Herald Leader
Fletcher veto lets him pick judges
By Brandon Ortiz
Gov. Ernie Fletcher used his line-item veto to strike provisions requiring nine new judges to be elected this November, a move that allows him to appoint them instead.
The development, which went unnoticed Monday after Fletcher vetoed $370 million in projects in the state budget, angered House Democrats yesterday, who said the Republican governor took away the public’s right to elect those judges.
“Of all the vetoes across the executive branch and the judicial budget, that particular one is the most disturbing to me,” said House Majority Whip Joe Barrows, D-Versailles. He later added, “You could raise the whole specter of packing courts.”
A Fletcher spokesman said the election provisions didn’t pass constitutional muster. The state constitution forbids holding a judicial seat election before it has been funded, spokesman Brett Hall said.
The nine judgeships, seven in circuit court and two in district court, are effective Jan. 1.
“The election has to occur during its first year of funding,” Hall said. Fletcher “amended the language to conform with the constitution.” Late last night, Hall could not point to what section of the constitution the elections would have violated.
Sen. Damon Thayer, R-Georgetown, said Fletcher’s appointing judges is consistent with the state constitution, noting it allows him to fill judicial vacancies.
“I wasn’t surprised, nor was I disappointed,” Thayer said of Fletcher’s move. “To the victor goes the spoils. Was I happy when Bill Clinton appointed Ruth Bader Ginsburg to the U.S. Supreme Court? No. Likewise, this governor has the right to name the people he chooses.”
Because the legislative session is over, the General Assembly cannot try to override the governor’s veto.
The veto comes a week after reports that several judges across the state are considering retiring before July 1 to receive better retirement benefits. If they step down before their terms end, Fletcher could appoint new judges to fill those vacancies, too.
The judicial bill passed the House in early March, which Rep. Bob Damron, D-Nicholasville, said would have been “early enough for a veto override to be possible had the Senate enacted it” sooner.
“As long as you have a divided House and Senate, apparently these things are going to continue to happen,” Damron said. “The governor talked about not putting politics above people, but that is obviously where this provision went.”
Barrows said the judicial elections “had never been a bone of contention” between leaders of the two chambers.
Legislators could theoretically de-fund and de-authorize the nine judgeships when they reconvene next year, but it’s not clear whether the Republican-controlled Senate would support such an effort, Barrows said.
It “may depend on whether people at both ends are upset about it,” he said.
Fletcher can appoint the new judges after Jan. 1. The seven circuit court judgeships are in the following counties: Hopkins; Hardin; Bourbon, Scott and Woodford; Breathitt, Powell and Wolfe; Allen and Simpson; Boone and Gallatin; and Russell and Wayne.
The two district judgeships are in Warren County and Clark and Madison counties.
To keep their jobs, those appointees would have to run for re-election. It’s not clear whether that would take place in 2007 or 2008, Barrows said.
But incumbents, in all branches of government, are historically heavy favorites to win re-election.
“It depends on whether they are tainted by not being put in by the vote of the people,” Damron said.

Judge tries to climb two ladders – takes 15 ft. tumble off of one

Wednesday, April 26th, 2006

Lyon Circuit Judge Bill Cunningham, is a candidate attempting to climb up the career ladder to a position on the Ky. Supreme Court in this years election.  While attempting to climb a second ladder at his home in Eddyville, Kentucky this weekend, to clean out the gutters,  took a tumble of l5 feet and fractured three ribs and punctured a lung. Cunningham is expected to be released from the Western Baptist Hospital April 26. 
Cunningham’s opponent in this fall’s non-partisan judicial election is Court of Appeals Judge Rick Johnson of Symsonia.

Schools may not censor student’s work based on its religious content

Wednesday, April 26th, 2006

On October 18, 2005, in Peck v. Baldwinsville Central School District, the United States Court of Appeals for the Second Circuit ruled that a student has a free speech claim if school officials censor the student’s work based on its religious content, but rejected the student’s Establishment Clause claim under current United States Supreme Court precedent.

On April 24, 2006, the United States Supreme Court allowed the Second Circuit ruling to stand.

The federal appellate courts had been divided as to whether public schools are permitted to censor the religious viewpoints of students in class assignments. The Second, Third and Ninth Circuits had answered no, while the First and Tenth Circuits had held that viewpoint discrimination in the curricular context may be permissible. 

Sup Ct hears oral arguments on warrantless search of residence

Tuesday, April 25th, 2006

On Monday the U.S. Supreme Court heard oral arguments on a case from Utah involving the 4th. Amend.  Under the facts the police came to a home and heard a “commotion� in the back yard.  They looked over the fence and heard someone make reference to a minor drinking.  They climbed the fence and peeked through a window of the house and saw three or four adults restraining a juvenile male who was loud and apparently intoxicated. The juvenile worked one hand free and slugged one of the adults.  The police entered the house and made an arrest. They did not have a search warrant.  The courts have held at local and state levels that the arrest must be suppressed as a violation of the 4th. Amendment.  The City police have continued to appeal.  The questioning of the various justices indicated some in favor of upholding the suppression and some in favor of setting aside the suppression order.   The decision should be out in a few months.  The defense claimed there was no issue of exigent circumstances, and no imminent threat to life or threat of serious physical injury.   The police argue that any disturbance provides a basis to ignore the 4th. Amendments requirements for a search warrant.

Sixth Circuit allows display of ten commandments in Mercer County

Monday, April 24th, 2006

The 6th. Circuit Court of Appeal  refused to bar the Ten Commandments from the public square today and ruled that a display of the Decalogue in Kentucky is constitutional.
In the case ACLU of Kentucky v. Mercer County, Kentucky, the court voted 9-5 to uphold the Foundations of American Law and Government display at the country courthouse.
The display includes the Ten Commandments, the Mayflower Compact, the Declaration of Independence, the Magna Charta, the Star-Spangled Banner, the National Motto, the Preamble to the Kentucky Constitution, the Bill of Rights to the U.S. Constitution, and a picture of Lady Justice.
The original, three-judge panel of the appeals court upheld the display, saying the ACLU’s “repeated reference to ‘the separation of church and state’ … [had] grown tiresome. The First Amendment does not demand a wall of separation between church and state.”

Sixth Circuit rules that Ten Commandments can be displayed by County if a part of a Decalogue of other historical documents – April 24, 2006 -Read full text of decision


Monday, April 24th, 2006

     In the Governor’s address at 6 P.M. on Monday April 24th. the Governor announced $370 million dollars in veto appropriations but  declined to veto the pharmacy appropriation to the private Baptist College in Sen. Williams district.
In his speech broadcast on television the Governor stated:
“Let me address one project that has recently captured the attention of many, the grant for a pharmacy school at University of the Cumberlands.
The fact remains:  Kentucky has a shortage of pharmacists, particularly in Southeastern Kentucky.  Also, the tax dollars to build this school come from coal severance tax and not directly from the taxes you pay.
This is a difficult issue and one where there is no definitive case law establishing the legality.
I believe we need to answer once and for all in Kentucky the legality of funding private faith-based institutions for public purposes.
For that reason I will not veto this project.  However, before any money is released to the institution, I am asking the courts to determine the constitutionality of such projects.�
The full text of the Governor’s Veto speech can be read at:
While the Governor said that there was no clear case law on the issue of state funding of private school funding, we suggest that you may wish to decide the quality of the Governor’s legal advice.    
Justice Leibson wrote in Fannin v. Williams, Ky. Sup. Ct., 1983, 655 SW2d 480:

 “No portion of any fund of tax now existing, or that may hereafter be raised or levied for educational purposes, shall be appropriated to, or used by, or in aid of, any church, sectarian, or denominational school.�

“In sum,  the Kentucky constitution contemplates that public funds shall be expended for public education.  The Commonwealth is obliged to furnish every child in this state an education in the public schools, but it is constitutionally proscribed from providing aid to furnish a private education. Pollit V. Lewis, 269 Ky. 680, 108 S.W.2d 671 (1937). We cannot sell the people of Kentucky a mule and call it a horse, even if we believe the public needs a mule.”


Here is our chance to laugh back

Monday, April 24th, 2006

Quote from a political ad placed by a candidate for U.S. Congress in the 3rd. Dist. Race in Louisville.  


In Fannin v. Williams, l983, Justice Leibson writing for a Kentucky Supreme Court majority ruled that state funds could not be appropriated for educational funding of private schools.

Saturday, April 22nd, 2006

The $11 million dollar expenditure adopted by the 2006 legislature to create a pharmacy college at a Baptist College (University of the Cumberlands) appears to be in direct violation of the ruling in this case written by Justice Leibson.
The following article in the Lexington Herald makes reference to the recent ruling of the Ky. Supreme Court.   (SEE EXCERPTS FROM THIS CASE ON THIS PAGE)  

Legal experts debate constitutionality of appropriation

By Frank E. Lockwood
As Gov. Ernie Fletcher considers whether to veto $11 million in funding for a pharmacy school at the University of the Cumberlands, legal experts are weighing in on whether an appropriation to the religious school is unconstitutional.
Kentucky politicians have tried off-and-on for decades to give tax dollars to private schools, but Kentucky judges have repeatedly blocked such moves based on a section of the constitution that prohibits spending state education funds on “any church, sectarian or denominational school.”
If the funding is approved for the Baptist school, said University of Louisville law professor Sam Marcosson, “my guess is that it probably isn’t going to be upheld.”
ACLU staff attorney Lili Lutgens wouldn’t say yesterday whether her organization would sue to overturn the appropriation if Fletcher signs it. “We’re looking into the matter,” she said.
State Sen. and former Gov. Julian Carroll, one of the state’s most prominent evangelicals, says he will sue if Fletcher approves the money for Cumberlands and a $317,900 grant to another Baptist school — Campbellsville University.
Carroll and other legislators began calling for a veto of the funding for the University of the Cumberlands after the school expelled a gay student, citing its policy against promoting or engaging in “sexual behavior not consistent with Christian principles.”
A matter of law
In 1983, in Fannin vs. Williams,(SEE EXCERPTS FROM THIS CASE ON THIS PAGE)  the Kentucky Supreme Court said it was unconstitutional for lawmakers to spend even $25,000 on textbooks for private school students — regardless of whether the schools are religious or secular.
The justices, in a 5-2 ruling, struck down the textbook purchasing statute “reluctantly.” While praising the law’s “salutary purpose” and conceding it might be “of public benefit” to provide the books, the judges said they couldn’t ignore the “clear and unmistakable” language of Kentucky’s highest law.
“A fair reading … of the constitution compels the conclusion that money spent on education is to be spent exclusively in the public school system,” the court ruled.
Lawmakers tried to overcome constitutional barriers by arguing that the books would go to students instead of private schools and would be purchased with “general assembly” funds, not common school funds.
The courts didn’t buy the argument, saying those appropriations were “no less public money from public taxes” than common school funds.
“The framers of our constitution did not intend for the legislature to spend public money to support private schools by these devices,” they wrote.
Yesterday, Senate President David Williams, R-Burkesville, said the state funding to the University of the Cumberlands is constitutional because the funding comes from the coal severance tax. He noted that Section 189 of the constitution says that no portion of any tax or fund now in existence raised or levied for educational purposes shall be appropriated for a church school.
“The coal severance tax fund is not levied for educational purposes. That’s why 189 does not affect this,” he said.
Williams sees ambiguity in the state constitution, but Frank Manion, senior counsel for the American Center for Law and Justice, does not.
“It sort of surprises me that they put it in the budget without addressing this problem. It seems straightforward,” said Manion, a Catholic who works for a public interest law firm specializing in religious liberties.
Brett Hall, Fletcher’s spokesman, said the governor has asked his general counsel, Jim Deckard, to review the constitutional issue.
Law was anti-Catholic
Kentucky is one of 37 states with laws prohibiting the use of public money for religious schools.
The 19th-century laws weren’t supposed to oppress Southern Baptists, Manion says. Catholics, who were emigrating to the United States by the millions, were the targets.
“These were bigot laws, passed by nativists, who wanted to make sure that my ancestors didn’t get anything that would help them educate their kids,” he said, branding the law an “embarrassment.”
“The people who are now being hurt by (the law) are possibly, in some cases, the descendants of the people who put them there,” he said.
The Kentucky courts have vigorously enforced Section 189 since it was passed in 1891.
In 1994, the court also struck down a Kentucky law which provided subsidies to some private schools to help cover bus transportation costs. In 1999, however, it upheld a law allowing counties to provide transportation for all private school students.
The key difference: the statute that was upheld didn’t give any state funds to private or parochial schools and didn’t favor religious schools over other private schools.

Fannin v. Williams, 655 S.W.2d 480 (Ky., 1983)
“ Section 184 of the Kentucky Constitution provides:
“No sum shall be raised or collected for education other than in common schools until the question of taxation is submitted to the legal voters, and the majority of the votes cast at said election shall be in favor of such taxation….”
Brown v. Board of Education of Newport, 108 Ky. 783, 57 S.W. 612 (1900), we said:
“… (T)he text of (Section 184) shows clearly that the intention was to prohibit the collection of any taxes to any extent for educational purposes other than common schools, without the consent of the people.”
        The federal constitution is silent on the subject of education, leaving this most important function to the several states. Our state constitution provides for and regulates this function primarily under the title, “Education,” Sections 183-189 inclusive. These sections start with the requirement that the General Assembly “provide for an efficient system of common schools throughout the state.” They end with the requirement that “no portion of any fund or tax now existing, or that may hereafter be raised or levied for educational purposes, shall be appropriated to, or used by, or in aid of, any church, sectarian, or denominational school.” A fair reading of these seven sections of the constitution compels the conclusion that money spent on education is to be spent exclusively in the public school system, except where the question of taxation for an educational purpose has been submitted to the voters and the majority of the votes cast at the election on the question shall be in favor of such taxation. Kentucky Constitution, Section 184, supra.â€?
“  The framers of our Constitution did not intend for the legislature to spend public money to support private schools by these devices.
        Section 3 of the Kentucky Constitution prohibits payment of public money “to any man or set of men, except in consideration of public services.”
        If we were to arbitrarily assume, contrary to the facts, that the statute benefits only the children in the nonpublic schools, to the exclusion of any benefit to the function of the schools, if we were able to completely separate the two, we would then be in conflict with Section 3 of the Constitution. When the statute is confronted foursquare, the dilemma is insolvable.�
Page 483
“In Talbott we examined the interplay between Sections 184 and 186 and arrived at this definition of the constitutional limitation on the expenditure of funds for educational purposes:
“It is immaterial that money produced by taxation is appropriated for school purposes after the tax is levied or the money collected. It becomes, as soon as the appropriation is made, a part of the school fund, and its distribution is controlled by these sections of the Constitution. Calling it a fund for the equalization of educational opportunities does not change its character. It is spent in precisely the same manner and for the same purposes as other state school funds, except the method of distribution is changed.”
        Section 189 of the Kentucky Constitution provides:
No portion of any fund of tax now existing, or that may hereafter be raised or levied for educational purposes, shall be appropriated to, or used by, or in aid of, any church, sectarian, or denominational school.”
�As previously noted, Section 184 of the Kentucky Constitution provides that public money can be expended for education other than in common schools when a majority of the legal voters approve the expenditure by public referendum. If the legislature thinks the people of Kentucky want this change, they should place the matter on the ballot.
        In sum, the Kentucky Constitution contemplates that public funds shall be expended for public education. The Commonwealth is obliged to furnish every child in this state an education in the public schools, but it is constitutionally proscribed from providing aid to furnish a private education. Pollitt v. Lewis, 269 Ky. 680, 108 S.W.2d 671 (1937). We cannot sell the people of Kentucky a mule and call it a horse, even if we believe the public needs a mule.
        Unlike the statute extending transportation to children in nonpublic schools, it is impossible to classify textbooks as anything but educational. As such the statute must meet the constitutional limitations of those sections of the Constitution covering “Education.”
        One can argue, quite reasonably, that this statute (and any statute) furthering education is of public benefit, whether selective or not. Unfortunately, this approach begs the question, because the Constitution establishes a public school system and limits spending money for education to spending it in public schools.
        Nor are we concerned with the reasons parents send their children to private schools, whether to provide a better secular education, to further their religious education, to avoid busing for desegregation, or whatever. The reason why the children are in private schools would have nothing to do with whether or not they should have free textbooks, if the state could provide them free textbooks in the first place. But the Kentucky Constitutional provisions that restrict spending money for education to public schools, restrict where and how public funds can be expended for education, not just when and why. So we cannot uphold the statute because we could find some public benefit in its purpose. It is constitutionally impermissible because of the manner in which it directs the expenditure of public funds for educational purposes, through nonpublic schools.
        As we stated in Commonwealth v. O’Harrah, Ky., 262 S.W.2d 385, 389 (1953):
“Constitutional provisions, whether operating by way of grant or limitation, are to be enforced according to their letter and spirit, and cannot be evaded by any legislation which, though not in terms trespassing on the letter, yet in substance and effect destroy the grant or limitation.
“In appraising the validity of the statute we must look through the form of the statute to the substance of what it does. The courts may not countenance an evasion or even an unintentional avoidance of our fundamental law.”
Page 485
        The decision of the trial court is reversed. The case is remanded to the trial court to enter judgment in conformity with this opinion and granting appellants injunctive relief.
        STEPHENS, C.J., and GANT, LEIBSON, STEPHENSON and VANCE, JJ., concur.
        WINTERSHEIMER, J., files a dissent in which AKER, J., joins.

LawReader columnist Steve Horner opines on Willams plot to embarrass Gov. Fletcher

Saturday, April 22nd, 2006

These topics are discussed in Steve Horner’s column on this week:
Fletcher Loses Effort to Block Review of E-mails
Doerting Makes Grand Jury Appearance
Grand Jury Stats
Stumbo Will Not Move to Extend Grand Jury
Fletcher Quits State E-mail; Keeps Campaign BlackBerry
Fletcher Promises to Veto Some Projects   
Williams Implores Cumberland Supporters to Lobby Fletcher
(Comment:  Is Williams Setting Up Fletcher?)
Two Transportation Cabinet Employees Allege Political Bias in Suit
Newspaper Editorial Comments
Newspaper Columnists’ Comments

Miss Kentucky Tara Conner, crowned new Miss USA for 2006

Saturday, April 22nd, 2006

Tara Conner , 20, of Russell Springs, was  crowned new Miss USA for 2006 on April 21, 2006 on the Miss USA pageant televised on NBC.  Prior to the Miss USA contest she appeared on the NBC hit game show Deal or No Deal.

Tara describes herself as an “easygoing, down-to-earth girl.”  She will now compete for the MIss Universe competition to be televised on July 23rd.

The Miss USA pageant tends to focus less on talent than on physical good looks.  Without taking a position on beauty contests, we certainly are proud of Tara and we believe that she certainly is a beauty.

Congrats to Tara!    See her photo at:
* Photo of Tara Connor, Miss Ky – Miss USA

Kentucky Ct. of Appeals Decisions for April 21, 2006

Friday, April 21st, 2006

These important cases may be found on


LawReader Case No.
 1 The relevant statute presumes that possession of more than twenty-four grams of pseudoephedrine is prima facie evidence of the intent to manufacture. KRS 218A.1437
2 Even if Penn did not receive this notification, he has failed to explain how he has been prejudiced. This claim (for open records) is without merit.
3 Because Serey has failed to raise the abuse of process claim in his brief, we deem it to be waived or abandoned

4 The burden of proof in a malpractice case is, of course, on the party charging negligence or wrong.  
5 we erred by reconsidering our earlier opinion and thus now dismiss this appeal again for the reasons discussed below.

6 we conclude the trial court did not abuse its discretion in denying Hazelwood’s motion for relief under CR 60.02

7 the circuit court correctly proceeded to a determination that the roadway was not abandoned under common law principles

8 appellant has failed to demonstrate entitlement to the extraordinary remedy available under CR 60.02.

9 However, as the monthly benefit paid directly to the child is considered that child’s independent source of income, and “not to be counted as income to either parent when calculating a child support obligation,� the trial court did not incorrectly allow a credit against Deanna’s monthly obligation.

10 we are unable to say that the trial court’s award of maintenance in this case constituted an abuse of discretion.

11, because Brown’s words imputed the criminal act of shoplifting, Boggs has made out a case of slander per se

12 Actionable outrage requires “a deviation from all reasonable bounds of decency and is utterly intolerable in a civilized community.�

13“a voluntary guilty plea . . .waive[s] all defenses other than that the indictment charges no offense.�  
14 Under the highest and best use approach, the nursery stock is not separately valuated

15 contempt order upheld
16 He has failed to show that the Cabinet has shirked its regulatory responsibilities.
17 We reverse the trial court’s increase in child support and remand the matter for calculation of appellant’s obligation, with legal interest, regarding expenses owed to Large.

18 Inmate was not entitled to counsel in an action which he initiated

19 the Board did not err by affirming the ALJ’s denial of Walker’s claim.
20 we cannot say that the ALJ or the Board has committed an error in assessing the evidence so flagrant as to cause Walden a gross injustice.

21 even though we may have decided the matter differently, we must affirm the Board because the record does not compel a different result.

Ky. Supreme Court decisions for April, 2006 posted on Lawreader

Friday, April 21st, 2006



1 Reinstatement of Tim Futrell denied.
2 to complete the offense (of unlawful transaction with a minor), the minor must consent to and actively participate in the activity.”
3 The trial court did not err in denying directed verdict
4 the trial court erred in admitting certain portions of Dr. Spevak’s (expert) testimony, as its prejudicial effect was far outweighed by its probative value
5 Retailer who sold gun to l8 year old in violation of Federal Law not protected by intervening criminal act of the l8 year old in shooting a friend. “ this Court has rejected “any all-inclusive general rule that . . . criminal acts of third parties . . . relieve the original negligent party from liability .”
6 evidence of another allegedly similar incident of sexual abuse by Appellee against his niece, S .B., was error.
7 requested instruction on fourth degree assault was properly denied .
8 where a .statute both declares the unlawful act and specifies the civil remedy available, the aggrieved party is limited to the remedy provided by the statute. General damages are not available when a specific remedy is provided such as in this case

9 We decline to hold that whenever one or more convictions of multiple jointly-tried offenses are reversed, every other conviction of a jointly-tried offense must also be reversed for resentencing.
10 Harry D . Williams is hereby suspended from the practice of law in the Commonwealth of Kentucky for a period of one hundred eighty-one (181) days

11 a Bruton problem may be cured by an appropriate redaction of the co-defendant’s confession, so long as “the confession is redacted to eliminate not only the defendant’s name, but any reference to his or her existence .”

12 we conclude that the faulty instruction did not result in manifest injustice, much less seriously affect the fairness, integrity, or public reputation of judicial proceedings.
13 error unpreserved

14 the jury could have also believed that he did not steal the firearms. Without stealing the firearms, he would have only committed the offense of criminal trespass .
16 the denial of Appellant’s motion to withdraw his guilty plea was not “arbitrary, unreasonable, unfair, or unsupported by sound legal principles
 17 18 Each case presents differing facts and the trial judge must always be prepared to craft a set of instructions that are determined by those facts – It was error for the trial judge to overrule the motion for a continuance because it denied Grimes the opportunity to present a defense
19 no error in the trial court’s application of KRS 532.080
20 DUI -Can a certified copy of a breath-alcohol machine’s maintenance and test records be admitted into evidence to show compliance with 500 KAR 8:020 § 2(1) without in-court testimony by the breath-alcohol technician who performed the maintenance and tests?  Ans. Yes.  (Crawford v. Washington does not apply to the issue of admission of Breath Test Machine operating records.)
21 To succeed on a claim under RCr 10.26 the error must be so profound as to approach denial of due process rights.
22 We know of no rule which allows an issue to be partially preserved – an issue is either preserved or it is not.   
“[t]he appellant could not sit by and see the juror sleeping, without asking the court to arouse him from his slumbers, and then complain about it after the trial was over.

23 the trial court did not abuse its discretion or commit any errors, either individually or collectively, which rise to the level of reversible or palpable error.
24. (It was not error for) a state police detective testified as both a fact witness and an expert witness .
25 ALJ did not err by considering a medical report that the employer submitted pursuant to an order to which the claimant failed to object
26 evidence did not relate to
the scalp lacerations or their effects; therefore, it did not warrant reopening that portion of the claim on any ground
27 28 The evidence in this case clearly did not rise to the level of that in Fawbush, supra , and would not have compelled a decision in the claimant’s favor had
one not been made.
29 Having concluded that the function of CR 76 .25(4)(a) is not to make the Board an indispensable party to a petition for review, we reverse and remand
30the statements made by N.E .G. to both Griffey and Blackerby were admissible under KRE 803(4), the hearsay exception for statements made for purposes of medical treatment or diagnosis, even though Griffey was not a physician
31) Kevin Lee Nesbitt is publicly reprimanded
32, Mark Blair Geller, is hereby suspended from the practice of law
33 We hold that a party may appeal the decision of a trial court, which implicates any of the enumerated items in KRS 417.220(1), utilizing either a motion for interlocutory relief pursuant to CR 65.07, or a notice of appeal pursuant to CR 73, as long as that party fulfills the requirements and meets the burdens in so making the appeal
34 Kenneth Eugene Rylee, Jr., shall be and is hereby Permanently Disbarred from the practice of law in the Commonwealth of Kentucky.

Former UK student body president denied reinstatment to practice law

Friday, April 21st, 2006

Former University of Kentucky Student Body President, Tim Futrell, was denied readmission to the bar by the Kentucky Supreme Court on April 20, 2006.

Futrell was convicted of felonies related to misappropriation of client’s funds.  He vigorously fought the charges and appealed his conviction.

After graduating from UK School of Law Futrell returned to his home town of Cadiz, Kentucky.  He was disbarred in the l980′s.

The full text of the courts ruling denying readmission may be accessed at 2002-SC-000745-KB.pdf .

The ruling states in part: 

“As part of the factual discussion in its report, the Committee spent considerable time recounting the events that led to Futrell’s suspension . In all, the Committee 

detailed Futrell’s relationships with eighteen of his clients, all of whom eventually sued him for malpractice. The conduct underlying several of these suits was the basis for the 

KBA inquiries that had resulted in his motion to resign and for the criminal charges in Christian County and Trigg County. 

Most of these allegations involved claims that Futrell misinformed his clients about the amounts of settlements in personal injury cases and workers’ compensation claims. Specifically, he understated the amounts recovered . This, in turn, allowed Futrell to keep a larger portion of those settlements for himself. 

In several of the cases, Futrell claimed that he kept such large portions of the 

settlements because the clients had agreed to high contingent fees-as much as 60%. In some cases, he even produced documents purporting to evidence such agreements, 

though his clients claimed not to have seen the documents before or to have entered into the agreements .� 

Ultimately, the malpractice lawsuits against Futrell were settled . Of the eighteen 

cases it described in detail, the Committee found that seventeen were “substantially  similar to each other.” 

“Futrell claimed that much of his unethical and illegal behavior was due to mental and emotional difficulties he suffered during and immediately following his marriage to 

Penny Futrell . The marriage lasted from 1986 to 1988. Futrell claimed to suffer from “workaholism,” which, in turn, led in part to problems in his marriage . He also claimed 

that his mental and emotional difficulties put him in a “fog” from which he did not awake until 1990 or 1991 . “ 

“Futrell claimed that it was only at the conclusion of this difficult period that he noticed his escrow account contained a large amount of money for which he could not account, and only then did he realize that he had engaged in unprofessional and negligent conduct. In his appearances before the Committee, however, Futrell claimed that he had no criminal intent during that time, though he did admit to having been “grossly negligent.” “ 

“Futrell repeatedly blamed other persons and entities for his behavior. Such responses, while hinting at the possibility that the prior conduct was, in fact, misconduct, simply do not constitute an acceptance of that fact.� 

“Simply put, Futrell’s lack of candor, the inconsistencies and omissions in his sworn statements, and his unwillingness to concede that he engaged in wrongdoing or even to show any remorse for his actions all point to a lack of rehabilitation . Admittedly, Futrell has not returned to the depths of the wrongdoing that plagued him in the 1980s, and there is some, one might even say substantial, evidence that he has taken steps toward rehabilitation . But Futrell bears the burden of “demonstrate[ing] by clear and convincing evidence his 0 suitability for reinstatement.” SCR 3.330 ; see also SCR3 .505(4)

(“The burden of proof of one’s good character and fitness to practice law shall be on the 

Applicant .”). Given this high burden of proof, and the facts discussed herein, we conclude that Futrell has failed to demonstrate that his “conduct and character since 

disbarment . . . show that he is worthy to have public confidence and trust placed in 

him.” In re Cohen , 706 S .W .2d 832, 834 (Ky. 1986) .

 For the foregoing reasons, the recommendation of the Board of Governors is 

 accepted and Futrell’s application for reinstatement is DENIED .  Lambert, C.J . ; Cooper, Roach, Scott and Wintersheimer, JJ. ; and Marvin Lee. â€? 


72 counties have unemployment rate higher than state average

Thursday, April 20th, 2006

Commonwealth News Center Update (State of Kentucky News Release)

Date      : Thursday, April 20, 2006   Issued By :Ky. Education Cabinet

Summary   : In 2005, 72 Kentucky counties had higher annual unemployment rates than the state’s annual jobless rate of 6.1 percent.

(Prior information released indicates that Kentucky has one of the ten highest unemployment rates of the 50 states.)

Supreme Court hears claim that paying defendant doesnt have right to pick his own attorney

Wednesday, April 19th, 2006

The U.S. Supreme Court heard oral arguments Monday April l7 on the right of a paying  defendant to be represented by the lawyer of his choice.
In the case before the Court,( United States v. Gonzalez-Lopez), a Missouri federal trial judge barred the first-choice California lawyer of drug-conspiracy defendant Cuauhtomec Gonzalez-Lopez, leaving him with a St. Louis lawyer who had never argued a criminal case, and lost. The 8th U.S. Circuit Court of Appeals tossed out Gonzalez-Lopez’s conviction, ruling that the judge’s improper exclusion of the first lawyer amounted to a structural defect that warranted automatic reversal of the conviction.
Deputy Solicitor General Michael Dreeben argued that reversal should not be so automatic, urging that some kind of inquiry be required to determine if the rejection of a first-choice lawyer prejudices the outcome of a case, especially when the replacement lawyer is competent.
A majority of the court appeared to agree that even if a defendant picks a lawyer who is inexperienced or a lawyer determined to make an outlandish argument, that is the defendant’s constitutionally protected right.Scalia said that a client ought to have the right to pick a lawyer who will try crazy strategies that might just work. He cited the “twinkieâ€? defense used by the assassin of the San Francisco Mayor, Harvey Milk.
Souter saw an even bigger issue at stake in the case: the “autonomy interest” of the client. Tied up in the Sixth Amendment right to counsel, Souter suggested, was the ability of the defendant to direct his or her defense.
Justice John Paul Stevens also said the “autonomy interest is powerful,” describing the defendant’s experience of going on trial as “very traumatic.”
Chief Justice John Roberts Jr. appeared to dismiss that argument, however, suggesting that whatever right exists to counsel of choice, it is not a defendant’s right to the “expression of autonomy.” Roberts also warned that if a right to counsel of choice is given too much weight, there will be nothing to stop it from being applied in cases of appointed counsel for indigents, as well.
Jeffrey Fisher, the lawyer for defendant Gonzalez-Lopez, appeared to score points when he said that automatic reversal is the proper remedy when “the government affirmatively interferes” with a defendant’s choice of counsel. It happens rarely, Fisher said, but when it has, all the appeals courts that have ruled on the issue have adopted an automatic-reversal rule.
Justice Samuel Alito Jr. offered the hypothetical of a defendant who wants a relative, a real estate lawyer, to defend him, but when that lawyer is barred by the judge, the replacement lawyer is someone with a national reputation in criminal work who still loses nonetheless. Would that defendant be able to win reversal?