Archive for July, 2006

Florida ruling establishes that cigarette manufacturers are negligent and that their products are defective, addictive and a cause of 16 major diseases.

Monday, July 31st, 2006

While Florida set aside a large punitive damage award, and decertified a class action, thousands of individual lawsuits are being filed and the issue of negligence has been established already. 

 ROBERT TRIGAUX, Times Business Columnist.  There’s a nasty war out there. One poised to escalate once again.

Not Iraq. This is the long and expensive legal, increasingly cultural and sometimes absurd conflict with the tobacco industry.

It’s a battle fought in the courts nationwide and, as we will see more and more, in developing countries desperate to curtail tobacco addiction among their own people. But it’s also a growing clash with everyday America: from hotel chain Marriott this month saying it will go 100 percent smoke-free to such states as California and Colorado sharply restricting where and when people can smoke.

It’s also at times a surreal contest. What industry other than tobacco spends so much of its mainstream advertising urging young people not to use the product it sells because of health reasons? All this in a year when a satirical movie called Thank You for Smoking, about an unsavory tobacco lobbyist, opened and it almost felt like a documentary.

This month, Florida has been tobacco’s ground zero.

In what the media at first called a big victory for the tobacco industry, the Florida Supreme Court on July 6 unanimously upheld the reversal of the $145-billion punitive damages verdict awarded to 700,000 ailing Florida smokers. The original class action suit, Howard Engle, et al. vs. Liggett Group et al., was filed a dozen years ago on behalf of Miami Beach pediatrician Howard Engle and five other lead plaintiffs. They claimed they could not stop smoking because they were addicted to nicotine.

The pro-tobacco response to the court was almost giddy.

“The trends are incredibly favorable,” Martin L. Holton III, deputy general counsel for R.J. Reynolds Tobacco, told Business Week magazine after the Florida decision this month.

Holton may be missing a bigger point. A new wave of legal assaults against the cigarette industry is coming.

While the Florida Supreme Court blessed the dropping of huge punitive damages, it acknowledged that cigarette manufacturers are negligent and that their products are defective, addictive and a cause of 16 major diseases.

Bottom line: Now Florida plaintiffs don’t have to prove this in court.

That’s fresh ammunition for the next wave of individual litigation, according to the Tobacco Products Liability Project, part of the Public Health Advocacy Institute at Northeastern University in Boston.

“We expect tens of thousands of streamlined cases to be filed in Florida by this time next year,” project attorney Edward Sweda says.

In all these big numbers, let’s not forget the Florida Supreme Court reversed an appeals court and upheld awards to two Florida plaintiffs. Mary Farnan of Inglis, stricken with cancer and living with an oxygen machine in her living room, was entitled to $2.9-million. New Port Richey’s Angie Della Vecchia, now deceased, was entitled to $4-million, the court said.

Tobacco court fights in Florida have not slowed since the big July 6 court decision. An appeals court on July 21 rejected tobacco giant Philip Morris’s claim that Tampa Bay smoker Ron Arnitz, stricken with cancer and emphysema, could not “split the blame” and argue that while he was 60 percent responsible for smoking, the tobacco company was 40 percent liable. That cleared the way for his receiving the original jury award of $240,000.

Let’s not forget that the Department of Justice brought a sweeping $280-billion racketeering case during the Clinton administration. In the Bush administration, the case was watered down when the government cut its demands to $14-billion over 10 years. A ruling could come in the next few months.

The tobacco industry is so big and rich, and its global ambitions so huge, it’s tough to grasp the range of controversy. On Friday, I talked with Ed Sweda, 50, of the Tobacco Products Liability Project in Boston. The senior attorney volunteered to help fight the tobacco industry 27 years ago. He’s been involved since. Here are some excerpts from the interview:

You seem bullish on the prospects of more tobacco litigation in Florida since the July 6 Florida Supreme Court decision.

We are encouraged by the prospects for cases. New law firms are getting involved.

Do you see more smoking limitations ahead in this country?

I see an acceleration among hotels and motels. More states and cities will pass smoke-free laws. More businesses are going smoke-free, and more individuals are adopting rules for their own homes requiring smokers to step outside. That trend will be irreversible. We also got a further boost last month when the U.S. Surgeon General issued a report concluding secondhand smoke dramatically increases the risk of heart disease and lung cancer in nonsmokers.

I read that the Marlboro brand is still the world’s 12th strongest global brand, and especially popular outside the United States. Is this a concern?

The head of our project is on a monthlong tour of various Asian countries to promote tobacco litigation in those countries. Just two weeks ago, the national world conference on tobacco and health was held with 3,500 attendees from 130 countries. What’s happening in other countries does not always get much attention. A recent report warns that 1-billion people worldwide are on course to die prematurely in this century from using tobacco.

* * *
Sweda, who spoke about many other tobacco issues, said it bugs him to wander the Northeastern University campus and see so many young people smoking.

I ended the interview with an open-ended question: What’s the end game in this tobacco war?

“To force companies to change their behavior,” Sweda answered. “To stop marketing to kids. To stop the next generation from getting hooked.”


Robert Trigaux can be reached at

Governor appoints unindicted co-conspirator in Merit System scandal to UK Board. He may run for Attorney General.

Sunday, July 30th, 2006

The Lexington Herald-Leader reports that Erwin Roberts of Ft. Thomas, a potential candidate for Attorney General,  was been appointed to the UK Board of Trustees:

FRANKFORT, Ky. -  Gov. Ernie Fletcher appointed to the University of Kentucky board a man whom prosecutors are calling an unindicted

co-conspirator in the state employee hiring investigation.

Former Personnel Secretary Erwin Roberts of Louisville was named yesterday along with Sandy Patterson of Fort Thomas.

The appointments came four days after prosecutors accused Roberts, 34, and 11 others of conspiring with Fletcher to violate state personnel laws. Fletcher, a Republican, has been indicted on three misdemeanor charges.

None of those named last week as co-conspirators have been indicted. Fletcher supporters called the court filing that named the 12 a smear list and speculated that Democratic state Attorney General Greg Stumbo was threatened by Roberts, who may run for Stumbo’s job.

Being named an unindicted co-conspirator would not affect his work with the other trustees, Roberts said yesterday.

“I don’t think that’s going to affect my ability to do anything,” said Roberts, now an attorney at Frost Brown Todd.

Roberts left the Personnel Cabinet in June.

Yesterday, he did not rule out a run for attorney general. “It’s still a little bit early to make decisions like that,” he said.

Before leading the Personnel Cabinet, Roberts was director of the state Office of Homeland Security. He has also worked as a federal prosecutor and an assistant commonwealth’s attorney in Fayette County. He is a member of the Army Reserves.

By Sarah Vos

Should the law protect our privacy from kiss and tell bloggers?

Sunday, July 30th, 2006

By Dahlia Lithwick.

 What do we mean when we talk about a tension in the law between speech and privacy?

Privacy is a fairly squishy legal concept—springing, as it does, from somewhere deep within the greatest hits of the First, Third, Fourth, Fifth, and Ninth Amendments. To which former Supreme Court Justice William O. Douglas, back in a landmark 1965 case, helpfully contributed a backbeat of “penumbras” and “emanations” from the Constitution. When we talk about our “right to privacy”—whether it be freedom from government wiretapping or freedom to control our bodies—we sometimes forget that this right exists largely in the quiet spaces between other, more concrete rights and freedoms.

Courts attempting to patrol these boundaries make some wonky judgments. The police can search your trash cans, but they cannot use a thermal imaging device to see what’s in your home. I may publish parodies of Jerry Falwell but not of my next-door neighbor. Decisions about my body are wholly private, until they are not.

One of the first articulations of a legally protected “right to be let alone” came in an influential law-review article written by Samuel Warren and Louis Brandeis in 1890. They were anxious that “[i]nstantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops.’ ” That quaint 19th-century concern about photographers and tabloids presaged today’s uneasy fear that the most intimate details of our personal lives—our trips, gaffes, and lingering kisses—are just a mouse click away from entertaining the planet.

And that’s where Robert Steinbuch and Jessica Cutler come in.

Steinbuch was counsel to Sen. Mike DeWine when he started sleeping with staff assistant Cutler in May 2004. What he didn’t know was that the young woman was “blogging”—detailing on her Web log, Washingtonienne—every detail of their encounters. She regaled her friends with tales of his intimate sexual behaviors (as well as those of the five other men with whom she was sleeping) in a semiprivate Web diary that exposes Capitol Hill as a sad cross between seventh grade and Melrose Place.

Cutler identified Steinbuch only as RS. But when her blog was picked up by Wonkette—an Internet gossip behemoth read by everyone who was anyone inside the Beltway—Cutler joyfully nabbed her 15 minutes’ worth of limelight, including a $300,000 publishing deal, an HBO contract, and a feature in Playboy. Aided by the Internet, readers quickly deduced the identity of RS. And Steinbuch, according to a complaint filed in a 2005 civil suit against Cutler, was subjected to “humiliation and anguish beyond that which any reasonable person should be expected to bear in a decent and civilized society.”

In the short term, Steinbuch’s suit has only added buttercream frosting to the cake of humiliation Cutler baked him. It’s hard to fathom how his privacy interests are being protected by a pleading that recycles every salacious detail from her blog. But he is clearly angry and embarrassed and in search of some justice, and he has thus sued her for the tort of “public disclosure of private facts.”

To prevail at trial, Steinbuch must prove Cutler’s disclosure was “public” and the facts “private.” He must show that the publication was “highly offensive” with no “legitimate concern to the public.” The specific legal questions will include whether it matters that Cutler’s blog was intended to be private—in a later motion Cutler describes what she did as little more than “writing on a bathroom wall.” She claims someone else allegedly passed her Web site along to Wonkette, who was recently joined to the suit. There is also the matter of whether Steinbuch’s claim is waived by his earlier water-cooler admissions to his colleagues that yes, he was sleeping with the staff assistant.

But layered over all this legal wrangling, a vital question remains: Is this lurid Internet dishing important free speech, or a cruel invasion of privacy? Is there something about the Internet, or this speaker, or this subject that raises the legal stakes? Most of us can probably agree that Cutler’s revelations were both private and “offensive.” But how on earth can we know when a revelation is “of no legitimate concern to the public”?

I know what you’re thinking: Sex with an intern is never of any legitimate concern to the public. But Wonkette’s traffic (not to mention the Starr Report) certainly suggest otherwise. If free speech is best analogized to a “marketplace of ideas,” isn’t proof that Washington powerbrokers still think of young female interns as the dessert cart an important idea? My Findlaw colleague Julie Hilden urges quite persuasively that sexual imbalances between powerless female interns and powerful male lawyers in Washington, D.C., are a matter of serious political concern.

Arguing that judges should not be in the business of drawing lines between matters of “public” and “private” concern in the first place, First Amendment wizard Eugene Volokh opposes most privacy information regulation on free-speech grounds. Judge Richard Posner similarly says the law shouldn’t protect against even the dissemination of sordid information, since we need it to form accurate judgments about others.

Law professor Daniel Solove disagrees: He writes that without privacy, we cannot truly develop political or intellectual selves. We can’t be free unless we can protect some tiny piece of ourselves from the judgments of others.

Changes in technology and the explosion of the mass media make the resolution of this question about the contours of a right to privacy even more urgent. Because if Brandeis was horrified by the paparazzi at a society wedding, what would he make of men who can snap photographs up unsuspecting women’s skirts and download them on the Internet for all to see?

Maybe the core privacy principles are truly unchanged since Brandeis’ day. Perhaps the marketplace of ideas still works best when its shelves are stocked with plentiful, fresh, and unfiltered information. Perhaps the costs of protecting our privacy—intrusive courts, limited free speech—are simply too high to warrant greater regulation. It would almost certainly make for a better—if less interesting—world if we all simply behaved as though our most intimate act or comment could be disseminated worldwide by our enemies at any moment.

But it seems to me that the world has suddenly become too small to allow all our Jessica Cutlers to loom so large. If privacy means anything, it must mean that our lives are more than the sum of our single greatest mistake.

Reprinted from:  jurisprudence: The law, lawyers, and the court.
Private I’s?

Internet Journalists form National Association, membership applications invited.

Saturday, July 29th, 2006

The American Association of Internet Journalists was formed to recognize the contribution that writer’s and publishers who deliver their news, opinions, and educational materials by electronic means, make to the benefit and enlightenment of society.

The association requires all members in good standing to ascribe to a Code of Ethics that attempts to elevate the level of discourse they publish on web sites, blogs and electronically distributed newsletters.

The association will attempt to advance the quality of Internet Journalism, and will support laws which recognize the contribution that internet journalists make to the elevation of public discourse and education of society.

The association will from time to time recognize the outstanding work of internet journalists.


Applicants for membership in the non-profit association may submit an application for membership to:

314th. 7th. St.
Carrollton, Ky. 41008

A membership application fee of $25 shall be enclosed.  This fee covers the processing of the application for membership and the first year’s membership fee in the association. All memberships shall expire on the first day of July.  Memberships fees shall not be pro-rated or refunded.

The membership application should include a description of the means by which the applicant publishes their writings, the address of the web site which hosts their publication, and an example of a recent article published by the applicant.  The membership committee will evaluate the information provided by the applicant.

Acceptance of membership will be at the sole discretion of the Membership Committee of the Association.  Those approved for membership will be sent a membership certificate and ID card recognizing their current status with the association and their commitment to the Code of Ethics of the association.

The Association shall retain ownership of the certificate and the ID card, and a copy of the logo and seal of approval of the association which may be displayed on the members approved site or blog while a member in good standing. In the event a member is found not to be in good standing, the association may at their sole discretion void the membership at any time, and the logo and seal of approval of the association shall be promptly removed from the member’s site or blog. 

                                           WAIVER OF LIABILITY

All applicants, by submission of their application and any renewals of their membership, agree to waive all claims for any damages, against the association arising out of the denial or cancellation of their membership in the association, including but not limited to the refund of the application or membership fee.

The association assumes no liability for, and does not endorse, any writing or publication made by any member of the association.

Internet Journalists describe society to itself.
• They seek truth.
• They convey information, ideas and opinions, a privileged role.
• They search, disclose, record, question, entertain, suggest and remember.
• They inform citizens and animate democracy.
• They give a practical form to freedom of expression.
• They educate the public.
Many Internet journalists work in private enterprise, but all have these public responsibilities.
AAIJ members engaged internet journalism commit themselves to:
• honesty
• fairness
• independence
• respect for the rights of others.
In consultation with colleagues, they will apply the following standards.
1. Report and interpret honestly, striving for accuracy, fairness and disclosure of all essential facts. Do not suppress relevant available facts, nor give distorting emphasis.
2. Make efforts to give the subject of any damaging report an opportunity to comment, preferably in that same report.
3. Urge the fair correction of errors.
4. Use fair and honest means to obtain material. Avoid misrepresentation and use of concealed equipment or surveillance devices.
5. Pictures and sound should be true and accurate. Any manipulation likely to mislead should be disclosed.
6. Plagiarism is stealing. Always attribute fairly.
7. Only quote directly what is actually said or written. Otherwise paraphrase. Meaning and context should be accurately reflected.
8. Disclose any direct or indirect payment made for interviews, pictures or information.
9. Do not allow personal beliefs or commitments to undermine accuracy, fairness and independence. Where a political bias is present it should be identified and disclosed publicly online.
10. Do not allow any payment, gift or other advantage to undermine accuracy, fairness and independence. Where relevant, disclose.
11. Guard against advertising or commercial considerations improperly influencing journalism. Where it occurs, disclose.
12. Accept the right to privacy of every person. Public figures’ privacy may be reduced by their public role. Relatives and friends of those in the public eye retain their own right to privacy.
13. At times of grief or trauma, always act with sensitivity and discretion. Never harass. Never exploit a person’s vulnerability or ignorance of media practice. Interview only with informed consent.
14. Do not place unnecessary emphasis on personal characteristics including race, ethnicity, nationality, gender, age, sexual orientation, family relationships, religious belief or physical or mental disability.
15. Never knowingly endanger the life or safety of a person without informed consent.
16. Exercise particular care for the welfare of children in reports involving them.
17. Respect every person’s right to a fair trial and the presumption of innocence.
18. Aim to attribute as precisely as possible all information to its source. When a source seeks anonymity, do not agree without first considering the source’s motive and any alternative attributable sources. Keep confidences given in good faith.
19. Educate yourself about ethics and help to enforce this code.
20. If a writer, or site hosting publications of a writer, is officially affiliated with a political party or candidate for public office, he/it shall disclose that relationship on the hosting site or in the article.
21. Only members of the association in good standing shall represent themselves as such.
Basic values sometimes clash and ethics requires conscientious decision-making in context. Only substantial considerations of public interest or substantial harm to people allows any standard to be overriden.

Ky. court of appeals releases 25 cases July 28th.

Friday, July 28th, 2006

 Read the full synopsis and access full text of each case by subscribing to Only $34.95 per month. These are the issues ruled on this week:

1The inability to control the actions of a third person, whose co-operation is needed for the performance of an undertaking (contract), is ordinarily not to be regarded as an impossibility avoiding the obligation
2 counsel engaged in sound trial strategy by attempting to impeach Gay’s testimony by showing he had received a favorable plea agreement.

3TO BE PUBLISHED: (Worker seeking unemployment benefits who failed insurance salesman exam,)  did not voluntarily quit his job and his discharge was not for misconduct. 

4 In order to obtain relief under KRS 500.110, a defendant must carry the burden of showing both that a detainer has been lodged and that the prosecutor has been served with the request for final disposition of the charges

5 A plaintiff in a legal malpractice case has the burden of proving ‘1) that there was an employment relationship with the defendant/attorney; 2) that the attorney neglected his duty to exercise the ordinary care of a reasonably competent attorney acting in the same or similar circumstances; and (3) that the attorney’s negligence was the proximate cause of damage to the client.
6TO BE PUBLISHED: a circuit court judgment reducing a Board award to judgment, such as the order of the Boyd Circuit Court entered on February 10, 1999, is entitled to the post-judgment interest benefit provided for in KRS 360.040 the same as any other judgment –

Unlike jurisdiction, however, venue may be conferred by waiver.

7 no genuine issue of material fact exists regarding Fulton’s claim that he was exposed to abestos

8 The three days that the trial court waited before granting summary judgment was not sufficient to provide Fulton with an opportunity to respond to Viacom/Westinghouse’s motion; thus, the court erred when it granted summary in Viacom/Westinghouse’s favor.

9 Attorneys lien for his fee, filed after his firing by client, upheld

10TO BE PUBLISHED: upon her conviction as a sex offender sentenced in 2001, Jones automatically became subject to the period of conditional discharge as a matter of law. (court’s failure to mention this did not relieve defendant of duty to serve CD time.)
11TO BE PUBLISHED: (Police) were legally entitled to enter the property to perform the “knock and talk.� During the course of this duty, they found evidence of illegal activity, i.e., the odor of marijuana. (Therefore there was no constitutional violation of cartilage doctrine.)

12 TO BE PUBLISHED: the Board did not overlook or misconstrue controlling statutes or caselaw, or flagrantly err in assessing the evidence so as to cause gross injustice,

13 Thus, the circuit court properly granted summary judgment in NSI’s favor regarding Fulton’s exposure to asbestos at TVA Paradise.

14 the family court applied the wrong standard to allocate debts and to find that Robert had a nonmarital interest in stock that belonged to his mother,

15 There was sufficient proof presented to jury to establish boundary line dispute

16 the trial court abused its discretion in violation of his due process rights when it denied his request to withdraw his guilty plea, pursuant to Kentucky Rule of Criminal Procedure (RCr) 8.10, without holding an evidentiary hearing into whether the plea was knowing, intelligent, and voluntary.

1711.42 motion denied

18 PPMC has abandoned this appeal, we dismiss

19 Court was within its discretion in refusing to permit defendant to withdrawn his guilty plea

20 TO BE PUBLISHED: the circuit court was in error in having ruled on Humana’s motion for summary judgment before Blose had an opportunity to complete discovery

21 the trial court abused its discretion by granting default judgment

22 . Kentucky Rules of Civil Procedure (CR) 50.01 requires a party moving for a directed

verdict to state with particularity the reasons a directed verdict is appropriate, and “Kentucky appellate courts have steadfastly held that failure to do so will foreclose appellate review of the trial court’s denial of the directed verdict motion.â€?

23 Kentucky law does not require written rejection of UIM coverage

24 parental rights correctly terminated

25 ALJ ruling denying benefits upheld

Bench-Clearing Brawl. Judges need to join the fight to save the courts.

Friday, July 28th, 2006

Article on SLATE  By Bert Brandenburg

A lot of state judges will be staying up election night this November, and not just because many of them will be on the ballot. One of the most overlooked political stories of 2006 is a cluster of state ballot initiatives designed to hobble courts. Their backers seek the aura of Mr. Smith Goes to Washington. But the measures look more like On the Waterfront: They point toward a political intimidation racket benefiting special interests that want courts to deliver results, not justice.

In Colorado, there’s a push for retroactive term limits for appellate judges. The measure would write pink slips for 12 judges in the near future and clear off most of the Supreme Court in just a couple of years. In Montana, where every judge already runs for office, Constitutional Initiative 98 would create a new layer of recall elections to oust judges over specific decisions. An Oregon measure seeks to throw out justices from Portland by creating geographical districts for the Supreme Court. And in South Dakota, a “J.A.I.L. 4 Judges” initiative would amend the state constitution to create a fourth branch of government: a special grand jury to sue judges and others for their decisions.

Crusades against independent courts are sprouting like mushrooms. It’s time for judges and everyone else who cares about judicial independence to stop hoping that dignified silence will win the day. Enemies of impartial justice are energized and organized. But judges have the tools they need to fight back and win—if they’re willing to roll up their robes and explain in plain language why interest groups must not take America’s system of fair and impartial courts hostage.


The good news is that as slogans go, the call for common people to vote to rein in rogue courts rings a little phony. Every judge in these states—indeed, 87 percent of judges nationwide—regularly stands for election. Jurists in Montana can already be recalled for incompetence or unfitness. And judges everywhere can be impeached for misconduct.

The problem for anti-court activists is that Americans can’t be trusted to fire judges. That’s why these self-styled Jimmy Stewarts quickly move to divisive wedge issues. To rile up voters, they demand vengeance for a familiar litany of hot-button decisions on cases involving immigration, school vouchers, zoning laws, criminal sentences, and gun control. Underneath this populist clothing, there’s an awful lot of back-room politics.

A closer look at the backers of these measures further belies their grass-roots claims. The Montana measure is being pushed by an Illinois-based group, Americans for Limited Government, which collects signatures for property-rights and tax measures around the country. The effort to cut up Oregon’s courts is being bankrolled by a former Oregonian who now resides in Nevada. (He’s also the second-biggest donor to the “J.A.I.L. 4 Judges” campaign in South Dakota.)

One striking footnote is how the U.S. Supreme Court’s 2005 Kelo decision—upholding government power to condemn private property for redevelopment—continues to ripple through the body politic. Kelo hasn’t yet attained the pop-icon status of Miranda warnings, but it is still remarkably unpopular, and it is fanning populist-libertarian perceptions of judicial elitism nationwide. Kelo critics are exploiting this irritation by putting property-rights measures on the ballot in California and other states this fall. This has led to accusations of a shady bait-and-switch in Montana, where voters were asked to provide an “extra” signature for a property-rights initiative—and wound up signing up for the judicial recall measure instead.

What can friends of the courts do in the face of angry radicals masquerading as populists? They must start by listening. Buried beneath the angry bluster are real values and concerns. Americans want their courts to be independent and accountable. For years, too many judges, bar leaders, and good-government types have fretted that judicial accountability is too mushy and complicated to defend in a public debate. Courts are just different, they mumble, and then retreat to the Federalist Papers and sermons about judicial independence.

In the meantime, court-bashers have been busily framing their anger in accountability terms that resonate with American values. That’s why wishing away the accountability debate is a huge mistake. Independent courts have always coexisted with American populism, and citizens of all stripes are right to insist that courts must be accountable. The judicial establishment can’t afford to treat ordinary Americans like ignorant cousins at the family picnic. Judges are the sleeping giants in the national debate over the courts, and if they don’t wake up soon, they’ll find themselves lashed down.

It’s also time for courts and those who care about them to embrace the notion of judicial accountability and define it properly instead of letting court-bashers corrupt it beyond recognition. Friends of the court need to remind the public that courts are already accountable and proud of it—accountable to the law and the Constitution, not to politicians, special interests, and rage campaigns. It’s not an overstatement to say that the road to independence runs through accountability.

In the longer term, it’s time to invest more time, money, and energy in educating Americans about how courts work. Americans who understand the role of precedent, appeals, and constitutional review are most likely to reject attempts to weaken the courts. Indeed, knowledge often trumps ideology. The special role that courts play in a democracy reminds people of core constitutional values that they treasure more than their anger over the debate of the day.

All of this was proven last year during the Schiavo mess: Americans may not be glued to C-SPAN, but when court-meddling hit CNN, they gagged.

There are some encouraging signs. After years of neglect, a growing number of states are trying to improve their civics curricula. In the wake of the Schiavo debacle, more courts, bars, and civic groups are creating programs to educate the public. Last year the American Bar Association created a commission, co-chaired by Justice Sandra Day O’Connor and former U.S. Sen. Bill Bradley, to boost education on the separation of powers and the role of independent and accountable courts. There’s still a lot of ground to make up: Modern opponents of the courts have been at it for a while, and they’re not going away soon. Education is not a glamorous response. But if it’s going to succeed, it needs to go beyond Law Day proclamations and school assemblies. The courts that protect our rights need their own permanent campaign to counter the war rooms arrayed against them.

Bert Brandenburg is the executive director of the Justice at Stake Campaign, a nonpartisan national organization of more than 40 partners. The positions and policies of all campaign partners are their own and do not necessarily reflect those of other partners.

A day in the Jefferson Family Court. When Blood Runs Cold

Friday, July 28th, 2006

By Cameron Lawrence in the July edition of Louisville Magazine

It doesn’t take long for the air in Courtroom 603 to feel heavy.

On a Thursday afternoon in Jefferson County’s Family Court, Chief Judge Stephen M. George presiding, a hearing is under way to try to resolve a dispute over the financial settlement in a 2000 divorce. “He left me with nothing,” a woman says of her ex-husband, seated with his attorney at the opposition table. Like many clients of Family Court, she is pro se, representing herself because she cannot afford an attorney. He hasn’t paid her son’s health insurance, she says, and she’s lost her house. She’s angry.

“I can’t undo the divorce,” George, 53, says in measured tones, “but I can enforce the terms of the settlement agreement.”

Despair unfolds as the ex-husband tells his story: Recently unemployed, living on Social Security, rent payments taking half of what he gets each month, he’s ready to declare bankruptcy. She says he has a new truck. He says it’s an old truck he painted. The woman shakes her head several times and interrupts the judge. A deputy sheriff in the courtroom approaches her and says something quietly.

With sensitivity and firmness, George guides the sides toward resolution. He looks at the woman. “What do you want?” he asks. She says she’ll take her ex’s 1995 Impala in payment of the debt. After some discussion, the agreement is finalized.

Before the establishment of a unified Family Court in Jefferson County in 1991, family dramas like that in Courtroom 603 competed with all of the other hearings and trials of state district and circuit court. Small civil cases like disputes over divorce agreements fell among complicated civil cases and big criminal matters like capital murder trials. Often the divorce and custody cases got bumped.

“Family cases were not given the attention they needed,” says Vicki Buba, a local attorney in family law and other civil litigation, who says family cases could go on for months. And one family’s multiple problems — domestic violence, divorce, child abuse — might be heard by several different judges. This led to what the Kentucky legislature called “fractionalization and disruption in judicial decision-making,” and a lot of frustration all around.

Plus, say those involved, family law has special needs because of the emotional intensity of families in crisis. “In the criminal case, you basically have bad people who are on their best behavior when they walk into the courtroom,” says George. “In a family-law case, you have good people that are on their worse behavior when they walk into the courtroom.”

Proponents of court reform, including members of the Kentucky Supreme Court, began pushing the concept of a unified family court in the 1980s. In 1988, the Kentucky legislature, calling the family “the framework upon which a prosperous and healthy society is built,” set up a task force to examine the need for and feasibility of the new type of court, something just a few states around the country had at the time.

Along with issues of mixed dockets and lack of coordination, the task force found several other problems with the court system, including burnout of some judges overseeing family cases; long and “unconscionable” waits on child-abuse and termination-of-parental-rights cases; and lack of training among some judges in mental health and behavioral sciences as they relate to families in need. The task force’s final report recommended the creation of a family court pilot project. In April of 1991, with state funding, the Jefferson County Family Court Pilot Project began hearing cases. Three district court and three circuit judges volunteered to sit on the experimental court and focus solely on families and children.

What’s evolved in the years since has become a national model. “The architects of this court were way out ahead of their time,” says George. “When I tell other judges (about the tools he has at his disposal), they just shake their heads.”

One of those architects is retired Family Court Chief Judge Richard FitzGerald, a noted family-law expert who now teaches and consults around the country. Called by some “the father of family law in Kentucky,” FitzGerald says there was much resistance to the effort to reform the court system in Kentucky. “We were not looking at tinkering with the system” he says, “but re-engineering it.”

FitzGerald, who served on the bench from 1975-2000 and was one of the first six judges to sit on the pilot project court, says strategic planning was a key component of the building process. First, he says, “we asked, ‘What are our key values?’” What emerged were things like maximizing the use of alternate dispute resolution and providing prompt responses to family violence, as well as the efficient use of judicial time and preservation of the rule of law.
FitzGerald calls family courts “trauma centers” and says they must be portals of entry to broad social-services networks. So, from the beginning, social-service providers were involved in the project. In addition, the court used focus groups and surveys to solicit feedback from both clients and attorneys. Judges observed other family courts around the country and received specialized training.

In 2002, Kentucky voters —75 percent of them — passed a constitutional amendment making Family Court a permanent part of the state’s judiciary. Today, as part of circuit court, its judges are elected specifically as Family Court judges and serve eight-year terms. There are now Family Courts in more than 40 of Kentucky’s 120 counties with hopes of expansion into others as they request funding for it from the legislature.

There are 10 divisions of Jefferson County Family Court, considering several types of cases: dissolution of marriage (divorces, annulments), spousal support, child custody, child visitation, child support, adoptions, dependency (abused or neglected children), domestic violence (including emergency protective orders), juvenile actions (habitual runaways, truancy, beyond-control youth), paternity and termination of parental rights.

Cases are assigned to divisions alphabetically by the mother’s (or, if it’s a same-sex couple, the petitioner’s) last name. The idea is “One Family, One Judge, One Court,” meaning parties stay with one judge for all of their legal issues.

Let’s say that there’s a family domestic-violence case in which the husband has threatened his wife. She takes out an emergency protective order, commonly called an EPO. Later she files for divorce. Then the Cabinet for Health and Family Services determines that the children in the family have been abused. In a traditional court system, two or three judges might oversee the different parts of this family’s crises. But here, says Chief Judge George, “I’ve got them all. So you can get to know the family, you can get the counseling services, et cetera.”

One key innovation in Jefferson County is the high level of integration of Family Court judges with service providers. Two representatives of the Jefferson County Public Schools are in the Jefferson County Judicial Center at all times to respond to a judge seeking more information about a family. Is the child attending school? What’s happening with the child’s grades? These may be clues to an at-risk home situation or an improving one.

Other innovations were part of the 1999 move to the new facility on Jefferson Street. The Center for Women and Families has a satellite office in the building to offer support to victims of domestic violence. There’s a separate, designated waiting area so victims do not share a hallway with perpetrators. The EPO office is just inside the main entrance next to a security system similar to that at airports, including the presence of several armed deputies.

On one floor, a cheerful playroom filled with stuffed animals and games offers supervised activities for children whose parents are in court. Toys also line the sides of several courtrooms. Fans of Jefferson County’s system also point to “truancy court,” a school-based diversion program focused on improving student attendance and getting young people in crisis the social services they need.
Division 3 (and former chief) Judge Patricia Walker FitzGerald (a sister-in-law of Richard FitzGerald) says family court excels at “helpful services (provided) in a nontraditional way,” replacing a conventional adversarial plaintiff vs. defendant court model with a safety net that tries to catch the pieces of shattered family lives.

Other programs include Families in Transition, a divorce education program that helps parents understand children’s needs during dissolution, and a new pilot program called PACT (Parents Achieving With Collaborative Teams), an eight-week series for high-conflict families. Divorced parents who repeatedly return to court over issues like visitation rights can be ordered into the program. Developed with experts at the University of Louisville, psychologists and marriage and family therapists intervene with hopes of improving parental relationships and resolving issues outside of court. Another unusual feature is the case manager attached to each judge who coordinates referrals to outside agencies and organizes case files to present a full picture of each family’s situation.

The biggest challenge facing Family Court, several observers say, is its overloaded docket. “It’s true in almost every family court,” says Buba. Each of the 10 divisions will open about 2,000 new cases this year. Those numbers do not include continuances, like divorce cases that come back over financial disputes or motions to modify custody. It’s not unusual for a judge to face 20 or even 30 cases in a morning.

The biggest increase in recent years? Dependency (mainly child abuse and neglect) cases, which are “skyrocketing,” says Jim Birmingham, the county’s Family Court administrator. “There are more Jefferson County kids living in poverty and that corresponds with the increase in our dependency filings.” Other roadblocks are rising drug use as well as the unrelenting fiscal pressures on social services, job training, affordable housing — things that can help straighten a crooked path.

“You have overworked social workers, overworked court workers,” says local family law attorney Mitch Charney. “The dependency docket – there are months it is just out of control.”

It’s 8:30 on a Wednesday morning in late May. Just outside Judge Eleanore Garber’s courtroom, it’s crowded and hot in a tiny conference room as a dozen people run in and out. There are guardians ad litem, attorneys appointed by the court to represent children’s interests; court-appointed parents’ attorneys; county prosecutors; state social workers from Child Protective Services; and private attorneys. The parties negotiate agreements they will take into the 17 hearings Judge Garber will hear this morning. There’s an air of chaotic organization.

Bits of conversation rise above the din: “Mom got evicted.” “Dad isn’t meeting the conditions.” “There was domestic violence.” “They had no place to go.”

“It can be depressing,” says Jefferson County Prosecutor Geri Anderson. “We’ve developed thick skins.”

An hour later, temporary-removal hearings commence. The first case checks in with grandparents who have temporary custody of their daughter’s children after there was domestic violence in the home. There are two fathers. One is in jail. The other, who just recently came into his children’s lives, wants overnight visitation. The grandparents object.

Garber orders expanded daytime visits only and continues the case for 60 days.

The next hearing starts a minute later. A woman too young to look as worried and sullen as she does sits in front of Garber. At 18, she has an emergency protective order out against a boyfriend. She’s already lost a three-year-old daughter to temporary foster care and the state has petitioned to remove her six-month-old daughter from the home. The woman hasn’t made any of the changes the court ordered a few months ago.

“I think that (the mother — all names on dependency dockets are kept confidential) needs to know that the court is serious,” says Garber. She orders the child removed from the home and placed in temporary foster care.

The young woman is upset. She stands and turns to walk out. Garber orders her back. The mother pushes out the back door and is brought back a minute later by the deputy. An older woman in the back of the court starts crying.

The young mother walks out again. “I don’t want to be here!” she says. The deputy gets her and escorts her back.

“You have a chance to turn things around,” Garber says to her firmly. “(No one here) wants you not to parent your daughter. I do find you in contempt of court for walking out twice in 10 minutes.” She orders one hour’s custody in an adjoining detention room.

“We’ve got to move along a little more,” Garber says. It’s 10 a.m.

It makes a huge difference, says Dawn Lee, executive director of CASA (Court Appointed Special Advocates), which helps guide children through the court process, to have judges and support workers committed to family issues. “To sit in family court, you can begin to get overwhelmed,” she says. “The hopelessness. For these men and women to come back every day and not succumb to that,” she says, is inspirational.

What plagues some court systems — inefficient and even antagonistic relationships among the various players — does not seem to be a significant issue here. Judges work closely with the state Cabinet for Health and Family Services, which may investigate a claim of child abuse reported to the Child Abuse Hotline, for example, and with the county attorney’s office, which may prosecute abusive parents.

Programs that intervene in dysfunctional cycles can help resolve some situations outside of court and lessen the number of cases on the docket. Mediation might be ordered in divorce disputes, for example. And in Division 5, one afternoon a week, Judge Eleanore Garber oversees Family Drug Court, which she helped start four years ago. Garber says statistics show that drug use is implicated in the abuse and neglect of the children she sees in court in 70 percent of families. “It’s mainly crack cocaine, alcohol and meth,” she says.

Family Drug Court is a volunteer and “rigorous” system designed to get people quick treatment and increase the chances of children staying or returning to their biological parent(s). There are strict requirements: court attendance, drug tests and monitoring — rules needed for lives lived without the boundaries that functional, stable homes can provide. The program started with two clients in 2002. Last year, it worked with 75 families.

In Garber’s court, the next hearing on the Wednesday morning dependency docket is a continuation of an earlier case. A 30-ish woman sits with counsel in front of the judge. She’s smiling. She’s had her children back for a while now and has been under court review. Garber looks up from reading the file.

“How are things going, ma’am?” she asks.

“Wonderful,” the mother says. She looks happy. “The kids are wonderful.”

“That’s great,” replies Garber. “We don’t hear the word ‘wonderful’ in here very often. Good work. Good luck to you, ma’am.” She orders the case closed.

The next hearing begins. It’s a review of a foster placement. A broadly smiling 61-year-old man sits with a young boy in his lap and two other children nearby. He and his wife are first-time foster parents. Garber guides a conversation about how things are going. How are the kids doing in school? How is their health?

The man answers her questions. “We love them like our own,” he says. The children look happy and bright-eyed.

Garber asks if there’s a possibility of a permanent adoption. The foster father says he’s concerned about his age and wants to do what’s best for the kids. Garber says that some people at 61 are like others at 51.

She smiles, congratulates the man and excuses the party. Then she reaches for the next file in a long and patient morning in Family Court.


New Home Intruder law found to be vague. Lexington Judge refuses to dismiss murder based on this defense.

Thursday, July 27th, 2006

The new Home Intruder law which became effective July 12, 2006 has run into trouble in Lexington court.  The law provides:  (See full text below)

A person does not have a duty to retreat prior to the use of deadly physical force …
A person does not have a duty to retreat if the person is in a place where he or she has a right to be…
A person who uses force as permitted in Section 2 of this Act and in KRS 503.050, 503.070, and 503.080 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom the force was used is a peace officer, as defined in KRS 446.010, who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law, or the person using force knew or reasonably should have known that the person was a peace officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.

Lexington Herald Leader Article:

A Fayette judge struggled to make sense of Kentucky’s new “home intruder” law yesterday, calling the National Rifle Association-backed legislation confusing, vague and poorly written.
“I’m not quite sure that the drafters had even a marginal knowledge of criminal law or Kentucky law,” Circuit Judge Sheila Isaac said. “It is absolutely silent on the court’s role.”

Isaac rejected James Adam Clem’s request to have his murder charges dismissed because of the recently enacted law, which grants immunity to homeowners who use deadly force to defend themselves from robbers or intruders.

The law says a person has the right to use lethal force if he has “reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.” It also applies if a person is attacked in a public place “where he or she has a right to be.”
Clem, 27, says he killed Keith Newberg, 25, in self-defense after Newberg allegedly attacked him upon entering Clem’s apartment early in the morning of Aug. 9, 2004.
Isaac sided with prosecutors, who said that whether Newberg was an intruder or had committed a crime is a factual question that jurors must decide.
“To go into whether he is immune clearly requires fact-intensive decisions” that judges should not make, Isaac said.
Prosecutors around the state have expressed concerns about the law, which they say is difficult to interpret and raises numerous questions.

In an interview yesterday, University of Kentucky law professor Robert Lawson, widely considered the state’s foremost expert on criminal law, sharply criticized the law. It was approved overwhelmingly by the General Assembly this spring, and it took effect this month.
“It is the worst legislation I have ever seen in 40 years,” said Lawson, the principal drafter of Kentucky’s penal code, which was adopted in 1975.

Supporters of Senate Bill 38, also called the castle doctrine, said that previous law required Kentuckians to retreat from robbers breaking into their home or car.
Not so, Lawson says: Unlike many states, Kentucky never had such an obligation.
When drafting the penal code, the General Assembly voted down such a requirement, he said.

A 1931 Kentucky Supreme Court decision, Gibson vs. Commonwealth, bluntly spells out the right of self-defense without retreat.
“It is the tradition that a Kentuckian never runs,” the opinion states. “He does not have to.”

May be state’s 1st such case

Lawson said the home intruder law “is aimed at a problem that didn’t exist” and will create “huge problems of interpretation.”
The politically powerful NRA has convinced 15 states to pass castle-doctrine laws since 2005. The doctrine has its origins in English common law.
Supporters in the legislature, who acknowledge the NRA’s influence in drafting the bill, say it is needed to protect homeowners from being sued or prosecuted for shooting intruders.
Yesterday, Judge Isaac and attorneys on both sides debated what the law means to Clem’s case. It was the first time in Fayette County, and possibly the state, that the home intruder law has reached the courts.
The Kentucky Supreme Court has never ruled on the law, giving Isaac no precedent to follow. Because she is a circuit judge, her ruling does not create precedent, and it applies only to Clem’s case.
Isaac said the law provides no guidance for how courts should apply the immunity provision, which bars police from even arresting somebody who defends himself.
It’s not clear what the standard of proof is or how the burden of proof shifts, she said.  “We are all kind of treading on unknown water,” she said.

Clem’s trial starts Monday. Isaac said defense attorneys could refile their motion after prosecutors have presented their evidence.
By Brandon Ortiz
                         Text of new  Home Intruder Act
AN ACT relating to general principles of justification.
Be it enacted by the General Assembly of the Commonwealth of Kentucky:
Section 1.   KRS 503.010 is amended to read as follows:
The following definitions apply in this chapter unless the context otherwise requires:
(1) ”Deadly physical force” means force which is used with the purpose of causing death or serious physical injury or which the defendant knows to create a substantial risk of causing death or serious physical injury.
(2) ”Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night[any building or structure, though movable or temporary which is for the time being either totally or partially the defendant's home or place of lodging].
(3) ”Imminent” means impending danger, and, in the context of domestic violence and abuse as defined by KRS 403.720, belief that danger is imminent can be inferred from a past pattern of repeated serious abuse.
(4) ”Physical force” means force used upon or directed toward the body of another person and includes confinement.
(5) ”Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.
(6) ”Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.
(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:
(a) The person against whom the defensive force was used was in the process of unlawfully and forcibly entering or had unlawfully and forcibly entered a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and
(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.
(2) The presumption set forth in subsection (1) does not apply if:
(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or
(b) The person sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or
(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or
(d) The person against whom the defensive force is used is a peace officer, as defined in KRS 446.010, who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a peace officer.
(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a felony involving the use of force.
(4) A person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.
Section 3.   KRS 503.050 is amended to read as follows:
(1) The use of physical force by a defendant upon another person is justifiable when the defendant believes that such force is necessary to protect himself against the use or imminent use of unlawful physical force by the other person.
(2) The use of deadly physical force by a defendant upon another person is justifiable under subsection (1) only when the defendant believes that such force is necessary to protect himself against death, serious physical injury, kidnapping,[ or] sexual intercourse compelled by force or threat, felony involving the use of force, or under those circumstances permitted pursuant to Section 2 of this Act.
(3) Any evidence presented by the defendant to establish the existence of a prior act or acts of domestic violence and abuse as defined in KRS 403.720 by the person against whom the defendant is charged with employing physical force shall be admissible under this section.
(4) A person does not have a duty to retreat prior to the use of deadly physical force.
Section 4.   KRS 503.070 is amended to read as follows:
(1) The use of physical force by a defendant upon another person is justifiable when:
(a) The defendant believes that such force is necessary to protect a third person against the use or imminent use of unlawful physical force by the other person; and
(b) Under the circumstances as the defendant believes them to be, the person whom he seeks to protect would himself have been justified under KRS 503.050 and 503.060 in using such protection.
(2) The use of deadly physical force by a defendant upon another person is justifiable when:
(a) The defendant believes that such force is necessary to protect a third person against imminent death, serious physical injury, kidnapping,[ or] sexual intercourse compelled by force or threat, or other felony involving the use of force, or under those circumstances permitted pursuant to Section 2 of this Act; and
(b) Under the circumstances as they actually exist, the person whom he seeks to protect would himself have been justified under KRS 503.050 and 503.060 in using such protection.
(3) A person does not have a duty to retreat if the person is in a place where he or she has a right to be.
Section 5.   KRS 503.080 is amended to read as follows:
(1) The use of physical force by a defendant upon another person is justifiable when the defendant believes that such force is immediately necessary to prevent:
(a) The commission of criminal trespass, robbery,[ or] burglary, or other felony involving the use of force, or under those circumstances permitted pursuant to Section 2 of this Act, in a dwelling, building or upon real property in his possession or in the possession of another person for whose protection he acts; or
(b) Theft, criminal mischief, or any trespassory taking of tangible, movable property in his possession or in the possession of another person for whose protection he acts.
(2) The use of deadly physical force by a defendant upon another person is justifiable under subsection (1) only when the defendant believes that the person against whom such force is used is:
(a) Attempting to dispossess him of his dwelling otherwise than under a claim of right to its possession; or
(b) Committing or attempting to commit a burglary, robbery, or other felony involving the use of force, or under those circumstances permitted pursuant to Section 2 of this Act, of such dwelling; or
(c) Committing or attempting to commit arson of a dwelling or other building in his possession.
(3) A person does not have a duty to retreat if the person is in a place where he or she has a right to be.
(1) A person who uses force as permitted in Section 2 of this Act and in KRS 503.050, 503.070, and 503.080 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom the force was used is a peace officer, as defined in KRS 446.010, who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law, or the person using force knew or reasonably should have known that the person was a peace officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.
(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1) of this section, but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.
(3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).


Wednesday, July 26th, 2006


Courier Journal editorial mistates the law regarding appointment of Murray State Univ. Regents

Wednesday, July 26th, 2006

The Louisville Courier Journal in an editorial published July 26, 2006, stated as follows:

“In l991, the Supreme court in Kentucky Association of Realtors v. Musselman, upheld nominating commissions. But that decision was contingent on a Governor’s power to reject the proposed names and ask for a new list.� 

That conclusion by the Courier Journal is clearly incorrect and misstates the clear meaning of Musselman.

In the Musselman case, the trial judge had held a portion of KRS 324.281 unconstitutional.  That ruling was overruled by the Supreme Court and the concept of nominating committees was upheld. That statute is clearly distinquished from the statute applying to the appointment of University Regents.

KRS 324.281 states:
“For each appointment or vacancy, the Kentucky Association of Realtors shall supply a list of not less than three (3) names of licensees to the governor each year from which the broker or sales associate appointments are to be made. The governor may fill vacancies arising in the middle of the year from those remaining on the list or from a new list supplied by the association.”

The last phrase of KRS 324.281 allows the Governor to appoint from the list of nominees submitted to him by the Ky. Association of Realtors, “OR FROM A NEW LIST SUPPLIED BY THE ASSOCIATION.�

KRS 164.005 does not contain language similar to that last phrase mentioned in KRS 324.281 regarding “a new list� from which the Governor may appoint. However KRS 164.005(5)(a) contains the mandatory language:

“The Governor shall select the appointees from among the nominees.�

    We must conclude that the statement of the Courier Journal is incorrect.  The Supreme Court in Musselman upheld the concept of nominating commissions submitting a list of nominees to the Governor. The reference to the right of the Governor to reject the list is based solely on the wording of KRS 324.281 which arguably allows the Governor to demand a new list, and that wording is not found in KRS 164.005, in fact KRS 164.005 has wording directly contrary to the right of the Governor to reject the initial list of nominees.

The implication in the Courier Journal article that the Musselman decision applied to KRS 164.005 by creating or recognizing the right of the Governor to reject the original list of nominees is just incorrect.   The Musselman decision only applied to the wording of KRS 324.281.

Further we should point out that the Musselman case was decided by the Ky. Supreme Court in l991.  The legislative history of KRS 164.005 shows that it was adopted subsequent to the Musselman decision and one must conclude that the legislature was aware of the Musselman decision when it adopted the current version of KRS 164.005.  The courts have long held that deference must be given to the legislature when interperting the wording of statutes they enact.  Therefore, one is required to assume that the legislature knew what they were doing when they adopted KRS 164.005, and that they intended the language used to be strictly followed.  The statute regarding the appointment of Regents was enacted in the next session of the General Assembly after the Musselman decision. 

The rules of statutory construction force one to conclude that the legislature was aware of the Musselman decision and intentionally deleted the option of the Governor to reject the list of nominees and demand another list.

See Legislative history of KRS 164.005:

“Effective: June 24, 2003
History: Amended 2003 Ky. Acts ch. 56, sec. 1, effective June 24, 2003. — Amended
1997 (1st Extra. Sess.) Ky. Acts ch. 1, sec. 71, effective May 30, 1997. — Amended
1996 Ky. Acts ch. 362, sec. 6, effective July 15, 1996. — Amended 1994 Ky. Acts
ch. 91, sec. 1, effective March 22, 1994; and ch. 447, sec. 3, effective April 11, 1994.
– Created 1992 Ky. Acts ch. 10, sec. 3, effective February 20, 1992, effective February 20, 1992.�

There has never been a court review of KRS 164.005(5)(a), and therefore it is incorrect to say the Supreme Court has ruled that nominating committees reccomendations are “contingent on a Governor’s power to reject the proposed names and ask for a new list.”    
                               Full text of the Musselman case:

817 S.W.2d 213

Chester W. MUSSELMAN; Wallace G. Wilkinson, Governor of the
Commonwealth of Kentucky; and Kentucky Real Estate Commission, Appellees.

Frederic J. COWAN, Attorney General of the Commonwealth of
Kentucky, Appellant,
Chester W. MUSSELMAN and Kentucky Real Estate Commission,

Nos. 90-SC-664-TG, 90-SC-665-TG.   Supreme Court of Kentucky.
Aug. 29, 1991. Rehearing Denied Nov. 21, 1991.
        Fred E. Fugazzi, Jr., W. Terry McBrayer, Lexington, for Kentucky Assoc. of Realtors.
        Peter L. Ostermiller, Robert G. Stallings, Louisville, for Musselman.
        Kevin J. Hable, William H. Hollander, Sheryl G. Snyder, Louisville, for Wilkinson.
        T. Kennedy Helm, III, Judith A. Villines, Frankfort, for amicus curiae.
        John L. Ackman, Jr., Louisville, for Kentucky Real Estate.
        Frederic J. Cowan, Atty. Gen., Robert V. Bullock, Asst. Atty. Gen., Frankfort, Kelly Mark Easton, Louisville, for Cowan.
        LEIBSON, Justice.
        This is a declaratory judgment action filed by the appellee, Chester W. Musselman, a licensed real estate agent, against:
        (1) The Kentucky Association of Realtors, Inc. (the “Association”), a private, voluntary 
Page 214
non-profit organization of professional real estate agents;
        (2) The Kentucky Real Estate Commission (the “Commission”), a state agency charged with the responsibility of licensing and regulating Kentucky real estate brokers and salesmen;
        (3) The Governor of Kentucky; and
        (4) The Attorney General of Kentucky.
        The appellee seeks to have a portion of KRS 324.281 declared unconstitutional. The statute provides the statutory structure for the Real Estate Commission, and specifically limits the Governor’s power of appointment of real estate agents to serve as members of the Commission to a list supplied by the Association. The Complaint alleges “there are approximately 24,000 real estate licensees in the Commonwealth of Kentucky, of which approximately one-third are members of the KAR [the Association],” that the statute is arbitrary and in violation of Section 2 of the Kentucky Constitution, and that it violates the separation of powers principle in Sections 27 and 28 of the Kentucky Constitution, thus also infringing on Section 69, which vests the “supreme executive power of the Commonwealth” in the Governor.
        Based on these enumerated sections of the Kentucky Constitution, the trial court entered Judgment on the Pleadings declaring unconstitutional so much of KRS 324.281 as requires the Governor to appoint from the list supplied by the Association. The Association and the Attorney General appealed separately from the trial court’s final judgment. On its own motion the Kentucky Court of Appeals recommended transfer to the Kentucky Supreme Court because the “decision on this matter has the potential to affect a large variety of regulatory administrative agencies and will have statewide implications for many regulated groups.” 1
 We have granted transfer, and for reasons that follow we hold the statute in question does not violate the sections of the Kentucky Constitution in question. Thus we reverse the trial court’s decision.
        The portion of the statute in question, KRS 324.281(3), provides:
“For each appointment or vacancy, the Kentucky Association of Realtors shall supply a list of not less than three (3) names of licensees to the governor each year from which the broker or sales associate appointments are to be made. The governor may fill vacancies arising in the middle of the year from those remaining on the list or from a new list supplied by the association.”
        The statute limits the power of the Governor to appoint two names on a list provided by the Association, but it neither limits appointees to members of the Association nor does it compel the Governor to appoint someone on the list. Strictly speaking, the Association may nominate any licensed real estate agent who meets the qualifications in Subsection (1) of KRS 324.281, without regard to membership in the Association, and the Governor may reject all the names on the list provided by the Association and forego making an appointment until provided with a list that includes a person whom the Governor deems suitable for appointment to the office.
        The Commission consists of five persons, four of whom are selected in this manner, and a fifth who “shall be a citizen at large who is not associated with or financially interested in the practice or business regulated.” KRS 324.281(1). No governmental or regulatory authority is delegated to the Association unless the power to “supply a list” as specified in KRS 324.281(3), quoted above, should be classified as a grant of such power. We have not been presented with any valid reason why it should be so construed.
        We acknowledge that Sections 27 and 28 of the Kentucky Constitution require strict adherence to the doctrine of separation of power. Our Kentucky Constitution not only divides the “powers of the government … into three distinct departments
Page 215
["legislative," "executive" and "judicial"], “each … confined to a separate body of magistracy (Section 27),” but adds to this another proviso expressly forbidding “persons, being of one of those departments” the “exercise of any power properly belonging to either of the others (Section 28).”
        The appellee concedes the creation of a regulatory commission such as the one in question is a proper exercise of legislative power. So is the designation of qualifications or criteria for persons who shall serve on such a Commission, so long as such qualifications or criteria are not impermissibly “arbitrary” within the context of Ky.Const. Section 2. The primary question in this case is whether the General Assembly has encroached upon the exclusive power of the executive by delegating to the Association responsibility to “supply a list” from which the Governor shall choose his appointee. The almost identical question was first addressed by this Court in Elrod v. Willis, 305 Ky. 225, 203 S.W.2d 18 (1947), which now has been the controlling precedent on this point for almost 45 years.
        In Elrod we held constitutional a section of the statute creating the Kentucky Disabled Ex-Servicemen’s Board, a state agency with “full executive powers” to administer a claims program for disabled veterans, which specified that “all appointments to the Board shall be made by the Governor from a list of five (5) names … submitted by” the Kentucky branch of the American Legion. The Legion was, and is, a private, voluntary organization, in the same sense as is the Kentucky Real Estate Association in the present case, and the function designated to it by statute was substantially identical to the same function provided for by KRS 324.281(3), with which we are now concerned.
Now no less than twelve other state regulatory Boards and agencies utilize a similar method in an effort to insure the appointment of qualified individuals. 2 Thus a large body of statutory law has developed since 1947 in reliance on Elrod v. Willis.
Although we would not hesitate in overruling a longstanding precedent if presented with compelling and specific reasons why such precedent is clearly erroneous despite the unsettling nature of such a decision, no such specific and compelling reasons for overruling Elrod have been presented here. On the contrary, the appellee’s argument against the Elrod case is limited to appellee’s claim that Elrod has lost its vitality because of our decision in Legislative Research Com’n. (LRC) v. Brown, Ky., 664 S.W.2d 907 (1984).
The appellee argues that, while Elrod v. Willis was not overruled in LRC v. Brown, it did not survive it. But there are sharp factual differences, which we will later address, between the statutory structure declared unconstitutional in LRC v. Brown and the structure validated in Elrod v. Willis.
        In analyzing the function delegated by statute to the American Legion in Elrod, we stated “the legislature has not attempted to appoint administrative officers, nor has it completely denied the appointive function of the executive.” 203 S.W.2d at 20. It has “simply limited the Governor’s selection to a list of men named by an organization which is not affected by the limitation of Section 27.” Id.
Utilizing a private, voluntary organization of this nature is “a recognition that organizations whose objectives coincide with the objectives of the law creating the agency, may render a material service to the Governor by nominating men to staff that agency who are qualified by interest, experience, and background.” Id.
        Almost contemporaneously with the decision in Elrod v. Willis, our Court also decided Fraysure v. Ky. Unemployment Comp. Com’n., 305 Ky. 164, 202 S.W.2d 377 (1947), a suit to test the constitutionality of the statute structuring the newly created Kentucky Unemployment Compensation Commission. The statute in question provided for:
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“… an Employment Service Commission composed of a Director of Employment Service and two members, one representing labor and the other management, to be appointed by the Commissioner of Industrial Relations, with the approval of the Governor, from lists of names submitted to him by representatives of labor and management.” 202 S.W.2d at 379.
        It also provided certain criteria or qualifications for the Director, including “at least four years’ full time paid experience in the administration and supervision of a statewide system of public employment service offices,” 202 S.W.2d at 380, which substantially narrowed the Governor’s choice for this position.
        Discussing first the constitutionality of the limitations on the Governor’s appointive powers imposed by the statutory qualifications for the office, we said “it is only where the classifications are arbitrary and unreasonable, so as to exclude one or more of a class without a reasonable basis, that the Act is void.” 202 S.W.2d at 381.
        Next, with reference to restricting appointment of Commission members to “list of names submitted … by representatives of labor and management,” we stated:
“Nor is it unusual in this jurisdiction for the Governor to be required to make appointments from lists submitted to him. It is provided in KRS 116.010 that the Governor shall appoint two members of the State Board of Elections Commissioners from a list of names if submitted to him by each major political party.” Id.
        As we stated earlier in this Opinion, the question before us is the impact on cases such as Elrod v. Willis and Fraysure v. Ky. Unemployment Comp. Com’n., of our more recent landmark constitutional law decision on the subject of separation of powers doctrine in LRC v. Brown, supra. LRC v. Brown “address[ed] the constitutionality of several Acts of the Kentucky General Assembly passed by that body’s 1982 regular session,” including statutes which “empower[ed] the Speaker of the House of Representatives and the President Pro Tem of the Senate to appoint one or more members of particular Boards,” statutes making these two legislative officials “ex officio members of certain existing Boards and Commissions,” statutes “conferr[ing] on the LRC or a joint interim legislative committee the power to advise and consent on the Governor’s appointment to Boards or Commissions,” statutes “direct[ing] the Governor to make appointments solely from a list submitted to him by the LRC”, and statutes “permitt[ing] the LRC or its Chairman to make appointments to certain Boards and Commissions.” 664 S.W.2d at 920. We held these statutes constitutionally impermissible under the separation of powers doctrine, quoting from Sibert v. Garrett, 197 Ky. 17, 246 S.W. 455, 457 (1922):
“Perhaps no state forming a part of the national government of the United States has a Constitution whose language more emphatically separates and perpetuates what might be termed the American tripod form of government than does our Constitution,….” 664 S.W.2d at 913.
        We “conclude that any statute subject to the scrutiny of Sections 27-28 of the Kentucky Constitution should be judged by a strict construction of those time-tested provisions.” 664 S.W.2d at 914.
        We do not now retreat from our decision in LRC v. Brown one iota. Nevertheless, there is a fundamental and critical difference between the statutes held constitutionally flawed in LRC v. Brown and the statutes proved as constitutionally valid in Elrod v. Willis and Fraysure v. Ky. Unemployment Comp. Com’n.
The statutes in LRC v. Brown granted the General Assembly continuing power, either directly through its leadership or indirectly through the LRC (which we recognized was not an independent agency but an arm of the legislature), to require the Governor to appoint to specified commissions persons who were nominees of the legislature. This transgressed the mandate in Section 27 of our Kentucky Constitution that “each” department of government shall “be confined to a separate body of magistracy,” and in Sec. 28 that “[n]o … persons, being of one
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of those departments, shall exercise any power properly belonging to either of the others.” But the statute presently in question, as in the Elrod and Fraysure cases, gives the General Assembly no voice in the selection of committee members; its reach extends solely to providing a method of selection with reasonable criteria to generate commission members qualified for the position through participation of an organization, the Kentucky Association of Realtors, which is independent of legislative control.
        Conceivably, there are circumstances in which designating an organization by statute to participate in the nominating process could raise questions regarding the exercise of “arbitrary power” under Ky.Const. Section 2, or perhaps of unauthorized grant of “separate public … privileges” under Ky.Const. Section 3. But this would be only if there was some substantial, demonstrable defect in the organization selected exposing the legislative choice as unreasonable and inappropriate for obtaining a valid legislative objective. There is nothing in the present fact situation suggesting a case for unconstitutionality on such grounds.
        Therefore, for the reasons stated herein, we reverse and vacate the judgment of the trial court and remand the case with directions to enter a new judgment upholding the constitutionality of the statute and dismissing the Complaint.
        LAMBERT, J., dissents by separate opinion in which COMBS, J., joins.
        LAMBERT, Justice, dissenting.
        In my view, the statute under consideration is in clear violation of Sections 27, 28 and 69 of the Constitution of Kentucky. Despite the valiant attempt of the majority to say otherwise, the Legislature has in effect appropriated executive prerogative by conferring upon a trade association the arbitrary power, in violation of Sections 2 and 3 of our Constitution, to limit the pool of persons from which the governor may make his appointment. While it may be unimportant for purposes of constitutional analysis, it should not go unnoticed that only approximately one-third of Kentucky’s licensed real estate agents are members of the trade association to which the Legislature has granted such power.
        In defense of its position, the majority observes that the association has a right to include on its list of possible appointees persons who are not its members, and it is noted that the governor would be entitled to refrain from making any appointment until the list submitted included the names of persons whom he believed to be suitable. While such facts may provide enough breathing space to prevent a stalemate, if a test of wills should develop between the executive and the association, the executive would have to yield or have his power of appointment thwarted. As the governor can appoint only from the list submitted, the entity which controls the list controls who shall be appointed.
        This Court’s landmark decision in Legislative Research Commission (LRC) v. Brown, Ky., 664 S.W.2d 907 (1984), is believed by many to have inaugurated a new era in the interpretation of Sections 27 and 28 of our Constitution. To borrow a popular phrase, a line was drawn in the sand when we refused to adopt a “liberal construction of the separation of powers doctrine” and stated that such an interpretation would be tantamount to repealing sections 27 and 28. The concept of encroachment by one branch of government upon the functions of another was viewed as contrary to the foundation of our constitutional government in that it would ultimately result in one branch vastly exceeding the rightful power allocated to it. We quoted with approval from Sibert v. Garrett, 197 Ky. 17, 246 S.W. 455, 457 (1922) as follows:
“[T]he Legislature may perform all legislative acts not expressly or by necessary implication withheld from it, but it may not perform or undertake to perform executive or judicial acts….”
        It cannot be disputed that the appointment of officials is inherently an executive
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act. LRC v. Brown, at 920-924. As such and in view of the importance we have ascribed to the principle involved, we should not countenance an evasion or circumvention of the rule established.
        The majority has emphatically declared, “We do not now retreat from our decision in LRC v. Brown one iota.” Despite such protestation, there is a great similarity between the statutes held unconstitutional in LRC v. Brown and the statute upheld in this case. The majority attempts to distinguish this case from LRC v. Brown on the grounds that “the General Assembly [has] no voice in the selection of committee members; its reach extends solely to providing a method of selection … which is independent of legislative control.” Said otherwise, the majority has the view that the General Assembly may, by delegation of authority to a trade association, do what it cannot do directly. Such a distinction is without a difference.
        We should take the opportunity provided by this case to reiterate the requirement of Section 27 that each branch of government should be “confined to a separate body of magistracy” and the requirement of Section 28 that no branch of government should “exercise any power properly belonging to either of the others.” (Emphasis added.)
        COMBS, J., joins in this dissent.
1 One of those groups, the Kentucky Society of CPAs, by leave of court, has filed an Amicus Curiae Brief herein.
2 KRS 325.230(1)–Accountancy; KRS 330.050(2)–Auctioneers; KRS 316.180(1)–Embalmers and Funeral Directors; KRS 311.530–Medical Licensure; KRS 314.121(1)–Nursing; KRS 320.230(1)–Optometric Examiners; KRS 217B.505(2)–Pest Control; KRS 315.150(2)–Pharmacy; KRS 327.030–Physical Therapy; KRS 311.410(1)–Podiatry; KRS 165A.340–Proprietary Education; KRS 319.020(2)–Examiners of Psychology.


Federal Judge rules Ky. jailers can seize inmates funds to pay for their incarceration

Tuesday, July 25th, 2006

Judge Bertlesman cited   KRS 441.265 Required reimbursement by prisoner of costs of confinement — Local policy of fee and expense rates — Billing and collection methods.

(1) A prisoner in a county jail shall be required by the sentencing court to reimburse the county for expenses incurred by reason of the prisoner’s confinement as set out in this section, except for good cause shown.

(2) (a) The jailer may adopt, with the approval of the county’s governing body, a prisoner fee and expense reimbursement policy, which may include, but not be limited to, the following:

1. An administrative processing or booking fee; 2. A per diem for room and board of not more than fifty dollars ($50) perday or the actual per diem cost, whichever is less, for the entire period of time the prisoner is confined to the jail;

3. Actual charges for medical and dental treatment; and 4. Reimbursement for county property damaged or any injury caused by the prisoner while confined to the jail.

(b) Rates charged may be adjusted in accordance with the fee and expense reimbursement policy based upon the ability of the prisoner confined to the jail to pay, giving consideration to any legal obligation of the prisoner to support a spouse, minor children, or other dependents. The prisoner’s interest in any jointly owned property and the income, assets, earnings, or other property owned by the prisoner’s spouse or family shall not be used to determine a prisoner’s ability to pay.

(3) The jailer or his designee may bill and attempt to collect any amount owed which remains unpaid. The governing body of the county may, upon the advice of the jailer, contract with one (1) or more public agencies or private vendors to perform this billing and collection. Within twelve (12) months after the date of the prisoner’s release from confinement, the county attorney, jailer, or the jailer’s designee, may file a civil action to seek reimbursement from that prisoner for any amount owed which remains unpaid.

(4) Any fees or reimbursement received under this section shall be forwarded to the county treasurer for placement in the jail’s budget.

(5) The governing body of the county may require a prisoner who is confined in the county jail to pay a reasonable fee, not exceeding actual cost, for any medical treatment or service received by the prisoner. However, no prisoner confined in the jail shall be denied any necessary medical care because of inability to pay.

(6) Payment of any required fees may be automatically deducted from the prisoner’s property or canteen account. If the prisoner has no funds in his account, a deduction may be made creating a negative balance. If funds become available or if the prisoner reenters the jail at a later date, the fees may be deducted from the prisoner’s property or canteen account.

(7) Prior to the prisoner’s release, the jailer or his designee may work with the confined prisoner to create a reimbursement plan to be implemented upon the prisoner’s release. At the end of the prisoner’s incarceration, the prisoner shall be presented with a billing statement produced by the jailer or designee. After the prisoner’s release, the jailer or his designee may, after negotiation with the prisoner, release the prisoner from all or part of the prisoner’s repayment obligation if the jailer believes that the prisoner will be unable to pay the full amount due.

(8) No per diem shall be charged to any prisoner who is required to pay a work release fee pursuant to KRS 439.179, a prisoner that has been ordered to pay a reimbursement fee by the court pursuant to KRS 534.045, or that the Department of Corrections is financially responsible for housing.

(9) No medical reimbursement, except that provided for in KRS 441.045, shall be charged to any prisoner that the Department of Corrections is financially responsible for housing.

Effective: July 14, 2000

History: Created 2000 Ky. Acts ch. 537, sec. 1, effective July 14, 2000.

The Ky. Post reported: 

In a ruling issued last week, U.S. District Judge William O. Bertelsman dismissed a lawsuit filed against the Kenton County Jail by Aretta Baughn, who argued that the method used to take money from her jail account violated her due process.

Cincinnati attorney Robert Newman also filed two similar lawsuits for inmates in Campbell County.

Bertelsman said none of the lawsuits had any merit to go forward.

State law allows for the deductions from so-called “canteen accounts,” and all inmates are aware of the procedure, the judge said. Indeed, the lawsuits did not question the law or the legality of the deductions.

Inmates are not allowed to have cash while in jail, so the accounts are set up to enable them to buy food or small personal items sold by the jail. Often, their families or friends deposit the money. The accounts generally are small, with less than $50 in them.

The inmates claimed the money should not be deducted until they are formally sentenced to jail.

Bertelsman agreed the law is somewhat ambiguous on that point, but said the inmates’ argument fails the logic test.

“If subsection (6) of the statute … is to be given any meaning, imposition of the fees cannot be delayed until sentencing,” he said.

“If the prisoner is confined until sentencing, by that time substantial funds will have passed through the account. The prisoner can easily be certain that he has a zero balance at the time of sentencing. Many prisoners receive pretrial diversion or the charges are otherwise disposed of without any sentencing having occurred.”

He also said the law defines prisoner as any person confined to jail, whether or not that person is ever sentenced.

“Therefore, the court holds that the correct reading of the statute is that the fees may be imposed as soon as the prisoner is booked into the jail and may be periodically deducted from the prisoner’s account as provided by local regulation,” he said.

He also said the jail’s process for collecting from the accounts is proper, and it is not relevant that some of the money might have been deposited by someone other than the inmate.

Kenton County Attorney Garry Edmondson called the decision an important victory for all counties.

“The order recognizes that inmates, not the taxpayers, should bear the cost of their own incarceration,” he said. “Last year, the county was able to recoup a quarter of a million dollars from inmates in the county jail.”

By Paul A. Long
Post staff reporter

Gov. Fletcher violated KRS 164.005(5)(a) by refusing to appoint nominated Murray State University regent candidates.

Tuesday, July 25th, 2006

KRS 164.005(5)(a) requires the Governor when filling an appointment to the Board of Regents of a Kentucky state university to make the appointment from the names of three nominees submitted by the
nominating committee.  Governor Fletcher has rejected all nominees submitted to him on behalf of Murray State University on two occasions.

KRS 164.005 Governor’s Postsecondary Education Nominating Committee –Membership — Terms — Duties.

(1) There is established the Governor’s Postsecondary Education Nominating Committee which shall consist of seven (7) members representing each of the Supreme Court districts who shall be appointed by the Governor with the consent of the House of Representatives and the Senate. If the General Assembly is not in
session at the time of appointment, the consent of the General Assembly shall be obtained during the time the General Assembly next convenes.
(5) (a) The committee shall be responsible for submitting three (3) nominations from which the Governor shall select each gubernatorial appointment to a university or Kentucky Community and Technical College System governing board made pursuant to KRS 164.131, 164.321, and 164.821 and to the Council on Postsecondary Education pursuant to KRS 164.011. The committee shall not make recommendations for alumni, faculty, and staff appointments made pursuant to KRS 164.131 and 164.821 and the student
appointments made pursuant to KRS 164.131, 164.321, and 164.821.

If more than one (1) equivalent gubernatorial appointment is being made to a governing board or the Council on Postsecondary Education at the same time, the committee shall submit a number of nominees equal to three (3) times the number of vacancies. The committee shall provide to the Governor, inasmuch as possible, an equal number of male and female nominees. If the Governor needs nominees of a particular sex in order to make an appointment, the committee shall only provide nominees of that sex. The Governor shall select
the appointees from among the nominees.

The Attorney General says Fletcher does not have the power to reject all candidates. We believe the definition of “shall” as used in the statute is mandatory.  The Governor has apparently been advised that “shall” means he has discretion.  That conclusion is contrary to the classic court ruling:

 Department of Revenue v. Oldham County, 415 S.W.2d 386 (Ky., 1967)
“As late as 1960 Clinton County Farm Bureau v. Clinton County Fiscal Court, Ky., 339 S.W.2d 930, we held that ‘shall’ was a mandatory word. In fact, the word ‘shall’ has been interpreted by this court in some fourteen different cases as mandatory.â€?
See the following AP news story:

FRANKFORT, Ky. – Gov. Ernie Fletcher’s decision to reject six candidates for the Murray State University board of regents may have been a violation of state law, the attorney general’s office said.

Fletcher turned down two separate lists of three candidates presented to him by the bipartisan Postsecondary Education Nominating Committee last week. The board is looking to replace regents Chairman Don Sparks, whose term ended on June 30.

In a letter to Marc Yussman, chairman of the nominating committee, Fletcher cited a law that allows a governor to decline from making a selection “where appointments to administrative boards and commissions are made from lists submitted to him.”

But Assistant Attorney General Rob Jones said Fletcher does not have the power to reject all of the candidates. State law requires the committee to submit a list of three candidates to the governor, who then chooses one of the nominees.

“The governor does not have the discretion to send three more names in,” Jones said. “A specific statue on a specific board would be controlling over any general law in any area.”

Edwin Orange, executive director of the office of boards and commissions, said in a statement last week that Fletcher didn’t think he found a suitable candidate on the list.

“While we are sure the nominees submitted are find individuals, the Gov. was not familiar with any of the Democrats on the submitted list,” Orange wrote. “Furthermore, none of the nominees have spoken with the Gov. expressing an interest to him in serving Murray State University.”

At least four of the six candidates were Democrats. Fletcher is a Republican.

Jones said the state will wait to see the outcome of the selection process before deciding to open an investigation.

It’s simply the latest brush between Fletcher and Stumbo. Fletcher is currently facing three misdemeanor charges stemming from allegations he awarded protected state jobs to political allies.

Acting Murray State president Kern Alexander said he believes Fletcher’s decision may have political overtones. Alexander said Fletcher wants to appoint a candidate who could aide the school’s former athletic director in a breach of contract suit against the school.

Alexander said former Murray State athletic director E.W. Dennison is friends with Robbie Rudolph, who is Fletcher’s running mate in the 2007 gubernatorial race. Rudolph has said he’s loaned Dennison $250,000 for legal bills and other costs. Alexander alleges Rudolph wants to have a say in who Fletcher chooses to join the board.

“It has much to do with that, the settlement of that case,” Alexander said.

Fletcher spokeswoman Jodi Whitaker did not respond to the charges, saying only that it is the governor’s “prerogative” to approve or reject a candidate.

Kenneth “Pete” Galloway, assistant superintendent of Graves County schools in southwestern Kentucky, was one of three candidates submitted by the nominating committee on July 6. He expressed frustration over the process.

“I would like to know what’s going on,” he said. “I haven’t heard a thing.”

Sharon Green, who was on the July 6 list with Galloway and J. Kenneth Shadowen, said she was surprised when she wasn’t contacted by the governor’s office about her interest in the position.

“I felt like I did contact them by submitting my application and letting them know I was interested in serving,” she said. “I thought they’d call and ask me my goals for the university, ask me why I wanted to serve.”

Whitaker said the nominating committee has not set a date to meet to put together a third list of candidates.


Also see:

Courier Journal editorial mistates the law regarding appointment of Murray State Univ. Regents

[Jul 26th, 2006]

The Louisville Courier Journal in an editorial published July 26, 2006, stated as follows: ?In l991, the Supreme court in Kentucky Association of Realtors v. Musselman, upheld nominating commissions. But that decision was contingent on a Governor?s power to reject the proposed names and ask for a new list.?  That conclusion by the Courier Journal is [...]

Retired Oldham Circuit Judge George Williamson passes away Saturday.

Tuesday, July 25th, 2006

Williamson Jr., George F.

 WILLIAMSON, GEORGE F. JR., 86, of LaGrange, passed away Saturday, July 22, 2006, at Baptist Hospital North East. He was a retired Circuit Judge of the 12th Judicial District comprised of Oldham, Henry, Trimble, Shelby, Anderson and Spencer Counties. After the division of the District by the 1972 General Assembly, he was the Circuit Judge of Oldham, Henry and Trimble Counties. He was Judge from 1970 until his retirement in January 1983.He practiced law in Oldham County, and in Kentucky State and Federal Courts. He was a member of The American Bar Association and The Kentucky Bar Association. The Kentucky Bar Association honored him in 1994. He was Senior Counselor until his death. He was elected to the Kentucky House of Representatives from 1948-1956 from Oldham and Trimble Counties and Oldham County Attorney from 1958-1966. Member of the original DeHaven Memorial Baptist Church, LaGrange Rotary Club for 54 years, Volunteer for the old Tri- County Baptist Hospital, Fortitude Masonic Lodge # 47 and Honored as Oldham County outstanding citizen of the year in 1974, member of Valley of Rest Cemetery Board and American Legion Post # 39, Oldham County History Center and one of the original founders of the Oldham County Country Club. He served in the U.S. Navy during World War II and was active in the Pacific War Zone. Judge Williamson was born in Williamson, WV, the son of George F. Williamson Sr. and Lera Boyd Wampler. His education included Williamson High School, Western Kentucky University, Jefferson Law School, University of Louisville, JD Class of 1948, National Judiciary College in Reno, NV, in 1972, and Law Update in 1982. Ruth, his wife of 54 years, entered into rest on November 28, 1995. Survivors include his sons, James F. Williamson (Gayle) and George F. Williamson III (Rosemarie); sisters, Helen Williamson and Mary Jane Musgrove; four grandchildren; four great-grandchildren; and a friend, Billie R. Clark, who cared for him. Memorial service: 11 a.m. Saturday, August 12, 2006 at DeHaven Memorial Baptist Church. Visitation: after 10 a.m. Saturday at the Church. Burial: Valley of Rest Cemetery. Family requests memorial gifts to Hospice of Louisville.

A bipartisan ticket of Ben Chandler for Gov. and Jeff Hoover for Lt. Gov. advanced by Mark Nickolas on

Tuesday, July 25th, 2006

Ben Chandler is currently a Democratic member of Congress from Lexington, Ky.  Jeff Hoover is the Republican Minority Leader in the Ky. House of Representives.

Hoover has been credited as being a progressive Republican who was able to get bills passed with a minimum of partisanship.

The Bold Idea advanced by Nickolas goes like this:

(Caveat: Let me say at the beginning of this post that this is my personal opinion and I am in no way speaking for Ben Chandler. I wanted to offer my out-of-the-box assessment of the state’s political environment and propose an idea that would rock the political establishment but excite the public and move our state forward.)

Regardless of your political affiliations and philosophy, I think you’d agree that politics and government in Kentucky is broken. It’s not working. The partisanship has hardened. The Judiciary has sadly joined the fray. The pursuit of wedge issues for political gain has eclipsed bipartisan solutions that benefit the greatest number of citizens.

Governor Fletcher’s (R) legal problems have ensured that we will again be forced to address a theme of “cleaning-up the mess� and “change.� And the public has had to endure two consecutive administrations – from each political party – immersed in legal and political scandal, and at war with an attorney general elected by the public to enforce the law regardless of the occupant of that office.

The general consensus among political insiders and the media is that the 2007 race is Rep. Ben Chandler’s (D) to lose, if he seeks it. One recent Republican poll showed Chandler defeating Fletcher by a 55-28 margin and even Republicans seem resigned to the inevitability of a strong Chandler victory if he runs.

But Chandler is non-committal about another run. Aside from being very satisfied with his current job in Congress, Ben has mentioned on more than one occasion the politically toxic environment in Frankfort and one wonders how the next governor will be able to effectively govern with such division, not to mention each political party holding on to a legislative chamber.

Once Chandler is removed from the equation, the race becomes a free-for-all for Democrats, and probably for Republicans as well, with an outcome driven more by personalities and war chests than ideas and philosophy. We’re more likely to see a war of attrition than an enlightened debate.

Kentucky needs a new direction and the public deserves better than it has received. Government must be about moving the entire state forward, not just trying to navigate the shallow waters of wedge issues that play to small groups. Our leaders need to be accountable and work together in a responsible way. Both parties have let us down, and led us down the wrong path.

So, let me offer a bold idea.

Putting aside legal hurdles for the time being, I believe the time is right for a unity ticket for governor, specifically a ticket of Democratic Congressman Ben Chandler and Republican House Minority Leader Jeff Hoover (R-Jamestown). 

I’ve never met Hoover, but many progressive Democrats that I know hold him in very high regard. Rep. Kathy Stein (D) has sung his praises to me on a number of occasions, describing him as a statesman, and someone who cares a great deal about the well-being of the Commonwealth. Ben, too, has said very positive things about Hoover in the past.

A Chandler-Hoover ticket would be so appealing because it’s impossible to suggest that the union is anything but sincere, since most believe that Chandler would win regardless of running mate. A Chandler-Hoover ticket would be aimed squarely at governing, not simply winning.


Governor Fletcher names Ct. of Appeals Judge John Minton to Supreme Court. Fletcher will have appointed more judges than any governor in Ky. history.

Tuesday, July 25th, 2006

FRANKFORT, Ky. – Governor Ernie Fletcher today appointed Kentucky Court of Appeals Judge John D. Minton, Jr., of Bowling Green, as Justice of the Supreme Court of Kentucky for the 2nd District.

“Justice Minton brings unquestionable credentials to the Supreme Court, and will be a welcome addition to our Commonwealth’s highest court,� said Governor Fletcher. 

“I am honored to accept this appointment from Governor Fletcher to the Supreme Court of Kentucky,� said Justice Minton.  “I have worked throughout my career as both a practicing lawyer and a judge to pursue the highest traditions of public service, and I will continue to uphold those ideals while serving on the Supreme Court.�

“John Minton is one of Kentucky’s finest judges,� said Kentucky Chief Justice Joseph E. Lambert.  “He has extensive experience in the practice of law, as well as a trial and appellate judge.  He will be a welcome addition to the Supreme Court.�

According to Chief Judge Sara Combs of the Kentucky Court of Appeals, “Judge Minton is blessed with a superb judicial temperament and brings harmony and wisdom to his surroundings.�

Justice Minton was born in Fort Lauderdale, Fla., in 1952, and grew up in Bowling Green.  He is a graduate of Western Kentucky University and the University of Kentucky College of Law.  Justice Minton practiced law in Bowling Green until his election to the Circuit Court in 1992 where he also served as Chief Regional Judge of the Green River region. 

While on the circuit bench, Justice Minton was recognized by the Kentucky Court of Justice for his leadership in forming the Warren County Drug Court and for his commitment to law-related education programs.  He was later elected to the Court of Appeals in November 2003, and was named Kentucky’s Outstanding Judge that year by the Kentucky Bar Association.

Justice Minton is a member of Broadway United Methodist Church in Bowling Green and a former Lay Leader of the Kentucky Conference of The United Methodist Church. He is also a member and past president of the Bowling Green Rotary Club and a former member of the board of directors of Shakertown at South Union.  Justice Minton is a Fellow of the American Bar Association and a graduate of the National Judicial College.

Justice Minton is the son of Dr. and Mrs. John D. Minton, who live in Bowling Green.  Dr. Minton is a retired history professor and administrator at Western, and he served as Western’s fifth president.  Justice Minton is married to the former Susan Lenell Page, a Bowling Green native.  They have two children:  a daughter, Page Sullivan Minton, and a son, John D. Minton, III.

With an unusually large number of judges having retired this summer, Gov. Ernie Fletcher has had an opportunity to put his fingerprints on the state’s judiciary, at least temporarily.

In all, 17 judges, including two Supreme Court justices, retired before July 1, and Fletcher has been naming replacements. The exodus was prompted by a 3.4 percent cost-of-living pension increase available only to judges who retired by June 30. The increase boosted pensions by up to $4,000 a year.

In addition to these l7 judges, Fletcher vetoed a portion of a bill to fund the election of nine new judgeships, and will appoint an additional nine judges in Januaryof 2007.  Other vacancies filled by Fletcher and those expected to occur before the end of his current term, will raise his appointment level to about 50 judges, almost 20% of the entire Ky. judiciary. 

Fletcher, a conservative Republican, acknowledges that he wants to leave his mark on the state’s courts.

“We want to make sure that we have those judges that believe in the fact that their role is not a legislative role, but rather an adjudicating role to interpret the law, not to write the law,” he said.

Sending Cases to FISA Court May Not Work. Law Professors raise doubts.

Tuesday, July 25th, 2006

Bills to “modernize,” revamp, reform or preserve the Foreign Intelligence Surveillance Act of 1978 and its secret procedures are proliferating on Capitol Hill like, well, like wiretaps on phones and Internet traffic since the Sept. 11, 2001, terrorist attacks.

Last week’s much ballyhooed Specter/White House compromise legislation to test the legality of the controversial National Security Agency domestic spy program quickly morphed into the “Specter sellout,” as constitutional and legal analysts on the left and some on the right closely examined the legislation.

The bill by Senate Judiciary Chairman Arlen Specter, R-Pa., now appears to be at one end of a spectrum of legislative proposals dealing with revelations that the Bush administration has been conducting a secret electronic surveillance program outside of FISA, the governing law.

To Scott Silliman of Duke Law School, an expert in military and national security law, there are disturbing parallels between what Congress and the White House have been doing on both the surveillance program and military commission issues.

Noting that there is tremendous White House pressure on Congress to act in both situations, Silliman said: “In the rush to pass legislation, you take the risk of erring and creating a system that is going to go on for a long time that may not be adaptable to other circumstances. Whether you’re talking about military commissions or the question of giving the president legislative sanction of the NSA program, these are very, very difficult and complex issues.

“You’ve got folks on both ends of the spectrum and it’s hard to choose one or the other and go with it,” he added. “When dealing with military commissions only struck down three weeks ago by the Supreme Court or a domestic surveillance program only revealed fairly recently, we need to have a well-reasoned debate on where you strike the balance. Let’s get it right.”

But the need to get it right is bumping into the need to get it done before the August recess. On the Hill last week for a Senate hearing, Silliman said one influential senator noted, “We only have a few weeks left.”


On the domestic surveillance program, the focus on the Hill has been FISA. Congress enacted FISA in response to widespread domestic spying abuses by the FBI, CIA and NSA, documented in reports by the so-called Church Committee in the 1970s. It establishes procedures that, it states, “shall be the exclusive means by which electronic surveillance and the interception of domestic wire, oral, and electronic communications may be conducted.” One of those standards is probable cause to believe the target is an agent of a foreign power.

The Bush administration has defended the legality of the NSA program primarily relying on Congress’ Authorization for Use of Military Force, passed following the Sept. 11 attacks, and on the president’s inherent authority under Article II of the Constitution.

Lawsuits challenging the legality of the program and of the alleged cooperation of some major phone companies in a data-mining effort by the NSA are pending in district courts around the country.

Specter’s “compromise” legislation drew headlines last week because it was seen initially as a way to answer the legality question by submitting the NSA program for review by the Foreign Intelligence Surveillance Court, established by FISA to act on the government’s surveillance requests, and to deal with the pending lawsuits by transferring them to the Foreign Intelligence Surveillance Court of Review, the appeals court under FISA for rejected surveillance requests.

By the end of last week, a range of organizations, from the American Bar Association to the Center for Democracy & Technology, had attacked the legislation, with some saying it actually gutted FISA. Some of the reasons for that claim include: FISA review of the NSA program would be optional; the FISA court, for the first time, would be able to issue “program” or general warrants contrary to the current requirements of particularity and probable cause; and a president’s inherent constitutional authority to conduct electronic surveillance would be written into the law, making FISA compliance optional.

But the bill also provoked debate and dissension about the role of the two FISA courts, courts which meet in a guarded, windowless office in the U.S. Department of Justice building in Washington, and whose operations are entirely secret and ex parte-only the government appears before the court. The 11-member FISA court reports to Congress the number of warrants issued annually and only that number. The FISA court of review, which hears the government’s appeals, reportedly has met only once in its history, leading many to believe the executive branch generally gets what it seeks under FISA.

Having the FISA court decide the constitutionality of the electronic surveillance program simply makes no sense, said Jonathan Turley of George Washington University Law School, who has served as counsel in a number of national security and terrorism-related cases.

“The most glaring issue is the lack of any reason to submit this to a secret court,” he said. “This is a court designed to look at surveillance petitions. It is not a court in any classic sense of that term.”

The legality of the program, Turley said, turns on threshold constitutional questions, some of which the Supreme Court dealt with in its recent military commission decision, and some of which the district courts are considering in the lawsuits challenging the program.

The FISA court, he said, “does not have any meaningful adversarial process. It’s only called a ‘court’ by statutory fiat. If you correctly defined it, it would be more like an administrative board than a court. Once the government goes in, there is no meaningful role for opposing counsel, and if the government were to win, there is no appeal.”

Questions have been raised over the years about the constitutionality of FISA and its courts, noted Steve Vladeck of the University of Miami School of Law.

“In that regard, the bill doesn’t change the substance of that question but perhaps makes it more pressing,” he said. “I’m not yet convinced the bill raises constitutional problems.”

There is something to be said for the notion that the procedures of the FISA court are more conducive to the protection of the kind of information that’s likely to be necessary to resolve claims against the surveillance program, added Vladeck.

“But substantively I can’t accept the argument FISA judges have particular expertise that would enable them to better decide the constitutional question,” he said. There the contrast to the multidistrict judicial panel and federal circuit judges is striking. [FISA judges] are Article III judges selected by the chief justice not because they have national security or Fourth Amendment expertise. They are judges confirmed to the federal bench, not to the FISA courts.”

Also problematic for many scholars, groups and litigators is the bill’s provision transferring to the three-judge FISA court of review “any case before any court challenging the legality of classified communications intelligence activity relating to a foreign threat” if the U.S. attorney general affirms under oath that allowing the case to go forward would harm national security.

The Bush administration already has made such claims in pending suits filed by the American Civil Liberties Union, the Electronic Frontier Foundation and others, by asserting the so-called state secrets privilege.

Under the Specter bill, the review court would decide standing to sue; the legality or constitutionality of the challenged activity, and whether the party suing has any right to see the classified information. But the bill contains no alternative procedures to the current operation of the court, which would seem to mean that a proceeding would be in secret and ex parte-only government counsel would be involved.

The bill does authorize review by the Supreme Court, yet also says nothing about whether any party but the government has a right to seek that review, or whether the nongovernmental party could participate in any way if the government did appeal.

The bill also allows the FISA court of review or the court in which the surveillance was originally challenged to dismiss “for any reason” any challenge to the surveillance program.

Mark Agrast, senior fellow at the Center for American Progress, a bipartisan research foundation, said that he sees “all kinds of problems” with this transfer provision, but not necessarily constitutional ones.

“At a purely practical level, this is a case of government engaging in forum shopping by transferring cases to a forum in which it will have the advantage-structural, procedural and substantive advantages,” Agrast said.

Vladeck said his chief concern is with transfer of criminal cases raising challenges to the surveillance.

“That’s the context where we tend to see the most attention paid to procedural rights,” he said. “I’m not convinced applying the FISA process to criminal cases is constitutional.” Turley sees problems in both civil and criminal contexts with a transfer of cases to the FISA review court. “The arbitrary transfer of controversial cases to the secret court completely contradicts the narrow purpose and capability of that court,” he said.

“Suddenly the secret court has become the dumping ground for secret cases where the administration can lose in comfort in no public setting.

“Also, you don’t have random selection of judges as you do on the circuit court,” he added. “Finally, there is lack of any adversarial or appellate process.”

There are currently about seven bills in play on the Hill relating to FISA and the administration’s domestic surveillance activities.

“I think FISA has new supporters and not just on the civil liberties side,” said Agrast.

“If the government must make a showing of probable cause, that does more than anything else to ensure that it is deploying its resources in an effective and targeted fashion. We all feel very strongly the administration has not come forward with any reasoned argument why changes are required at all.”

 Marcia Coyle
The National Law Journal
July 25, 2006 reports rumor where Sen. David Williams will be named to the Court of Appeals seat vacated by Judge Dyche

Monday, July 24th, 2006

Mark Nickolas on reports an interesting rumor floating around Frankfort.
The talk is that Senate President David Williams (R) is interested in being appointed to the Court of Appeals seat  held until last month by Judge Robbie Dyche, who recently retired (though Dyche remains as the only candidate on the November ballot), with sources saying that they believe the appointment is effectively a “done deal.”

Supposedly, the rumor has it that Dyche would stand for election this November (he is unopposed) and after the
 election he would resign, and Williams would be appointed by the Governor to his vacancy.  The Governor would
then call a special election for Williams vacate seat in the Senate.

As a part of the deal, if this rumor is true, Dyche would be appointed to the Worker’s Compensation Board where  he would be paid a salary, and still be able to draw his full judicial retirement benefits.


Tips for the driver who is stopped by police for suspected DUI offense

Sunday, July 23rd, 2006

When the officer indicates that he wants you to stop….Pull over as soon as it is safe to do so.

Once you have determined that the officer is directing you by his flashing lights or siren indicate by your turn signal that your are intending to pull off the roadway, and then do so as soon as there is a place to safely pull over.  If there is no place to safely pull over, the officer will see this, but you should slow down and put on your turn signal so that he knows you are responding.
Always pull over to the right. Always pull over on the right side of the road. On divided highways, signal and safely move over to the far right lane, and then to the shoulder. When you come to a complete stop, choose a section of roadway that has a full shoulder, without guardrails if possible.  If you do anything to indicate that you are not responding promptly, you can expect the officer to consider you to be dangerous and to respond accordingly.

Kentucky law and that of many states requires you to carry a license, registration and proof of insurance in your car. Once you have come to a stop find this paperwork.   To avoid appearing like you may be reaching for a weapon, turn on your car’s interior lights if it is dark out.   Roll down the driver’s window.
Do not unlock your seatbelt.  If you can’t reach your paperwork without unbuckling your seatbelt, then wait for the officer to direct you to look for the paperwork, and be sure that he has seen that you had your seatbelt buckled.  Many people have unbuckled their seatbelt when pulled over, to look for their wallet and paperwork, and the office didn’t see them unbuckle and then charges them with driving without a seatbelt.
Make the officer feel safe. Always keep your hands in plain sight. It is best to place them on the steering wheel where he can see them. Don’t make any sudden movements. Roll your window down all the way. Stay in the car unless directed to get out.  Consider how the officer might be viewing this situation, and don’t do anything that looks like you might be going for a weapon.
Respond to the officer’s questions.  Don’t say anything that may incriminate yourself.  Anything you say will be repeated in court if it tends to hurt your case Don’t volunteer information, like how fast you thought you were going. The officer may not be pulling you over for what you think he is. Let him talk to you first. React politely and you may have more of a chance to be sent on your way without a ticket.

If you are a relative of a public official, keep it to yourself.  Telling an officer that your uncle is a bigshot, will not impress the officer, and may cause him to treat you more harshly to impress upon you that he is not impressed and threatened by your connections.
Don’t argue with the officer. Challenging the policeman is foolish.  If you have an argument, save it for the courtroom where it will do you some good.  Some states require the officer to show you the setting on the radar gun if it was used to stop you.  Kentucky does not require the officer to show you the radar gun.  So if you ask, do so politely, and when refused, accept it without complaining, and tell your lawyer about it later.
If asked to take a Breathlyzer test, you have the choice to refuse, but in doing so you will probably have your license suspended, and the officer will be able to tell the officer you refused to take the test.  After submitting to the BA test, you have the right to be transported to a medical facility and to pay for your own blood test.   Don’t do this if you think you might be quilty….the blood test usually shows a higher reading then the BA machine.  But if you think you are not intoxicated, then be very clear about asking to call your lawyer and to request your own blood test.
If asked to submit to a field sobriety test, you may refuse.  If the officer asks you to take a field sobriety test (walk and turn, touch you nose with your index finger, repeat the alphabet, etc.) he is doing so to obtain additional evidence to be used to convict yourself.  Rarely will a field sobriety test be successfully passed.

However, if you are stone cold sober, you may benefit from the test.  The officer is required to conduct the test only on level ground and if you have high heeled shoes on, ask to be permitted to take them off.  If you have any medical conditions that prevent you from passing such a test, tell the officer.

If asked were you drinking?   If asked this question, you should say no if you have not been drinking, and if you have you shouldn’t say anything.  You can not be forced to answer that question and incriminate yourself.  If you say you were drinking, he will write this down and later tell the jury.   You don’t have to help him prosecute you.
Taking the Horizontal Nystigmus Test.   If asked to take this test, ask the officer if you can face away from passing traffic, as some experts say lights from passing traffic, particularly at night, can cause your pupils to respond in the same manner as the officer is trained to believe will indicate you are intoxicated.

The best defense against a drunk driving arrest is to never drive a car after taking two drinks.  Females, due to their smaller frames, should place their limit at one drink.

Governor Fletcher brings credibility of courts into question

Sunday, July 23rd, 2006

   The News Enterprise of Elizabethtown, Ky. published the following editorial on July 22th.  It expresses a growing concern over the Governor’s action regarding the courts.   He vetoed a portion of a bill providing funding for the election this fall of nine new judges, and the result is he will appoint those judges.

His appointments to the Supreme Court at a time when he is under indictment, and has and will be expected to appeal cases concerning his administration and his own criminal charges raises eyebrows. 

It appears improper for a criminal defendant to be able to appoint his own judges.  His recusal motion against his own trial judge, at a time he is filling vacancies on the Franklin Circuit Court, the Court of Appeals, and the Supreme Court, gives the appearance of court tampering.  

We do not criticize the Governor for appointing republicans to the judiciary, that is his constitutional right. Further we cannot find any flaws in the legal credentials of any judge he has appointed. We do question his appointment of special judges to the Supreme Court when his administration was seeking the dismissal and sealing of indictments against his administration and the appeal was heard by the judges he appointed. 

A legal doctrine that guides and underpins judicial ethics is the concept that no judge should be in a situation where his impartiality might reasonably be questioned.   This same doctrine should apply to the Governor in his appointment of judges.  In performing his judicial appointment function, his conduct should remain above reproach.  Many find he  has not met that standard.


The News Enterprise  editiorial is excerpted here:
The Unseen Victim Of Hiring Scandal  Fletcher and the courts 

OUR VIEW: Case threatens system’s credibility
The silent victim of the clamor surrounding the Fletcher administration’s hiring practices in Frankfort and what might be the biggest political cover-up in Kentucky history could be the credibility of the state’s judiciary.
No one expects much of Kentucky governors any longer. Voters long ago gave up on the General Assembly.
Now this. Deteriorating public trust in the judiciary entrusted with interpreting and upholding the Kentucky Constitution and protecting our civil liberties could well be the lasting legacy of Gov. Ernie Fletcher when he is evicted from the governor’s mansion in a couple of years.
The shredding of the veil of respect for the law began when Lt. Gov. Steve Pence, himself a former prosecuting attorney, insulted the integrity and intelligence of citizen-jurors everywhere by implying they can be manipulated by prosecutors to indict even a ham sandwich. Then, when the special grand jury in Frankfort in fact indicted nine ham sandwiches, the governor pardoned them, and everyone, except himself, who might be indicted in the future.
It’s bad enough that the governor who promised to clean up Frankfort would corrupt the legal process with blanket pardons for everybody who takes orders from him, but then the state Supreme Court upheld his right to do that.

The decision moved then-Justice William Cooper of Elizabethtown to write a blistering minority opinion that said, “History will not forget nor fondly remember the day that the Supreme Court of Kentucky put its imprimatur on a governor’s scheme to cover up alleged wrongdoing within his administration by granting a blanket pardon to all persons under investigation by a sitting grand jury.�
To make matters worse, the panel that made the decision included a judge Fletcher appointed. A second judge appointed by Fletcher had the ethics, integrity and good sense to recuse himself.
Then, in a totally unrelated case, Chief Justice Joseph Lambert inserted in the footnotes the advice to Fletcher that implied he could win his case if he used the defense that a sitting governor cannot be prosecuted unless he has been impeached by the Legislature.
The final travesty in this bizarre series of aberrant and abhorrent judicial decrees would be if the courts listen to Fletcher’s lawyers and deny the public the opportunity to hear his explanation and answers to questions, under oath, in an open courtroom.
There is more at stake today than Fletcher’s political future. It’s history. The credibility of the courts means too much to be frittered away.


LawReader publishes synopsis of all Ky. Ct. of Appeals cases issued July 21, 2006

Friday, July 21st, 2006

Important cases issued by Ky. Court of Appeals on July 21, 2006.  By subscribing to, for only $34.95 per month, you can read the complete synopsis and call up the full text of each case.

In the 37 cases released at 10 AM on July 21, the court held:
1 KRS 527.040, only requires the Commonwealth to prove the fact of a defendant’s prior conviction, not its validity
2 sovereign immunity does not shield the Commonwealth or its agencies from complaints for damages under the Civil Rights Act.
3 CR 60.02 requires that motions to set aside final judgment be filed within a reasonable time, or on grounds (a), (b) and (c), within one year of the  entry of judgment
4 a 50% contingency fee does appear at first blush to be rather high, William Jr. nevertheless entered into the contract with Dodd, and Dodd certainly performed work on William Jr.’s behalf pursuant to the contract.
5 we are compelled to regard his failure to file a responsive brief here as a confession of error, pursuant to CR 76.12(8)(c)(iii).
6 appellant failed to allege how he suffered prejudice resulting from the general allegations of ineffective assistance of trial counsel
7 the trial court improperly treated spouses disability e benefits as marital property
9 Unless an individual in the military manifests an intent to do otherwise, the individual will maintain residence from the state he has left “since he has no choice as to where he goes, the time he can remain, or when he shall return.�
10 a court must treat appreciated value as marital property subject to equitable division
11 A movant is not automatically entitled to an evidentiary hearing on an RCr 11.42 motion unless there is an issue of fact which cannot be determined on the face of the record.
12 The pooling and servicing agreement listed all loans
transferred and included the Sanderses’ loan; the loan, therefore, was encompassed in the transaction
13 even if Malone’s new version of events could be considered newly discovered evidence, such evidence is insufficient to sustain an
RCr 11.42 motion
14TO BE PUBLISHED: a trial court faced with a motion to dismiss on forum non conveniens grounds is obligated to consider whether the statute of limitations has run under the law in the alternate forum state
15 standard of review for admission of evidence is whether there has been an abuse of discretion.
16 Wehner’s complaint was filed outside the limitations of KRS 304.39-230
17 We will not disturb the circuit court’s decision as to the ineffective assistance of counsel unless that decision is clearly erroneous.
18 Combs set forth a six-factor test for analyzing whether the cohabitation of a spouse who is
receiving maintenance entitles the obligor to a termination of maintenance.
19 There are no facts presented by Rogers that indicate
he was incompetent either at the time of the offense or when he entered his plea.
20 the totality of the circumstances provides the basis for an “articulable and reasonable belief� of criminal activity.
21 Any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration . .
22 defendant was not entitled to the “street time� credit because the provision expired on June 30, 2004
23 An attorney is liable to a third person for her negligence only if that person was intended to be benefited by her performance.
24 Solomon was not entitled to an evidentiary hearing as the record refuted his allegations of ineffective assistance of counsel,
25 TO BE PUBLISHED: KRS 403.212(2)(g)(4) is Not unconstitutional as a violation of equal protection. It does not favor prior-born children over later-born children
26 testimony to be impermissible must  originate from a question lacking a factual basis
27 appellant had failed to demonstrate that his trial counsel’s performance fell within the Strickland standard for assessing ineffective assistance of counsel
28 that expert testimony is required in a malpractice case to show that the defendant failed to conform to the required standard and that such failure was a causative factor
29 an arresting officer’s state of mind is irrelevant to the existence of probable cause to arrest, and that the arresting officer’s subjective reason for making the arrest need not be the criminal
offense as to which the known facts provide probable cause.
30 There is nothing advanced in this proceeding that was not, or could not have been, presented in Gibbins’ previous attacks on his conviction and therefore the trial court correctly denied relief without a hearing.
31 because Johnson’s disability resulted from his unreasonable failure to follow medical advice, it is not compensable pursuant to KRS 342.035(3).
32 The order denying visitation fails to address the issue of whether allowing in-person visitation while Appellant is incarcerated would endanger the child
33 “the 180-day time period in Article III(a) of the IAD does not commence until the prisoner’s request for final disposition of the charges against him has actually been delivered to the court and prosecuting officer of the jurisdiction that lodged the detainer against him.�
34 even if the drug screen results had not been admitted, we do not believe that, upon exclusion of this evidence, there is a substantial possibility
that the outcome of the proceedings would have been different.
35 Simply because there is evidence to support a finding in the appellant’s favor, the decision will not be reversed unless there is no substantial evidence of probative value to support the decision.
36 We agree with the Board that the order ruling on the motion to reopen and assigning the claim for further adjudication is an interlocutory order…thus it is not appealable..
37 we cannot conclude that the ALJ abused his discretion in concluding that ARH was without reasonable grounds in objecting to the program of therapy and testing proposed by Dr. Muha