Archive for April, 2006

LAWREADER CONGRATULATES THESE NEW LAWYERS

Wednesday, April 19th, 2006

 


   The following candidates for the Feb. 2006 Ky. Bar Examination have been announced to have successfully passed the test.  LawReader welcomes you to the practice of law.SHARIF AHMED ABDRABBO
JASON EDWARD ABELN
KATHI MICHELLE ADAMS
JAMES EDWARD ADAMS II
NAGAHISA AKAGI
JILL RILEY ATKINS
MICHAEL DOUGLAS BEACH
KEVIN ANDREW BEITING
BRYAN CHARLES BERGER
JOSHUA CLAY BILLINGS
SUMMER DAWN BISHOP
WILLIAM ANDREW BOWKER
MELISSA RUTH TALLENT BOZELL
JENNIFER LEE ANN BRINKLEY
JEFFREY PAUL BRINKMAN
LAUREN ROYCE SPARER BROOKE
JEFFREY SCOTT BROWN
KEJO KHALEAH BRYAN-CARBY
SUSAN ELIZABETH BRYSON
SCOTT DILLON BUDNICK
DWIGHT MONTAE BURTON
STEVEN CHAD BUTCHER
CHRISTOPHER DALE BYERS
RAEMONA DENE’LL BYRD-JONES
COURTNEY DONALD BYRNES
BETHANY LANE CATRON
RICHARD ALAN CHAPMAN
SARA ROSE CHISNELL-VOIGT
KEVIN LEE CHLARSON
TONYA MICHELLE CLEMONS
MARGARET NICOLE TYLER COOK
MICAH CAROLINE DANIELS
RACHEL KATHLEEN DIETZ
BLAKE ALAN DOERR
NICHOLAS D DONNERMEYER
WANDA ANN DOTSON
KEVIN TODD DUNCAN
JOHANNA DOREEN DUNN
ANDREW DUTKANYCH III
SARA REBECCA ELROD
REBECCA ANN FLECHLER
ASHLEY AHRENS FLYNN
JAMES ROBERT FREEMAN
MICHAEL J GARTLAND
JIN KYUNG GILL
JAIME MICHELLE GILTNER
RODNEY D’WAYNE GLOVER
ROBERT SCOTT GOFF
KIMBERLY ANN GRASBERGER
SUZANNE ELIZABETH GRAVES
ELAINE LOUISE GUIDROZ
SHERIF GUINDI
JOHN D HAFNER
ADAM S HALL
RAYMOND BRYAN HART
JAMIE NICOLE HART
MICHAEL DESMON HAWKINS
DANIEL MARK HEADY
KEICIA ANN HEARN
RYAN FLYNN HEMMERLE
D ANDREW HEYMAN
REBECCA LYNN HOBBS
VINCENT MICHAEL HOLLOWAY
AMANDA BETH HOPPER
TAYLOR MARSHALL HUBBARD
MATTHEW TYLER HULL
SHERRY LEE-ANN HURLEY
MARK TERRELL HURST
LINDA ELIZABETH JACKSON
EMILY MARIE JANOSKI-HAEHLEN
ERIN KAYE MORRIS JONES
LEANN C JONES
KAROLYN THERESE KAELIN
JAMES AUSTIN KEENS
STEVEN TODD KEPPLER
EGAN PATRICK KILBANE
CHARLES KELLY KILGORE
JAY HUMSTON KNIGHT
JAMAL ABRAHAM KOURY
CORINDA KELLY KREBS
COURTNEY AARON LAGINESS
JOSEPH HUBERT LANGERAK IV
JEREMY CHRISTOPHER LAY
MATTHEW WILDER LORCH
JOEL DANIEL MANDELMAN
GARY DANIEL MCCOLLUM
BRIDGET THERESA MCNEESE
EDWINNA KAY SLONE MEISTER
LYNDOL SCOTT MILLER
CHRISTOPHER SCOTT MILLS
ANDREW JOSEPH MULCUNRY
CASEY JON NABER
WADE THOMAS NAPIER
GREGORY ALLEN NIELSEN
BRADFORD ALAN NILSSON
LINDA S . NOVAKOV
JODY MONROE OFFUTT
WILLIAM PAUL OLSEN
SCOTT L . OWENS
SHADETTE JUANITA PAGE
LIANNIE GALINA PARAHOO
BRUCE BENJAMIN PAUL
BRENNA LYNN KELLY PENROSE
ROBERT DAVID PINSON
JENNIFER ERIN PORTER
BRIAN STEPHEN POWERS
SYLVIA SISSUH QUAYS
AMBER M RAMANAUSKAS
KIMBERLY MICHELLE REYNOLDS
MATTHEW ALAN RICH
DONALD ROBERT RICHARDSON
SHANNON IVA RICKETT
BENJAMIN L RIDDLE
PENNY PRUITT RIDDLE
PASS LIST FOR FEBRUARY 2006 KY BAR
HEATHER CAMELIA ROBERTS
MATTHEW T ROSS
CRYSTAL GATES ROWS
MACKENZIE VICTORIA ROYCE
BRYAN W SCHAEFER
MATTHEW EDWARD SCHALK
JILLMARIE BAKER SCHERFF
JULIE ANN SCHOEPF
VANESSA L SEARS
JESSICA RUSSAK SHARPS
JENNIFER HALE SHEEHAN
ROBERT JOSEPH SHILTS
TERESA LYNN SOWARDS
TIMOTHY BERNARD SPILLS
MATTHEW LEWIS SROUFE
MARY MARGARET SULLIVAN
MICHAEL WELDON TACKETT
STACY LYNN TAULBEE
MATTHEW ADAM TAULBEE
TRACY JEAN TAYLOR
BRAD R TEETERS
TRAVIS W THOMPSON
SENTHIA DENESE TOWERY
SCOTT RICHETT TOWNSEND
ADAM RICHARD TRAUD
PHILIP JONATHAN TRUAX
DANIEL J URBON
MICHAEL S WADE
SUSAN ELIZABETH WALTERS
AMANDA JEAN WATERS
RENDA JILL WEBB
LINDA ANN WELSH
JONATHAN DALE WHITAKER
CHRISTOPHER DALE WILKIE
WILLIAM OTTO WILLIAMSON
MELISSA ANN WOLF
JAMES DANIEL WOOTON II
NICHOLAS ALEXANDER ZINGARELLI
 

State owes due care to motorists to erect guardrails, barriers, fences

Tuesday, April 18th, 2006

Com., Transp. Cabinet v. Babbitt, 172 S.W.3d 786 (KY, 2005)

The general rules as to liability for injury arising from a failure to maintain guard rails or barriers apply as to liability for damage to motor vehicles or injury to their occupants…. [T]he due care owed to motorists by the highway authorities may require the safeguarding of a dangerous place by the construction and maintenance of suitable barriers, guard rails or fences. While the failure to erect a barrier might not cause the accident, such a failure might be a substantial factor in aggravation of the injuries and, in that event, with proof of causation and negligence, the State will be liable.

The exercise of ordinary care is required, and guard rails need be erected only where their absence renders the highway unsafe for ordinary travel; the road presents an extraordinary condition or unusual hazard; the situation is inherently dangerous; a duty was voluntarily assumed; or the duty arises at common law or is specifically required by statute. Barriers need not be maintained where a dangerous or unusual condition does not exist.

9th Circuit asylum decision called premature – Immigration courts must address case first

Tuesday, April 18th, 2006

                     U.S. SUPREME COURT RULING ON IMMIGRATION 

San Francisco Chronicle – Tuesday, April 18, 2006

 

  The U.S. Supreme Court on Monday set aside a San Francisco federal appeals court’s decision that allowed a South African couple from Southern California to seek political asylum on the grounds that their family was being singled out for persecution. 

In a unanimous, unsigned ruling, the high court said the central question in the case — whether persecution of a family is a basis for asylum — must first be addressed by immigration courts, an arm of the Justice Department, before federal judges can review it. The court said the ruling in the case by the Ninth U.S. Circuit Court of Appeals in San Francisco was premature. 

The court did not discuss whether the couple, Michelle and David Thomas, and their two children were eligible for asylum. That question will now be reconsidered by the immigration courts, which have previously ruled against the Thomases and ordered their deportation. 

The Thomases are white. Michelle Thomas testified that her husband’s father, a construction company foreman known as “Boss Ronnie,” was a brutal racist whose black workers took out their anger on her family. 

Among other things, she said, their dog was poisoned, their car was vandalized, a black man wearing overalls with the company name threatened to kill her, and a group of black men tried to grab her baby daughter out of her arms. 

The family entered the United States in May 1997, settled in Ventura County and applied for asylum when their visa expired, arguing that their treatment in South Africa amounted to persecution because the government was unable or unwilling to protect them. 

The Thomases claim they are covered by a U.S. federal law making asylum available to those who face persecution because of their membership in a “social group,” a phrase the law does not define. Courts have recently interpreted the term to include gays and lesbians and, in some circumstances, abused women. 

In the Thomas case, the appeals court ruled 7-4 in June that a family, persecuted because of its relationships, can constitute a social group. 

However, the judges said immigration courts still had to resolve some issues regarding the Thomases, including whether the South African government could protect them, before a final decision on their eligibility for asylum could be made. 

Justice Department lawyers argued that a family could not be a social group and that, in any event, the issue should first be decided by the immigration courts. The Supreme Court agreed that the appeals court in San Francisco should have refrained from addressing the issue until the immigration courts considered it. 

Errol Horwitz, a lawyer for the family, said the ruling was puzzling in two respects: The family’s claim of persecution was aired at an initial hearing before the immigration judge, and an immigration appeals board ruled in a separate case in 1985 that persecution based on “kinship ties” can be grounds for asylum. 

“I believe a social group must include a nuclear family,” Horwitz said. “That’s the most classic of all social groups.” 

The case is Gonzales vs. Thomas, 05-552. 

 

Useful links for finding answers to your legal questions

Tuesday, April 18th, 2006

We have posted links to some very useful legal resources available on the Internet.  One site sponsored by LawGuru offers answers to over 100,000 legal questions asked and answered by lawyers and then posted on their site. This might be a method for you to find an answer when nothing else seems to work.  They also allow you to submit questions for other lawyers to comment on and hopefully answer.  We suggest you check out LawGuru and other sites by going to the LawReader page: INTERNET LAW – INTERNET LEGAL RESEARCH AND RESOURCES
 
       INTERNET LEGAL RESEARCH AND RESOURCES
 
Home Page   LawGuru.com – This valuable resource offers many free services.  They charge for their legal forms however.    We recommend that you check out LawReader’s Forms Library before you buy a form.  We probably have it for free. Go to: LAWREADER FORMS
 

Search Q&A Database
Over 100,000 answers to legal questions  – This is an interesting resource.
 

Ask A Question
The BBS and LawGuru Legal Forums are free services provided by LawGuru.com. There is no cost to submit questions or posts, to respond to questions or posts or to look up past questions and answers.
 

Join Attorney Network
Expand your law practice while becoming a part of the world’s biggest online community for lawyers. Join the LawGuru.com Attorney Network. Our Network is already home to roughly 5,000 law firms and sole practitioners in the U.S. and around the world. As a member you will receive legal questions submitted by our users that are specific to your practice area and geographic location. Respond only to those questions you like, there are no obligations. Members also enjoy placement in our Attorney Directory. Registration is fast and easy — join today! (Registration is contingent upon your agreeing to all terms and conditions of use.)
Internet Law library  The site provided links to a large number of legal resources
relating to American (federal and state) and foreign laws.
 
LEGAL NEWS
 

US Legal News
UK Legal News
News Archives
JusticeDaily.com
 
 Multiple Search Tool  Our Multi Resource Legal Research pages allow you to search various legal resources from one easy search window and interface. This feature allows you to search more than one Federal Circuit at a time (as does our FastCase data base.  But this has an interesting combination of data bases that may save you some time.
Currently you can search:
Multiple State Codes and Statutes
This tool allow you to search multiple codes from different states from the same search box one at a time.  New States Added
Multiple State Codes and Statutes (Java)
Search multiple codes from different states all at the same time. You will need a Java enabled browser.  New States Added
Multiple State Court Opinions
This tool allow you to search multiple state Court opinions from the same search box one at a time.
Multiple State Court Opinions (Java)
Search multiple state Court opinions (from different states) all at the same time. You will need a Java enabled browser.
Multiple Federal Court Opinions
This tool allow you to search Federal Court Opinions, including U.S. Supreme Court and U.S. Circuit Court Opinions from the same search box one at a time.
Multiple U.S. Federal Courts and Codes Search (Java)
Search multiple U.S. Federal Court opinions and codes all at the same time. This tool allows you to search US Supreme and Circuit Court Opinions, as well as US Codes. You will need a Java enabled browser. 
Simply go to one of the above resource, select the state or resource, enter your query in the window next to it and start your search.
Please understand that due to the programming involved and the different ways the search engines and databases work, we can only offer a limited number of searches per category. A much bigger collection of search forms for numerous legal resources can be found in our extensive Legal Research Section which contains all of the individual search forms available here plus hundreds more.
Article Library  Interesting articles on many legal topics

Rominger Legal Services legal link page provides legal research links, case law, statutes, regulations, and other law related information.
http://www.romingerlegal.com/

 

 

Lawyer Ron to meet Sinister Minister in Derby – Who are you rooting for

Monday, April 17th, 2006

LawReaders pick for the Ky Derby   Lawyer Ron…won the Arkansas Derby this last week…at the same time Sinister Minister won the Bluegrass Stakes…both are respected Derby tests.

We suggest that Lawyer Ron can be imagined to represent the general practice lawyers while Sinister Minister may be thought by some to represent (1) prosecutors (2) civil defense lawyers (3) judges (4) legislators who killed the Law Student scholarship bill (4) make up your own fantasy opponent….

So Lawyer Ron met the evil forces of Sinister Minister on May 6th. Who will win….who should win…send us your thoughts. Tell us who you think should represent Sinister Minister.

How to get a human to answer the phone.

Monday, April 17th, 2006

Tired of calling a large corporation and trying to get someone to listen to you? Tired of punching numbers to select an option that never seems to fit your problem?  Well there may be a way that you can speed your way to a real human who may be more likely to answer your questions.
 

Getting to a human

Once you have a phone number, here are some tips to try to get through the computer to get to a live human:

  1. Interrupt. Press 0 (or 0# or #0 or 0* or *0) repeatedly, sometimes quickly. Unfortunately the same keystroke does not always work for each company. Many IVRs will connect to a human after a few “invalid entries”, although some IVRs will hangup. :-(
  2. Talk. Say “get human” (or “agent” or “representative”) or raise your voice, or just mumble. :) The IVR might connect you to a human after one of these key or unknown phrases.
  3. Just hold, pretending you have only an old rotary phone.
  4. Connect to account collections or sales or account cancellation; they always seem to answer quickly.

First ask them for their name and rep number (so they know you are writing it down, and thus so they are more likely to help you.)
Then ask them to transfer you to the department you need. Sometimes they will put you ahead of the queue, although sometimes they will send you to the end (and thus in those cases this tip is useless).

  1. Toll call. For credit cards, if the expected wait time is too long, hangup and try to call back on their non-toll-free number, as they often have shorter queues.
  2. Selecting the option for Spanish will sometimes get you a bilingual human more quickly than if you just waited for an English-only operator.

When you do finally find a human, ask them how to connect directly the next time (in case your call gets disconnnected etc), and be sure to tell us so we can then list their number here. :-) .
If one of the above does not work, see the gethuman database.
More information is found at: www.gethuman.com
This site offers suggestions on how you can get a real person online to help.
 

LawReader has annotated the KRS – Beats West and Lexis in speed of search -cites FastCase as their secret weapon

Monday, April 17th, 2006

LawReader announces completion of a year long project to annotate the entire Kentucky Revised Statutes. The project is called of course: KRS Annotated.  The project involved the work of  our Senior Editor Stan Billingsley, formatter/coders  Shelly Chappel and Dana Deatherage, one para-legal and five contract attorneys.
We counted the statutes we worked on and discovered that there are 27,738 statutes listed in the KRS.  Our new data base contains over 40,000 pages and over 75,000 annotations.Judge Billingsley credited their use of the FastCase case law data base with allowing the project to be completed so quickly, “FastCase has a number of features that remembers your preferences and cuts out seveal steps on repetitive searchs. When you multiply the elimination of 2 or 3 entires for each search times some 28,000 search, you can see why our researchers loved FastCase. It was our secret weapon.”
The result of this project is that researchers can now find a Kentucky statute on LawReader faster than on any other online source. We have tested West and Lexis and the tests reveal that statute searches are much faster with LawReader.  The marriage of a traditional index along with a search engine is the best way to allow a researcher to focus their search and avoid irrelevant hits.
Billingsley explained, “We designed our project to provide a detailed index describing at the first level the general content of each of the 51 titles of the KRS, then at the next level to describe the general content of each statute.   This allows the user to have a general understanding of each Title, Chapter and Statute before opening them.  This provides a very real shortcut to the information you are seeking.
We also configured a search engine (found at the top of KRS Annotated) that allows you to enter a statute number or legal topic wording to direct you to the Chapter in which that statute or topic is located.   Other online services only provide you with a search engine…and this requires that you have a lot of missed searches as you search for the “magic words? that describe the topic you are searching.”
At the top of the KRS Annotated page, you will find links to new laws adopted by the 2006 legislature and those new laws will be added to the data base as soon as they officially become effective and are codified by the LRC Reviser of Statutes…this usually occurs about 60 days after the end of the session.
We have added to this search engine the Rules of Civil Procedure, Rules of Criminal Procedure and Rules of Evidence.  New indexes have been created for the Rules to permit easier navigation.  At the top of the KRS Annotated page, you will find links to new laws adopted by the 2006 legislature and those new laws will be added to the data base as soon as they officially become effective and are codified by the LRC Reviser of Statutes…this usually occurs about 60 days after the end of the session.We have added to this search engine the Rules of Civil Procedure, Rules of Criminal Procedure and Rules of Evidence.  New indexes have been created for the Rules to permit easier navigation.
We have also added a new Quick Index to the Ky. Administrative Regulations (KAR). The end result is one that we are proud of at LawReader.  Please give us your feedback.
You may view the Main Index of KRS Annotated at KRS ANNOTATED w/ Search Engine.  To actually search a statute or rule, you must be a subscriber to LawReader.   To sign up please go to www.lawreader.com.      
 

 

Continued attack on the legal profession – Senate cuts off funds for low-income law students and strips $5 million from Judicial budget

Saturday, April 15th, 2006

The Kentucky Senate cut a program that provides scholarship money for low-income students at Kentucky’s three public law schools  .
 The Kentucky Legal Education Opportunity program, developed by Kentucky Supreme Court Chief Justice Joseph Lambert, was intended to increase the number of low-income and educationally disadvantaged students at law schools at the universities of Kentucky and Louisville and Northern Kentucky University.
 The program was funded in 2002, and this year had requested $250,000.   The House included the $250,000 for the program in its budget, but the Senate took the money out.
The Lexington Herald reported that “Relations between the GOP-led Senate and the judicial branch haven’t been smooth lately. Senate Republicans proposed a constitutional amendment that would have limited Kentucky judges’ ability to rule on certain issues. And Lambert and a majority of the Supreme Court also ruled against Senate President David Williams in a court fight over a contested Louisville Senate seat.?

The Courier Journal reports that $5 million dollars was cut from the Judicial budget.  It is speculated that this was a State Senate payback for the Sup. Ct.’s ruling declaing Seum-Stephenson as ineligible as a candidate due to the fact she was a resident of Indiana. 

 

Decisions of Ky Court of Appeals for April 14, 2006

Friday, April 14th, 2006

Important cases issued by Ky Court of Appeals on April 14, 2006

To read synopsis and full text of these decisions : COURT OF APPEALS DECISIONS FOR APRIL 14, 2006 25 DECISIONS – subscription area….If you are not a LawReader user you can sign up from our home page and be online in five minutes, go to www.lawreader.com

1 TO BE PUBLISHED: the appellants have not produced evidence that would compel the granting of their petition for a zoning map amendment – “In an administrative or legislative context . . . the concept of impartiality is, by necessity and by function, more relaxed and informal.?
2 An accusation of perjury must be supported by an allegation that the defendant knew that his or her statement was false when the statement was made.3“[T]he clear language of the rule allows the trial judge complete discretion as to the use of a commissioner’s report.?
4 filing a 404(b) notice one day before trial does not, under most circumstances, constitute “reasonable pretrial notice.?5 A probation revocation proceeding “is not a part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole

revocations.”

6 the circuit court adopted the commissioner’s recommendation that “[t]here is no clear testimony or evidence of record that demonstrates that the roadway has been damaged or altered.

7… we agree with the trial court that the brief delay (In removing the baggie from the person of the defendant) following Officer Morse’s discovery of the baggie does not take the seizure outside the scope of the plain feel exception.

8 TO BE PUBLISHED: Even had Community Trust discovered the lien by exercise of due diligence, it should be granted priority over the judgment creditor’s lien due to its status as a purchase money lender.

9 Because we have already determined that Hoskins failed to introduce evidence of an apparent agency relationship, these issues are all without merit.

10 the circuit court was not modifying custody but actually determining custody after having set aside the separate agreement relative to custody (therefore Fenwick not applicable here)

11 the court should have conducted an evidentiary hearing to determine whether actual authority to negotiate a settlement was given to attorney

12 trial court’s decision that the (husbands $510,000 bonus received three days after the property settlement was signed does not justify setting aside the property settlement). (The courts finding that) the bonus was not an undisclosed asset is supported by the record. This means that we may not find it to be clearly erroneous. (Wife’s attorney overlooked this one.)

13 A prima facie case of retaliation requires a plaintiff to demonstrate “(1) that plaintiff engaged in an activity protected by Title VII; (2) that the exercise of his civil rights was known by the defendant; (3) that, thereafter, the defendant took an employment action adverse to the plaintiff; and (4) that there was a causal connection between the protected activity and the adverse employment action.?  14 we do not believe that a reclassification was required in this case and conclude that the decision of the Personnel Board should be upheld.

15 Because the law of the case doctrine bars this appeal, we must dismiss
16 TO BE PUBLISHED:  The time period for recoupment (of overpaid Medicaid benefits) shall not exceed twelve (12) months from the date the overpayment is established, and shall be accomplished within twenty-one (21) months from the end of the provider’s cost reporting period .17 Sharon has presented nothing to show that the trial court’s decision to reduce Steve’s child support was contrary to the evidence or the law
18
11.42 motion denied – the violent offenders’ statute, KRS 439.3401, requires that he serve eighty-five percent of his ten-year sentence – or eight and one-half years — prior to becoming eligible for parole.19“[i]f one fences and takes possession of a neighbor’s land, the only way that the neighbor can stop the running of the statute of limitations is by retaking possession or instituting suit within the statutory period. Mere words will not be sufficient.?

20 substantial evidence supports the circuit court’s findings of fact. Accordingly, the circuit court’s determination that Winkle was competent to stand trial was not clearly erroneous.

21 Judgment n.o.v. upheld due to lack of evidence.
22 TO BE PUBLISHED:  Neither (Dr. Park)  or Cape have sufficient minimum contacts (as described in KRS 454.210(2)(a)(4)) such as the regular conduct or solicitation of business in Kentucky, to justify the exercise by the courts of this Commonwealth of personal jurisdiction over him. Medical services were preformed by Missouri physician in Missouri…Ky.’s long arm statute did not apply.) 23 TO BE PUBLISHED:  the distinction made by New Jersey’s highest court between prohibitory and affirmative (Domestic Violence)  orders represents the fairest balance between protecting the due process rights of the nonresident defendant and the state’s clearly-articulated interest in protecting the plaintiff and her child against domestic violence. (Ky. Court has jurisdiction over non-resident for some DV purposes but these are limited….)
24 …because the Board lacked authority to make factual findings, such as Johnson’s injury onset date, it vacated the ALJ’s decision as to the right elbow and remanded the claim foradditional findings consistent with the evidence. That portion of the Board’s opinion is the subject of Bluegrass Cooperage’s petition for review.
25 60.02 motion not filed within reasonable time, and must be dismissed

Judicial candidates encouraged to avoid issue surveys

Friday, April 14th, 2006

Reprinted from the Lexington HERALD-LEADER

 

 A non-partisan group seeking to protect the integrity of the courts is asking judicial candidates to be wary of answering issue questionnaires from special-interest groups. 

The Kentucky Judicial Campaign Conduct Committee, formed by Chief Justice Joseph Lambert, says answering issue surveys may create a perception that a candidate is committed to ruling a certain way on particular cases if he’s elected. The committee is sending a letter to every candidate in the more than 200 judicial races in Kentucky this year. 

The appearance of commitment “threatens the cornerstone of the judicial system — the independence of judges, and the ability to remain free of outside influence,” the letter states. 

Not answering surveys could help judges prevent some motions for recusal by attorneys, according to the letter.

 

 The letter was welcomed by some judicial candidates but criticized by a socially conservative activist who says voters deserve to know a judge’s legal and constitutional philosophies. 

“The force of the committee’s announcement this week is going exactly in the wrong direction — chilling the free speech of judicial candidates and silencing good-faith answers,” said Kent Ostrander of The Family Foundation, a Lexington non-profit that promotes conservative causes. “We, as a state, have been inching our way forward to greater openness of speech for judicial candidates.”

 

 

Ostrander said he agrees that candidates should not make pledges on how they might rule. But he said the letter is not in the spirit of the committee’s mission or federal court decisions lifting restrictions on judicial campaign speech.

 

 

“Why has the committee not encouraged judicial candidates to be more forthcoming?” Ostrander asked. “Or given them suggestions as to how to better communicate who they are as candidates?”

 

 

The letter says voters have a right to ask candidates for their views on issues and candidates have the right to answer them. But it tells candidates not to feel obligated to answer and promises to defend those who do not.

 

 

Organizations should not claim that candidates are shortchanging voters by not answering such questions. “We are prepared to reiterate these views if particular candidates are so criticized for not answering questionnaires,” the committee says.

 

 

University of Kentucky law professor William Fortune, a committee member, said the letter was sent after the Kentucky Right to Life Association PAC mailed a questionnaire to candidates last month.

 

 

The PAC’s survey says that candidates should not make pledges. But it also says voters need to know a candidate’s views to make an informed decision on their “general views on the law and personal values.”

 

 It also says that PAC representatives want to meet with candidates. 

Supreme Court Justice John Roach has chosen not to respond to the survey, campaign manager Cary Black said.

 

 

Roach will not answer questions about specific cases or his views on an issue or policy, Black said. The justice does not want to have to recuse himself from cases that may come before him, he said.

 

 “However, Justice Roach does believe it is appropriate to discuss his judicial philosophy or the appropriate role the courts should play within our system,” Black said. 

Even if such questions are asked by special-interest groups, Black said.

 

Fayette Circuit Judge Mary Noble is running against Roach, who was appointed by Gov. Ernie Fletcher last year. Noble did not return phone calls for comment. 

Candidates for two open family court seats in Fayette Circuit Court said they won’t answer special-interest group surveys.

 

 Attorney Foster Ockerman Jr. says he has no problems answering questions about his experience, family or civic involvement. He won’t voice his opinion on issues. 

His opponent, family mediator Lucinda Masterton, did not return phone calls seeking comment.

 

 

Lawyer John Schrader says he won’t respond to surveys — even to say that he can’t answer the questions. “I don’t like not responding to a communication sent to me because it appears rude,” he said. “I feel the best way to protect the integrity of the judiciary is not to respond to them.”

 

 Lawyer J. Ross Stinetorf, his opponent in the family court race, agrees. 

“We don’t want to turn judicial races into the things that partisan races are,” he said. 

 

Justice Lambert elected to third term as Chief Justice

Thursday, April 13th, 2006

FRANKFORT, Ky., The justices of the Supreme Court of Kentucky voted yesterday to elect Chief Justice Joseph E. Lambert to a third four-year term as Chief Justice, which will begin Oct. 2, 2006. The Kentucky Constitution provides that the justices of the Supreme Court shall elect one of their number to serve as Chief Justice for a term of four years.

“I am grateful for the continued confidence of my colleagues,” said Chief Justice Lambert. “I appreciate the opportunity to follow through on the important initiatives being carried out by the Kentucky of Court of Justice.”

Chief Justice Lambert joined the Supreme Court in 1987 after begin elected by the citizens of the 3rd Supreme Court District, which is comprised of 27 counties in Southcentral Kentucky. He was named Kentucky’s fourth chief justice in 1998 by a vote of his Supreme Court colleagues. The justices voted again on April 15, 2002, to elect him to a second term which began Oct. 2 of that year. Chief Justice Lambert’s current eight-year term as a justice of the Supreme Court runs through 2010.

During his tenure, Chief Justice Lambert has focused on implementing cutting-edge programs in technology, court records, judicial education, justice facilities, pretrial services, promotion of women, and Family and Drug courts. As a result, the Kentucky court system is proving to be one of the Commonwealth’s finest achievements. Chief Justice Lambert counts among his most significant accomplishments the 2002 passage of the constitutional amendment that made Family Court a permanent part of the Kentucky Constitution.

The Kentucky Bar Association named him Outstanding Judge of Kentucky in 2000. He received the Leadership Award from the National Association of Drug Court Professionals in 2000. He was given the Kentucky Public Advocate Award in 2001. In 2003, he was awarded the Kentucky Bar Association President’s Special Service Award. In 2004, he received the Civil Rights Award from both the Northern Kentucky NAACP and the Lexington NAACP for his commitment to eliminating discrimination.

Chief Justice Lambert serves on the boards of the National Conference of Chief Justices and The Center for Rural Development in Somerset, Ky., He is chair of the board for the Rockcastle Hospital and Respiratory Care Center in Mt. Vernon, Ky., He holds a bachelor’s degree from Georgetown College, Georgetown, Ky., , and a juris doctor from the University of Louisville Brandeis School of Law, which gave him its Distinguished Alumni Award. He is a native of Rockcastle County and lives in Mt. Vernon with his wife, Debra, a Family Court judge for Lincoln, Pulaski and Rockcastle counties. They have two sons, Joseph and John. 

POWER PLAY ON KY. SUPREME COURT TO REPLACE LAMBERT REPORTED  BLUEGRASSREPORT reported earlier this week of a movement among Justices to replace Lambert as Chief Justice. Nevertheless, the choices came down to Justice Scott, a very conservative new member of the court from Pikeville and Justice Lambert, no other candidate met the qualifications of being able to serve a four year term and being presently on the court.  All other current members of the Supreme Court have either announced their retirement are up for election…it appears that five of the seven seats on the Ky. Supreme Court will be occupied by new members.

Kentucky District judges attend conference on traffic safety and DUI

Thursday, April 13th, 2006

FRANKFORT, Ky., April 11, 2006 ― Over 80 District Court judges attended the 2006 District Judges Conference on Traffic Safety hosted by the Kentucky Court of Justice. The conference was held March 26-29 at the Embassy Suites Hotel in Lexington, Ky. 

“Impaired driving almost always affects innocent people and results in some of the most complex cases for judges to handle,” said District Judge Steve D. Hurt, president of the Kentucky District Judges Association, vice chief regional district judge for the Third Supreme Court District and chief district judge for Cumberland and Monroe counties. “This conference offered practical guidance on how to handle cases involving impaired and illegal driving.” 

 

The conference was funded by a grant from the Kentucky Governors’ Highway Safety Program, which receives federal support from the National Highway Traffic Safety Administration (NHTSA). NHTSA recommendations have become the foundation for Kentucky’s DUI Gold Standards Program. Judges, prosecutors and other law enforcement professionals developed the Gold Standards Program as a means to improve highway safely and reduce impaired driving. During the conference, judges took part in sessions related to many of the Gold Standards, including presentations on promising judicial practices for fighting hardcore drunk driving, commercial motor vehicle standards and DUI, pretrial monitoring and risk assessment for DUI cases, and judicial outreach in underage drinking cases. 

 

Those presenting at the conference included William P. Georges, senior vice president of programs for The Century Council, a national organization dedicated to fighting drunk driving and underage drinking; Judge Karl Grube of Pinellas County Court in Florida; Tom Langhorne, past president of the National Association of State Judicial Educators; Judge Robert Pirraglia of the Rhode Island District Court; Kentucky District Judges Vanessa Dickson, Shan Embry, Kevin Holbrook, Tom Lively, John McCarty and Karen Thomas; and Therese Richerson, coordinator of the Kentucky State Police Gold Standards Project. 

 

District Court is a court of limited jurisdiction which hears civil cases involving $4,000 or less, non-felony traffic offenses, juvenile matters, city and county ordinances, misdemeanors, cases relating to domestic violence and abuse, guardianships for disabled people, probate of wills and felony preliminary hearings. The Small Claims Division is part of District Court’s jurisdiction and informally handles matters with a value of $1,500 or less. The Administrative Office of the Courts in Frankfort supports the activities of more than 3,400 Kentucky Court of Justice employees, including elected justices, judges and circuit court clerks. 

### 

 

Governor removes gay discrimination protection in state hiring practices

Thursday, April 13th, 2006

On a day dedicated to celebration of the diversity in our society, Gov. Fletcher by executive order removed a prohibition in state hiring practices against discrimination against gays. This suggests that it will be okay for the state to fire/or not hire anyone who is gay.  This may be explained by the words of John Travoltas character in Saturday Night Fever, “Everybody has to dump on someone.?
 In a guest editorial to the Louisville Courier-Journal, a gay Republican wrote:
 ‘Stop this unbridled extremism’
By Jimmy LaSalvia   Reprinted from  The Courier-Journal
You know Election Day is approaching when some Kentucky Republican leaders try to use gay and lesbian Kentuckians in pursuit of electoral success. They’re conditioned to think the gains they made in 2004, when Kentucky passed a constitutional amendment banning civil marriage equality, are possible again if they continue attacking gay people. However, this playbook isn’t going to work again.
The latest anti-gay attack came this week when Ernie Fletcher, one of the nation’s most unpopular governors, reversed previous state policy by removing employment protections for state employees, the effect of which is to permit discrimination based on sexual orientation. I’m not sure how he kept a straight face when he declared it “Diversity Day” and then made it easier to discriminate against gay and lesbian people. He actually had the nerve to say, “It is our diversity that gives us strength.” When you misuse words, they lose their meaning.
The Governor justified his decision by saying his administration is merely following federal standards, which he says don’t officially recognize gay and lesbian workers as a “protected class.” The Governor is wrong. In fact, his assertion flies in the face of 30 years of precedent and is inconsistent with a federal government executive order supported by President Bush. “Long-standing federal policy prohibits discrimination against federal employees based on sexual orientation,” the White House said in a statement last year. “President Bush expects federal agencies to enforce this policy and to ensure that all federal employees are protected from unfair discrimination at work.”
Unfortunately, Fletcher isn’t the only Republican relying on anti-gay politics as a re-election strategy. Last month, the state Senate tried to pass a constitutional amendment that would have abolished local ordinances in Louisville, Lexington and Covington that ban discrimination based on sexual orientation. Then, they passed a budget awarding $11 million dollars to the University of the Cumberlands to establish a pharmacy school. That’s the school that has drawn national attention for expelling a student simply because he is gay. The public funding is being pushed by Sen. David Williams, R-Burkesville, as an “economic development initiative.” Of course, any potential economic development benefit could be lost because the pharmacy school at Cumberland likely won’t get accredited, since its gay discrimination policy conflicts with guidelines of the Accreditation Council for Pharmacy Education.
Some Republicans might think that making our commonwealth the most anti-gay state in the country will help them at the polls, but they’re harming the state’s economic future. Are they saying to Wall Street, “Bring your investments to Kentucky”? Are they saying to tourists, “Spend your tourism dollars here”? Are they saying to meeting planners in other states, “Plan your conventions in Kentucky”? The answer to all of those questions is NO. Research shows that anti-gay public policy is bad for business. Unfortunately, some politicians have convinced themselves that it’s good politics. They are wrong.
An extreme anti-gay agenda will hurt our party this November and in 2007. The “base” isn’t a majority. Fair-minded conservatives want to support hopeful candidates who unify voters with a positive agenda that promotes prosperity and creates a strong future for the state.
Fair-minded Republicans across the commonwealth have risen to prominent positions in their communities and in our party organization. Their time for bold action and leadership is now. It’s time for this new generation of leaders to step up, take the reins of our party, and stop this unbridled extremism. This bold action won’t be easy and requires tremendous political courage. Those party leaders willing to risk political capital and even their careers today will reap the benefits of a larger, stronger and more broad-based Republican Party in the future. It’s the right thing to do.
Jimmy LaSalvia is the president of the Log Cabin Republican Club of Kentucky, the statewide affiliate of the nation’s largest organization of Republicans who support fairness and equality for gay and lesbian Americans.
 

Legislature adjourns – Effort to reduce small-business tax fails

Thursday, April 13th, 2006

 The clock ran out Wednesday night on an effort to ease the burden of Kentucky’s unpopular alternative-minimum business tax as the state House and Senate were unable to reach a compromise.

The legislature adjourned at midnight, ending its 2006 session, without the two chambers agreeing on how to address the issue.

The failure of House Bill 295 “was very disappointing,? said Tom Underwood, state director for the National Federation of Independent Businesses, who predicted that legislators would hear from unhappy constituents. “I think that you’re going to see small business redouble their efforts to get something done.?

Both chambers had agreed that changes were needed in the bill, which was passed last year and left some businesses owing taxes even if they made no real profit. But the House and Senate locked horns over details of the measure, with each approving different versions.

The House, controlled by Democrats, had passed a bill that exempted businesses with less than $3 million in annual gross profits. The Republican-controlled Senate version cut the exemption to $500,000 with tiered rates for gross profits of up to $5.75 million.

Gross profit is a company’s revenue before expenses such as overhead and payroll, so that a business might have substantial gross profits, but little or no net profit.

The House bill had paid for its tax reduction by delaying next year’s scheduled cut in the top corporate tax rate to 6 percent from 7 percent. Gov. Ernie Fletcher and Senate leaders had opposed the delay, saying it would renege on promises and make it harder to recruit new businesses to Kentucky.

Senate Republican Leader Dan Kelly said the Senate also worried that the House bill created a “cliff? in which a company exceeding the $3 million exemption by just $1 would find itself suddenly liable for taxes on all of the profit and would be hit with a bill of more than $24,000.

Both sides had agreed on changes that would have made Kentucky’s tax compatible with the federal tax structure. It would restore the “flow-through? provision that lets company profits and losses pass directly to owners and be taxed on individual returns.

Mortgage payments, charitable contributions or other deductions could thus reduce taxes, and losses from one business could offset profits from another.

Late in the evening, the Senate voted 18-10 to approve a minority report from the House-Senate conference committee that endorsed a Senate version of the tax bill.

In the House, representatives used a different tactic to highlight its version of the measure. The House rewrote Senate Bill 245, which originally dealt with a substance abuse recovery program to also include a House version of the tax bill. The bill passed 87-0.

Neither the Senate nor the House maneuvers were approved by the opposite chamber, dooming efforts to revise the business tax.

“There are a lot of people who worked awful hard on this, and we just didn’t make it,? said Rep. Bill Farmer, R-Lexington, one of the sponsors of the original House bill.
 Reprinted from The Courier-Journal  April 13, 2006

 

LawReader Picks Lawyer Ron as Our Derby Horse

Thursday, April 13th, 2006

   We like Lawyer Ron for the 2006 Kentucky Derby to be run at 5:30 p.m. on May 6th. at Churchill Downs.  We have used jockey’s names, our lucky numbers, and sometimes a method of always betting the second favorite in the odds to show.  There are many other schemes for picking winners (i.e. losers) at the races.
    Lawyer Ron is a chesnut, son of Langfuhr, and has won the Southwest Stakes and Grade III states at Oaklawn.
    In Kentucky it is written somewhere in our citizenship duty list, that we always cry at the playing of My Old Kentucky Home, and we always have a favorite for the Ky. Derby.  This year is no different.
   Lawyer Ron will run in this weeks Arkansas Derby where he is a 7-5 favorite.  The last two winners of the Kentucky Derby have first won the Arkansas Derby.  Perhaps this is a good basis for justifying our selection.  But mainly, we just like the name.

 

 

6th. Circuit Reinstates suit against City of Louisville

Wednesday, April 12th, 2006

The Sixth Circuit Court of Appeals rules that one-on-one police line up was inherently unreliable and that witholding of exculpatory evidence which caused the detention of the plaintiff without probable cause justifies civil rights claim under Section l983 and state laws. 

 Gregory v. City of Louisville, Nos. 04-5856/5859/6482, U.S. Court of Appeals for the Sixth Circuit, 4-11-2006.

 

The Sixth Circuit Court of Appeals reinstated the lawsuit of William T. Gregory against the City of Louisville.  The claim resulted from the improper use of a one-on-one witness identification, and the failure to disclose exculpatory evidence which favored the defendant. Gregory served eight years in prison before being released.  This decision was released on April 11, 2006.

 

This decision discusses important issues regarding police line ups, and the duty of the police to disclose exculpatory evidence.  The court reinstated the lawsuit filed under 42 U.S.C. § 1983 and various state civil rights laws, by Gregory against the City of Louisville and against several of the police officers involved.

 

 

CLICK HERE FOR FULL TEXT of this decision
To read full text go to: SYLLABI OF RECENT SIXTH CIRCUIT COURT OF APPEALS
WILLIAM THOMAS GREGORY,
Plaintiff-Appellee/Cross-Appellant
(04-6482),
v.
CITY OF LOUISVILLE; LOUISVILLE DIVISION OF POLICE; HOPE GREER; DARRELL AMMON; WAYNE KESSINGER; JAY PIERCE; EUGENE SHERRARD; LUANNE THOMAS,
Defendants-Cross-Appellees (04-6482),
DAWN ROSS KATZ,
Defendant-Appellant (04-5856)/
Cross-Appellee,
JOE CARROLL; STEVE CLARK; JOHN TARTER,
Defendants-Appellants (04-5859)/
Cross-Appellees,
JOHN VANCE, et al.,
Defendants.
Nos. 04-5856/5859/6482

Appeal from the United States District Court
for the Western District of Kentucky at Louisville.
No. 01-00535—Thomas B. Russell, District Judge.
Argued: October 26, 2005
Decided and Filed: April 11, 2006
Before: SILER and CLAY, Circuit Judges; MILLS, District Judge.
CLAY, Circuit Judge. Plaintiff, William Thomas Gregory, and Defendants cross appeal March 29, 2004 and June 22, 2004 orders entered by the United States District Court for the Western District of Kentucky which ruled on the parties’ cross-motions for summary judgment in this action by Plaintiff for violations of his civil rights under 42 U.S.C. § 1983 and various state laws. The orders below dismissed Plaintiff’s claims entirely against the municipal and supervisory Defendants, denied other Defendants absolute or qualified immunity, and dismissed certain claims as unsupported by the record.
For the reasons set forth below, this Court AFFIRMS in part and REVERSES in part the orders of the district court.
EXCERPTS FROM COURTS DECISION:
3. Custom of Overly Suggestive Show-ups
 

Plaintiff also alleges that the City had a custom of using overly suggestive show-ups and that the City failed to train its officers in proper identification techniques. The district court dismissed this claim, finding that Plaintiff had failed to make a showing of other complaints about the City’s use of show-ups. In so holding, the district court overlooked both facts in this case and a significant prong of this Court’s jurisprudence. First, Plaintiff need not present evidence of a pattern of complaints consistent with his own if he presents evidence of a written policy unconstitutional on its face. Monell, 436 U.S. at 692-94. The facts of this case show that the City’s written line-up “waiver? form is direct evidence of a custom or practice, obviating the need for circumstantial evidence a court might otherwise seek. See id. Second, Plaintiff need not present evidence of other complaints if he can show that the City failed to train its officers in proper identification techniques, and that such failure to train had the “obvious consequences? of leading to constitutional violations of the sort experienced by Plaintiff. See Cherrington, 344 F.3d at 646.

 

One-on-one show-ups are inherently suggestive. Cf. Stovall v. Denno, 388 U.S. at 302; see also Webb v. Havener, 549 F.2d 1081, 1086-87 (6th Cir. 1977); Haynes v. Bell, No. 96-6443, 1998 U.S. App. LEXIS 9377, at *9-10 (6th Cir. May 6, 1998) (unpublished opinion). Yet the “primary evil? to be avoided with identification procedures is any “substantial likelihood? that an “irreparable misidentification? will take place. See Neil v. Biggers, 409 U.S. at 199-200.

 

 Therefore the Supreme Court has refused to find show-ups per se unconstitutional. Rather, the Supreme Court has directed us to look to the totality of the circumstances to understand whether an identification made during a one-on-one show up is otherwise reliable. Id. The Supreme Court has directed us to look to 1) the opportunity of the witness to observe the perpetrator during the crime, 2) the witness’ degree of attention, 3) the accuracy of the witness’ prior description of the perpetrator, 4) the level of certainty demonstrated by the witness at the identification, and 5) the length of time between the crime and the confrontation. Id. We note that the Supreme Court’s directions to the courts can also be stated in the inverse: show-ups are never per se constitutional.

 

The Supreme Court’s teaching makes it clear that a failure to consider the totality of the
circumstances, and the indiscriminate use of one-on-one show-ups, would have the obvious Nos. 04-5856/5859/6482 Gregory v. Louisville, et al. Page 24
consequences of constitutional violations. “The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned.? Stovall, 388 U.S. at 302. This condemnation exists because show-ups exacerbate weaknesses already existing in eye-witness identification. See Marshall v. Rose, 499 F.2d 1163, 1165 (6th Cir. 1974) (“[T]he danger inherent in eyewitness identification has long been a subject of grave concern.?) By presenting only a single suspect to a witness, police convey an implicit message that “this is the guy.? See Foster v. California, 394 U.S. 440, 442-43 (1969). In Foster, the Supreme Court vacated the petitioner’s conviction after finding that an identification which resulted only after the petitioner had been presented to a witness through a line-up, a subsequent one-on-one show-up, and then another line-up, was so suggestive that it “made it all but inevitable that [the witness] would identify petitioner whether or not he was in fact ‘the man.’? Id.
 

Neither the Supreme Court nor this Court has ever found a show-up identification made after a witness failed to pick a suspect out of a line-up or photo array to be otherwise reliable and admissible into evidence. In fact, the jurisprudence from this Circuit and the Supreme Court teaches just the opposite. In Foster, the witness failed to make an identification at an initial line-up, despite a certain level of suggestiveness even in the line-up. 394 U.S. at 443. It was only after the witness saw the suspect again at a one-on-one show-up, at which the witness made a tentative identification, and finally at another line-up, did the witness make a firm identification. Id. The Supreme Court found the process so suggestive as to deny the suspect due process of law. Id. Likewise, this Circuit has found that a witness’ repeated exposure to a suspect prior to identification so taints the identification that a substantial likelihood of misidentification exists. See Thigpin v. Cory, 804 F.2d 893, 897 (6th Cir. 1986); see also United States v. McFarland, 746 F.2d 1480, 1480 (6th Cir. 1984) (holding that the use of a coconspirator’s photo identification violated due process when the witness and suspect had been arraigned together on a prior date and circumstances did not otherwise indicate that the identification was reliable).

 

Similarly, this Court has never found that an identification arising from a suggestive format was anything but unreliable when the witness’ prior description of the suspect was significantly inconsistent with the suspect’s actual appearance. See id.; see also Webb, 549 F.2d at 1086 (finding identification unreliable when prior description noted assailant had long sideburns, and identified suspect sported a mustache, but no sideburns, during the timeframe in question); Marshall, 499 F.2d at 1167 (finding that witness’ description of suspect did not match actual physical appearance in a “crucial respect?).

 

A custom or practice of using one-on-one show-ups indiscriminately is akin to conducting a search or seizure without an assessment of probable cause. While circumstances do exist which may justify the use of a show-up, just like circumstances do exist which justify a search without a warrant, a practice of going through with a show-up without consideration of the circumstances has the “highly predictable consequences? of resulting in constitutional violations. See Brown, 520 U.S. at 409.

 

Eyewitness identifications are recurring situations in criminal investigations. Officers conducting a show-up must consider the circumstances and make a reasoned determination of whether, under the totality of the circumstances, the show-up would be so suggestive that there exists a “substantial likelihood? that an “irreparable misidentification? will take place. See Neil, 409 U.S. at 199-200. This Court has in the past held that a municipal practice of bypassing consideration of the circumstances in which the exercise of a city power is constitutional or not can lead to 42 U.S.C. § 1983 municipal liability. See Sell, 47 Fed. App’x at 695 (“If Columbus failed to instruct or train the officers responsible for emergency evictions about their constitutional responsibility to provide a hearing in all but ‘extraordinary situations’ . . . that shortcoming is one that is so likely to lead [to] a violation of the constitutional right to due process as to be deliberate indifference to citizens’ constitutional rights, and give rise to municipal liability under § 1983.?) Not all eyewitness identification opportunities – or even the vast majority – will pass the totality of the circumstances Nos. 04-5856/5859/6482 Gregory v. Louisville, et al. Page 25
12The dissent reasons that Plaintiff has failed to show a pattern or practice of illegal activity. Yet the City’s
practice of “skipping? the Neil v. Biggers analysis shows such a pattern of illegal activity. Given the Supreme Court’s “grave concerns? over the suggestiveness of show-ups, such a practice has the “highly predictable consequences? of leading to constitutional violations, which is the applicable standard here. Not every use of a show-up need lead to a constitutional violation for the City to exhibit “deliberate indifference? to the rights of its citizens. See Sell, 47 Fed. App’x at 695.
13The City argues in the alternative that Plaintiff “waived? his right to contest the suggestibility of the show-up when Plaintiff consented to the show-up by signing the City’s pre-printed line-up “waiver? form. The judge at Plaintiff’s criminal trial agreed, but found that “the [show-up] procedure would have been unduly suggestive had there not been a waiver . . . . There would have been serious problems with it.? (J.A. at 1906-07.) As we discussed, supra, this take on Plaintiff’s consent to the show-up misconstrues what took place and the nature of constitutional waiver.
test such that a show-up would not lead to a due process violation.12 A municipality with a custom or practice of conducting show-ups without consideration of the circumstances therefore opens itself up to § 1983 liability.

 

The remaining question for this Court is whether the evidence, when viewed in the light most favorable to Plaintiff, is such that a reasonable jury could conclude that the City had a custom or practice of using show-ups without consideration of the circumstances, and that pursuant to this custom, Tarter employed a show-up with Plaintiff without consideration of Plaintiff’s due process rights. Plaintiff puts forth evidence that the City had a custom of using show-ups in lieu of line-ups in non-exigent circumstances. Plaintiff’s evidence includes affidavits from two police practice experts who opined that there existed systematic deficiencies in police officer training; that supervising LDP officers found it “perfectly acceptable? to conduct non-exigent show-ups days after a crime if an officer could get a suspect to sign a “waiver;? and that it was established practice to ask suspects in for a line-up, fail to take affirmative actions to constitute a line-up, and request consent to a show-up. (J.A. at 2330, 2332, 2334, 2208, 2236-38, 2241-42, 2247-50, 2275.)

 

Plaintiff presents further evidence that using such show-ups was expressly approved through the existence of preprinted waiver forms.13 Such forms are evidence of established practice. See Sell, 47 Fed. App’x
at 692. Given this evidence, we cannot say that a reasonable jury could not conclude that the City had a custom or practice of conducting show-ups without consideration of the constitutional implications of such show-ups, and thus that the City was “deliberately indifferent? to the due process rights of its citizens. Accordingly, we reverse the district court’s grant of summary judgment to the City.
Plaintiff’s detention, Plaintiff must present evidence that the officers (1) stated a deliberate falsehood or showed reckless disregard for the truth and (2) that the allegedly false or omitted information was material to the finding of probable cause. Hill, 884 F.2d at 275; see also Spurlock, 167 F.3d at 1006 (“[A] reasonable police officer would be on notice that unlawfully detaining a suspect, despite the fact that the evidence used to detain the individual was fabricated, would also be unlawful.?).

 

At a preliminary hearing on June 15, 2002, Clark testified on direct examination that Mrs. V had twice identified Plaintiff. On cross-examination, Clark revealed that Mrs. V had failed to pick Plaintiff out of a photopak, but did not reveal that Mrs. V actually picked another photo.

 

When asked if the police had any evidence against Plaintiff other that Mrs. V’s identification, Clark responded “Not at this time.? (J.A. at 1300.) When asked if Mrs. V had given a physical description of her assailant, Clark responded: “That’s correct and it fits [Plaintiff.]? (J.A. at 1301.) When Plaintiff moved to dismiss for lack of probable cause, the judge denied the motion, but noted that “because of the extremely minimal burden on the Commonwealth that I’m gonna have to find probable cause but I’ll state for the record it’s just barely.? (J.A. at 1302.)

 

Plaintiff argues that had Clark revealed that Mrs. V indicated another picture from the array, the judge’s determination of probable cause may have swung the other way. The facts show that Mrs. V identified someone other than Plaintiff out of the photopak when asked to choose a picture of someone most closely resembling her attacker. Whether this selection by Mrs. V should have been disclosed by Clark is a question of materiality, and materiality determinations are the province of the jury when reasonable minds could differ. Gaudin, 515 U.S. at 512 (1995). Moreover, Clark stated on the stand that Mrs. V’s description of her attacker “fit? Plaintiff, despite the fact that Mrs. V described her assailant as 5 feet 6 inches tall, with a stocky build and long, straight, oily or greasy hair while Plaintiff was actually 5 feet, 11½ inches tall and had kinky hair. A reasonable jury could infer that this conclusion by Clark was so contrary to the facts known to him at the time that this statement was a material misrepresentation to the court.14 Further, because the court at the time of the hearing just barely found probable cause, a reasonable jury could conclude that without the “fit? testimony or with the additional exculpatory information that Mrs. V had chosen another picture from the photopak, the preliminary hearing judge would have failed to find probable cause. As such, a jury could conclude the Clark’s reliance on the court’s determination of probable cause was unreasonable.
1. Material Misrepresentations to Establish Probable Cause
Police officers cannot, in good faith, rely on a judicial determination of probable cause when that determination was premised on an officer’s own material misrepresentations to the court. Yancey v. Carroll County, 876 F.2d 1238, 1243 (6th Cir. 1989).

 

 Such reliance is unreasonable, and detention of an individual pursuant to such deceptive practices violates the Fourth Amendment. Hill v. McIntyre, 884 F.2d 271, 275 (6th Cir. 1989).

 

 This Court has held investigators subject to suit under § 1983 for making materially false statements either knowingly or in reckless disregard for the truth to establish probable cause for an arrest. Id. With Fourth Amendment rights implicated by ongoing, pretrial detention, deliberate obfuscation or omission of material facts by an investigator at the preliminary hearing makes the investigator’s subsequent reliance on the hearing’s conclusions unreasonable. See Albright, 510 U.S. at 280 (Ginsburg, J., concurring).
We note the distinction here between Plaintiff’s viable continued detention claim against Katz as premised on Brady violations, and Plaintiff’s failed continued detention claim against Clark and Carroll as premised on fabrication of the notes. We held, supra, that Plaintiff could pursue both his Brady violation claim and his continued detention claim against Katz because the shared factual premise there – the concealment of exculpatory information – resulted in both unlawful pretrial detention and an unfair trial. Here, the fabrication of inculpatory information has no pretrial detention effect in the absence of additional evidence that the fabrications influenced the initial or continued detention. Accordingly, we find that although Plaintiff may pursue a fabrication of
evidence claim based on the allegedly false investigation notes, Plaintiff has failed to establish any link between the notes and any Fourth Amendment injury.

 

CONCLUSION
For the foregoing reasons, this Court AFFIRMS in part and REVERSES in part the district court’s decisions in this case. We affirm the district court’s denial of absolute immunity to Defendants Clark, Carroll, and Katz for their pretrial, nontestimonial acts.

 

We also affirm the district court’s refusal to grant qualified immunity to Katz and Tarter. We similarly affirm the district court’s grant of summary judgment in favor of supervisory Defendants Thomas, Ammon, and Kessinger.

 

Finally, we affirm the district court’s grant of summary judgment to Defendant Carroll with respect to Plaintiff’s allegations that Carroll violated Plaintiff’s Fourth Amendment rights by continuing Plaintiff’s detention without probable cause.

 

We reverse the district court, however, on its grant of summary judgment to Defendant Katz with respect to Plaintiff’s allegations that Katz violated Plaintiff’s Fourth Amendment rights by  failing to disclose exculpatory evidence, thereby causing Plaintiff’s detention to continue without probable cause.
 

We also reverse the district court’s grant of summary judgment to Defendant Clark on Plaintiff’s allegations that Clark violated Plaintiff’s Fourth Amendment rights by continuing Plaintiff’s detention without probable cause.

 

 Finally, we reverse the district court’s summary judgment for Defendant City on Plaintiff’s Monell claims as they relate both to identification procedures and to disclosure of exculpatory evidence.
 

Seat belt law passes – Police may now stop anyone -anytime -anywhere

Wednesday, April 12th, 2006

Rep. Gooch D-Providence,  who opposed the seat belt law stated on the floor of the House:
 

“We’re talking about giving police officers a reason to stop people for no reason.”
The Seat-belt- ATV bill was passed yesterday by the General Assembly.  The Seat belt bill had amendments added, that would prevent the police from setting up roadblocks just to check for seat belt violations, and the bill did away with court costs and traffic license points for violation of the seat belt law.
LawReader notes that under this law, any policeman need only to have “articulable suspicion? that a motorist is not buckled up (see Terry v. Ohio) in order to make a traffic stop.
Then  the policeman can use the “plain view? exception, the “plain smell? exception, the “plain touch? exception, the “good faith” exception, the  automobile exception, and “exigent circumstances? exception to the Fourth Amendment to make you exit the vehicle, check your driver’s license and insurance papers, make you submit to a pat down search for weapons (for his protection), may make your passengers exit the vehicle and to search them, and  may search your car, because “you had no reasonable right to expect any privacy for any area of your automobile?.   
 And if the policeman wasn’t right about his suspicion of contraband being aboard or weapons being concealed on your person, then there will more likely than not be a good chance that any violation of the motorists rights will be treated by the court as a “harmless error? even though if violated a substantial constitutional right…as the courts now allow even some constitutional rights to be violated if the “error was harmless beyond a reasonable doubt?.
Several years ago the court threw out the rules of law that held that a policeman could not make up a pretext to stop someone on the highway.  For example, if they never charged anyone for having some mud on the license plate…then they could not justify a traffic stop of a motorist on that basis, just to harass him.   But now suspicion of violation of “any law? has been held to justify a “brief investigatory” traffic stop…and the definition of “brief” has in some cases been expanded to more than an hour.
     We have conducted the following test, and we suggest that you do the same.  The next time you are driving your car on the highway….look at the oncoming traffic…look at the cars you overtake and pass (and vice versa)…and see what percentage of cars you can detect that they either are or are not wearing a seatbelt. We have done this and in almost all cases we cannot determine if a motorist is wearing a seatbelt.  Many cars and trucks totally hide the part of the driver where a seat belt is wore from view.  Will motorists who drive a SUV that covers up their seat belt from view of a passing policeman be stopped for articulable suspicion of not wearing a seatbelt?  
We predict that this law will be widely used as a pretext to stop anyone at anytime for anything by the police.  You will then have your papers inspected…and the whole search for a crime routine begins….just as in the old movies about Russia or Germany.
The idea of the state making someone wear a seatbelt is not a bad idea.  Current Ky. law in fact mandates that all motorists wear them.  We just oppose abandonment of the common sense laws that have denied the police carte blanche to stop anyone, anywhere, on the pretext of a possible seatbelt violaiton.

We have seen many instances of police citing a motorist they have pulled over for speeding for a seatbelt violation when the motorists said that he was wearing his seatbelt, but when the officer pulled him over, he unbuckled his seatbelt to be able to get his drivers license out of his wallet…but when the officer walks up to the motorists window for the first time  he sees the seatbelt is unbuckled and assumes it was unbuckled when the motorist was driving.   This has happened hundreds of times a year in Kentucky. 

Those individuals who tolerate the continuing expansion of police power to eviserate the Fourth Amendment on the claim that “if you’re not violating the law you have nothing to fear” …may change their tune in the near future when this law is being applied against them.

The ATV law requires drivers of these off-road four wheelers under the age of l6 to wear a helmet when driving.
                                             **************
 

    POLICE WILL BE ABLE TO MAKE STOPS FOR NOT BUCKLING UP
By Jack Brammer And Ryan Alessi –  Reprinted from HERALD-LEADER  Wednesday April 11, 2006.
FRANKFORT – By a narrow margin, the House last night gave final approval to a bill that will toughen Kentucky’s enforcement of the seat-belt law and require children riding all-terrain vehicles to wear helmets.
The 48-45 vote in the Democratic-led House ended weeks of political wrangling over a measure that would allow police to ticket motorists solely for not buckling up.
The issue emerged as a signature bill for the session, which ends today. It also was among the most controversial proposals in the Houe, particularly after it failed in its first go-round last month. That prompted Republican Gov. Ernie Fletcher and Democratic House Speaker Jody Richards to trade blame for not drumming up enough votes.
Fletcher, who pushed for the seat-belt measure this year after it failed in several previous legislative sessions, said in a telephone interview that he was “most pleased because this will save lives” and that he “definitely will sign this into law.”
Transportation Secretary Bill Nighbert called the final passage of the bill “a team effort.”
“We’ve saved 63 lives tonight,” he said as he was leaving the House chamber. State officials have said giving police the authority to ticket motorists solely for not wearing a seat belt could save that many lives each year in Kentucky.
Nighbert, whose son is a police officer, said he never bought criticism of the bill that police will abuse their powers.
Under current law, police may issue a ticket to a motorist for not wearing a seat belt but only after a stop for another offense such as speeding. The new, stricter law will take effect in July.
With the seat-belt provision, Kentucky is in line for $11 million in federal highway money, which was included in the newly passed state budget.
The House approved the seat-belt measure last night after Richards, D-Bowling Green, said earlier in the day that he was not sure it had enough votes for passage.
Earlier this year, the House failed to garner enough votes to pass a seat-belt bill. The House did pass the ATV safety measure, which requires children under age 16 to wear a helmet while riding.
The Republican-led Senate, at Senate President David Williams’ urging, later attached the seat-belt bill and the ATV-helmet provision to a popular bill aimed at protecting Kentucky children from lead poisoning.
But the House balked at the measure because it contained language that would have eliminated a pollution-control program in Louisville.
On Monday, the Senate removed the pollution-control language and sent the measure, House Bill 117, to the House.
Williams said last night that he is “gratified that the bill finally passed. This will help ensure the safety of all Kentuckians.”
Michele Finn, a lobbyist for the Brain Injury Association of Kentucky and an ardent advocate of the ATV measure, watched the showdown vote last night from the House gallery.
She said she was “surprised and disappointed” when Rep. Jim Gooch, a leading sponsor of the ATV-helmet proposal, urged his colleagues to vote against the bill in question because it contained the seat-belt provision.
“We’re talking about giving police officers a reason to stop people for no reason,” said Gooch, D-Providence.
He said giving police such authority was “an abuse of our civil liberties in this country, and I cannot vote in favor of that.”
Rep. Joni Jenkins, D-Louisville, said Gooch’s accusation was “offensive to our law enforcement.”
Under the bill, police could not set up roadblocks simply to enforce the seat-belt measure. Violators would not have to pay court costs and would not have the offense tacked on to their driving records.
Rep. Tanya Pullin, D-South Shore, was one of seven House members who abstained. She said she voted in the past for the lead-paint provision but opposed the seat-belt bill its first time around and couldn’t reconcile those two positions.
Pullin opposed the seat-belt bill even after she rolled her Ford Ranger after hitting a patch of black ice two years ago. She was wearing her seat belt and emerged with minor injuries.
Pullin noted that current law already tells drivers to buckle up and she credited education efforts for helping to save her life. She said allowing police to pull over drivers just for not using seat belts takes the issue one step too far.
 

March Decisions of Ky Supreme Court by LawReader

Tuesday, April 11th, 2006

 Go to Lawreaders Monthly Decisions of Ky Supreme Court to read synopsis and full text of  all decisions issued by Supreme Court.   LawReader posts these decisions each month to keep you current on the status of the law.

KY. SUPREME COURT DECISIONS FOR MARCH, 2006

 Case No.

1CRIME LAB EXPERT GAVE FALSE TESTIMONY- RAGLAND GRANTED NEW TRIAL
2KOTILA REVERSED
3 4 continuing treatment Appellant received from Appellee tolled the applicable statute of limitations
5 the trial court abused its discretion in limiting the cross-examination
6 Crawford v. Washington re: testimonial hearsay cited: its ruling applies to pending cases on appeal
7 DOCTOR WHO REFUSED TO SETTLE MUST PAY EXCESS VERDICT OF $200,000 – There was ample evidence to support the jury’s finding that, Dr. Tabler did not consent to a compromise settlement prior to the return of the excess liability verdict. The Court of Appeals erred in usurping the fact-finding authority of the jury on this issue . Editor’s note: Pride cometh before the fall.
8 trial courts have broad discretion over change of venue questions and their decision will be overturned only on a showing of an abuse of discretion
9 10 11 A licensed motor vehicle dealer is not the owner of a vehicle when he “transfers physical possession of a motor vehicle to a purchaser pursuant to a bona
fide sale, and complies with the requirements of KRS 186A.220 .”
12 13 the trial court failed to make the factual findings required by KRS 403 .250 to allow a deviation from the standard practice of a face-to-face confrontation
14 There are methods other than a formal written waiver that confirm a defendant has knowingly, voluntarily and intelligently waived a jury trial
15“In defining reasonable limitations on cross-examination, this Court has cautioned : ‘a connection must be established between the cross-examination proposed
to be undertaken and the facts in evidence .”
16“[s]o long as a reasonably complete picture of the witness’ veracity, bias, and motivation is developed, the judge enjoys power and discretion to set appropriate
boundaries.”
17 KRS 342 .125(3) permits (reopening of award) to be sought during the period of an award
18 the incident did not appear to be “anything more than a temporary exacerbation of the plaintiffs preexisting non work-related condition
19 20 A worker seeking to resist rehabilitation has the burden to show that the evaluator’s recommendations or the available options are impractical or inappropriate .
21 Caroline Griffith is suspended from the practice of law in Kentucky for a period of one year pursuant to SCR 3 .380 . This suspension is to be served consecutive to Respondent’s current five-year suspension and shall commence on the expiration of that period .
22 we adopt the finding by the KBA regarding the appropriate discipline in this matter and order Mr. Robert W. Stevens be publicly reprimanded for his violation of SCR 3 .130-1 .7(b) .
23 An Unnamed Attorney, is hereby privately reprimanded for violations of SCR 3.130-1 .4(b) and SCR 3.130-1 .7(2)(b) .

Power play on Ky Supreme Court to replace Lambert reported

Tuesday, April 11th, 2006

    BluegrassReport published an interesting news story April 11 detailing An alleged power struggle on the Ky. Supreme Court.  BluegrassReport says that an undisclosed source close to the Supreme Court says there is an effort among justices to deny    reelection of Justice Joseph Lambert for another term as Chief Justice.
    The report says the term of Lambert as Chief Justice expires this year. The Chief Justice has the power to call the date of the election.  Since only Lambert and Scott are not standing for reelection in 2006, Lambert asserts that only they can be considered in the election. The dissenting Justices are apparently advancing Court of Appeals Judge John Minton as the consensus candidate for Chief Justice.  Minton who is not yet on the Supreme Court is unopposed and will definitely be elected to the Supreme Court (filling the vacancy created by the retirement of Justice Cooper).
   The report cites displeasure among the dissenting Justices over Lamberts involvement in the Ross Harris campaign contribution issue in which Lamberts wife received $9000 in campaign contributions from a Pike County Coal operator.  Lambert later refused to recuse himself from a case involving Harris and in which he voted with other justices to uphold and award to Harris of some $12,000,000.
  A complaint to the Judicial Conduct Commission against Lambert was dismissed. The testimony of Lambert “explaining? that he knew of the contributions but felt justified in not recusing himself was not released by the Judicial Conduct Commission.
  An alternative plan being discussed is to name Martin Johnstone of Lousiville as interim Chief Justice until the new justices take office.  The dissenters want to delay the election of the new Chief Justice until all the new Justices take office… (possibly as many as five new Justices could take office in January 2007), but Lambert wants to hold the election this year.  For more details go to www.bluegrassreport.org.

Legislature adopts more laws as session winds down

Tuesday, April 11th, 2006

Click to see:  Bills Adopted on April 10, 2006 and awaiting approval by Governor

As legislature winds down, four bills are approved: Bill of Rights for grandparent caregivers, Use of Deadly Force in self-protection, Ban of Computer Assisted Hunting of game, Clogging named state dance.

The deadly force law merely codifies existing court rulings granting the same rights as this bill. We have never heard of anyone being convicted for shooting a burglar who was in their home…but at least the legislature recognizes that your home is your castle.

 The computer assisted hunting ban outlaws practice of “hunters” being able to call up a site on the internet and for a fee electronically firing a gun to actually kill an animal online…some sportsmen are apparently too lazy to go outside and risk sunburn.  We propose that someone should set up a website where animals can shoot back.

A Bill of Rights for grandparent caretakers clarifies rights of grantparents to authorize school decisions and medical decisions if they are actually the childs caregiver.

The official dance of Kentucky is declared to be clogging…a floor amendment by Rep. K. Stein (the Stein from Lexington) to make the Watusi the official dance failed. We guess there just aren’t enough people left around who remember the Watusi.

Telecom legislation approved;

A bill to loosen regulations on the telecommunications industry won final Senate passage last night. House Bill 337 passed 34-2 after Sen. Ernesto Scorsone’s efforts to amend it failed. Scorsone sought to include consumer protections.

Telecom legislation approved; Wine-shipment bill passes

The Courier-Journal

 

A bill to loosen regulations on the telecommunications industry won final Senate passage last night. House Bill 337 passed 34-2 after Sen. Ernesto Scorsone’s efforts to amend it failed. Scorsone sought to include consumer protections.

The bill now goes to Gov. Ernie Fletcher.

Senate Bill 82 aims to bring Kentucky into compliance with a U.S. Supreme Court decision on wine shipping. The bill will go to Fletcher after the Senate concurred yesterday with a compromise that had passed the House.

The legislation would provide money to assist small wineries in promoting their products while bringing them into the alcohol wholesale system.

Kentucky legislators continued working to find middle ground on House and Senate bills designed to give small businesses relief from last year’s alternative minimum tax.

Legislative leaders have said a compromise on House Bill 295 is likely to pass.

A bill passed to bring wine delivery bill into compliance with U.S. Supreme Court ruling.
Senate Bill 82 aims to bring Kentucky into compliance with a U.S. Supreme Court decision on wine shipping. The bill will go to Fletcher after the Senate concurred yesterday with a compromise that had passed the House.

The legislation would provide money to assist small wineries in promoting their products while bringing them into the alcohol wholesale system.

Kentucky legislators continued working to find middle ground on House and Senate bills designed to give small businesses relief from last year’s alternative minimum tax.

Legislative leaders have said a compromise on House Bill 295 is likely to pass.