Archive for June, 2006

Supreme Court says Workers Comp Premiums Not Priority in Bankruptcy

Wednesday, June 21st, 2006

By Andrew G. Simpson, Jr. – A workers compensation insurer does not have a claim against a bankrupt business for unpaid premiums under bankruptcy law, according to the U.S. Supreme Court in a 6-3 decision that insurers are warning could disrupt the insurance marketplace unless Congress acts to reverse it.
The Supreme Court majority rejected an insurer’s argument that an employer’s liability to carry workers’ compensation coverage fits the employee benefit plan category that would assign it priority in the event of a bankruptcy.

Instead, the high court ruled that workers compensation premiums are more like liability premiums than employee benefit costs and as such do not fall under the section of bankruptcy code (11 U.S.C. section 507(a)(5)), which assigns priorities to unsecured creditors’ claims for unpaid contributions to an employee benefit plan.

“Weighing against such categorization, workers’ compensation does not compensate employees for work performed, but instead, for on-the-job injuries incurred; workers’ compensation regimes substitute not for wage payments, but for tort liability,” Justice Ruth Bader Ginsburg wrote on behalf of the majority.

In Howard Delivery Service, Inc., et al v. Zurich American Insurance Co., handed down June 15, the high court reversed the Court of Appeals for the Fourth Circuit which had held that payments for workers’ compensation coverage were “contributions to an employee benefit plan … arising from services rendered” and thus subject to the bankruptcy priority provision.

Zurich had urged the court to borrow the broader definition of employee benefit plan contained in the Employee Retirement Income Security Act of 1974 (ERISA): “[A]ny plan, fund, or program [that provides] its participants … , through the purchase of insurance or otherwise, … benefits in the event of sickness, accident, disability, [or] death.”

But the majority noted that federal courts have questioned whether ERISA is appropriately used to fill in blanks in a Bankruptcy Code provision.

The court further noted that workers’ compensation also differs from fringe benefits in that while nearly all states require employers to carry workers’ compensation, they commonly do not mandate employee benefits.

In the case before the court, Howard contracted with Zurich to provide workers’ compensation coverage for its operations in 10 states. After Howard filed a Chapter 11 bankruptcy petition, Zurich filed an unsecured creditor’s claim for some $400,000 in premiums, asserting that they qualified as “contributions to an employee benefit plan” entitled to priority under §507(a)(5).

The Bankruptcy Court denied priority status to the claim, reasoning that because overdue premiums do not qualify as bargained-for benefits furnished in lieu of increased wages, they fall outside §507(a)(5)’s compass. The District Court affirmed, similarly determining that unpaid workers’ compensation premiums do not share the priority provided for unpaid contributions to employee pension and health plans.

But a Fourth Circuit panel reversed without a rationale, which resulted in the case being brought before the Supreme Court.

Justice Ginsburg was joined in her majority opinion by Chief Justice John Roberts and Justices John Paul Stevens, Antonin Scalia, Clarence Thomas and Stephen Breyer. Justice Anthony Kennedy filed a dissenting opinion, in which Justices David Souter and Samuel Alito joined.

Insurer reaction

Insurers said the decision is flat out wrong and could have serious repercussions in the marketplace.

“The court simply got it wrong. The majority’s narrow focus on the priority provisions of the bankruptcy code overlooked that workers’ compensation coverage is mandatory, and the consequences of an employer’s lapse in coverage,” charged Bruce Wood, American Insurance Association assistant general counsel.

Wood also maintained that the decision could undermine the workers’ compensation system and benefits for injured workers.

“This decision means that an employer trying to reorganize its business will no longer be required to pay its workers’ compensation premiums. This result will jeopardize continued coverage, because an insurer now has no legal authority to compel payment of premiums and doubtful incentive to continue coverage,” according to Wood. “Under current law, employers without workers’ compensation coverage – even bankrupt employers – are subject to huge fines, criminal prosecution and business shutdown.”

“At the same time this decision puts worker protections at risk, along with the viability of the employer’s business,” he added.

AIA participated in the case as an amicus in this case.

Employers that self-insure their workers’ compensation coverage will face related problems, Wood also warned. “Even though a self-insured employer is paying an on-going claim for a past injury, after a bankruptcy filing, ongoing medical treatment and cash benefits stop because the lack of explicit priority for workers’ compensation dumps injured workers into the same category as unsecured creditors.”

The industry will likely now press lawmakers to a change the bankruptcy law.

“This is a poorly reasoned decision with an unfortunate policy result. It appears this is a matter for Congress to address,” Wood said.

In its ruling, the Supreme Court said questions over priority status should be decided with the bankruptcy code’s aim of equal distribution in mind. “Every claim granted priority status reduces the funds available to general unsecured creditors and may diminish the recovery of other claimants qualifying for equal or lesser priorities” the court noted. “To give priority to a claimant not clearly entitled thereto is not only inconsistent with the policy of equality of distribution; it dilutes the value of the priority for those creditors Congress intended to prefer.”



Justice Roach dissent provides excellent discussion of cases that justify Harmless Error review

Tuesday, June 20th, 2006

Justice Roachs dissenting opinion in   Hayes v. Commonwealth, 175 S.W.3d 574 (Ky. 10/20/2005) provides an enlightening discussion of situations that merit the application of the Harmless Error Rule consideration. 

While his opinion was a dissent in this case, it should be considered in any discussion of this issue, where one must determine if a case deserves Harmless Error consideration.
    Our research finds application for the Harmless Error rule going back to English Common Law.  The Ky. Rules of Civil Procedure recognize the Harmless Error Rule in CR 61.01 HARMLESS ERROR.
 The Ky. Rules of Criminal Procedure in the same wording as CR 61.01 applies RCr 9.24 to criminal procedure. A substantial or palpable error is set out in CR 61.02 for civil cases, but also applies to criminal appeals.

    Hayes v. Commonwealth, 175 S.W.3d 574 (Ky. 10/20/2005)

Main points mentioned by Justice Roach

1)  the United States Supreme Court has strictly limited those cases where harmless error is inapplicable, having recognized that “most constitutional errors can be harmless.

2) The Supreme Court itself has repeatedly identified only six structural errors.

3) the Supreme Court meant for its lists of structural errors in Fulminante and Neder to be exhaustive.

[119]    After noting that the evidence against Hayes was “overwhelming” and rejecting all of his claims of error save one relating to voir dire, the majority opinion, in a conclusory fashion, proclaims the voir dire error is not subject to harmless error. Because the majority opinion relies on inapplicable cases and refuses to consider harmless error, I dissent. …

[137]    I agree with the Sixth Circuit that the Constitution does not require that the Fifth Amendment privilege against self-incrimination “must also be covered in voir dire.” Id. Thus I cannot conclude that it was an abuse of discretion for the trial court not to allow Appellant to ask his questions on that subject. And because the trial court ultimately instructed the jury on that privilege, I cannot say that “the trial court’s failure to ask these questions . . . render[ed] the defendant’s trial fundamentally unfair’ so as to require reversal. Mu’Min v. Virginia, 500 U.S. 415, 425-26, 111 S.Ct. 1899, 1905 (1991).
[139]    Equally troubling, however, is the majority opinion’s proclamation that harmless error does not apply to the present situation. The opinion relies on Oswald v. Bertrand, 374 F.3d 475 (7th Cir. 2004), to support this conclusion. In Oswald, the trial court sent jury questionnaires to 156 individuals, “more than 80 percent of whom responded that on the basis of the media coverage of the crime they thought that Oswald was guilty.” Id. at 479. It took over four days of voir dire to narrow the list to 29. On the last day the following exchange occurred
[140]    Roger Klitzka, in the course of being voir dired, said, “I know I’ve learned more in the last three days here sitting down there in that room about this case than I have since the day that it happened. . . . [A]ccording to what I hear, the young man is guilty of what he is being accused of and things like that and everything and l just think it’s just a waste of time.” The judge asked him whether he meant “it’s a waste to have the trial at all,” and Klitzka confirmed that that was indeed what he meant.
[141]    Apparently this was not just Klitzka’s personal opinion (he was not selected for the jury). The implication of what he said was that the entire jury pool had made up its mind that Oswald was guilty.
[142]    Id.
[143]    In the face of these statements by a prospective juror about the entire jury pool, the trial judge still refused to make the prospective juror respond to defendant’s counsel’s inquiries concerning what he had heard while the jury pool was discussing the case. The Seventh Circuit noted that “[e]yen though the circumstances strongly suggested that the jury had made up its mind that Oswald was guilty, the judge refused either to question Klitzka further or to recall for further questioning any of the prospective jurors who had already been voir dired.” Id. After noting other juror selection irregularities, the court concluded that there was “a high probability that some, maybe all, of the jurors who tried Oswald were biased.” Id. at 480. The divided court then reversed the conviction because the right “to be tried before an impartial tribunal . . . is one of the handful of rights of a criminal defendant that is not subject to the doctrine of harmless error.” Id. at 482.
[144]    It is clear, however, that Oswald addressed a fundamentally different issue than that presented in this case because it dealt with actual furor bias, namely the belief that the defendant was -quilty. Here there is no evidence that any juror held Hayes’s decision not to testify against him-there is no actual evidence of juror bias. Rather, the inquiry in this case is simply whether the trial court’s failure to allow a question at voir dire concerning the privilege against self incrimination is subject to harmless error analysis. This question is distinct from that addressed in Oswald, where the trial judge refused additional voir dire questioning after a juror’s testimony suggested other members of the jury pool were actually biased. Aside from the opinion of the majority, I am unable to find a case in America that would refuse to apply harmless error in these circumstances.
[145]    In fact, the United States Supreme Court has strictly limited those cases where harmless error is inapplicable, having recognized that “most constitutional errors can be harmless.” Fulminante, supra, at 306, 111 S.Ct. 1246.
 ”[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other [constitutional] errors that may have occurred are subject to harmless-error analysis.” Rose v. Clark, 478 U.S. 570, 579, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986).
 Indeed, we have found an error to be “structural,” and thus subject to automatic reversal, only in a “very limited class of cases.” Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (complete denial of counsel); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (biased trial judge); Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986) (racial discrimination in selection of grand jury); McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (denial of self-representation at trial); Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (denial of public trial); Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (defective reasonable-doubt instruction)).
[147]   Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 1833 (1999) (alterations in original, emphasis added). The Supreme Court recently reaffirmed this principle, stating that “[i]t is only for certain structural errors undermining the fairness of a criminal proceeding as a whole that even preserved error requires reversal without regard to the mistake’s effect on the proceeding.” United States v. Dominguez Benitez, 542 U.S. 74, -, 124 S.Ct. 2333, 2339 (2004); see also United States v. Gonzalez-Huerta, 403 F.3d 727, 734 (10th Cir. 2005) (“The Court has found structural errors only in a very limited class of cases”); United States v. Padilla, 415 F.3d 211, 219 (1st Cir. 2005) (stating that the Supreme Court has “recognized the existence of a tiny class of structural errors” that “includes only the most pervasive and debilitating errors”).
[148]   The Supreme Court itself has repeatedly identified only six structural errors.       E~,, Neder, 527 U.S. at 8, 119 S.Ct. at 1833 (citing Johnson v. United States, 520 U.S. 461, 468-69, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) and its recognition of structural error in only six circumstances:
 (1) a total deprivation of the right to counsel;
(2) lack of an impartial trial judge;
(3) unlawful exclusion of grand jurors on the basis of race;
 (4) denial of the right to self-representation at trial;
 (5) denial of the right to a public trial; and
 (6) an erroneous reasonable doubt instruction to the jury); see also Gonzalez-Huerta, 403 F.3d at 734 n.5 (noting the six structural errors the Supreme Court has identified); Padilla, 415 F.3d at 219 (same); Lewis v. Pinchak,348 F.3d 355, 358 (3d Cir. 2003) (same); State v. Torres, 93 P.3d 1056, 1059-1060 (Ariz. 2004) (same).
[149]    Recently, in a unanimous en – banc decision, the Eighth Circuit surmised “that the Supreme Court meant for its lists of structural errors in Fulminante and Neder to be exhaustive.” United States v. Allen, 406 F.3d 940, 945 (8th Cir. 2005) (en banc).
 The North Carolina Supreme Court has also declined to extend structural error analysis beyond the “six cases enumerated by the United States Supreme Court.” State v. Garcia, 597 S.E.2d 724, 745 (N.C. 2004). This conclusion is further supported by the fact that the Supreme Court has had several opportunities to expand its list of structural errors, but has consistently refused to do so. See, e.g., Johnson; Neder.
Even if one were not persuaded that the list of structural errors in Fulminante and Neder is exhaustive, the majority opinion has utterly failed to make its case that the alleged voir dire error-a relatively minor event at most-is within the “tiny class of structural errors” that includes only the “most pervasive and debilitating errors. “Fadilia, 415 F.3d at 219.
 It simply strains reason for the majority to claim that the alleged error at issue was so pervasive and debilitating as to infect “the framework within which the trial proceed[ed],” thus allowing Appellant to evade harmless error review through the application of the structural error doctrine. Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).
[150]    Moreover, our own Criminal Rules require that we undertake harmless error review:
[151]    No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order, or in anything done or omitted by the court or by any of the parties, is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order unless it appears to the court that the denial of such relief would be inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding that does not affect the substantial rights_of the parties.
[152]    CR 9.24 (emphasis added). Absent some overriding constitutional mandate, we must determine whether an error is harmless before finding that an error is reversible. Since there is no evidence that a juror who was seated drew an adverse inference against Harrison and since the jury was properly instructed, I cannot discern any error that affected his substantial rights.

[153]         III. CONCLUSION

[154]    In accordance with the foregoing discussion, I would affirm Hayes’s convictions based on the overwhelming evidence against him.

[155]    I agree with the majority’s opinion as to Harrison, though I would affirm his conviction for possession of drug paraphernalia.

[156]    Graves and Wintersheimer, JJ., join this dissenting opinion.

For personal bio of Justice Roach please go to:

911 calls exempt from confrontation clause requirements

Tuesday, June 20th, 2006

WASHINGTON, June 19 — A crime victims emergency call to 911 can be introduced as evidence at trial even if the victim is not present for cross-examination, the Supreme Court ruled unanimously on Monday.

At the same time the court held that prosecutors cannot make similar use of the transcript of a police interview that was conducted principally for the purpose of investigating a crime rather than responding to a developing emergency.

The court addressed the two situations in light of the Confrontation Clause in the Sixth Amendment, which guarantees a criminal defendant the right “to be confronted with the witnesses against him.”

The court has interpreted this guarantee to bar the use of “testimonial statements” by witnesses who do not appear in court. The question in the two cases, which the court answered in a single opinion by Justice Antonin Scalia, turned on whether a 911 call on the one hand, or a statement given to the police at a crime scene on the other, qualified as “testimonial.”

A call for help to 911 is not inherently “testimonial” because the caller is not acting as a witness, Justice Scalia said. “No ‘witness’ goes into court to proclaim an emergency and seek help,” he explained.

On the other hand, statements given to police officers who are investigating the scene of a crime, if similar to statements that might be made in court, qualify as testimonial and generally may not be admitted, he said, at least to the extent that they are “neither a cry for help nor the provision of information enabling officers immediately to end a threatening situation.”

Justice Clarence Thomas dissented from that part of the opinion. Both the statements at issue were “nontestimonial and admissible,” he said. He added that in excluding the statement to the police, the court “extends the Confrontation Clause far beyond the abuses it was intended to prevent.”
It was something of a surprise that the court decided the two cases in a single opinion. They were appeals from separate courts and had been argued separately in March.

In the 911 case, Davis v. Washington, No. 05-5224, the Supreme Court of Washington permitted prosecutors to use the 911 call to convict a man, Adrian M. Davis, of violating a domestic protective order. His former girlfriend, Michelle McCottry, had made a frantic call to a 911 operator to say that Mr. Davis was in the house and was beating her. At the time of Mr. Davis’s trial, the authorities were unable to locate Ms. McCottry. In the absence of witnesses, the 911 call was vital evidence for the prosecution.

In the other case, Hammon v. Indiana, No. 05-5705, police responded to a report of a domestic disturbance and found evidence of a physical struggle between a husband and wife, Amy and Hershel Hammon. After interviewing Mrs. Hammon, they arrested her husband, who was charged with battery.
Ms. Hammon was subpoenaed but did not appear at his trial. The officer who had interviewed her testified about what she had told him. Mr. Hammon was found guilty. The Indiana Supreme Court, rejecting his argument that the statement should not have been admitted, upheld his conviction.
The two cases attracted attention from groups concerned with domestic violence. Several “friend of the court” briefs told the justices that victims of domestic violence were often afraid to appear in court, and that prosecutions should not be lost under an expansive interpretation of the Confrontation Clause. When the cases were argued, it was evident that some justices were concerned about the potential impact of such a ruling.

Addressing that concern in his opinion, Justice Scalia said defendants who “seek to undermine the judicial process by procuring or coercing silence from witnesses and victims” would forfeit the protection that the Confrontation Clause would otherwise give them.

These were among the other actions at the court, which will issue more decisions on Thursday in its effort to finish the term by the end of the month.
Parole Rights

The court ruled 6 to 3 that police officers may conduct random searches of people who are on parole, without the need to show any basis for suspecting the parolee of a crime.

The decision, Samson v. California, No. 04-9728, upheld a California law that requires every prisoner who is about to be released on parole to sign a statement agreeing to be subject to search “with or without a search warrant and with or without cause.”

The case was brought by Donald C. Samson, who was on parole after a conviction for gun possession when an officer stopped him as he walked down a street. In searching Mr. Samson, the officer found a plastic bag containing methamphetamine in a breast pocket.
Mr. Samson was then convicted of drug possession. He challenged the search as a violation of his rights under the Fourth Amendment, which prohibits unreasonable searches. The California Court of Appeal upheld his conviction.

Writing for the court on Monday, Justice Thomas said that given the agreement Mr. Samson had signed, he “did not have an expectation of privacy that society would recognize as legitimate,” while “the state’s interests, by contrast, are substantial.” He noted that the California law prohibits searches that are “arbitrary, capricious or harassing.”

Justices John Paul Stevens, David H. Souter, and Stephen G. Breyer dissented. In an opinion by Justice Stevens, they called the result “an unprecedented curtailment of liberty.” Justice Stevens said, “the suspicionless search is the very evil the Fourth Amendment was intended to stamp out” and the amendment applies to parolees as well as to other people.



Tuesday, June 20th, 2006




U.S. v. Isaacs, 493 F.2d 1124 (C.A.7 (Ill.), 1974)
Discussion of Executive Privilege and Immunity from Prosecution
Criminal Prosecution of an Incumbent President
 The most interesting discussion is in the case of U.S. v. Isaacs, wherein the 7th. Circuit Court of Appeals upheld the conviction of former Gov. Otto Kerner.   Kerner was appointed as a Federal Judge and prosecuted for actions taken while he was Governor of Illinois.

He raised the issue that he could not be prosecuted criminally prior to a formal impeachment conviction.  The 7th. Circuit denied that defense, and cites a long list of officials who were prosecuted prior to their impeachment. The weight of the authorities, hold for the proposition that there is no such legal theory as “absolute immunity from criminal prosecution of a public official? recognized by the courts in the United States.


U.S. v. Isaacs, 493 F.2d 1124 (C.A.7 (Ill.), 1974)

  (LawReader Comment: This case includes prosecution of Otto Kerner. Otto Kerner was the Democratic governor of Illinois in 1960. Later he was later appointed a Federal Judge.  While a Federal Judge he was prosecuted for actions taken as governor. His prosecution and conviction occurred prior to impeachment proceedings. The Court held that a civil official does not have the right to forestall a criminal prosecution prior to impeachment.)
 Following a six-week trial before a jury in the Northern District of Illinois, Theodore J. Isaacs and Otto Kerner, Jr., were found guilty on February 19, 1973 of a variety of offenses arising out of their activities on behalf of certain Illinois racing interests in return for bribes of more than $150,000 each. Isaacs and Kerner were both convicted on all those counts of an indictment which charged an 18 U.S.C. 371 conspiracy to violate the Travel Act, 18 U.S.C. 1952 and the Mail Fraud Act, 18 U.S.C. 1341 (Count I); use of interstate facilities in furtherance of bribery, 18 U.S.C. 1952 (Counts II through V) and mail fraud, 18 U.S.C. 1341 (Counts VI through XIII). Kerner was also convicted of perjury before a grand jury, 18 U.S.C. 1623 (Count XIV), false statements to Internal Revenue agents, 18 U.S.C. 1001 (Count XV), tax evasion, 26 U.S.C. 7201 (Count XVI) and false statement in a tax return, 26 U.S.C. 7206(1) (Count XVII). Isaacs was also convicted of tax evasion, 26 U.S.C. 7201 (Count XVIII), and false statement in a tax return, 26 U.S.C. 7206(1) (Count XIX).
 Turning the pages of history, the Supreme Court said in an 1882 decision, United States v. Lee, 106 U.S. 196, 220, 1 S.Ct. 240, 261, 27 L.Ed. 171, that:
        No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it.
        It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives.
        Burton v. United States, 202 U.S. 344, 26 S.Ct. 688, 50 L.Ed. 1057, a United States Senator was convicted, among other things, of having taken a bribe in violation of what is now 18 U.S.C. 201. He argued that conviction would expel him from the Senate and that under the Constitution the Senate had sole power of expulsion. The Court rejected the contention, quoted with approval from United States v. Lee, and found no violation of the principle of separation of powers.
        Chandler v. Judicial Council of the Tenth Circuit, 398 U.S. 74, 90 S.Ct. 1648, 26 L.Ed.2d 100, Mr. Justice Douglas said in his dissenting opinion, Ibid. at 140, 90 S.Ct. at 1682: ‘If they (federal judges) break a law, they can be prosecuted.’ Mr. Justice Black in his dissent said, Ibid. at 141, 90 S.Ct. at 1683, that ‘* * * judges, like other people, can be tried, convicted, and punished for crimes * * *.’
        United States v. Brewster, 408 U.S. 501, 92 S.Ct. 2531, 33 L.Ed.2d 507, a Senator was charged with a 201 violation. The trial court held that the Speech or Debate Clause precluded criminal prosecution. The Supreme Court reversed and found no constitutional violation. The Court said, 408 U.S. at 520, 92 S.Ct. at 2541:
        The sweeping claims of appellee would render Members of Congress virtually immune from a wide range of crimes simply because the acts in question were peripherally related to their holding office. Such claims are inconsistent with the reading this Court has given, not only to the Speech or Debate Clause, but also to the other legislative privileges embodied in Art. I, 6.
        Gravel v. United States, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583, was concerned with the validity of a subpoena requiring the assistant of a Senator to appear as a witness before a federal grand jury. The Senator intervened and asserted a violation of his constitutional privileges. With reference to the Freedom from Arrest Clause, the Court said, 408 U.S. at 615, 92 S.Ct. at 2622:
        It is, therefore, sufficiently plain that the constitutional freedom from arrest does not exempt Members of Congress from the operation of the ordinary criminal laws, even though imprisonment may prevent or interfere with the performance of their duties as Members. * * *

Indeed, implicit in the narrow scope of the privilege of freedom from arrest is, as Jefferson noted, the judgment that legislators ought not to stand above the law they create but ought generally to be bound by it as are ordinary persons.
        Finally, we have O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674, decided January 15, 1974. The Court, although its language was general and perhaps dictum, touched on the vulnerability of judges to criminal process, and said, 414 U.S. 488, 503, 94 S.Ct. 669, 680, 38 L.Ed.2d 674:
• * * we have never held that the performance of the duties of judicial, legislative, or executive officers, requires or contemplates the immunization of otherwise criminal deprivations of constitutional rights. Cf. Exparte Virginia, 100 U.S. 339, 25 L.Ed. 676 (1879).
• On the contrary, the judically fashioned doctrine of offical immunity does not reach ‘so far as to immunize criminal conduct proscribed by an Act of Congress * * *’ Gravel v. United States, 408 U.S. 606, 627, 92 S.Ct. 2614, 2628, 33 L.Ed.2d 583 (1972).
        Kerner’s argument for the privilege which he claims, is not supported by ‘the precise words used in any prior case, and surely not on the sense of those cases, fairly read.’ Brewster, 408 U.S. at 516, 92 S.Ct. at 2539.
 We conclude that whatever immunities or privileges the Constitution confers for the purpose of assuring the independence of the co-equal branches of government they do not exempt the members of those branches ‘from the operation of the ordinary criminal laws.’
Criminal conduct is not part of the necessary functions performed by public officials. Punishment for that conduct will not interfere with the legitimate operations of a branch of government. Historically, the impeachment process has proven to be cumbersome and fraught with political overtones. We believe that the independence of the judiciary is better served when criminal charges against its members are tried in a court rather than in Congress. With a court trial, a judge is assured of the protections given to all those charged with criminal conduct. The issues are heard in a calm and reasoned manner and are subject to the rules of evidence, the presumption of innocence, and other safeguards. 408 U.S. at 519-520, 92 S.Ct. 2531.
 Kerner argues that trial and conviction of a federal judge frustrates the separation of powers concept because the executive branch would indict and prosecute. The Constitution makes all ‘civil officers’ subject to impeachment. The issue, then, is whether any civil officer is subject to pre-impeachment indictment. This presents no separation problem. Brewster points out, 408 U.S. at 522, n. 16, 92 S.Ct. 2531, the barriers, such as indictment, burden of proof, and presumption of innocence, which a prosecutor must face. With co-equal branches of government, the potential of abuse by any one of them is inherent. However, the system of checks and balances, a free press, and public resentment toward any attempted domination all work to preserve the guaranteed independence of each branch.
        On the basis of the text of the Constitution, its background, its contemporaneous construction, and the pragmatic consequences of its provisions on impeachment, we are convinced that a federal judge is subject to indictment and trial before impeachment and that the district court had jurisdiction to try defendant Kerner.

Discussion of Executive Privilege and Immunity from Prosecution

COLUMBIA UNIVERSITY PRESS – This entry is from Wikipedia, the leading user-contributed encyclopedia:
The use of executive privilege decreased during the 1960s, but it became the crux of the constitutional crisis created by Watergate, a series of scandals involving President Richard M. Nixon and his associates. When Congress sought to obtain White House tapes containing Oval Office conversations, Nixon refused to turn them over, claiming that the tapes were subject to absolute executive privilege and asserting that the judiciary had no authority to order their production or inspection. Eventually the dispute reached the Supreme Court, where, in United States v. Nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974), the Court ruled against Nixon.
While acknowledging the importance of the president’s claims, the Court stated that “neither the doctrine of separation of powers, nor the need for confidentiality of high level communications, without more, can sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances.”
 In its opinion, therefore, the Court explicitly recognized the president’s authority to assert executive privilege, but ruled that the use of executive privilege is limited, not absolute. Furthermore, the Court maintained that the judiciary, not the president, has the power to determine the applicability of executive privilege. While the Court affirmed the use of executive privilege, therefore, it determined that in this case, the right of the U.S. people to full disclosure outweighed the president’s right to secrecy. This momentous decision soon led to Nixon’s resignation from the office of president.
                      COLUMBIA UNIVERSITY PRESS –

EXECUTIVE PRIVILEGE, exemption of the executive branch of government, or its officers, from having to give evidence, specifically, in U.S. law, the exemption of the president from disclosing information to congressional inquiries or the judiciary. Claims of executive privilege are usually invoked to protect confidential military or diplomatic operations or to protect the private discussions and debates of the president with close aides. Efforts by various presidents since Eisenhower to gain absolute and unqualified privilege have been rejected by the courts, though they remain inclined to support most claims of executive privilege. Where criminal charges are being brought against a president, as in the case of Richard Nixon, the claims of executive privilege are weakest; during the process leading to the impeachment of President Bill Clinton, numerous claims made by the White House were dropped when it was clear courts would not uphold them.

The Supreme Court did not reject that claim out of hand; it noted, in fact, “the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties.” As the Court stated, “[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.” This is very similar to the logic that the Court had used in establishing an “executive immunity” defense for high office-holders charged with violating citizens’ constitutional rights in the course of performing their duties.
The Court did not, on the other hand, accept Nixon’s privilege argument on the facts of that case. Because Nixon had asserted only a generalized need for confidentiality, the Court held that the larger public interest in obtaining the truth in the context of a criminal prosecution took precedence.

The concept of executive privilege is a legally murky one, since the Constitution does not mention it anywhere. The history of the doctrine underscores that point, since Presidents have generally sidestepped open confrontations with Congress and the courts over this issue by first asserting the privilege, then producing some of the documents requested on an assertedly voluntary basis.
Jefferson set the precedent for this in the trial of Aaron Burr for treason in 1807. Burr asked the court to issue a subpoena duces tecum to compel Jefferson to provide his private letters concerning Burr. Chief Justice John Marshall, a strong proponent of the powers of the federal government but also a political opponent of Jefferson, ruled that the Sixth Amendment to the Constitution, which allows for these sorts of court orders for criminal defendants, did not provide any exception for the President. As for Jefferson’s claim that disclosure of the document would imperil public safety, Marshall held that the court, not the President, would be the judge of that. Jefferson complied with Marshall’s order, but claimed he was doing so voluntarily

Criminal Prosecution of an Incumbent President
By John H. Kim, Esq.

“….in America THE LAW IS KING. For as in absolute governments the King is Law, so in free Countries the law ought to be king; and there ought to be no other.?
Thomas Paine, Common Sense 57 (Philadelphia 1776)
II) Prosecution of Vice President and Other Federal Officials
While there are different legal opinions about the President, there is a general consensus that Vice President and other “civil officers? of the United States can be indicted and prosecuted while they are still in office, prior to any impeachment. There are numerous legal cases that have firmly established this rule. For instance, in 1804, Aaron Burr, while Vice President, was indicted for the killing of Alexander Hamilton both in the state of New York and New Jersey. Burr never claimed any immunity from prosecution in the case, and had to serve out his office with the stigma of indictment.

Likewise, Spiro T. Agnew, while Vice President, was investigated by the U.S. Attorney in Baltimore for allegedly receiving payoffs from contractors when Mr. Agnew was governor of Maryland. Before entering a plea bargain to a reduced charge and resignation, Vice President Agnew made a motion to the federal court to enjoin the grand jury proceedings against him on the ground of immunity while in office. In response, then-Solicitor General Robert Bork filed a brief arguing that “considerations based upon the Constitution’s text, history, and rationale which indicate that all civil officers of the United States other than the President are amenable to the federal criminal process either before or after the conclusion of impeachment proceedings.?3 (underline added for emphasis)
Subsequently, the Office of Legal Counsel of the Department of Justice, under President Clinton, reaffirmed Bork’s conclusion, stating that “the Constitution requires recognition of a presidential immunity from indictment and criminal prosecution while the President is in office.?4 This seems to be, undoubtedly, the current position of the U.S. Department of Justice under the Bush administration as well.

III) The U.S. Constitution and the Judicial Interpretation
Does the Constitution really provide such an immunity exception for the President?
The answer seems to be no for many reasons. Above all, no provision in the Constitution explicitly grants the President immunity from criminal prosecution. The only provision that provides any explicit immunity, for limited purposes, is for Members of Congress while they are in session.5

The most relevant and contentious provision in the Constitution is in Article I, Section 3, Clause 7:

“Judgment in the Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.?(underline added for emphasis).

From this, it is clear that an impeached President can be prosecuted thereafter.

Does this mean an impeachment must always precede a criminal prosecution?

How about the prosecution of a President who underwent but survived an impeachment process? Can such President be still prosecuted while in office?

Many federal judges and Members of Congress, when they were indicted for various crimes, in fact, raised the defense that they could not be prosecuted prior to impeachment
or that prior conviction or acquittal in the courts should bar impeachment by the Congress for the same offenses. However, the courts have largely rejected such defenses.6 In interpreting Art. I, Section 3, Clause 7 (the Impeachment Judgment Clause), the Court of Appeals in U.S. v.Isaacs held that the Clause “does not mean that a judge may not be indicted and tried without impeachment first. The purpose of the phrase may be to assure that after impeachment a trial on criminal charges is not foreclosed by the principle of double jeopardy…?7

Thus, federal judges such as Hastings, Clairborne and Issacs were all prosecuted first, prior to impeachment. In the case of Judge Hastings, he was even acquitted in a jury trial but still impeached by the Congress subsequently.

In other words, impeachment proceeding and criminal prosecution are two distinct, separate processes, although both can be related to each other. According to District Judge Gerhard Gesell:

“Impeachment trials are sui generic: in several instances in the Constitution, impeachment is distinguished from criminal proceedings….The Framers understood that impeachment trials were fundamentally political….?
IV) Immunity of Federal Officials From Criminal Process
It is to be noted that there is a major difference in the American doctrine of immunity from civil liability and immunity from criminal liability. As one law professor observed, “while courts have invented doctrines of official immunity, they have done so only in civil cases, not criminal ones.?9 In accord with this view, in Imbler v. Pachtman, the U.S. Supreme Court stated that “this Court has never suggested that the policy considerations which compel civil immunity for certain government officials also place them beyond the reach of the criminal law.?10

 In denying immunity for criminal conduct, the Court in U.S. v. Isaacs also pointed out that “criminal conduct is not part of the necessary functions performed by public officials. Punishment for that conduct will not interfere with the legitimate operations of a branch of government.?11

Thus, it is not surprising that the interest of criminal justice and public interest overruled the claims of executive privileges of the President, as Nixon was forced to turn over records of his conversation with his advisers in response to a subpoena in a criminal case.12

 Due to the disclosure of the White House tapes and documents relating to the Watergate break-in, Nixon became the first President to resign his office as the impeachment proceedings started. Although he was not impeached, Nixon faced the distinct possibility of a criminal prosecution after his resignation. Thus, he sought and received a pardon from criminal liability by his successor, President Ford.

Even the Congress is in agreement with the above general rule that all federal officials are subject to criminal law and process. In the aftermath of the “Watergate? scandal, the Congress established the office of “special prosecutor? under the Ethics in Government Act in 1978. The law, although expired now unfortunately, specifically authorized the special prosecutor (a.k.a. “independent counsel?) to prosecute certain high officials, including the President.13


Nothing in the international law, U.S. Constitution, federal statues or court cases provides a blanket immunity for an incumbent President or other federal officials from criminal prosecutions. History and public policy also argue against such an immunity.

As the U.S. Supreme Court pointed out long ago, “no man in this country is so high that he is above the law….All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it.?20 It is high time for the American people to uphold and defend this fundamental principle of equal justice for all, which is one of the most important American values now ingrained in the 14th Amendment of the Constitution (“equal protection of the laws?).
“The Secret Downing Street Memo,? The Sunday Times, May 1, 2005.
2 See “Mortality Before and After the 2003 Invasion of Iraq: Cluster Sample Survey,? The Lancet, Oct. 29, 2004 (published online,
3 Memorandum for the United States Concerning the Vice President’s Claim of Constitutional Immunity, filed Oct. 5, 1973, D. Md. No. 73-965.
4 Memorandum from Randolph D. Moss, Asst. Attorney General, Re: A Sitting President’s Amenability to Indictment and Criminal Prosecution, Oct. 16, 2000.
5 See Art. I, Section 6.
6 See U.S. v. Isaacs, 493 F.2d 1124; U.S. v. Hastings, 681 F.2d 706; U.S. v. Claiborne, 727 F.2d 845; Burton v. U.S., 202 U.S. 344; and U.S. v. Helstoski, 442 U.S. 477.
7 U.S. v. Isaacs, 493 F.2d 1124, 1142.
8 Hastings v. U.S. Senate, 716 F. Supp. 38, 41 (D.D.C. 1989).
9 Eric M. Friedman, “To Catch a King,? Legal Times, March 19, 1997.
10 424 U.S. 409, 429 (1976); See also Gravel v. U.S., 408 U.S. 606, 627.
11 U.S. v. Isaacs, 493 F.2d 1124, 1144.

12 U.S. v. Nixon, 418 U.S. 683 (1974).
13 See 28 U.S.C. 591- .
14 1975 Report of the Watergate Special Prosecutor Task Force, at 122; See also Ken Gormley, “Impeachment and the Independent Counsel: A Dysfunctional Union,? 51 Stanford Law Review 309, 345 (1999). Gromley states that Jaworski also wanted to help the Congress since Nixon refused to cooperate with the subpoena issued by the House Judiciary Committee.
15 Memorandum dated Feb. 12, 1974, p. 10; See 27 Hofstra Law Review 677, Appendix, 1999.
16 CNN, Jan. 21, 2001.
17 AP, March 6, 2002.
18 See Nuremberg Principles; 1948 Convention on the Prevention and Punishment of the Crime of Genocide; also the 1998 Rome Statue of International Criminal Court.
19 See 28 C.F.R.. 600.1.
20 U.S. v. Lee, 106 U.S. 196, 220 (1882).

The Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee

Tuesday, June 20th, 2006

WASHINGTON (CNN) — The Supreme Court ruled Monday that police may randomly search criminal parolees, continuing the deference it has shown law enforcement since the terrorist attacks of September 11, 2001.

The 6-3 ruling keeps in place a California law allowing such searches even when there is no clear evidence or suspicion of wrongdoing.

Writing for the majority, Justice Clarence Thomas noted, “As the recidivism rates demonstrate, most parolees are ill prepared to handle the pressures of reintegration. Thus most parolees require intense supervision.”

He added, “A requirement that searches be based on individualized suspicion would undermine the state’s ability to effectively supervise parolees and protect the public from criminal acts by reoffenders.”

Upon their release, California parolees must sign a requirement allowing police searches during their supervision. Failure or refusal to sign means they must stay behind bars.

Thomas rejected complaints that parolees are being singled out and suffer an unconstitutional diminished right of privacy.

The ruling was supported by Chief Justice Roberts, and Justices Clarence Thomas, Anthony Kennedy, Ruth Bader Ginsburg, and Samuel Alito.

The case involves Donald Samson, paroled in 2003 after a firearms felony conviction. A San Bruno police officer knew Samson was on parole when he observed him walking down a street.

The officer, after determining there were no outstanding warrants on Samson, began a search of him.

Methamphetamine was found in a pocket and Samson went back to prison for seven years.

Dissenting was Justice John Paul Stevens, who acknowledged parolees do not have protection “as robust as that afforded ordinary citizens.”

But, he wrote, the court’s past decisions do not support “a regime of suspicionless searches.”

The Samson case was one of two search-and-seizure appeals from California argued this term. The justices in March unanimously allowed to stand the conviction of a man who bought video showing minors engaged in sex acts.

The Bush administration Justice Department and law enforcement agencies around the country have asked the courts for greater powers to conduct searches of homes and cars, along the borders, and at sobriety and neighborhood crime checkpoints.

The federal government in some cases has raised the increased threat of domestic terrorism since 9/11 as a reason for more crime-fighting discretion.

The majority-conservative Supreme Court has generally been supportive of such efforts, but has not been shy about limiting such powers when the justices felt they overstep constitutional boundaries.




No. 04–9728. Argued February 22, 2006—Decided June 19, 2006

Pursuant to a California statute—which requires every prisoner eligible for release on state parole to “agree in writing to be subject tosearch or seizure by a parole officer or other peace officer . . . , with orwithout a search warrant and with or without cause?—and based solely on petitioner’s parolee status, an officer searched petitioner and found methamphetamine. The trial court denied his motions to suppress that evidence, and he was convicted of possession. Affirming, the State Court of Appeal held that suspicionless searches of parolees are lawful under California law and that the search in this case was reasonable under the Fourth Amendment because it was not arbitrary, capricious, or harassing.

Held: The Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee. Pp. 3–12.
(a) The “totality of the circumstances? must be examined to determine whether a search is reasonable under the Fourth Amendment. United States v. Knights, 534 U. S. 112, 118. Reasonableness “is determined by assessing, on the one hand, the degree to which [thesearch] intrudes upon an individual’s privacy and, on the other, thedegree to which it is needed for the promotion of legitimate governmental interests.? Id., at 118–119.

Applying this approach in Knights, the Court found reasonable the warrantless search of a probationer’s apartment based on reasonable suspicion and a probationcondition authorized by California law. In evaluating the degree ofintrusion into Knights’ privacy, the Court found his probationarystatus “salient,? id., at 118, observing that probation is on a continuum of possible punishments and that probationers “do not enjoy ‘the absolute liberty’ ? of other citizens, id., at 119.

Supreme Court tackles wetland protection

Tuesday, June 20th, 2006

TRAVERSE CITY, Mich. – After fighting the federal government for more than 18 years, Keith Carabell is resigned to more uncertainty after the U.S. Supreme Court U.S. Supreme Court ordered another look at his plan to build condominiums in a wetland area.

The 5-4 decision sends Carabell and another Michigan developer‘s cases back to a federal appeals court — with no end to the spat in sight.

In his first major environmental case, Chief Justice John Roberts came up one vote short of dramatically limiting the scope of the landmark Clean Water Act. But at the same time, property rights advocates won a new test for when wetlands can be regulated. Moderate Justice Anthony M. Kennedy said there must be a “significant nexus” between the wetland and a navigable waterway.

“It muddied already muddy waters on this issue,” said Jim Murphy, wetlands counsel with the National Wildlife Federation.

Roberts and the court‘s other three conservatives complained in an opinion that virtually any land in America would be covered under the government‘s interpretation of the law.

“It‘s really a bizarre situation,” said Richard Lazarus, a Georgetown University law professor.

Roberts, Justice Antonin Scalia , Justice Clarence Thomas and new Justice Samuel Alito were in the conservative bloc. Siding with liberal Justice John Paul Stevens were Justices David H. Souter, Ruth Bader Ginsberg and Stephen Breyer .

The justices themselves appeared troubled by their inability to agree on a clear standard for wetland protection. Roberts said the result was confusing and that “lower courts and regulated entities will now have to feel their way on a case-by-case basis.”

Several justices urged the U.S. Army Corps of Engineers, the agency that determines whether to allow development of federally regulated wetlands, to clarify its regulations.

Congress also may get involved. Bills pending in the House and Senate favor an expansive view of federal authority over wetlands.

Rapanos, 70, of Midland, ran afoul of regulators by attempting to develop three parcels they said contained wetlands.

He filled in a portion of one property with sand to build a shopping center, defying cease-and-desist orders and insisting it had no wetlands. The nearest navigable waterway is a Lake Huron tributary river about 20 miles away, but state and federal officials said adjacent ditches provided a direct surface link.

Carabell wanted to build condominiums on a 19-acre parcel in Macomb County, north of Detroit. He obtained a state permit but the Army Corps balked, saying the property had wetlands within the Lake St. Clair drainage system even though they were separated from a tributary ditch by a man-made earthen berm.


Associated Press Writer Gina Holland in Washington contributed to this report.


On the Net:

Supreme Court rulings:

By JOHN FLESHER, Associated Press

Can the Governor be removed from office if he is convicted by Franklin District Court

Monday, June 19th, 2006

        Can the legislature override the Kentucky Constitution?                       

             By Stan Billingsley, Senior Editor of

    The Herald-Leader newspaper, and WAVE television in Louisville have reported (incorrectly we believe) that Chief Justice Joseph Lambert has ruled that Governor Fletcher enjoys absolute immunity from prosecution.  As stated in the accompanying article posted by LawReader, our reading of the decision in which the Chief Justice placed a footnote, concludes that one cannot correctly say that the Chief Justice made such a ruling.Lambert made a comment in a footnote to the effect that there was a strong argument for that proposition. He did not make that theory part of his official ruling.  One can read into his comment what they wish, but this footnote did not commit the Chief Justice on this subject. However, if the Governor is convicted we don’t agree with the Chief Justice that there is indeed a “strong argument? that the Governor would enjoy immunity from impeachment based solely on a conviction by the Franklin District Court. If there is an argument about such immunity it is not found in the Kentucky Constitution.

    In this comment we will explore this theory a bit further.

Can the Governor be impeached and removed from office if he is convicted of a statute passed by the General Assembly? 

One of the offenses for which the Governor was indicted provides in the penalty provision that a party who is convicted shall be removed from office.

First let us examine the provision of the Kentucky Constitution regarding impeachment. There are three sections that are relevant to this discussion:

1) Kentucky Constitution – Section 66 – Power of impeachment vested in House.
The House of Representatives shall have the sole power of impeachment.?

2) Kentucky Constitution – Section 67 – Trial of impeachments by Senate.

  “All impeachments shall be tried by the Senate. When sitting for that purpose, the Senators shall be upon oath or affirmation. No person shall be convicted without the concurrence of two-thirds of the Senators present.?

3) Kentucky Constitution – Section 68Civil officers liable to impeachment — Judgment — Criminal liability.

The Governor and all civil officers shall be liable to impeachment for any misdemeanors in office; but judgment in such cases shall not extend further than removal from office, and disqualification to hold any office of honor, trust or profit under this Commonwealth; but the party convicted shall, nevertheless, be subject and liable to indictment, trial and punishment by law.

    These Constitutional provisions spell out a process where the House “indicts? a public official of a charge which they believe justifies impeachment, but the Senate must then conduct a “trial? of the official.

Technically, a public official is “impeached? by the vote of the House, but he is not punished or removed from office until he has been convicted by the State Senate.

      Under the misdemeanor charge pending against Governor Fletcher, the legislature has added a provision that says the official convicted under that criminal charge is to be removed from office. This procedure if followed to the letter, would mean that the legislature has bypassed Sections 66 and 67 of the Kentucky Constitution.

However, Section 68 adds language that qualifies Sections 66 and 67.

Section 68 says: ““The Governor and all civil officers shall be liable to impeachment for any misdemeanors in office; but judgment in such cases shall not extend further than removal from office,..?

The first clause in that language permits any civil officer to be ?liable? to the impeachment process for any misdemeanors committed while he is in office.  The next clause says  “judgment in such cases shall not extend further than removal from office?.

The issue then becomes what does judgment mean in the context of this section. We suggest that it refers to a judgment of impeachment, and not a judgment of the District Court. The limiting language “shall not extend further than removal from office? means that if a public official is impeached by the legislature, he cannot be fined or imprisoned by action of the legislature in rendering their impeachment “judgment?.  The impeaching bodies of government can remove a civil officer from office, but they cannot also impose a criminal penalty.

The next sentence in Section 68 says: “the party convicted shall, nevertheless, be subject and liable to indictment, trial and punishment by law. “ This sentence means that the civil officer is not immune from prosecution in the courts. This means that the Governor does not enjoy “absolute immunity? from prosecution for a criminal offense. The term “convicted? refers to the final action of the State Senate.  The impeachment process and the criminal process are two separate and distinct procedures, and they both co-exist.  Clearly, the conviction of a public official by a court cannot result in the automatic removal from office, the removal from office power is reserved solely to the impeachment process. 

 After reading Section 68 we cannot find a “strong argument” for the proposition that a Governor enjoys “absolute immunity” either from impeachment or criminal conviction.

    Nothing in Section 68 says a civil officer cannot be “indicted, tried or punished by law? until after the impeachment process.  To say that a civil official enjoys immunity from prosecution prior to his impeachment, is a theory that is not spelled out in Sections 66, 67 or 68.  Perhaps there will be a future court ruling to that effect…but there is no such ruling at this point to that effect. 

The situation where a civil official has been convicted by a criminal court and sent to prison but still remains “in office? and still receives a salary is not a novel occurrence. History has presented a number of factual instances where this very thing has occurred.

    It is well known that a constitutional provision overrides any act adopted by the legislature which conflicts with the constitution.  The judiciary is only empowered to consider whether any act of the legislature is “unconstitutional? (See: Marbury v. Madison). The judiciary does not have the constitutional authority to remove a constitutional officer.

A conviction by a public official by a court results in the imposition of a criminal penalty. That official can only be removed from office by the exclusive impeachment process set out in the Constitution. This procedure requires the legislature to impeach and to try the public official. This power of impeachment is not granted to the judiciary.

   If a governor is convicted of any offense, or if he displeases the legislature on a political issue, or if his competency is questioned, then the legislature may avail themselves of the impeachment process. But Sections 66 and 67 provide the exclusive means of removal from office. Nothing in the law requires the legislature to impeach a civil official who is convicted for a violation of the law by a court.

Therefore, the potential conviction of Governor Fletcher (or any future public official ) who are subject to impeachment, may indeed be impeached, but the exclusive process set out in Sections 66 and 67 must be followed. 

This means, we believe, that any conviction of a public official only sets up a possible basis for removal from office, and any interpretation that would suggest that the legislature can pass a statute that ignores Sections 66 and 67 is incorrect and not well founded in the law.

    The Kentucky Constitution in Section 68, clearly says a public official is not immune from criminal prosecution.  Nothing in the Kentucky Constitution says a public official, even the Governor, is above the law or immune from punishment for criminal acts.    But the penalty or sanction of removal from office is quite a different matter…and we conclude that any conviction by the Franklin District Court cannot be interpreted to automatically remove Governor Fletcher from office.  Such an interpretation would clearly violate Sections 66 and 67 of the Kentucky Constitution. Such an interpretation would mean that the Legislature could ignore the Kentucky Constitution at will.

We concede that a Governor may pardon a public official.  Many argue that he can even pardon himself. We leave those issues to others to discuss. Nevertheless, we can see no basis for the proposition that a conviction of the Governor of a criminal offense, acts to automatically remove him (or any other elected official) from office. Such a conviction only acts to provide a possible basis for removal from office by the formal impeachment process.

When one considers the primacy of Constitutional provisions, it is clear that the legislature cannot properly adopt a statute that bypasses the mandatory removal process.

   An interesting question remains unanswered by this discussion.   Can a Governor who pardons himself thereby provide himself with immunity from impeachment?  Such a theory would be a stretch and we will leave that issue for another day.



Candidate Marcus Carey rebuts editorials about his free speech for judicial candidates lawsuit

Monday, June 19th, 2006

The following editorial was sent to us by 6th Supreme Court candidate Marcus Carey

                  A Faithful and True Rebuttal By Marcus Carey 

 After reading recent editorials rebuking the First Amendment suit filed in Frankfort seeking to clarify Kentuckys rules of judicial campaign conduct, it is obviously  necessary to explain the true significance and reason for this important litigation.
Because these editorials are erroneous on some points and extremely misleading on others, it would be a grossly unfair to the readers if these opinions were permitted to stand without rebuttal.

First, the suit does not seek to inject “hot button? issues into judicial races. Kentucky voters, every day, are asking judicial candidates questions regarding their beliefs and values. Unfortunately there is swirling doubt about what the law will allow judicial
candidates to say. This suit seeks to clarify that issue for the benefit of all candidates and the public.

Second, many candidates have carefully restricted their conduct so as to comply with Kentucky’s pronouncements. Conscientious candidates have sought ethics opinions and politely refused to answer voters’ questions as directed by those ethics opinions. Voters however consistently recoil at a candidate’s refusal to answer questions, regardless how polite the refusal.

While some candidates refuse to answer voter’s questions other candidates, apparently relying upon recent cases decided by United States Supreme Court have openly announced their party affiliation and stated their views on a variety of other topics. The
American notion of justice tells us that there is something inherently wrong that needs to be fixed in an election process where playing by the rules is a disadvantage.
Third, it is not the goal of the suit to “disintegrate? the public’s faith in the judiciary, but rather to encourage the public to become more fully engaged the selection process. The suit seeks to remove unconstitutional barriers that have for too long prevented valuable
information from reaching voters. Such barriers have been labeled “incumbent protection policies,? and stricken down as unconstitutional.

Fourth, this suit does not seek permission for any candidate to “prejudge? cases. The suit does however seek permission for the public to prejudge would be judges. The suit very
clearly empowers those whom our founding fathers intended to be the best judge of their own future, the public. And this suit reaffirms our faith that the public will not only make wise choices about the values of candidates for judicial office but also about his/her
ability to remain independent and impartial from the influences of special interests.
Keeping the public in the dark is not consistent with the American election process. And despite recently developed local traditions, the Supreme Court of the United States agrees.

The goals of this suit seek to promote the highest duties of a Supreme Court Justice –a constitutionalist who trusts the public to decide matters for themselves and commits to apply the law as the people have written it. It would seem that for a candidate to this high
office to sponsor, advocate for, or abide by anything less would be a violation of the candidate’s solemn oath as an office of the court, to be faithful and true to the Constitution. There is no room in a nation ruled by law to discourage liberty for the sake of preserving unlawful traditions.

This suit will clarify and establish the rules all candidates will have to live by. And regardless which side prevails, and in contrast to other nations in the world, the very fact that this suit has been brought will reaffirm our faith in our ability to resolve disputes through the peaceful and orderly application of law and through our American system of
civil Justice.

Herald Leader overreads the tea leaves in this cup and unfairly suggests Chief Justice Lambert supports absolute immunity for Governor Fletcher

Saturday, June 17th, 2006

     The Lexington Herald has printed an article (see below) suggesting that Chief Justice Lambert  has added unnecessary language, in a decision he authored for the Supreme Court, which telegraphs
his belief that Governor Fletcher (and all Governors) may be immune from criminal prosecution until such time as they may have been impeached.

In the decision of the Ky. Supreme Court  in question (dated June 15, 2006, styled Baker v. Ernie Fletcher,) several state workers sued for a judgment awarding them the 5% pay  increment which has been a long time part of state law. The suit claimed that the legislature did not
fund the full 5% and they only received a 2% pay raise. The decision was written by Chief Justice Lambert and joined in by Justices Graves, Johnstone, and Scott,  who concurred with the decision with Justices
Cooper and Wintersheimer dissenting. Justice Roach did not sit on this decision.

This issues raised in the appeal required the court to examine the issue of the legislatures immunity from civil suits.
Since the plaintiff had named the Governor as a defendant, the issue of the Governor’s immunity from a civil suit of this type was clearly in issue.  The Chief Justice would have been remiss if he had not discussed the civil immunity of the governor.

  In the paragraph which discussed this issue, the Chief Justice wrote at Page 7:

“In Kentucky, the framers of our current constitution-and the previous threeincluded the same language in our state’s organic document. They understood that absolute legislative immunity, even with its negative characteristics, is essential if separation of powers15 is to be respected and the Commonwealth’s legislators are to be
encouraged to speak and act candidly on behalf of citizens. This is not materially different from acknowledged judicial and executive immunities, which, stated simply, stand for the proposition that a judge or chief-executive enjoys absolute immunity for
actions taken in official capacities while in office. (footnote 16)”

          The footnote added by Chief Justice Lambert reads:

Footnote 16:

(Editor: We omit the first paragraph which refers to judicial immunity but is irrelevant to this article..but see this paragraph as the bottom of this page.)

16 …”In the area of executive immunity, see Yanero v. Davis, 65 S.W .3d 510, 518 (Ky. 2001), which favorably cites 349 (1982), for the proposition that a chief executive enjoys absolute
immunity for official acts taken while in office . But see Clinton v. Jones, 520 U.S. 681, 117 S . Ct. 1636, 137 L. Ed. 2d 945 (1997) (immunity does not bar suit for unofficial acts).

Also, though unsettled, there is a strong argument in favor of barring criminal charges against a sitting chief executive for actions taken while in office because both the federal and state constitutions allow for their impeachment and, upon conviction, state that he “shall
nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment, according to Law.” Art. I, § 3, cl. 7.”

 The Herald-Leader article in reporting on this footnote stated:

“Kentucky Chief Justice Joseph Lambert stated in a footnote of a ruling this week that a governor “enjoys absolute immunity” for official acts and may face prosecution only if impeached first.”

    Now as we read the decision and footnote in context, we note that the Chief Justice was properly discussing an issue raised in the case before him. The footnote entry notes in paragraph two that there are two different views on Executive Immunity, the view held in the Yanero Case, and the view held in Clinton v. Jones.  In the next paragraph, the Chief Justice says:  “though unsettled, there is a strong argument in favor of barring criminal charges against a sitting chief executive for action taken while in office….”  He then cites a legal treatise for authority for that argument.

We cannot find any language in the decision or footnote where Chief Justice Lambert states as a matter of fact that a “governor enjoys absolute immunity” from prosecution while in office.  The actual comment by the Chief Justice clearly qualifies his observation about executive immunity by saying “though unsettled” and  “there is a strong argument in favor” (of executive immunity).

   The Herald-Leader statement appears to report a declaration of the law by the Chief Justice, but our reading of the actual language used, and considering the context of the argument before the court, leads us to conclude that the Chief Justice did not reveal his personal opinion, and merely noted for the record that others hold the view of absolute executive immunity.

The Herald-Leader suggests that there was something extraordinary about such a footnote.  Such comments however, are hardly novel, and even have a name. Comments in a court decision that do not bear on the merits of the particular case, are called “Dicta”.   Such comments may or may not indicate a direction the court may take in the future if the issue is directly presented to the court.

 In any event, the footnote did not make a ruling on the issue of executive immunity from criminal prosecution prior to impeachment.  But clearly, the Chief Justice’s comment is not an unusual practice in appellate decisions, and in the highly qualified format his statement was written, merely does what footnotes often do…it expands the discussion for future reference.  We would expect that if the Chief Justice was making a declarative statement of judicial policy or a formal ruling, that it would not have been found in a footnote so highly qualified.

While this decision was written by the Chief Justice, it was joined by Justices Johnston, Graves, and Scott.  They did not dissent from the decision and therefore joined in the conclusions and “footnotes” to said decision.  Further, the statement was so minor an issue, that Justices Cooper and Wintersheimer didn’t even mention it in their dissent.

We believe that the Herald-Leader overread the tea leaves in this cup.  They are entitled to read into the footnote anything they want to, but it is unfair to report the issue in the tone that the Chief Justice has made a declaration of the law.  When in fact, all he did was to comment on the existence of a legal argument by others on the issue.

The Lexington Herald Article:

STATE HIRING INVESTIGATION   Indictment of Fletcher questioned  Impeachment must come first, chief justice writes
By Ryan Alessi

Gov. Ernie Fletcher
Excerpts from Chief Justice Lambert’s opinion

FRANKFORT — Kentucky Chief Justice Joseph Lambert stated in a footnote of a ruling this week that a governor “enjoys absolute immunity” for official acts and may face prosecution only if impeached first.

Such an assertion could have major implications on the eventual trial of Gov. Ernie Fletcher, who has been indicted on charges related to the state hiring investigation. Lambert’s position could invite Fletcher’s attorneys to seek dismissal of the charges, on the grounds that Fletcher hasn’t been impeached.

Lambert tucked that argument into the fine print of a decision on an unrelated case.

“Though unsettled, there is a strong argument in favor of barring criminal charges against a sitting chief executive for actions taken while in office because both the federal and state constitutions allow for their impeachment,” Lambert’s footnote says. Lambert goes on to say that only after a governor or president is impeached by the legislature would he or she be subject to indictments, trials or punishment.

Last month, a grand jury indicted Fletcher on three misdemeanor charges stemming from a yearlong investigation into improper political hirings of rank-and-file state workers.

At least one prominent former judge raised the question yesterday of why Lambert would attach that item about a governor’s criminal liability to a case regarding a civil lawsuit brought by state workers who thought they hadn’t been adequately paid by the General Assembly.

“I don’t know why he would find it necessary to put that footnote there,” said retired Chief Justice John Palmore. He said immunity for a governor until impeachment is “a new idea to me.”

From his observations, Palmore said, Lambert “and the governor are hand and glove.”

Lambert’s general counsel, Jason Nemes, did not return a phone call yesterday. Lambert and most justices have typically declined to publicly discuss their decisions.

Fletcher’s defense

Prosecutors have alleged that Fletcher’s administration systematically hired rank-and-file state workers based on political ties instead of qualifications, as the law requires. Fletcher’s trial is set for Nov. 8.

So far, Fletcher’s attorneys have attempted to block Attorney General Greg Stumbo and his staff from prosecuting the case, but have not yet challenged the constitutionality of the indictments themselves.

M. Stephen Pitt, one of Fletcher’s personal attorneys, said yesterday he was aware of the decision and had read Lambert’s footnote. “I’m not going to interpret what the chief justice wrote,” Pitt said. “It’s stated pretty clearly.”

He said he couldn’t comment on any potential defense strategies.

Pierce Whites, deputy attorney general, declined to comment on Lambert’s ruling.

Special Judge David Melcher, who is presiding over Fletcher’s case in Franklin District Court, recently instructed attorneys in the case to limit their public comments to court filings.

Only the General Assembly can begin impeachment proceedings. And thus far, legislative leaders have insisted there is no plan to do so against Fletcher.

Tucked in the decision

This week, Lambert wrote the majority opinion in which the Supreme Court rejected a lawsuit by state workers against the Kentucky government. The employees claimed they weren’t adequately paid in 2002 when the General Assembly adjourned without passing a state budget.

As part of that decision, Lambert stated that Kentucky’s constitutional framers “understood that absolute legislative immunity … is essential if separation of powers is to be respected.”

He then said that protection isn’t “materially different from acknowledged judicial and executive immunities.” At that point, Lambert stuck in the four-sentence footnote regarding the argument that a governor would have to be impeached before being charged with a crime.

Lambert, in the course of that footnote, cited six cases, including President Bill Clinton’s request to throw out a lawsuit by Paula Jones on the grounds of presidential immunity. The court eventually ruled that presidential powers don’t block an executive from being slapped with a civil suit.

When told of Lambert’s argument amid the salary lawsuit ruling, Palmore said it sounded as if Lambert went out of his way to make that point. “If that’s the law, I didn’t know it,” Palmore said of Lambert’s argument. “Of course, I always thought you couldn’t pardon someone if they hadn’t been accused of something.”

The state Supreme Court ruled earlier this spring that Fletcher’s Aug. 29, 2005, pardons of his administration prevent a grand jury from issuing any more indictments related to the hiring investigation.

Lambert had recused himself from that case.


*Omitted paragraph from footnote 16 above:

See Stump v. Sgarkman, 435 U .S. 349, 98 S . Ct. 1099, 55 L. Ed. 2d 331 (1978), for
the best recitation of the rule granting judicial immunity and the reasons underlying its
desirability . For Kentucky cases recognizing judicial immunity in the Commonwealth see Henry v. Wilson , 61 S.W .2d 305 (1933), and Vaughn v. Webb, 911 S .W.2d 273 (Ky. App . 1995) (“a judge is immune from personal liability for judicial acts if at the time he acted, regardless of whether he acted in error, maliciously, or in excess of his authority, he had jurisdiction over the subject matter before him .”).

Judge Steve Horners comprehensive report and political roundup in Kentucky for week of June 17

Saturday, June 17th, 2006

Horner column is now posted on This weeks topics include:         

Crittenden:  Hiring Investigation Attorney Billings Must Be Produced
Fletcher’s “Revolving Door?
Fletcher’s “Inner Triangle? Distrusts Press
Pence:  “I have duty to serve out my term.?
Fletcher Fund-raiser Re-scheduled
Special Session to Start on June 22
2007 Chandler-Abramson Buzz
Labor-Mgt Board Reverses Conference Plans After Organized Labor Balks
Newspaper Editorial Comments
Newspaper Columnists’ Comments

LawReader posts 47 Ky Supreme Court cases for month of June with synopsis

Friday, June 16th, 2006

The following Decisions of the Ky. Supreme Court were posted within 24 hours of their release with a synopsis of each important case. LawReader subscribers may access the complete synopsis and full text of each decision.  Stay current with the law in your area of the practice, subscribe to LawRreader for only $34.95 per month.

 Important cases:

1 waiver of rights constitutionally permissible

2 unpublished fact based case

3 The United States Supreme Court has rejected the idea that a jury is only required to decide the factual components of essential elements .

4 that the trial court erred in admitting expert testimony

5 the techniques used by police overbore defendant’s will in making a confession will

6 The partnership agreement was in operation, and Richard could not rightly dissolve

it under KRS 362.300(1)(b)

7 if the injury was caused by an unsecured person, the injured party’s reparation obligor may obtain BRB reimbursement directly from the unsecured person ; but if the injury was caused by a secured person, the injured party’s reparation obligor may obtain BRB reimbursement only from the secured person’s reparation obligor.

8 the interrogation during which Lucas confessed was noncustodial-and therefore did not require a Miranda warning

9 the General Assembly has provided a legal definition of the term “restrain” in the penal code chapter pertaining to kidnapping and related offenses, the definition should have been included in the instructions as a part of the whole law of the case – but omission was harmless under the facts of this case

10 only statements made during custodial interrogation are subject to suppression

11 no clear error in the trial court’s reliability determination allowing “homicide by heart attack? theory by expert medical witness

12 the trial court properly required Appellant to “present evidence sufficient to support a reasonable belief that in camera review of counseling records may yield evidence that establishes the exception’s applicability.”

13 statements of identity are not pertinent to diagnosis or treatment, and are inadmissible under KRE 803(4).

14 the consent to operate form was indisputable evidence that Appellant gave Appellees consent to perform the procedures.

15 The arrest was proper because a reasonable officer could conclude from all the facts and circumstances that a violation was being committed in his presence

16 Under RCr 9.16, “a defendant must prove that joinder would be so prejudicial as to be

‘unfair’ or’unnecessarily or unreasonably hurtful .”‘

17 it would appear quite a stretch of the hearsay exception to consider many of B .P.’s statements in the interview as “medical history,” or reasonably pertinent to medical treatment or diagnosis

18 there is an absence of any proof that the insured intended his written notice of a change in beneficiary to be delivered to the company.

19 the crimes for which Davis has been charged, including first offense DUI, are “petty offenses … (However) a potential sentence in excess of six months’ imprisonment is sufficiently severe by itself to take the offense out of the category of `petty.”‘  But when def. requested a jury trial, later request for bench trial should not have been granted….

20 trial court’s decision to overrule Appellant’s motion to excuse these two jurors (who had been victims of crime)  was appropriate because there was nothing shown that “would prevent or substantially impair the performance of their duties in accordance with their instructions or their oaths

21 the imposition of court costs are “mandatory” and shall not be subject to any form of ” nonimposition in the terms of a plea bargain or otherwise.”

22″[t]he purpose of the kidnapping exemption statute is to prevent misuse of the kidnapping statute to secure greater punitive sanction for rape, robbery and other offenses which have as an essential or incidental element a restriction of another’s liberty.”

23 The burden of proof rests on the defendant to prove she is not competent.

24 The prosecutor then asked if she knew where the men were going. She responded “to rob the trailer park”. Held: not hearsy

25 A pleading is sufficient if it identifies the circumstances constituting fraud so that the defendant can prepare an adequate answer from the allegations

26 When a sum certain is appropriated (here for state worker’s annual 5% increment pay raise) there can be no legitimate contention that more spending was intended

27″the danger of confusing the issues and/or misleading the jury is so great in this case as to outweigh whatever value this evidence has to offer”

28 fact based case unpublished

29 same sex adoption:   B.F.’s only avenue for obtaining standing to claim custody was to prove that she was a de facto custodian and in this respect, her proof failed.

30 Bowling procedurally defaulted his mental retardation claim (as defense to death penalty) applies with equal force to support a finding that his current claim, even if viable, would have been procedurally defaulted as well

31 the trial court had not abused its discretion allowing the discovery of items in the personnel files of Hamilton employees who were connected with the adjustment of a related claim.

32 the trial court erroneously declared a mistrial without the “manifest necessity” necessary to do so, subjecting him to retrial after jeopardy had already attached, thus violating his constitutional right not be tried twice for the same offense under the Fifth Amendment

33 misnumbered by AOC 34 misnumbered by AOC 35  misnumbered by AOC

36 Kevin M. Callihan, is suspended from the practice of law in Kentucky for a period of 181 days

37 KENNETH E . DANIELS is suspended from the practice of law in the Commonwealth of Kentucky

38 Rodney McDaniel, is suspended from the practice of law in the Commonwealth of Kentucky for a period of two (2) years

39misnumbered by AOC

40 he failed to sustain his burden of proving a work-related injury and failed to give due and timely notice of such an injury

41 the physical exertion of performing CPR and first aid on an individual with multiple gunshot wounds is a physically traumatic event.

42 wc case affirmed 43 wc case affirmed 44 wc case affirmed 45 wc case affirmed 46 We affirm, but we do so because the physical exertion of performing CPR and first aid on an individual with multiple gunshot wounds is a physically traumatic event.

47 failure of the administrator of the worker’s estate to list the employer’s correct address on the application for benefits did not deny the employer due process under the circumstances

LawReader posts synopsis of this weeks Ct. of Appeals cases

Friday, June 16th, 2006

The following Ky. Court of Appeals cases have been posted on LawReader and are accessible by subscribers.These cases were released by the Court of Appeals at 2 P.M. and our staff had written a synopsis for each decision and posted them by 3:53.  This keeps our users very, very current on the state of the law.
Case synopsis:

1 the trial court erred as a matter of law in failing to award any damages

2 A motion for a directed verdict at the close of the evidence is required to support a judgment of acquittal.

3 search of motel room following arrest pursuant to an arrest warrant, did not exceed the scope permitted by the Fourth Amendment.

4 under Kentucky law that limestone and clay are not minerals and thus were retained by the surface owners

5 court correct in ruling on claim of ineffective assistance of counsel on the basis of the court record without holding an evidentiary hearing

6 Once the spouse alleging dissipation has established the above elements, the burden of going forward falls on the spouse charged with dissipation.

7 we are presented with no evidence that the post-trial litigation was for the purpose of harassment and vexation or any indication that the trial judge abused the discretion the statute provides.

8 If an employee’s entire legal expense in recovering damages against a third-party tortfeasor exceeds the indemnity paid or payable by the carrier to the employee, then the carrier is not entitled to subrogation.

9 ambiguity in the language of the arbitration agreement must be resolved in favor of arbitration

10 no case  says you’re required to disclose what your rebuttal testimony is going to be

11 the fact that White was driving erratically justified Officer White’s attempted traffic stop

12  the statute limits revocation of probation to occurring during the (five year)  probationary period

13 to be published: the trial court did not err by allowing the Commonwealth’s Attorney to participate in Bray’s sex offender risk assessment hearing

14 Appellant voluntarily, knowingly, and intelligently waived his right to have counsel present? when he continued to communicate with the police.


TO BE PUBLISHED: the Kentucky Cabinet for Family Services failed to present sufficient evidence of probative value at the termination hearing to establish grounds for termination by clear and convincing evidence.

16 KRS 139.793 specifically prohibits any private cause of action based upon any of the provisions contained within the Uniform Sales and Use Tax

17 The inmate’s choice of legal aide or staff counsel must be identified within twenty-four hours of the inmate’s receipt of the completed disciplinary report, and the inmate must identify any chosen witnesses at least twenty-four hours before the initial hearing.

18 Appellant’s CR 60.02 motion, made 23 years after the indictment was issued, was not timely

19 Although the court neither abused its discretion nor acted erroneously when it denied Miller’s motion, we assume that it will reconsider its decision when additional time has passed and R.S.M. has achieved a level of physical and emotional maturity that will enable him to resume contact with his mother.

John Dean asks ACLU vs National Security Agency Why the State Secrets Privilege Should not Stop the Lawsuit Challenging Warrantless Telephone Surveillance of Americans

Friday, June 16th, 2006

John Dean, former White House counsel to Richard Nixon suggests National Security defense against a civil lawsuit may not be successful. 

The American Civil Liberties Union is the lead plaintiff in a federal lawsuit requesting that the National Security Agency (NSA) be enjoined from its ongoing violation of the Foreign Intelligence Surveillance Act (FISA) via its program of telephone surveillance of Americans. Joining the ACLU as plaintiffs are a number of attorneys, scholars, journalists and others who have been adversely affected by the program. The plaintiffs argue that the NSA program violates not only FISA, but also the Constitution’s First and Fourth Amendments.

The U.S. Government, through its Department of Justice attorneys, has been desperately trying to get this case – currently pending in the U.S. District Court for the Eastern District of Michigan — dismissed. To this end, DOJ attorneys have invoked the “state secrets privilege” – claiming, in essence, that the government cannot explain its actions because they involve national security.
DOJ attorneys have used this strategy successfully with FBI translator Sibel Edmonds twice, to prevent her from testifying about misconduct in the FBI. They used it again with Maher Arar, a Canadian who was arrested when passing through JFK airport, returning from his vacation, only to find himself “renditioned” to Syria, where he was tortured before being released because he was innocent. And they used it once again with Khalid El-Masri, the German citizen mistakenly arrested and flow to Afghanistan where he was detained, beaten, and tortured by the CIA.

But this time, the outcome may be very different. Because this is a case where the “state secrets” privilege plainly should not apply, and a case with a judge brave enough to rule that, in fact, it does not.

Indeed, if she so chooses, Judge Anna Diggs Taylor can do for America what the GOP-controlled Congress, and Republican-beholden federal judges, have thus far refused to do: She can require the Administration to comply with the law — and in the process, she can actually examine the validity of the government’s claim of “state secrets,” rather than merely buying into assertions that national security is involved. Since such claims have been persistently abused by prior presidents, this kind of examination is long overdue.

The ACLU v. NSA Lawsuit, and The Judge Who Will Hear It

The ACLU’s lawsuit simply calls for the NSA to follow FISA, which Congress made the exclusive means by which the Executive Branch can undertake electronic surveillance of Americans.

Unlike those judges who easily disposed of Edmonds, Arar and El-Masri, Judge Taylor plainly understands civil rights and liberties, as her biography well illustrates. She is a no-nonsense judge with a quarter century of experience on the federal bench. She has tossed lawyers out of her courtroom when they played delaying games in discovery (and she has been upheld by the Court of Appeals when doing so). She writes well-reasoned opinions that reveal deep sympathy for victims of civil liberties violations. And she certainly has no fear of being reversed by an increasingly conservative U.S. Court of Appeals for the Sixth Circuit, which has jurisdiction over her court.

In short, if ever there was a federal judge to stand up to the President of the United States to tell him he must obey the law, and to cut through the nonsense that typically surrounds the invocation of the “state secrets” privilege, it is Judge Anna Diggs Taylor.
The ACLU argues that “Administration officials have publicly conceded all of the facts necessary” for the judge to rule on the plaintiffs’ statutory and constitutional claims. Accordingly, it has moved for partial summary judgment in the case.

The Administration sought a stay with respect to the motion, but in an order of May 31, Judge Taylor refused the stay, and on June 10, she heard oral argument. Still upcoming in the case is another hearing, to be held on July 12, on the Administration’s motion to dismiss the case because it involves state secrets. It seems likely that Judge Taylor will not rule on either the ACLU’s motion, or the Administration’s, until some time after that second hearing – so readers can likely expect a ruling in late July, August, or September.

The Government’s Arguments for Dismissal: Exceptionally Weak

The government has made two arguments in support of dismissing the case:

First, it claims that the plaintiffs do not have standing to bring their lawsuit, because their harm is speculative – after all, they do not know whether they are actually being surveilled or not. And looking at FISA and its legal standards won’t help them figure out whether they might be – since the government has admitted it is flagrantly violating FISA.

The NSA should not be able to profit from the situation of fear and uncertainty it has created, by getting this suit dismissed on this ground – especially since this kind of fear and uncertainty is exactly why First Amendment doctrine allows standing based on the “chilling effect.” A reporter’s or scholar’s phone call may be very different when it is made under fear of surveillance, and in the knowledge that standards set out in wiretapping laws are being utterly ignored.

Relatedly, the DOJ attorneys argue that they cannot show the plaintiffs’ lack of standing without jeopardizing national security. But what, exactly, do they mean? Is the DOJ unwilling even to admit that it is not surveilling the plaintiffs? And why would it bother to make such an admission, in the first place – since as noted above, the plaintiffs’ prior fear and uncertainty is a separate basis for standing here?

Second, the government claims that the “state secrets” privilege renders it unable to fully explain why, in fact, the NSA surveillance program is legal, because to do so would involve matters relating to national security. But this argument, too, is bunk. There was at least some scant basis for making the argument in the cases of wrongly detained and tortured individuals; the government could claim there, at least, that its ways of figuring out who to detain were a matter of national security. Here — notwithstanding a 42-page document the Administration issued proclaiming the legality of the NSA program — as the ACLU has argued, the Administration’s own public admissions make it difficult to imagine what “secret national security” argument might be added to make blatantly illegal actions legal.

State Secrets: A Privilege Born on the Lips of a Lie

The ugly history of the “state secrets” privilege should also cause Judge Taylor to pause before considering allowing DOJ to get away with once again invoking it.

The state secrets privilege was first recognized by the Supreme Court in its 1953 ruling in United States v. Reynolds. Following the death of three civilian engineers involved in a B-29 crash while working for the military, their widows sought the accident reports and damages for their wrongful deaths. But the government refused to turn over the reports, claiming the mission was national-security-related, and to do so would reveal secrets that could harm the nation. The Reynolds Court, which took the government at its word, agreed, and dismissed the claim. The Justices explained the impossible position in which the reviewing court had been put: “The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect.”

Fifty years after the Reynolds ruling, a daughter of one of the men killed in the B-29 crash, Judy Loether, discovered while surfing the Internet that the government had declassified the accident report, without deigning to let her know this fact. For $63, she purchased a copy from a private company. To her utter amazement, the accident report revealed that no state secrets whatsoever had been involved; rather, the only secret was the gross negligence by the military. It was an accident that should never have happened.

Following up on Loether’s discovery, the lawyers involved in the Reynolds case filed a motion to underline the point that the government had perpetrated a fraud on the federal courts. Yet neither the Department of Justice nor the Supreme Court wanted to know anything about it. The motion was all but summarily dismissed.

Because of the increasing use of the “state secrets” privilege, it has been more closely studied in recent years. For example, University of Texas political scientists William Weaver and Robert Pallitto, after reviewing all the reported cases, have concluded that “the state secrets privilege … [is] now [being] judicially mishandled to the detriment of our constitutional system.” This mishandling, they contend, is occurring because “the courts have unwisely acquiesced to executive power on this matter.”

As one commentator nicely states it, the state secrets privilege was “born with a lie on its lips.” When the government says “national security,” the federal courts seem to cower. Yet anyone who has worked in this area knows that seldom is nation security truly at stake when the government claims it to be. Typically, the invocation of national security borders on being a hoax.

The Great “National Security” Ruse – Illustrated by the Pentagon Papers Case

No government can operate in a fishbowl. And there is some information that is appropriately kept secret to prevent harm to the nation’s security. But such secrets are rare. Very, very rare.

Tom Blanton, the executive director of the National Security Archive at George Washington University, recently wrote in the Los Angeles Times about how the government overuses national security classifications. He noted that the current deputy undersecretary for counterintelligence grudgingly conceded to Congress that at least half of all classified information was overclassified; 9/11 commission chairman Tom Kean has said that “three-quarters of what I read [when studying the government's preparation for terror attacks] that was classified shouldn’t have been”; and President Reagan’s executive secretary for his National Security Council, Navy Captain Rodney McDaniel, has testified that only ten percent of the document stamped secret were for “legitimate protection of secrets.”

Captain McDaniel is being generous.

Probably the most egregious case, within my personal knowledge, of the government’s employing the national security ruse was the landmark Pentagon Papers case, United States v. New York Times.

Serving, at the time, as counsel to the President, I watched as the government sought injunctions against the New York Times and The Washington Post to prevent further publication of the leaked study of the origins of the Vietnam War — knowing full well that none of the government’s lawyers involved actually knew what was in these documents.

The U.S. Attorney in the Southern District of New York had thought it unseemly to argue for a prior restraint upon the press – the ultimate First Amendment violation — without knowing why. I agreed, and tried to find out what the justification for seeking this extraordinary remedy might be. But the Defense Department refused to explain to what was in the papers to anyone.

The Solicitor General is the government’s most esteemed advocate — often referred to as the tenth member of the Supreme Court because of the trust given his office. Yet the Solicitor General at the time, Irwin Griswold — a former dean of Harvard Law School — did not insist on knowing what was actually contained in the Pentagon Papers, and he never found out, even as he insisted on the importance of their continued secrecy.

Remarkably, Griswold told the High Court in June 1971, “I haven’t the slightest doubt myself that the material which has already been published and the publication of the other materials affects American lives and is a thoroughly serious matter. I think to say that it can only be enjoined if there will be a war tomorrow morning, when there is a war now going on, is much too narrow.”

Three justices were convinced, but six were not. The Pentagon Papers thus were published – and America could read for itself, to see that no national security peril was posed.

No doubt Griswold was haunted by his less-than-candid advocacy in the Pentagon Papers case, for twenty-eight years later, he publicly recanted. In a 1989 Washington Post OpEd he wrote, “I have never seen any trace of a threat to the national security from the publication [of the Pentagon Papers]. Indeed, I have never seen it even suggested that there was such an actual threat…. It quickly becomes apparent to any person who has considerable experience with classified material that there is massive overclassification and that the principal concern of the classifiers is not with national security, but rather with governmental embarrassment of one sort or another.”

In sum, the government has a well-documented and persistent history of abusing its claims of national security. Given this history, federal judges should not give the Executive Branch the benefit of any doubts.

It’s true that the head of the Executive department or agency involved in claiming a state secret must personally attest to the national security issue. But if anyone believes that the Secretary of Defense, or the Director of National Intelligence, has the time or disposition to examine all the papers, and consider the problems involved, they simply do not understand how government works. These decisions, in fact, are made by bureaucrats (often with their own agendas).

Judge Anna Diggs Taylor’s Dilemma

When Judge Taylor conducts the July 12 hearing on the Administration’s invocation of the “state secrets” privilege as a basis for dismissing the suit, she will face a classic dilemma facing all federal judges who must rule on the “state secrets” privilege: How is the judge able to know whether the government is making a legitimate claim?

The ACLU seems correct that the government’s factual admissions here make the case for FISA violation, in particular, rather cut-and-dried, as a legal matter. Accordingly, the invocation of the state secrets privilege appears more a sword than a shield: A method to dispose of the case without litigating the legality of the government’s actions.

But the paradox of the state secrets privilege is that the government can invoke it without saying exactly why, and many federal judges – and, as noted, government attorneys – have met this invocation with deference, mindful of the constitutional separation of powers.

Such deference, however, has not been earned by the Executive Branch. Solicitor General Griswold was snookered by Defense Department bureaucrats. Government officials admit that not less than half — if not as much as ninety percent — of classified information is incorrectly classified. Yet many federal judges follow the line of state secrets cases that are obsequious to the Executive Branch’s claims when they relate to national security. They should not. By doing so, they are not truly fulfilling their role as constitutional co-equals of the Executive Branch. They are not checking, nor are they balancing. They are merely abdicating.

Many judges seem to believe that they must abdicate, for they are not competent to make determinations regarding national security matters. The truth is that, in fact, they are probably more competent than the agenda-driven officials within the Executive branch who make such determinations. Judges are experienced at weighing facts and their implications, and they certainly have the power to gather the information necessary. And life-tenured federal judges – beholden to no one, and in no fear of job repercussions – are able to be far more impartial than Executive Branch officials can ever be. It is no surprise that Executive Branch officials are grossly overprotective of secrecy; for them, that is the safest course.

Tom Blanton noted in his essay that “judges have many tools at their disposal for inquiring into and testing the government’s claims” when invoking the state secrets privilege, including appointing “special masters with expertise and security clearances.” (Special Masters may be appointed by federal courts to report back to the court when complex factual matters arise.)

For example, Judge Taylor could appoint a team of special masters like the former co-chairs of the 9/11 commission, Tom Kean and Lee Hamilton, to assess the government’s claims that it would have to expose “state secrets” in order to explain why plaintiffs do not have standing, and why the government is not really violating FISA — despite its own public admissions that, in fact, it is.

Such a ruling could halt the growing abuse of the “state secrets” privilege by President Bush and Vice-President Cheney — who have already used this privilege more aggressively than any presidency in history, and recently have only been increasing its use. While precise numbers – because not all cases are reported – are hard to come by, a recent study reports that the “Bush administration has invoked the state secrets privilege in 23 cases since 2001.” By way of comparison, “between 1953 and 1976, the government invoked the privilege in only four cases.”

An Overwhelmingly Important Case – and Hearing

The eyes of the nation should turn to Judge Anna Diggs Taylor’s courtroom on July 12. It is not an exaggeration to say that Judge Taylor, in many ways, will be ruling on the fate of the nation. We are sliding down the slippery slope.

I am reminded of the words of Martin Niemoeller, the German U-Boat captain and later Lutheran pastor and philosopher, who was asked by a student “How could the Holocaust happen?” Niemoeller famously explained how easy it was to tolerate injustice when people do not believe they are involved: “First they came for the Communists, but I was not a Communist so I did not speak out. Then they came for the Socialists and the trade unionists, but I was neither, so I did not speak out. Then they came for the Jews, but I was not a Jew so I did not speak out. And when they came for me, there was no one left to speak out for me.”

Are these words properly invoked in the “state secrets” context? Ask Maher Arar and Khalid El-Masri – tortured by mistake, despite their innocence, then prevented from holding the government responsible in court, on the ground that the very mistake that caused their terrible suffering was a “state secret.”

Judge Anna Diggs Taylor will hopefully speak out – for all of us.


Federal Judge upholds In God We Trust on currency

Thursday, June 15th, 2006

A federal judge in California ruled against an atheist on Monday (June 12) who argued that minting the phrase “In God We Trust” on U.S. currency violated constitutional prohibitions against the government promoting religious ideas.

Following precedent established by a 1970 court decision, U.S. District Judge Frank C. Damrell Jr. ruled that the words “In God We Trust” are a national motto that “have nothing whatsoever to do with the establishment of religion.” 
Michael Newdow, a Sacramento doctor and lawyer who argued that the phrase violates his right to be treated equally, vowed on Tuesday to appeal the ruling.

“It’s such a fraud,” Newdow said in an interview. “In this nation that’s supposed to be this beacon of religious liberty, a bastion of equality. What’s next ‘In Jesus We Trust,’ `In Protestantism We Trust’ ?”

Two years ago, Newdow, an avowed atheist, battled all the way to the Supreme Court to have the phrase “under God” removed from the Pledge of Allegiance. The high court ruled the Sacremento man lacked the standing to bring the case.

With new plaintiffs, Newdow brought an identical lawsuit back to the courts, where it now sits before the San Francisco-based 9th U.S. Circuit of Appeals. Newdow said he plans to appeal the coin decision, as well, to the same appeals court. Newdow estimated that he has spent between $7,000 and $8,000 on his court cases.

Newdow’s “In God We Trust” case claimed that the government was “excluding people who don’t believe in God,” and violating the constitutional principle of a separation between church and state.

Jay Sekulow, chief counsel of the conservative American Center for Law and Justice, said Newdow’s lawsuit is an “attempt to alter history by removing a legitimate expression of our religious history.”

Federal lawmakers authorized a reference to God on a 2-cent piece in 1864, according to the Associated Press. Congress passed a law that required all U.S. currency to bear the words “In God We Trust” in 1955.



Ohio court dismisses class action – rules cigarette manufacturer not warned its advertising was deceptive

Thursday, June 15th, 2006

The Ohio Supreme court dismissed an Ohio residents claim that Philip Morris advertising about low-tar cigarette claim was not misleading advertising, Plaintiffs attorney says the fight will go on

In late 1999, residents of Medina County went after a cigarette maker, accusing Phillip Morris of falsely marketing low-tar cigarettes as safer alternatives than its regular brands.

But the case — certified as a class action by Medina County Common Pleas Judge James Kimbler in September 2003 — has been tangled up in the legal system and never has made it before a jury.

An Ohio Supreme Court decision Wednesday further complicates its path to a courtroom by reversing its class-action status, which allowed smokers in six Northeast Ohio counties to join if they felt similarly misled.

Justice Evelyn Lunberg Stratton wrote that the cases on which the plaintiffs built their argument for a class action weren’t similar enough to forewarn Phillip Morris that its advertising practices could be deemed deceptive under Ohio’s Consumer Sales Practices Act.

Attorney Charles Rocky Saxby of Columbus, one of the attorneys who represented the smokers, said the decision was disappointing.

Whether it will be appealed has not been decided, he said.

The standard now in Ohio is a much more difficult one; it essentially gives suppliers or companies who engage in the practice one free deception before they can get in trouble, Saxby said Wednesday.

Saxby said the decision slaps down the intent of the Consumer Sales Practices Act, which was designed by the Ohio General Assembly to give small, affected consumers a way to take on companies who deliberately deceive or misrepresent the quality of their products.

It’s disappointing, but we will continue to fight,he said.

Chief Justice Thomas J. Moyer and Justices Maureen O’Connor and Terrence O’Donnell joined in the majority decision. Judge Thomas J. Grady of the 2nd District Court of Appeals, sitting for Justice Alice Robie Resnick, concurred on some aspects and dissented on others, as did Justice Judith Ann Lanzinger.

Justice Paul E. Pfeifer wrote a critical dissent, calling the court’s interpretation of the law unconscionably narrow and saying it will limit consumers’ ability to file class-action claims.

At the heart of the case are the claims by Catherine Marrone of Seville and other smokers that they were misled into buying light versions of Marlboro and Virginia Slims.

They didn’t claim health problems as a result, but instead sought a refund of money they and other smokers in surrounding counties had spent on light cigarettes in the previous two years.

The lawsuit argued that Phillip Morris knew the tar levels in the light version of its cigarettes were the same as its regular versions.

The pool of affected smokers was to include those from Medina, Ashland, Cuyahoga, Lorain, Summit and Wayne counties, according to Kimbler’s initial class-action decision.

In September 2004, the 9th District Court of Appeals had upheld the class-action designation, a decision that landed the case on the docket of the Ohio Supreme Court.

Today’s decision is a sensible one that reflects the intent of the state’s consumer protection law,” William S. Ohlemeyer, Philip Morris USA vice president and associate general counsel, said via e-mail. It is consistent with decisions by other courts recognizing that Philip Morris USA cannot be sued in a consumer fraud act class action.

By Julie Wallace
Beacon Journal staff writer

Supreme Court cripples Exclusionary Rule in 5 to 4 decision

Thursday, June 15th, 2006

WASHINGTON (CNN) — A split Supreme Court ruled Thursday that drug evidence seized in a home search can be used against a suspect even though police failed to knock on the door and wait a “reasonable” amount of time before entering.

The 5-4 decision continues a string of rulings since the September 11, 2001 terrorist attacks that in general give law enforcement greater discretion to carry out search-and-seizure warrants.

President Bush’s nominees to the high court, Chief Justice John Roberts and Justice Samuel Alito, notably sided with the government.

Writing for the majority, Justice Antonin Scalia said disallowing evidence from every “knock-and-announce violation” by officers would lead to the “grave adverse consequence” of a flood of appeals by accused criminals seeking dismissal of their cases. (Opinion — pdf)

He was joined by Roberts and his fellow conservatives Anthony Kennedy, Clarence Thomas and Alito.

Scalia added that police might put their lives in danger if they were uncertain when and if entry was legally permissible. “If the consequences of running afoul of the law were so massive, officers would be inclined to wait longer than the law requires — producing inevitable violence against officers in some cases, and the destruction of evidence in many others.”

The justices sparred in an appeal they are hearing for a second time, and reflected the deep divisions that remain on a court divided along ideological lines. There was little unanimity over how to ensure law enforcement officers do not routinely violate the constitutional protection against “unreasonable searches-and-seizures.”

The appeal involves Booker Hudson, a Detroit, Michigan, man whose case has wound its way through various courts for nearly seven years.

Seven city police officers executed a search warrant in August 1998 on Hudson’s home, finding crack cocaine on him and around the residence, as well as a gun.

Prosecutors said officers shouted “Police, search warrant,” but readily admit that they did not knock on the door and that they waited only three to five seconds before entering and finding Hudson sitting on his couch. He was eventually convicted of drug possession.

“People have the right to answer the door in a dignified manner,” Hudson’s lawyer David Moran had told the high court. The justices have ruled in the past that police should announce their presence, then normally wait 15 to 20 seconds before bursting into a home.

Justice Stephen Breyer wrote a lengthy dissent, saying, “Our Fourth Amendment traditions place a high value upon protecting privacy in the home.” A centerpiece of those protections, he said, includes the “exclusionary rule,” under which evidence seized in illegal searches should be suppressed at trial.

“It weakens, perhaps destroys, much of the practical value of the Constitution’s knock-and-announce protection,” concluded Breyer, who said he fears police will now feel free to routinely violate the knocking and waiting requirements, knowing they might not be punished for it.

Justices John Paul Stevens, David Souter and Ruth Bader Ginsburg supported Breyer’s position.

The majority-conservative court has been generally supportive of police discretion since the 9/11 attacks, including disputes over home and car searches, suspect interrogations, and sobriety and border checkpoints. Several of the more liberal justices have disagreed sharply in many of those cases.

The high court has already ruled on two other search-and-seizure cases this term. In March, it said police were wrong to search a Georgia man’s home over his objections, even though his estranged wife gave her consent. And last month, police in Utah investigating reports of a loud party were found to be justified entering a home under “emergency circumstances” to break up a fight, even though they did not have a search warrant to enter.

Alito turned out to be the deciding vote in the Hudson case. He was not yet on the bench when the case was first argued in January. His predecessor, Sandra Day O’Connor, heard the case and appeared to support the defendant.

But she retired before a decision was issued and, under court rules, her vote did not count. That left a 4-4 tie, prompting the court to rehear the arguments. provises its users a syllabus and excerpts from the decision.

go to:  

 Evidence Digest and scroll down to Exclusionary rule – No-Knock rule  -
Exclusionary Rule and No Knock Law limited by supreme Court

Kentucky Supreme Court rules that mental age not a factor in death penalty

Thursday, June 15th, 2006

The Ky. Supreme Court has ruled 6-0 that The mental age of a death row inmate does not prevent the state from executing him.
An attorney for Thomas Clyde Bowling, 53, had argued that the inmate had the mental capacity of an 11-year-old when he killed two people in Lexington in 1990. He cited testimony from psychologists during Bowling’s trial and subsequent appeals.

The state high court in Frankfort noted the U.S. Supreme Court’s decision last year barring executions for killers who were not at least 18 years old at the time of the crime, but said the ruling did not specifically prohibit putting to death someone with a mental age below that.
“There is simply no language to support such a conclusion,” Justice Martin Johnstone wrote in a 6-0 opinion.
Justice Johnstone wrote that there is some validity to the idea put forth by Bowling’s attorneys, but that the federal high court drew “a bright line rule” establishing chronological age, not mental age, as the deciding factor.


Supreme Court candidate Marcus Carey files federal lawsuit seeking permission to advertise that he is a Republican

Monday, June 12th, 2006

On June 9th, Supreme Court Candidate Marcus Carey filed a federal lawsuit in the U.S. Eastern District Court in Frankfort against the Kentucky Judicial Conduct Commission seeking declaratory and injunctive prohibition against enforcement of the Judicial Code of Conduct against him. Carey is opposed in the November race for the Ky. Supreme Court by Court of Appeals Judge Wil Schroeder.
In his lawsuit Carey alleges, among other things, that Kentucky law prohibiting a judicial candidate from publicly announcing that he is a member of a political party is an unconstitutional infringement on his First Amendment rights to free speech.
The Kentucky Constitution mandates that all judicial elections shall be non-partisan.
See  Kentucky Constitution:  
“Section ll7: “Justices of the Supreme Court and judges of the Court of Appeals, Circuit and District Court shall be elected from their respective districts or circuits on a nonpartisan basis as provided by law.? (emphasis added.)

   The Judicial Conduct Code forbids a Judge from announcing in his advertising his political party affiliation, but permits him to answer a question submitted to him regarding his political affiliation. From the lawsuit it appears that Carey wants to extend his ability to identify himself as a member of the Republican party.

Excerpts from the lawsuit state:
1. This is a civil action for declaratory and injunctive relief arising under the
First and Fourteenth Amendments to the Constitution of the United States. It concerns the constitutionality of various provisions of the Kentucky Code of Judicial Conduct as set forth in Kentucky Supreme Court Rule 4.300, including, in particular,
a) Canon 5B( l)(c), on its face and as applied to certain questions which the Plaintiff, Marcus Carey, wants to answer and wants to ask other judicial candidates [hereinafter “the Questions?];
b) Canon 3E(1) and KRS 3 26A.O15(2)(e) as applied to the Questions; and
c) Canons 5A( l)(b), 5A(2), and 5B(2), both facially and as applied to Mr. Carey, all as interpreted by the Kentucky Judicial Ethics Committee (“JEC?), and all as incorporated by reference into the Kentucky Rules of Professional Conduct, SCR 3.130.

   The Judicial Conduct Code forbids a Judge from announcing in his advertising his political party affiliation, but permits him to answer a question submitted to him regarding his political affiliation. From the lawsuit it appears that Carey wants to extend his ability to identify himself as a member of the Republican party. 1. This is a civil action for declaratory and injunctive relief arising under theFirst and Fourteenth Amendments to the Constitution of the United States. It concerns the constitutionality of various provisions of the Kentucky Code of Judicial Conduct as set forth in Kentucky Supreme Court Rule 4.300, including, in particular,a) Canon 5B( l)(c), on its face and as applied to certain questions which the Plaintiff, Marcus Carey, wants to answer and wants to ask other judicial candidates [hereinafter “the Questions?];b) Canon 3E(1) and KRS 26A.O15(2)(e) as applied to the Questions; andc) Canons 5A( l)(b), 5A(2), and 5B(2), both facially and as applied to Mr. Carey, all as interpreted by the Kentucky Judicial Ethics Committee (“JEC?), and all as incorporated by reference into the Kentucky Rules of Professional Conduct, SCR 3.130.
96. Mr. Carey wants to announce his political affiliation throughout his 2006 campaign. Such announcements are protected political speech under White, 536 U.S. at Mr. Carey wants to announce his political affiliation throughout his 2006 campaign. Such announcements are protected political speech under White, 536 U.S. at 788.

Canon 5A(2) of the Kentucky Code of Judicial Conduct states: ‘‘A judge or candidate shall not identify himself or herself as a member of a political party . . . [but] only in answer to a direct question, a judge or candidate may identify himself or herself as a member of a particular political party.? The quoted language is hereinafter identified as “the Partisan Actvities Clause? of Canon 5A.

86. A law is overbroad if it prohibits more speech that is necessary to achieve the drafter’s purposes. Anderson v. Spear, 356 F.3d 651,658 (6th Cir. 2004).


(Relief sought)

 (a) enforcing the unconstitutional provisions of KRS 26A.O15(2)(e) or Canon 5B(l)(c), Canon 3E(1), Canon 5A(l)(b), Canon 5A(2) or Canon 5B(2) of
the Kentucky Code of Judicial Conduct, as identified in this Complaint, as against Mr. Carey or any other person similarly situated, or
(b) initiating any investigation or considering any complaint against Mr. Carey or any other person similarly situated, to the extent any such investigation or complaint is based on the unconstitutional provisions of KRS  26A.O15(2)(e) or on the unconstitutional provisions of Canon 5B( l)(c), Canon 3E( I), Canon 5A( l)(b), Canon 5A(2) or Canon 5B(2) of the Kentucky Code of Judicial Conduct, as identified in this Complaint,;
The Lexington Herald has publised the following story:

Associated Press

A Kentucky Supreme Court candidate has asked a federal judge to strike down a rule that he says prohibits him declaring his views on such legal issues as abortion, gay marriage and the role of religion in schools.

Marcus Carey, a candidate for the 6th District seat on the high court, argues that the rule puts a chilling effect on judicial candidates’ free-speech rights.

In his lawsuit, the northern Kentucky lawyer seeks an order striking down other rules that he contends keeps him from seeking endorsements and personally soliciting campaign funds. He also wants to tell voters his party affiliation. He contends those prohibitions also violate free-speech rights.

The lawsuit, filed late last week in U.S. District Court in Frankfort, names members of the Kentucky Judicial Conduct Commission as among the defendants.

The suit also seeks injunctions to prevent the rules from being enforced.

Carey’s suit, if successful, could drastically alter traditionally staid judicial campaigns this fall, allowing candidates to more fully discuss their views on legal issues. This year’s ballot includes numerous judicial elections.

Stephen Wolnitzek, chairman of the Judicial Conduct Commission, did not immediately return a phone call Monday seeking comment.

Carey is challenging a rule that says judicial candidates must not “intentionally or recklessly” make a statement that could be perceived “by a reasonable person” as committing them to rule a certain way on an issue they could hear. The new rule was drafted after a judge struck down a previous regulation that barred judicial candidates from making statements that “commit or appear to commit” to positions on cases they likely would hear.

Legal officials have said the new rule gives judicial candidates more leeway in what they can say.

However, Carey’s lawsuit says the rule is vague and infringes on free-speech rights. He wants to announce his views on “disputed legal and political issues” by posting his responses on his Web site, the suit says. He also wants to query other judicial candidates on the same issues, his suit says.

The suit said the current rule “requires judicial candidates to withhold essential information” from the voters.

Carey also wants to proclaim his political affiliation, seek endorsements from other political officials and personally solicit campaign contributions – other activities that the suit says are being improperly hampered.

The suit says Carey wants to answer such questions as whether the state Constitution recognizes a right to abortion or legal recognition of same-sex marriage. Other issues he wants to discuss include what recognition God should receive in historical displays or discussions of American law in such places as schools and whether the state Constitution allows the state to require schools to teach the influence of religion on the nation’s founding documents.

Carey is running against state Court of Appeals Judge Wilfrid Schroder in the November election for the Supreme Court seat from the 6th District, which takes in a large portion of northern Kentucky – from Lewis County in the east to Oldham, Shelby and Spencer counties in the west.

An assistant to state Chief Justice Joseph Lambert said Monday that the chief justice was not commenting on the lawsuit.

However, Lambert wrote a recent column in which he weighed in on the extent of comments by judicial candidates. Lambert wrote that judicial candidates now can “go further than ever before” in disclosing views on disputed legal issues.

In light of those changes, he said, special-interest groups are demanding that judicial candidates state their positions on a range of issues.

“Some candidates may attempt to curry favor with perceived voting blocks by broadly declaring their views on the controversial issues of our time,” he wrote in the guest column, published last month in The Courier-Journal of Louisville.

“If this occurs, politicians and special interest groups will succeed in harming our constitutional tradition of fair and impartial courts.”

State seeks attorney to serve on Worker Comp Board

Monday, June 12th, 2006

The Workers’ Compensation Nominating Commission is now accepting applications to make nomination for one (1) position for Workers’ Compensation Board Member.  The Board position term will expire January 4, 2008.  This is a full-time position and the appointee shall not hold any other public office. 

Applicants for the Workers’ Compensation Board Member position must be an attorney and must have the qualifications required of an Appeals Court Judge, except for residence in a district, and shall receive the same salary and shall be subject to the same standards of conduct. 

APPLICATIONS MUST BE RECEIVED ON OR BEFORE Noon, June 28, 2006.  Interested parties are required to send one original resume and seven copies along with a cover letter containing an e-mail address to the attention of Gay Phillips, Nominating Commission Clerk, Kentucky Office of Workers’ Claims, Prevention Park, 657 Chamberlin Avenue, Frankfort, KY  40601.  Questions may be directed to Ms. Phillips at (502)564-5550, Ext. 4439. 

Those serving on the Workers’ Compensation Nominating Commission are as follows: 
Charles Baird, Chairman
Pikeville, KY

Dave Disponett
Lawrenceburg, KY

Hon. Cathy M. Jackson
Ft. Mitchell, KY

Brockton Edwards
Louisville, KY

Hon. James Fogle
Louisville, KY

Hon. John Morgan
Lexington, KY

Charles McCoy
Owenton, KY

The Commonwealth of Kentucky does not discriminate on the basis of race, color, religion, national origin, sex, age, disability, sexual orientation, gender identity, ancestry or veteran status in the admission or access to, or participation or employment in, its programs or services.

Inmates Win at U.S. Supreme Court in Injection, Innocence Cases

Monday, June 12th, 2006

Read syllabus and find link to full text here:  June 12 (Bloomberg) — The U.S. Supreme Court bolstered the rights of death-row inmates in two cases, ordering a new hearing for a Tennessee man who says he has fresh evidence of innocence and permitting a challenge to Florida’s lethal injections.
The justices voted 5-3 in the Tennessee dispute, saying Paul Gregory House’s murder conviction was the “rare case” in which new evidence might have changed the jury’s verdict. The court let House go forward with his bid to set aside the conviction.
House says DNA evidence now proves that semen stains on victim Carolyn Muncey’s clothing didn’t come from him. House says he also has new information indicating that investigators might have put incriminating bloodstains on his jeans and that the victim’s husband might have been the killer.
“The central forensic proof connecting House to the crime – - the blood and the semen — has been called into question, and House has put forward substantial evidence pointing to a different suspect,” Justice Anthony Kennedy wrote for the court. Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Clarence Thomas dissented.
The lethal-injection ruling doesn’t directly affect the legality of the procedure, which opponents say can create a risk of excruciating pain. Today’s unanimous decision gives inmates an additional avenue to challenge the procedure, which is used in all but one of the 38 death-penalty states, and seek a different method of execution.
The challenge by Clarence Edward Hill “appears to leave the state free to use an alternative lethal injection procedure,” Kennedy wrote for the court in that case.
Minutes From Execution
Hill was minutes away from execution in January when the Supreme Court intervened and agreed to hear his appeal. Hill, now 48, was convicted of the 1982 shooting death of Pensacola, Florida, police officer Stephen Taylor.
Hill points to a 2005 study that found in 21 of 49 executions the prisoner endured a feeling of suffocation and a burning sensation through the veins, followed by a heart attack. Of the 38 death-penalty states, all but Nebraska use lethal injection, and most use the same three chemicals as Florida.
Inmates in Florida are first injected with sodium pentothal, an anesthetic, followed by pancuronium bromide, which causes the lungs to shut down and paralyzes the body. The final chemical, potassium chloride, then induces a fatal heart attack.
The high court today said Hill could invoke a 135-year-old civil rights law to challenge the chemical mix and other aspects of Florida’s injection protocol.
`Timely Enforcement’
A lower court had said his case was barred because it was the functional equivalent of a habeas corpus petition, a procedural device used by inmates to challenge convictions after appeal. Under U.S. law, inmates generally can file only a single habeas petition in federal court — something Hill had already done.
Kennedy said lower courts would need to be vigilant to prevent inmates from using the civil rights law simply to forestall execution.
“Both the state and the victims of crime have an important interest in the timely enforcement of a sentence,” he wrote. “Our conclusions today do not diminish that interest, nor do they deprive federal courts of the means to protect it.”
The Supreme Court in May passed on a chance to directly address the constitutionality of the procedure, rejecting an appeal from a Tennessee inmate.
Florida began using lethal injections in 2000, averting a scheduled Supreme Court argument on the constitutionality of the state’s use of the electric chair. Florida now uses lethal injections unless the condemned person opts for the chair. The state has executed 60 people since the Supreme Court reinstated the death penalty in 1976.
Evidence of Innocence
In the Tennessee case, House is seeking to win his release through a habeas corpus petition he is pressing in federal court. He says his lawyer was negligent in not bringing forward the evidence of his innocence at trial.
The state says House had Muncey’s blood on his jeans, was seen the day after the murder leaving the area where her body was later found and lied to investigators about his whereabouts on the night of the murder. House was previously convicted for sexual assault in an unrelated case.
In barring House’s habeas case from going forward, a federal trial judge had said House’s new evidence was “was countered and undermined in virtually every respect” by the state.
A Cincinnati-based federal appeals court upheld that ruling, saying House hadn’t met the standard for reopening a criminal conviction laid out by the Supreme Court in a 1995 case.
Roberts Dissent
Kennedy stopped short of declaring House’s evidence so strong as to render his conviction unconstitutional. “This is not a case of conclusive exoneration,” he said.
In dissent, Roberts said the majority shouldn’t have second- guessed the federal trial judge’s conclusions.
“It is not our role to make credibility findings and construct theories of the possible ways in which Mrs. Muncey’s blood could have been spattered and wiped on House’s jeans,” he wrote in an opinion joined by Scalia and Thomas.
Justice Samuel Alito didn’t participate in the Tennessee case because he joined the court after the dispute was argued.
The cases are House v. Bell, 04-8990, and Hill v. Florida, 05-8794.
To read the full text of this decision go to:  U.S. Supreme Court and open slip opinions.

The following is the Syllabus of the Hill v. Florida decision:


No. 05–8794. Argued April 26, 2006—Decided June 12, 2006
Facing execution in Florida, petitioner Hill brought this federal action under 42 U. S. C. §1983 to enjoin the three-drug lethal injection procedure the State likely would use on him. He alleged the procedure could cause him severe pain and thereby violate the Eighth Amendment’s prohibition of cruel and unusual punishments. The District Court found that under controlling Eleventh Circuit precedent the§1983 claim was the functional equivalent of a habeas petition. Because Hill had sought federal habeas relief earlier, the court deemed his petition successive and barred under 28 U. S. C. §2244. The Eleventh Circuit agreed and affirmed.
Held: Because Hill’s claim is comparable in its essentials to the §1983action the Court allowed to proceed in Nelson v. Campbell, 541 U. S. 637, it does not have to be brought in habeas, but may proceed under §1983. Pp. 4–10.
(a) Nelson controls here. Although an inmate’s challenge to the lawfulness of a sentence or confinement is the province of habeas corpus, e.g., Muhammad v. Close, 540 U. S. 749, 750, the Nelson Court declined to deem the instant §1983 Eighth Amendment “challenge seeking to permanently enjoin the use of lethal injection . . . a challenge to the fact of the sentence itself,? 541 U. S., at 644. Nelson’s veins were severely compromised, and Alabama planned to apply an invasive surgical procedure to enable the injection. However, that procedure was not mandated by state law, and Nelson appeared willing to concede the existence of an acceptable alternative procedure. Absent a finding that the procedure was necessary to the lethal injection, the Court concluded, injunctive relief would not prevent the State from implementing the sentence. Id., at 645–646. Here, as in Nelson,
Hill’s action if successful would not necessarily prevent the State from executing him by lethal injection. He does not challenge his sentence as a general matter but seeks only to enjoin respondents from executing him in a manner that allegedly causes a foreseeablerisk of gratuitous and unnecessary pain. He concedes that other lethal injection methods the State could choose would be constitutional, and respondents do not contend, at least at this point, that an injunction would leave no other practicable, legal method of lethally injecting Hill. Florida law, moreover, does not require the use of the challenged procedure. Under these circumstances a grant of injunctive relief could not be seen as barring the execution of Hill’s sentence. The fact that Hill challenges the chemical injection sequence rather than a preliminary surgical procedure does not change the analysis. In Nelson, the Court reasoned that “the gravamen of petitioner’s entire claim? was that the surgical procedure was “gratuitous,? id., at 645, whereas Hill alleges that the procedure he challenges presents a risk of pain the State can avoid while still being able to enforce his sentence.
The Court rejects two rules proposed by respondents and their amici to counter the prospect of inmates filing successive §1983 actions challenging one aspect of an execution procedure after another in order to forestall execution. First, the United States contends that a capital litigant’s §1983 action can proceed only if, as in Nelson, the prisoner identifies an alternative, authorized method of execution. Although Nelson’s doing so supported the Court’s conclusion that his suit need not proceed as a habeas action, that fact was not decisive. Nelson did not change the traditional pleading requirements for §1983 actions. Specific pleading requirements are mandated by the Federal Rules of Civil Procedure, and not, as a general rule, through federal courts’ case-by-case determinations. Second, relying on cases barring §1983 damages actions that, if successful, would imply the invalidation of an existing sentence or confinement, see, e.g., Heck v. Humphrey, 512 U. S. 477, respondents and the amici States contend that any challenge that would frustrate an execution as a practical matter must proceed in habeas. This argument cannot be squared with Nelson’s observation, 541 U. S., at 646–647, that its criterion— whether granting relief would necessarily bar the inmate’s execution—is consistent with those cases. Because injunctive relief would not necessarily foreclose Florida from executing Hill by lethal injection under present law, it could not be said that this suit seeks to establish “unlawfulness [that] would render a conviction or sentence invalid,? Heck, supra, at 486. Pp. 4–9.
(b) Filing a §1983 action does not entitle the complainant to an automatic stay of execution. Such a stay is an equitable remedy not
available as a matter of right, and equity must be sensitive to the State’s strong interest in enforcing its criminal judgments without undue interference from federal courts. Thus, inmates seeking time to challenge the manner of their execution must satisfy all of the requirements for a stay, including showing a significant possibility of success on the merits. A court considering a stay must also apply a strong equitable presumption against granting relief where the claim could have been brought at such a time as to allow consideration of the merits without requiring a stay. Nelson, supra, at 650. After Nelson federal courts have invoked their equitable powers to dismiss suits they saw as speculative or filed too late. Repetitive or piecemeal litigation presumably would raise similar concerns. States can and should be protected from dilatory or speculative suits, but it is not necessary to reject Nelson to do so. The equities and merits of Hill’s underlying action are not before this Court. Pp. 9–10.
437 F. 3d 1084, reversed and remanded.
KENNEDY, J., delivered the opinion for a unanimous Court.