Archive for July, 2006

Federal Court rules that state secrets privilege has its limits. The government fails to kill off a court challenge to NSA snooping.

Friday, July 21st, 2006

Until Thursday, the NSA wiretapping scandal had gone remarkably well for the Bush administration. Congress and the Federal Communications Commission opted not to investigate, and after some initial alarm, much of the public seemed untroubled as well. By confirming allegations that he had authorized eavesdropping within the United States, President Bush managed to turn the story into a tough-on-terrorism example and dare critics to explain just what it was about fighting terror that made them so uncomfortable. It was masterful politics.

But that all changed when a federal judge in San Francisco on Thursday issued a ruling on an obscure procedural point in a court case between the Electronic Frontier Foundation, a digital rights nonprofit, and AT&T. Judge Vaughn Walker rejected the government’s claim that because of the doctrine of state secrets, traditionally used to prevent the introduction into court of specific evidence that might compromise national security, he should dismiss EFF’s entire case against the phone company. It’s almost unheard of for a judge to shoot down a state-secrets claim, and in that respect, Walker’s decision represents a setback for the administration. But the Walker opinion signals something more significant, as well: a rejection of the Bush administration’s vision of a wartime executive that can govern unchecked. The judiciary is striking back.

Here’s the background for the EFF case. In January, an AT&T employee named Mark Klein walked into EFF’s offices in San Francisco and said he had some information about the NSA. Klein explained that in 2002 an NSA agent had visited the telecommunications company “to interview a management-level technician for a special job.” In 2003, a secret room was built at AT&T’s Folsom Street facility in San Francisco and equipped with a Narus STA 6400, which is known to be used by government agencies for “traffic analysis” on intercepted communications. Klein furnished EFF lawyers with documents allegedly confirming that the secret room was used to tap into the fiber-optic cables through which AT&T routes its Worldnet service. Armed with the whistleblower and his evidence, EFF launched a class-action suit against the phone company in February.

AT&T moved to dismiss the case, arguing that because eavesdropping leaves no fingerprints, EFF’s class members couldn’t prove that they personally had been listened to. Before that challenge could be resolved, the Justice Department swooped in with another one, invoking the doctrine of state secrets, and urging Walker to throw out the case on those grounds.

Since its first modern articulation in a 1953 Supreme Court case, this doctrine has at times prevented the introduction in court of information that might reveal state secrets. For decades, the rule wasn’t used all that frequently. But after 9/11, an increasingly secretive Bush administration brushed it off and started invoking it. A lot. The government asserted a state-secrets privilege roughly 55 times between 1953 and 9/11—and 23 times since. And Bush administration lawyers have taken to asking judges not just to withhold certain evidence, but to dismiss cases at their inception. For the government, the privilege is “like one of the magic rings from The Lord of the Rings,” William Weaver, a law professor at the University of Texas at El Paso, told Wired. “You slip it on and you are invisible.”

There is a precedent for killing cases in the cradle this way: a 1998 ruling by the 9th Circuit federal appeals court. The 9th Circuit said that a case can be dismissed on state-secrets grounds if a) the plaintiffs don’t have enough nonclassified information to ever make their case; or b) the defendants aren’t able to produce potentially exculpatory evidence because it’s classified; or c) the “very subject matter of the action” is itself a secret. Administration lawyers argued to Judge Walker that the EFF-AT&T case satisfied all three criteria.

And they had evidence—secret evidence, naturally—to prove it. In an absurd bit of cloak-and-dagger theatrics, this evidence was reportedly placed in a bunker in Washington, D.C., awaiting Walker’s decision to look at it, when it would be flown “under guard” to San Francisco. EFF’s lawyers asked Walker not to view these materials, because if he did they would be at a disadvantage—unable to rebut evidence they could not see. But in June, Walker went ahead and bit the apple.

At this point, prospects looked bleak for EFF. Walker is conservative by reputation, and the government cited a string of cases in which other judges acquiesced to state-secrets claims. Moreover, in May, a federal judge in Alexandria, Va., had dismissed a lawsuit brought by Khaled el-Masri, who claimed to have been kidnapped and tortured as part of the United States’ “extraordinary rendition” program. (The CIA later realized they had the wrong guy and let him go.) The judge in el-Masri’s case reasoned, a la the 9th Circuit, that because the details of a secret government program represented the subject matter of the action, the case could not proceed.

So when Walker released his 72-page opinion yesterday, he was asserting the importance of judicial review in an area that had seemed off-limits. “[E]ven the state secrets privilege has its limits,” he wrote. “While the court recognizes and respects the executive’s constitutional duty to protect the nation from threats, the court also takes seriously its constitutional duty to adjudicate the disputes that come before it. … To defer to a blanket assertion of secrecy would be to abdicate that duty.”

Walker pointed out the obvious: In its basic contours, the NSA program is no longer a secret. The president and attorney general have made extensive—though hardly exhaustive—statements about its goals and scope. “If the government’s public disclosures have been truthful, revealing whether AT&T has received a certification to assist in monitoring communication content should not reveal any new information that would assist a terrorist and adversely affect national security,” Walker argues. “And if the government has not been truthful, the state secrets privilege should not serve as a shield for its false public statements.” With his unapologetic “yeah, I did it,” it was Bush himself who “opened the door for a judicial inquiry.”

Of course, the ruling is by no means an unqualified victory for EFF. Walker has certified the state-secrets question for immediate appeal, so before the case can proceed, his ruling will be examined by the 9th Circuit—which recently held that the state-secrets privilege should receive “utmost deference.” And even if the ruling survives that appeal, the Justice Department would likely go to the Supreme Court before allowing the case to proceed. Walker also noted that legislative developments could change the course of the litigation, a reference to Arlen Specter’s proposed wiretapping bill, which would sweep EFF’s case out of Walker’s courtroom and into the Foreign Intelligence Surveillance court.

But Walker’s ruling actually makes it less likely that Specter’s bill will prevail. Specter’s premise is that regular courts cannot handle these extremely secret and sensitive matters. Walker punctured that myth of secrecy in his observation that the administration has discussed the surveillance program at length, and in his argument that litigation touching on the basic facts of the program is unlikely to change the way a terrorist works. In a gesture of good faith, he has suggested appointing a special expert—someone with a top security clearance and intelligence experience—to assist him in evaluating what can and cannot be introduced in court.

The real significance of the case exceeds the NSA wiretapping story and the use of state secrets. Walker’s opinion is a stirring defense of the role of the courts, even in times of war. Quoting the Supreme Court’s decision in Hamdi v. Rumsfeld, he reminds us, “Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.” The president and Congress seem to have forgotten that lately; Judge Walker has reminded them.

By Patrick Radden Keefe
Posted Friday, July 21, 2006, at 4:00 PM ET

Federal Judge in Kansas limits rules regulating campaign conduct of judicial candidates

Friday, July 21st, 2006

In a lawsuit filed by the same attorneys employed by Kentucky Supreme Court candidate Marcus Carey, a Federal judge has in the name of “free speech” banned enforcement of ethics rules limiting campaign speech by judicial candidates. The KBA and the Kentucky Judicial Conduct Commission have sought dismissal of the suit filed by Carey in Kentucky.  The Associated Press reported:

TOPEKA, Kan. – Rules barring Kansas’ judicial candidates from personally soliciting contributions and limiting what they can say during campaigns can’t be enforced because of questions about the rules’ constitutionality, a federal judge has ruled.

U.S. District Judge Julie Robinson is prohibiting the state’s Commission on Judicial Qualifications from moving against judges or judicial candidates who violate provisions in Kansas’ code of judicial conduct. Her order, issued Wednesday, will remain in effect until she considers a lawsuit filed by Kansas Judicial Watch, a political action committee based in Wichita.

The PAC sued the commission after it advised a judicial candidate in April that he could not answer a questionnaire from the group without running afoul of the code.

Among other things, the questionnaire asked whether a candidate thought the Kansas Supreme Court had overstepped its authority in ordering legislators to increase spending on public schools, whether same-sex marriages should be prohibited and whether fetuses have a right to life that “should be respected at every stage of their biological development.”

Kansas Judicial Watch argued that the code contained provisions that violated judicial candidates’ free speech rights and prevented voters from obtaining information about them.

Robinson’s order covered two provisions. One prohibits candidates from making pledges on how they’ll conduct themselves if elected or committing themselves to positions on cases or even general issues likely to come before the court. The second says a judicial candidate must have a committee solicit campaign contributions or even “publicly stated support.”

“The state’s effort to limit the inherent effects of elections on the public’s confidence in judicial impartiality chills protected political speech,” Robinson wrote in her 48-page order.

* * *

James Bopp Jr., a Terre Haute, Ind., attorney representing Kansas Judicial Watch, had predicted the provisions in the Kansas code would not withstand scrutiny because of a 2002 U.S. Supreme Court ruling in a Minnesota case – which Robinson cited.

“The free speech rights of judicial candidates and citizens in Kansas have been vindicated,” Bopp said.

Ron Keefover, a spokesman for Kansas’ court system, said attorneys are reviewing the ruling and deciding whether to appeal it to the 10th U.S. Circuit Court of Appeals in Denver.

Named as defendants in the lawsuit were the commission’s 14 members; its examiner, who prosecutes complaints against judges; the state’s disciplinary administrator for attorneys and four staff members.

* * *

“Because the state has voluntarily allowed for this method of judicial selection, the candidates should be allowed to educate the voters about themselves without fear of discipline,” Robinson wrote in her order.

Associated Press

Judicial Nominating Commissions submit nominees for five vacancies to Governor

Friday, July 21st, 2006

 FRANKFORT, Ky., July 19, 2006 ⎯ The Judicial Nominating Commission, led by Chief Justice Joseph E. Lambert, met today to choose nominees to replace Supreme Court Justice William S. Cooper, who retired effective June 30, 2006.

This position serves the 2nd Supreme Court District, which consists of Barren, Breckinridge, Bullitt, Daviess, Grayson, Hancock, Hardin, Hart, Henderson, LaRue, Meade, Ohio, Union and Warren counties. Those nominated to fill this vacancy were attorneys J. Christopher Hopgood and Elizabeth E. Vaughn and Court of Appeals Judge John D. Minton Jr.
Attorney J. Christopher Hopgood. Hopgood graduated from the University of Kentucky with both a bachelor’s degree and a law degree. He resides and works in Henderson where he practices with Dorsey, King, Gray, Norment & Hopgood. He has a general practice of law with a concentration on litigation.
Court of Appeals Judge John Minton Jr. Judge Minton earned a bachelor’s degree from Western Kentucky University and a juris doctor from the University of Kentucky College of Law. He currently serves as a judge for the Kentucky Court of Appeals, representing Division 2 of the 2nd Appellate District. He resides in Bowling Green, which is also the site of his home chambers.
Attorney Elizabeth E. Vaughn. Vaughn resides and works in Henderson, Ky. She holds a bachelor’s degree from Murray State University and a juris doctor from the University of Louisville School of Law. Vaughn currently serves as “of counsel” for Bach-Hamilton, LLC. Her practice concentrates on personal injury, criminal defense, domestic relations and Social Security disability. She is also active as a mediator in both civil disputes and dissolution matters.

FRANKFORT, Ky., July 18, 2006 ⎯ The Judicial Nominating Commission, led by Chief Justice Joseph E. Lambert, met today at the Carter County Justice Center in Grayson to choose nominees to replace Circuit Judge Samuel C. Long, who retired effective June 30, 2006. This position serves Division 1 of the 37th Judicial Circuit, which consists of Carter, Elliott and Morgan counties. Three attorneys were named as nominees to fill this vacancy: Michael B. Fox, Reid A. Glass and Rebecca K. Phillips.
The members of the Judicial Nominating Commission were attorneys Robert L. Caummisar and William H. Wilhoit, and laypersons Steven A. Burchett, Walter Langley Franklin, Virginia K. Murphy and Timothy Prichard.

FRANKFORT, Ky., July 17, 2006 ⎯ The Judicial Nominating Commission, led by Chief Justice Joseph E. Lambert, met today at the Harlan County Justice Center in Harlan to choose nominees to replace District Judge Phillip A. Hamm, who retired effective June 30, 2006. This position serves the 26th Judicial District, which consists of Harlan County. Three attorneys were named as nominees to fill this vacancy: Jeffrey J. Brock, Sidney B. Douglass and Kellie D. Wilson.

FRANKFORT, Ky., July 12, 2006  The Judicial Nominating Commission met today at the
State Capitol to choose nominees to fill two judicial vacancies in Franklin County. Chief
Justice Joseph E. Lambert leads the commission.

Nominees for 48th Judicial District, Division 1

Gov. Fletcher’s appointment of Judge Thomas D. Wingate to the 48th Judicial Circuit
(Franklin County), Division 2 was effective July 1, 2006. Judge Wingate was named to the
position held by Circuit Judge William L. Graham before his June 30, 2006, retirement.

Wingate’s appointment leaves a vacancy in the 48th Judicial District (Franklin County),
Division 1.

 The Judicial Nominating Commission nominated three individuals to fill this
vacancy: Attorneys Christopher W. Broaddus, O. Ray Corns and Kathy R. Mangeot.
Attorney Christopher W. Broaddus. Broaddus earned a bachelor’s degree in English from
Kentucky State University and a law degree from the University of Kentucky College of Law.
He resides in Frankfort where he is currently a law partner with Ricky E. Sparks and first
assistant Franklin County attorney. His practice consists of criminal and traffic prosecution
and representing the county in tax collection. His general civil practice concentrates on
domestic relations, construction law, bankruptcy and personal injury law.

Attorney O. Ray Corns. Corns is a retired circuit judge. He resides and practices law in
Frankfort where he shares a law office with his daughter, Autumn Barber Corns. He has 16
years of civil and criminal practice and he served eight years as commonwealth’s attorney for
Franklin County. He holds a bachelor’s degree from Berea College in Berea, Ky., and a juris
doctor from the Cumberland University College of Law of Samford University in
Birmingham, Ala.

Attorney Kathy R. Mangeot. Mangeot earned a bachelor’s degree in business administration
and a law degree from the University of Kentucky. She currently practices law with
McNamara & Jones. Her legal practice has been primarily in trust and estate planning and
estate administration. She has also practiced in the areas of tax, divorce, custody, adoption,
small claims and real estate transactions.

District Court
District Court is a court of limited jurisdiction which hears civil cases involving $4,000 or
less, juvenile matters, city and county ordinances, misdemeanors, cases relating to domestic
violence and abuse, guardianships for disabled people, traffic offenses, probate of wills and
felony preliminary hearings. The Small Claims Division is part of District Court’s jurisdiction
and informally handles matters with a value of $1,500 or less.

Nominees for 48th Judicial Circuit, Division 1
By virtue of Judge Wingate’s appointment to Division 2 of the 48th Judicial Circuit, the
number of available appointees for the vacancy created by the retirement of Circuit Judge
Roger L. Crittenden, who retired June 15, 2006, was reduced below the three nominees
required by the Kentucky Constitution. The Judicial Nominating Commission was reconvened
to consider applicants for an appointment to this vacancy.

The Judicial Nominating Commission named three individuals to fill the vacancy in the 49th Judicial Circuit, Division
1: Attorneys James E. Boyd, Rex L. Hunt and Samuel G. McNamara.

Attorney James E. Boyd. Boyd has practiced law for 32 years. His legal career focused on
personal injury cases, auto accidents, family law, real estate, criminal defense, probate and
environmental law. He served as Franklin County attorney from 1982 to 2005. Boyd earned a
juris doctor from the University of Kentucky College of Law and a bachelor’s degree from
Morehead State University. He resides in Frankfort.

Attorney Rex L. Hunt. Hunt resides and practices law in Frankfort where he serves as
assistant county attorney for the Franklin County Attorney’s Office and as “of counsel” for
McBrayer, McGinnis, Leslie and Kirkland. His practice focuses on criminal prosecution, state
government litigation and labor law. He holds a bachelor’s degree in political science from the
University of Kentucky and a juris doctor from the University of Louisville School of Law.

Attorney Samuel G. McNamara. McNamara is a retired attorney residing in Frankfort who
practiced law for 40 years. He has been affiliated with McNamara & Jones, McNamara Law
Office, Barnett & Alagia, Hazelrigg & Cox and the Kentucky Court of Appeals. His practice
included litigation, real estate, mortgage banking and insurance defense. He earned an A.B.
degree from Centre College in Danville, Ky., and an L.L.B. degree from Vanderbilt
University in Nashville, Tenn.

Circuit Court
Circuit Court is the court of general jurisdiction which hears civil matters involving more than
$4,000, capital offenses and felonies, divorces, adoptions, termination of parental rights, land
dispute title cases and contested probate cases. Family Court is a division of Circuit Court.


Kentucky Constitution Addresses Judicial Vacancies
Section 118 of the Constitution of Kentucky imposes on the Governor the duty of appointing

an interim judge when a judicial vacancy occurs. Section 118 also mandates that it is the responsibility of the Chief Justice to convene and preside over meetings of a Judicial Nominating Commission to select three qualified applicants from which the Governor must appoint. For circuit judges and district judges, the nominating commissions are local and the members selected from within the judicial circuit or district. A statewide nominating commission is convened to fill vacancies on the Court of Appeals or the Supreme Court.
Judicial Nominating Commission Process
When a judicial vacancy occurs, the executive secretary of the Judicial Nominating Commission sends a notice of vacancy to all attorneys in the judicial circuit or the judicial district affected. Attorneys can recommend someone or nominate themselves. Once that occurs, the individuals interested in the position return a questionnaire to the Office of Chief Justice. The Chief Justice then meets with the Judicial Nominating Commission to choose three nominees. The names of the applicants are not released. However, once the Judicial Nominating Commission has determined the names of the three finalists to be sent to the governor for selection, the Judicial Branch makes the names available to the public and the media. The credentials of these three nominees are sent to Gov. Ernie Fletcher for review. When the governor appoints the replacement, his office makes the announcement.
Supreme Court of Kentucky
The Supreme Court is the state court of last resort and the final interpreter of Kentucky law. Seven justices sit on the Supreme Court and all seven justices rule on appeals that come before the court. The justices are elected from seven appellate districts and serve eight-year terms. A chief justice, chosen for a four-year term by fellow justices, is the administrative head of the state’s court system and is responsible for its operation. The Supreme Court may order a ruling or opinion to be “published,? which means that the ruling becomes the case law governing all similar cases in the future in Kentucky.
The Administrative Office of the Courts is the operational arm of the Kentucky Court of Justice and supports the activities of more than 3,500 court system employees, including the elected offices of justices, judges and circuit court clerks. The AOC provides training and education to the state’s judges.

Report says medication errors harm 1.5 million patients a year, kills thousands

Friday, July 21st, 2006

WASHINGTON, July 20  Medication errors harm 1.5 million people and kill several thousand each year in the United States, costing the nation at least $3.5 billion annually, the Institute of Medicine concluded in a report released on Thursday.

Drug errors are so widespread that hospital patients should expect to suffer one every day they remain hospitalized, although error rates vary by hospital and most do not lead to injury, the report concluded.

The report, “Preventing Medication Errors,? cited the death of Betsy Lehman, a 39-year-old mother of two and a health reporter for The Boston Globe, as a classic fatal drug mix-up. Ms. Lehman died in 1993 after a doctor mistakenly gave her four times the appropriate dose of a toxic drug to treat her breast cancer.

Recommendations to correct these problems include systemic changes like electronic prescribing and tips for consumers like advising patients to carry complete listings of their prescriptions to every doctor’s visit, the report said.

“The incidence of medication errors was surprising even to us,? said J. Lyle Bootman, dean of the University of Arizona College of Pharmacy. “The solutions are complex and far-reaching and will present challenges.?

The report is the fourth in a series done by the institute, the nation’s most prestigious medical advisory organization, that has called attention to the enormous health and financial burdens brought about by medical errors.

The first report, “To Err Is Human,? was released in 1999 and caused a sensation when it estimated that medical errors of all sorts led to as many as 98,000 deaths each year — more than was caused by highway accidents and breast cancer combined.

After the first report, health officials and hospital groups pledged reforms, but many of the most important efforts have been slow to take hold.

Drug computer-entry systems, which are supposed to ensure that hospital patients get the right drugs at the right dose, are used in just 6 percent of the nation’s hospitals, said Charles B. Inlander, president of the People’s Medical Society, a consumer advocacy group, and an author of the report released Thursday.

Electronic medical records can help ensure that patients do not receive toxic drug combinations. The 1999 report urged widespread adoption of these systems. Thursday’s report called for all prescriptions to be written electronically by 2010.

Just 3 percent of hospitals have electronic patient records, said Henri Manasse, chief executive of the American Society of Health-System Pharmacists. Few doctors prescribe drugs electronically.

Even simple medication safety recommendations — block printing on hand-written prescription forms — are widely ignored.

Arthur Levin, director of the Center for Medical Consumers and an author of the 1999 report, said that just about everyone in the health system was to blame. “This country has not taken seriously the alarms we sounded in 1999,? Mr. Levin said. “Why??

Health organizations defended their efforts.

Alicia Mitchell, a spokeswoman for the American Hospital Association, said that since 1999 hospitals had “actively engaged in looking at using information technology to improve patient safety.?

A recent poll by the association of its members found that 92 percent intended to adopt electronic patient records, Ms. Mitchell said. But such systems are complicated and need to be built gradually, she said.

Thursday’s report urged the Food and Drug Administration to improve and standardize the drug information leaflets given consumers. It noted that confusing information on drug labels was an important cause of medication errors.

On Tuesday, the drug agency finished a years-long process by issuing voluntary guidelines to reform consumer drug information leaflets, said Dr. Scott Gottlieb, the agency’s deputy commissioner. Many of these leaflets are not regulated by the F.D.A.

And on June 30, the agency completed a lengthy effort to clarify and standardize information on drug labels. The new labels could prevent nearly 300,000 medication errors each year and will make electronic prescribing efforts far easier to carry out, Dr. Gottlieb said.

Thursday’s report said that the common practice whereby drug companies provided free drug samples to doctors should be discouraged because such samples were poorly controlled. It urged drug makers to package more pills in individual packages. And it criticized drug makers as failing to disclose the results of all clinical trials involving their drugs.

Alan Goldhammer, a spokesman for the Pharmaceutical Research and Manufacturers of America, a drug industry trade group, said he differed with some of the report’s conclusions but concurred with the broad goals of increasing the use of information technology to reduce medication errors.

“Everybody is working on that right now,? he said.

Thursday’s report said that in any given week, four out of five adults in the United States took at least one medication. A third take at least five different medications. As the use of medications has soared, so, too have medication errors, Dr. Manasse said.

Effective strategies to prevent such errors have, however, been known for years, Mr. Inlander said.

“This is not rocket science,? Mr. Inlander said. “It’s simple. The key is having the will to make these changes in an organized and uniform way. And it’s not that expensive.?

Nw York Times
Published: July 21, 2006

New Jersey Supreme Court: Non-Expert Policeman can testify when a driver is stoned on Marihuana

Friday, July 21st, 2006

Since 1924, New Jersey courts have followed this rule: anyone can spot a drunk, but it takes special training to recognize when someone is stoned.

Yesterday the state Supreme Court unanimously reaffirmed that rule, but offered this twist: Your typical police officer knows marijuana intoxication when he sees it.

“Expert testimony only requires that a witness be qualified ‘by knowledge, skill, experience, training, or education,’” Justice Roberto Rivera-Soto wrote. He said the curriculum for police training covers illegal drugs, their street names and their “symptoms of use.”

Prosecutors routinely point to that training to show that a police officer is qualified “to testify as expert witnesses on the subject of marijuana intoxication,” the justice wrote.

But Rivera-Soto also said nothing in the law on driving while intoxicated requires such expert testimony. The high court reinstated a Camden County man’s conviction for driving under the influence of marijuana, which an appeals court had thrown out because the state did not present an expert witness.

Two state troopers who stopped Justin Bealor’s car in Sea Isle City did testify that they observed him driving erratically and that his speech was slurred and his eyes “bloodshot and glassy,” the ruling said. A drug test found metabolites of marijuana in Bealor’s urine. Taken together, the high court ruled, that was enough evidence to convict Bealor of driving while drugged.

Bealor’s lawyer, Brian S. O’Malley of Haddon Heights, said he had expected to win. He said Bealor, now 25, was a college student at the time of his arrest in July 2002.

“The family will be disappointed,” O’Malley said. “It’s been a roller-coaster ride: conviction, reversal, conviction.”

Deputy Attorney General Steven Yomtov, who argued the case for the state, was “pleased with the outcome.”

Yomtov said the appeals court ruling had created a problem for prosecutors because it required them to prove through expert testimony that a driver had not merely smoked marijuana, but was driving under its influence. He said drug testing, unlike alcohol testing, cannot tell if someone has enough marijuana in his bloodstream to impair his driving.

On appeal to the Supreme Court, Yomtov argued the symptoms of marijuana intoxication are so well known that ordinary citizens would recognize them. In essence, he argued everyone is an expert at spotting someone who is stoned. The justices rejected that argument but agreed the appeals court had made the case unduly complicated.

“The issue is simple: Was the defendant ‘under the influence’ of a narcotic, hallucinogen or habit-producing drug while he operated a motor vehicle,” Rivera-Soto wrote. He concluded the state proved Bealor drove under the influence of marijuana.

But he added that for future cases, the “preferred method” is for the prosecutor to establish the arresting officer’s credentials as an expert in recognizing marijuana intoxication.

“We ended up getting, I think, the same result,” Yomtov said.

Friday, July 21, 2006
New Jersey Star-Ledger Staff

Human Trafficking in Kentucky: Forced Prostitution and Domestic Servitude

Thursday, July 20th, 2006

By Gretchen Hunt, Staff Attorney  Kentucky Division of Child Abuse and Domestic Violence Services
Recent media reports have shed light on modern-day slavery in Kentucky – women forced into prostitution and domestic servitude, working long hours for little pay under inhumane, degrading conditions.
Several Asian women working in massage parlors in Central Kentucky recently were arrested and another, working as a maid for a powerful Northern Kentucky business executive and his wife, was assaulted when the couple tried to forcibly deport her. Far from being criminals, these women actually may be victims of human trafficking.

Victims of human trafficking often are held captive through the use or threat of physical abuse, isolation, threats to loved ones, confiscation of their documents and even forced drug addiction. They are forced to work to enrich their captors with little or no compensation. People committing these crimes range from organized crime leaders to the well- respected and influential.
Trafficking is different from smuggling, which involves people who consent and pay a fee to be brought to the U.S. illegally. Victims of human trafficking often are imprisoned and not allowed to leave the massage parlors, factories, farms and homes where they serve as cheap labor, slaves or in servile marriages. Victims may be held through force, fraud, coercion or psychological and physical abuse.  Even their family members may be threatened and afraid to tell authorities about the enslavement. Though victims may consent to the work at first, this is not a defense against charges of trafficking.
Trafficking victims often are constantly monitored and accompanied, have limited freedom of movement, show signs of physical abuse, suffer health problems, are fearful of speaking to outsiders and lack identity documents.
Uncovering such enslavement takes time, cultural and linguistic competency and detailed questions, as victims rarely identify themselves,
The Trafficking Victims Protection Act of 2000 and 2005 grants human trafficking victims basic rights, such as the right not to be jailed and the right to an interpreter, benefits, housing and legal protection. Law enforcement and other first responders can best help victims and identify traffickers by coordinating their efforts with victim service providers to ensure victims rights are honored and to build the trust needed for victims to testify against their traffickers. 
The state Division of Child Abuse and Domestic Violence Services in the Cabinet for Health and Family Services conducts victim services and responder training and recently helped organize a meeting of victim advocates, law enforcement, legal services and prosecutors  in the Lexington area to address the human trafficking problem. 
State government also is collaborating with the University of Kentucky to conduct a trafficking victims needs assessment. Findings from the assessment will be used to both measure the scope of the problem in Kentucky and develop strategies to combat it.
Communities should prepare themselves to respond to victims of trafficking and meet their special needs. Police, social workers, health care providers and others are encouraged to seek training to recognize and respond to signs of human trafficking. The Division of Child Abuse and Domestic Violence Services can provide basic human trafficking awareness training and will train more than 65 new recruits and officers with the Lexington police later this month.
Among the main concerns of human trafficking advocates is ensuring the safety of victims. Law enforcement policies and procedures should also be reexamined to ensure victims of human trafficking suffer no further trauma and the crime isn’t drive deeper underground by hasty arrests.

Prosecutors and judges, too, need to be aware of the impact of this crime and how well-intended attempts to resolve criminal cases can do more harm than good. In the case of the maid in Northern Kentucky, for instance, forcing her to confront her traffickers in mediation instead of prosecuting the case through traditional means compounds the trauma she has suffered.

It takes remarkable courage to come forward as a trafficking victim and hold abusers accountable in criminal court. The outcome of this case and the massage parlor investigations may determine whether other hidden victims come forward to report their abuse and exploitation.

And, it is our hope that the outcome of these send a clear message that human trafficking is unacceptable in our state.

Victims of trafficking are urged to call toll-free 888-3737-888 for assistance. To report possible trafficking, call 1-888-428-7581. For information about trafficking and training, contact Gretchen Hunt at the Division of Child Abuse and Domestic Violence Services at 502-564-9433.

Press Release Date:   Wednesday, July 19, 2006  
Contact Information:   Gretchen Hunt, (502) 564- 9433 or
Lisa Wallace (502) 564-6786, ext. 4013  

Large Verdict reduced against Ford Motor. Design flaws in Ford Explorer found to have made it subject to easy rollovers

Thursday, July 20th, 2006

A San Diego appellate court cut by about half a $150 million award to a San Diego woman injured when her Ford Explorer rolled over, but the justices rejected the automaker’s bid for a new trial in the case.

The 4th District Court of Appeal said Benetta Buell-Wilson and her husband, Barry, should receive $82.6 million, a significant drop from the $369 million meted out by a jury in 2004. A judge later reduced the jury award to $150 million.

Still, the lawyer for Ford said the company would ask the state Supreme Court to review the case.

“We think the court correctly found the jury’s award was the result of passions or prejudice, but we think the proper remedy is a new trial because of the extreme size of the verdicts,? lawyer Theodore J. Boutrous Jr. said.

The company contends the trial was unfair because Ford was prohibited from presenting certain evidence of the truck’s safety record, and harmed when the judge improperly allowed evidence about the safety record of the Explorer’s predecessor, the Bronco II.

The appeals court, in a 3-0 opinion, rejected both those arguments and said the trial judge did not err.

Dennis Schoville, the lawyer for the couple, said the decision is important because it establishes a “strong precedent? for people in other rollover cases of Ford’s liability for the design of the vehicle.

Buell-Wilson, of the eastern San Diego neighborhood of Del Cerro, was driving on Interstate 8 near Tavern Road in Alpine on Jan. 19, 2002, when she swerved to avoid an object in the road. The 1997 Explorer she was driving went out of control when a passenger-side wheel lifted off the road.

She fishtailed across the highway and rolled more than 4 ½ times, with the Explorer coming to rest on its roof. The accident left her spine crushed and paralyzed the then-49-year-old mother of two.

Buell-Wilson sued the company, alleging the design of the car was flawed because it had a high center of gravity and low wheelbase, making it prone to tip over. She also alleged that the roof was weak.

The suit alleged that the company knew of these design flaws yet did noting to fix them. At the trial, Schoville and lawyer Lew Arnell used internal company documents to show that Ford knew of the defect and that engineers had recommended fixes but were ignored.

After a trial in front of Superior Court Judge Kevin Enright, jurors awarded Buell-Wilson and her husband $123 million in damages for her injuries and an additional $246 million in punitive damages.

It was the automaker’s first loss after 13 consecutive wins nationally in rollover suits. It was also the fifth highest jury award nationally that year.

Enright reduced the award after trial to $75 million in compensatory damages and $75 million in punitive damages.

The appeals court further cut those amounts. Writing for the unanimous panel, Associate Justice Gilbert Nares said the compensatory damages were excessive, violating the state law’s ban on awards that are the product of “passion or prejudice.?

Nares reduced the compensatory-damages award to $27.6 million. The bulk of that is for the couple’s noneconomic damages and was within the range of an award that Schoville suggested to the jury at trial.

Nares reasoned that the jury’s decision to go far beyond what the plaintiff’s own lawyer had suggested was compelling enough evidence to show that the jury was inflamed and not “acting as a fair and neutral trier of fact.?

He reduced the punitive damages to $55 million. That represents a 2-1 ratio between the two sets of damages awards, which Nares said is appropriate given a recent decision by the U.S. Supreme Court limiting awards in state courts for punitive damages.

Jerome Falk, the appeals lawyer for the couple, said the court’s finding of a 2-1 ratio for punitive damages was “an extremely conservative number.? Falk said larger ratios, even in the wake of the Supreme Court rulings, have been upheld.

Moreover, he said the court’s rejection of a new trial bid was significant, too. He noted that the justices said Enright did not abuse his authority when he barred certain evidence, and there was “plenty of evidence to support the very harsh view of Ford (at the trial) and their willingness to market dangerous products.?



Center for American Progress blasts effort to strip Federal Courts of jurisdiction to hear cases re: Pledge of Allegiance

Tuesday, July 18th, 2006

July 18, 2006 – The House of Representatives later this week is expected to begin debate on the so-called Pledge Protection Act, which would strip federal courts of the power to hear challenges to the words that constitute the Pledge of Allegiance.

The proposed legislation from the House leadership is as politically crass as it is insincere, but it does serve a useful purpose — reminding the majority of American voters of our nation’s bedrock, bipartisan political values.

The Pledge Protection Act, peddled by the House leadership even though it knows the proposed legislation is unlikely to ever become law, is an unapologetic political stunt designed to draw a certain type of religious voter to the polls in November. It’s all part of the radical right’s narrow “values” agenda, a grab bag of divisive legislation designed to splinter rather than unite America.
This legislation is certainly not necessary to protect the Pledge of Allegiance. It is a response to a single case (Elk Grove Unified School District v. Newdow), in which the Court of Appeals for the Ninth Circuit held that the 1954 addition of “Under God” to the Pledge violated the First Amendment.

The Supreme Court ducked the question by ruling that the plaintiff lacked standing to bring the case. There has been no stampede since then to strike down the Pledge.

But the legislation is part of a series of legislative maneuvers by the radical right to strip the courts of their historic and crucial role as the final interpreter of the Constitution.

Other legislation of this ilk includes the Marriage Protection Act, the Constitution Restoration Act, and the Congressional Accountability for Judicial Activism Act —- all of which boast titles mostly at odds with what they would actually achieve but which together reveal a dangerous political agenda.

The vote this week on the Pledge Protection Act could serve America well if members of Congress and their constituents consider the real American values that underpin the many reasons to reject the proposed law and other court-stripping legislation. Our federal courts exist to protect our individual rights and political principles that are too important to put to a vote. And our political process requires us from time to time to vote to protect the independence of our Judiciary — to ensure that the checks and balances enshrined in our Constitution are preserved.

Conservative, moderate and liberal members of Congress understand the importance of our nation’s independent Judicial Branch, which the late Chief Justice Rehnquist called the “crown jewel” of our system of government. Opponents of repressive regimes around the world recognize this truth. So, too, do most Americans.

The radical right, however, wants to assault our judiciary to foist their narrow agenda upon all Americans, targeting the Pledge of Allegiance, of all things, as a suitable vehicle.

The Pledge Protection Act together with other court-stripping legislation would undermine two centuries of judicial review of acts of Congress, giving Congress the last word on whether the laws it passes are constitutional. That’s simply not an American value. Members of Congress who oppose this raid on the Constitution should stand proud in opposition, and should let American voters across the land understand the importance of that vote.

To read more about the efforts of the Center for American Progress to protect our nation’s Constitutional freedoms, please see the following columns:

Judge Roberts and the Court-Stripping Movement
Constitutional End Run
To read more about the real values that Americans feel are threatened today, please see the Center’s Faith and Progessive Policy initiative, including a recent poll that outlined what American values the majority of our nation believe need to be reclaimed for the common good of all citizens:

go to: Faith and Progressive

Values Reclaiming the Common Good

Governor Fletcher Appoints District Judge Donna Dixon of Paducah to Kentucky Court of Appeals

Tuesday, July 18th, 2006

FRANKFORT, Ky.   Governor Ernie Fletcher today appointed McCracken District Judge Donna Dixon as Judge of the Kentucky Court of Appeals, 1st Appellate District, Division 2.

Judge Dixon replaces Judge David Buckingham who retired and moved to senior status effective May 1. The appointment is effective immediately.

“Judge Dixon has been an outstanding District Judge, and will do an exceptional job as a Judge of the Kentucky Court of Appeals,? said Governor Fletcher. 

“It is humbling that Governor Fletcher has chosen me for this appointment,? said Judge Dixon. “I rededicate myself to the important work of the Kentucky Court of Justice and will do all in my power to serve honorably on the Kentucky Court of Appeals.?

A native of Paducah, Judge Dixon is a magna cum laude graduate of Murray State University, and received her law degree from Southern Illinois University.  Early in her legal career, she served as a law clerk to Judge Bill Howerton of the Court of Appeals.  Judge Dixon has worked in private practice in Paducah, as well as served as an Assistant McCracken Commonwealth Attorney prior to her election as District Judge.  She and her husband, Tom Osborne, live in Paducah with their two daughters, Maya and Rebekah.

“I have known Judge Dixon for a number of years, and will work with her in her transition to fill the seat that I held,? said Judge Buckingham. “I wish her the best.?



Herald Leader Columnist Ryan Alessi asserts his place as states leading political reporter – Mark Nickolas and Judge Steve Horner also make their marks.

Tuesday, July 18th, 2006

Ryan Alessi has lead the host of political reporters in Kentucky over the last 61 weeks since the beginning of the  Merit System prosecutions involving Gov. Ernie Fletcher and his administration.  His in-depth reporting has repeatedly scooped everyone  else on the twists and turns of the investigation.

This week the Herald-Leader is publishing a three part series by Alessi that probes deeply into the events and personalties that have formed the Fletcher Administration.  The first two portions of this series reveals an inside view of Fletcher  and the people who got him elected.

This series represents the best political writing since Theodore White’s “Making of the President”  series books written in the l960′s about the Kennedy presidency.  Woodward and Bernstein would easily recognize Alessi’s ability to probe deep into a politician’s soul to reveal to the reader an understanding of the reasons a politician made the decisions he made.

The first two portions of this three part series can be accessed at- -see Odds grow longer.

The first two portions of the series are titled:
Part 1 | Signs of political inexperience evident in campaign
Part 2 | Management style needs savvy, some say

We can’t wait for part three.

Two other writers have written on the Fletcher Administration with notable results.

When the history books and novels about this Administration are written their work will have to be consulted  by any author wishing to master the facts of this administration.

 Mark Nickolas publisher of has become a recognized national leader in the political blog world. He is thought by some to have become far more relevant to the Democratic Party then the formal party organization.  He makes no bones about being a progressive Democrat, and he tolerates no attempts by Democratic officials to take the party on a Republican Lite diet.  He will take on Democrats as well as Republicans when his BS detector is set off. 

 Nickolas is the gold standard of political blogs who tell it like they see it.  Many believe that the entire effort by the Fletcher Administration to block state worker’s access to the internet is due to Nickolas’s blistering and dogged pursuit of Governor Fletcher and other Republicans. 

On more than a few occasions one may probably be right to conclude that the Fletcher Administration has changed policy due to the efforts of Nickolas to counter revelations by Nickolas on

The third writer Steve Horner, is non-partisan.  He is a synidcated columnist published by so we have a proprietory interest in him.  But his work is rightfully distinquished for its detailed diary of events spelled out and reported week by week. 

The accuracy and detail of his work over the last 60 weeks provides a blue print for anyone wanting to recall who said what and when things happened.
One of the interesting feature of his weekly roundup is his selection of quotes by columnists and editorial writers of the major newspapers in the state.  Any future historians will be wise to rely on Judge Horner’s detailed time lines and in depth diary of events.


The – everyone else is doing it – defense raised by Gov. Fletchers lawyers

Monday, July 17th, 2006

 This U.S. Supreme Court decision presents the limited basis in which a defense of selective enforcement may be applied.

Oyler v. Boles Crabtree v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962)-

 Moreover, the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation. Even though the statistics in this case might imply a policy of selective enforcement, it was not stated that the selection was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification. Therefore grounds supporting a finding of a denial of equal protection were not alleged. Oregon v. Hicks, supra; Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944); Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) (by implication).

      We doubt that there is a judge or High School principal on the planet who hasn’t been confronted with a defendant who argued that someone else did the same thing and got away with it.  And we believe everyone of those judges and principals replied in the same vein: 

“Yeah but we didn’t catch the other ones, and we caught you!.?

The “everyone else is doing it? defense has been advanced by Governor Fletcher’s attorneys.
       We are also mindful of the  case  Whren v. U.S., 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996, )which in 1996 held that pre-textual traffic stops were permitted.
  In Whren  the defense argued unsuccessfully that the defendant’s traffic stop for a minor offense was merely a pre-text to impost the traffic stop  since the particular law was so infrequently prosecuted.

  After Whren, the police were allowed to make traffic stops, and arrests, for minor offenses  even when those offices are not prosecuted in most cases. An example of a claimed pre-textual traffic stop was a broken taillight, or mud on the license plate.

       The Grand Jury that indicted Governor Fletcher now stands accused of using the merit system law (only a noodling offense) to get the Governor.  His defense team argues His defense team argues that the eveyone else does defense should apply since other prosecutors (with no allegation that this particular Attorney General looked the other way) failed to prosecute such offenses, and instead turned
 such complaints over to the Merit System Board.

 The following article detailed the advancement of this argument.

Fletcher’s lawyers say governor victim of ‘selective prosecution’

Associated Press
FRANKFORT, Ky. – Attorneys for Gov. Ernie Fletcher say the embattled governor shouldn’t be tried for allegedly basing personnel decisions on political considerations because Democrats committed similar acts for decades without punishment.
In a 96-page motion to dismiss filed by Fletcher’s lawyers last week, his attorneys claim the crimes Fletcher is accused of committing are the same ones that have been violated by Democrats for years.

“One of the most honored and respected precepts in American jurisprudence is that a person cannot be singled out for prosecution under a law that, over many years, has not been enforced against anybody else,” the motion reads.
Fletcher was charged with conspiracy, official misconduct and political discrimination stemming from allegations that he gave protected state jobs to political allies. He pleaded not guilty during an arraignment last month and is scheduled to be back in court on Nov. 8.

The special grand jury overseeing the investigation has issued 29 indictments, 14 of which remain sealed. Fletcher announced in August that he had pardoned his entire administration – other than himself – for any charges that could result from the probe.
Fletcher’s attorneys claim the case against the governor is the first of its kind to be prosecuted by the state’s attorney general’s office.

In the motion, Fletcher’s lawyers argue that the state Personnel Board has found 65 instances of political discrimination against workers since 1972. None of those cases were prosecuted by the attorney general’s office.
For example, the board found that there had been a “mass removal” of Republicans in 1972 when Democrat Wendell Ford succeeded Republican Louie B. Nunn as governor, but the attorney general did nothing, the motion states.
Legal experts say Fletcher’s lawyers are merely grasping at straws. Marc Murphy, a former Jefferson County commonwealth’s attorney, said just because criminal proceedings were not followed in similar cases before doesn’t mean they shouldn’t be pursued now.

“If we acknowledge that crimes were committed, does the law require us to do nothing because nothing had been done in the past?” Murphy said. “Does Kentucky remain a backwater of cronyism because it always has been, or do we finally recognize the damage that these acts cause and stop them here and now?”

Fletcher’s attorneys noted a 1966 Kentucky Supreme Court decision in their motion to bar prosecution against the governor. In that case, the court threw out Sunday “blue law” charges against a new department store called Heck’s in Ashland. Heck’s showed that no other merchants had been charged with breaking that law in 25 years.
“Heck’s arrival in Ashland is the equivalent of Fletcher arriving in Frankfort,” his motion states. “The same type of powers-that-be whose status quo were threatened” in Ashland “came to the fore in Frankfort.”

Legal experts say the brief provides a fascinating history of patronage in Kentucky. But Indiana University law professor Craig Bradley and veteran Frankfort lawyer Guthrie True say the selective-prosecution argument likely will fail. For one thing, they said, Fletcher undercut it by pardoning the others charged with similar crimes; if not for that, the prosecution of Fletcher wouldn’t seem so selective. Experts, including University of Kentucky law professor William Fortune and former federal prosecutor Kent Wicker, also said the Ashland case is different because the same prosecutor kept charging Heck’s but let other merchants go unpunished.
“Stumbo can’t be blamed for what former AGs didn’t do,” Fortune said. “That would be akin to saying a prosecutor couldn’t prosecute X-rated video stores because his predecessor left them alone.”

Wicker and Bradley also said prosecutors are allowed to decide whom to prosecute, as long as their decision isn’t based on a defendant’s race, sex or other protected characteristic.
“I am not sure Republicans are a protected class,” Wicker said.

Fletcher’s lawyers also contend that the statue of limitations for prosecuting misdemeanors has expired. According to the motion, only the firing of Transportation Cabinet Deputy Inspector General Mike Duncan on May 13, 2005, came within a year of the indictment, which was issued on May 11, 2006. And because Duncan was still a probationary hire at the time, his firing was not illegal.
The motion is scheduled to be ruled on during an Aug. 11 hearing.


Is it so bad that some Americans might learn some Spanish?

Monday, July 17th, 2006

           By LawReader Senior Editor Stan Billingsley-  Two years ago I was fifth in line at a ticket counter at the train station in Lucerne, Switzerland.  A young lady manning the counter was dispensing travel information and selling tickets.  The person at the head of the line spoke French, the next in line spoke Italian, the third person asked for his tickets in German, I couldn’t determine the language spoken by the fourth person but it sounded like Dutch.  
  I asked for my tickets in English, and the young lady understood me, and promptly handed me my tickets.  I was impressed by her command of so many languages and asked her how many languages she could speak. She replied that she spoke five languages well and understood enough of several others to permit her to provide them the tickets and assistance they needed.  I complemented her on her linguistic skills, and asked her how old she was.  Said she was 21.  One could hardly find an example such as this anywhere in the mono-linguistic United States.  

  Throughout my tours to Europe, I have almost never found myself in a situation where the waiter, the cab driver, the shopkeeper or hotel worker could not speak enough English to accommodate my needs of the moment.  Europeans frequently speak a number of languages fluently.  In many areas of the United States any person speaking a foreign language is almost feared.  We must seem a bit boorish to the rest of the world.

  My wife, Gwen, understands a smattering of French and German, and I have a poor understanding of some Spanish.  But neither of us could be called literate in any of these foreign languages.  Fortunately, by traveling we have learned that it is surprisingly easy to pick up many foreign words.  By listening to people interact on trains, in restaurants, and on the streets, you can hear greetings and questions that are readily discernable.        

I remember being on a train from Nice to Rome and noting that whenever an Italian answered their cell phone they said “pronto?. This obviously means “hello?.   This learning process is a rewarding benefit of travel.
We made an effort to learn how to say “thank you? and “hello? in the local language.  Even a feeble attempt to speak a few words in the local language was greeted with appreciation.  On one train we were seated next to a Korean engineer and his two daughters. The engineer could speak no English and of course I spoke no Korean. However his 12 year old daughter was quite handy with English and with her interpreting we were able to exchange an interesting conversation.
 It is strange that most Americans appear to take pride in their lack of knowledge of any foreign language.  Perhaps we are just embarrassed. But perhaps we are guilty of a degree of cultural arrogance.  

  Politicians today find it apparently beneficial to their continued position at the public trough to sponsor and support legislation to make English the official language of the United States.  I am not sure what an “official? language is.  Does that mean that it is illegal to speak words in any other language?  Or does it just mean that the supporters of such efforts believe that ruin will befall the U.S. if another language works its way into our daily lives.  Of course these “language patriots? ignore the fact that English is a polyglot combination of many languages.  If we can no longer tolerate the use of foreign words in this country, then the English language will be frozen in place. Perhaps that is not a good thing.
    If one thinks about it, one can recall stories about residents of Cincinnati and Northern Kentucky who had grandparents that only spoke German.  Throughout this country there are examples of families who only a generation or so ago, regularly tolerated the use of a foreign languages in family sittings.

    The immigration of some twelve million Spanish speaking people into the United States has of course been the reason for the “English as the Official Language? effort. This effort, which celebrates ignorance, is I suspect, more about bigotry, than it is about protecting our white skinned English culture against any real threat.

History suggests that when an immigration of a culture occurs, the dominate language will assert itself in a couple of generations and often sooner.  This history holds little reason to fear that English will become a forgotten language anytime soon.

    No one has yet explained to me the harm that will occur to this country if small businesses and voters in Florida and California (and other affected areas), choose to continue to speak their native language for a couple of generations. In fact I see association with the Spanish language as a cultural benefit to those exposed.

    Spanish is spoken by over 410 million people in the world. Spanish is the most spoken Romance language. Spanish is one of six official working languages of the United Nations and one of the most used global languages, along with English. It is spoken on all continents, most extensively in North and South America, Europe, and certain parts of Africa and Asia. Within the globalised market, there is currently an international expansion and recognition of the Spanish language in literature, the film industry, television (notably telenovelas) and music. (see Wikepedia)

    The Spanish speaking people are here.  If we listen to them we may learn some of their language.  We may just become literate in a foreign language. Attempts to limit our confrontation with another language or another culture will probably not be successful no matter what laws are passed requiring us to remain insular and ignorant.
 We have nothing to fear from learning a little “unofficial” Spanish.  We have nothing to fear from accommodating those who are trying to learn English as fast as they can. We should however fear any “official” effort to isolate this country from the other peoples with whom we share this globe.   

HERALD LEADER article quotes legal experts bothered by State Ban of Blogs

Monday, July 17th, 2006


If Gov. Ernie Fletcher decided to block employees from using the Internet entirely, a political blogger who has sued the governor for selectively blocking his Web site wouldn’t have grounds for a legal challenge, experts say.

But Fletcher’s decision to block some political blogs and not others raises constitutional issues.

Government computers are subject to constitutional restraints, and discriminating based on a viewpoint isn’t allowed, said Bob Corn-Revere, a First Amendment lawyer based in Washington, D.C.

“The fact that the new policy seems to, with the precision of a laser beam, pick out some news Web sites and not others is a very troubling thing for the state,” Corn-Revere said.

Last month, Fletcher’s Republican administration blocked access to, a political commentary blog written by Mark Nickolas. The administration blocked access to some other blogs as well. But blogs on institutional media Web sites, as well as prominent conservative blogs such as the Drudge Report, remain available.

The day before was blocked, Nickolas was quoted in The New York Times criticizing Fletcher, who has been indicted on three criminal misdemeanor charges of violating state personnel laws.

Nickolas, who managed Democrat Ben Chandler’s 2003 campaign against Fletcher, filed a lawsuit last week asking a judge to overturn the ban. In the lawsuit, which was filed in federal court in Frankfort, he argues that the ban violates his constitutional right to free expression and his right to equal protection.

“If they’re going to regulate what employees do on work time, they have to do so in a neutral way,” said Gregory Beck, an attorney with Public Citizen, an advocacy group representing Nickolas. The Louisville law firm Fernandez, Friedman, Grossman & Kohn is also working on the case.

Jill Midkiff, spokeswoman for Fletcher’s Finance and Administration Cabinet, said Friday that the suit “is frivolous and without merit.”

Administration officials contend that the government did not target Nickolas’ blog, but had formulated a policy to add to a list of sites banned on state employees’ computers, including gambling and pornographic sites.

Argument is ‘a real stretch’

The fact that the lawsuit comes from Nickolas and not a state employee troubles Jon Fleischaker, a Louisville attorney who represents the Kentucky Press Association, The Courier-Journal and other media outlets.

“Nickolas is saying that he has a right, by electronic means, to get into all government offices,” Fleischaker said. “I think that’s a real stretch.”

If Nickolas has that right, then everybody else does too, he said.

“It would effectively deprive government of any chance to restrict messages of any type that had content to its employees,” he said.

Alvin Goldman, a professor at the University of Kentucky College of Law, disagrees with that assessment. The government doesn’t have to provide access to the Internet for its employees, but once it does, it has two choices: Prohibit personal use of the Internet, or allow it, as long as it is not excessive.

Most private employers choose the latter, said Goldman, who specializes in labor law and has taught constitutional law for many years. Prohibiting all personal use is bad for morale and difficult to enforce, Goldman said.

“Once it decides to allow the personal use of the computer, then those restrictions that it imposes cannot restrict on constitutionally given rights,” he said.

The state has to demonstrate a compelling interest in blocking particular sites. With pornography, for example, the compelling interest is easy to argue: The state has to ensure that the rights of government employees don’t intrude on the rights of other government employees.

The state could argue that it has a compelling interest in ensuring that employees operate efficiently, Goldman said. Independent blogs tend to have more outrageous content than newspaper blogs, he said. “They tend to be far more emotional in their content and less fact-oriented, and therefore are much more distracting,” he said.

But Goldman isn’t sure how a judge would view that argument.

‘That’s state censorship’

As an analogy, Beck offers the blocking of some religious Web sites. If the state allowed access to Christian Web sites but not Muslim or Jewish sites, that would obviously be a problem, he said.

“Just because the state has some authority to regulate what its employees do on work time, doesn’t mean the state can pick and choose what content is acceptable for employees to read,” Beck said. “Selectively blocking access to certain Web sites, that’s state censorship, pure and simple.”

By Sarah Vos

-The Constitution of the United States is a law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. – U.S. Supreme Court, In Ex parte Milligan, 1866

Monday, July 17th, 2006

Bad legal advice for Bush – By Nat Hentoff

It was not until after the assassination of President Lincoln that the Supreme Court addressed whether Lincoln’s repeated suspensions of habeas corpus during the Civil War — and the resulting arrests by the military of thousands suspected of espionage or disloyalty — were constitutional.
    Speaking for the late president, a government lawyer told the Supreme Court that in wartime the powers of the president “must be without limit” — sound familiar? Lincoln himself famously asked, should “all the laws but one … go unexecuted, and the government itself go to pieces, lest that one [habeas corpus] be violated?”And after suspending habeas corpus Lincoln got the silent consent of Congress.
  In Ex parte Milligan in 1866, the Supreme Court disagreed: Since the civilian courts had remained open, habeas corpus was in effect. The court overruled the late president, emphasizing, “The Constitution of the United States is a law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.”
    But those were American citizens who were removed from the shield of the Constitution.

 Does “all classes of men, at all times, and under all circumstances,” include noncitizens at Guantanamo Bay under U.S. jurisdiction?
    In June 2004, in Rasul et al. v. Bush, the Supreme Court declared that those “enemy combatants” — as President Bush designated them — had been denied due process. But the decision left unclear what, under the Constitution, would constitute due process for them.
  So it came to pass that the president took the advice of his lawyers in the Department of Justice and the Department of Defense to, by himself, create the “military commissions.” But, on June 9 of this year, Justice John Paul Stevens declared for the Supreme Court that the commissions “lack power to proceed,” having violated U.S. military law and at least one key section of the Geneva Conventions.
    President Bush’s rules of procedure for the commissions included a range of due process violations and also violated the separation of powers at the core of the Constitution. Senate Judiciary Committee Chairman Arlen Specter summarized the court’s decision, “It’s not up to the president.” Contrary to what Mr. Bush’s lawyers had told him, the commander in chief does not have sole “inherent” constitutional authority to bypass Congress and the courts to safeguard national security.
 If the president were able to sue his lawyers for malpractice, the lead defendant would be University of California law professor John Yoo, who — while at the Justice Department following September 11 — was the chief architect of that doctrine. He said that Congress could not place “limits on the president’s determination as to any terrorist threat… These decisions under our Constitution are for the president to make.”
    Concurring were his colleagues at the time: David Addington, now chief of staff for Dick Cheney; Alberto Gonzales, since promoted to attorney general; John Ashcroft, Mr. Gonzales’ predecessor as attorney general; Jay Bybee, since elevated to the 9th Circuit Court of Appeals; Timothy Flanigan; and William J. Haynes II, whose nomination to the 4th Circuit of Appeals is still pending because of his role in that discredited advice. (Mr. Haynes’ nomination is now again before the Senate Judiciary Committee.)
 I would think a useful course in any law school would be a close examination of how these constitutional experts arrived at their advice to the president and the resultant Supreme Court decision on Hamdan v. Rumsfeld — in which the court ruled that the military commissions set up by the Bush administration at Guantanamo Bay to try detainees are illegal.
    Mr. Yoo — again teaching his specialty, presidential powers, at the University of California Law School at Berkeley — has remarked of the court’s giving him and his colleagues failing grades that the Hamdan decision “could affect detention conditions, interrogation methods, the use of torture.” He went on to say, “It could affect every aspect of the war on terror.”
  Now that Congress has been forced by the Supreme Court to partake in the separation of powers on the issues that Mr. Yoo cites — and others arising from this decision — I wonder (though may never find out) how the president feels about how his place in history has been marred by the advice of Messrs. Yoo, Addington, Gonzales, Ashcroft, Bybee, Flanigan and Haynes — these names should be remembered. Mr. Bush, clearly and deeply committed to protecting national security, has been crucially misled by his advisers, as have many other Americans.
    President Nixon was compelled to leave office because of his belief in the limitless powers of “the unitary executive.” Yet, according to Glenn Greenwald’s current book “How Would a Patriot Act?” Nixon, in an interview three years after his resignation, said and still believed, “When the president does it, that means that it is not illegal.” Does George W. Bush finally agree with James Madison that “The preservation of our liberty requires that the three great departments of power should be separate and distinct”?



Republican poll places blame on Gov. Fletcher for the merit system scandal

Sunday, July 16th, 2006

The Lexington Herald published a republican commissioned poll which may be read at :

The poll places the blame on Gov. Fletcher for the merit system scandal, and suggests that even if he is acquitted in his Nov. trial, that he will still be blamed for the scandal.

An interesting portion of the poll indicates that legislative candidates that support Fletcher may be punished for that support in this Novembers legislative races.  Attempts to place the blame for the scandal on Attorney General Greg Stumbo have not appeared to take hold with the 500 poll respondents.

This poll might be interperted to enhance a Stumbo candidacy for Governor in 2007.  The poll will certainly give encouragement for a Republican primary challenge for Fletcher.


LawReader Columnist Judge Steve Horner provides round up of Kentucky politics

Saturday, July 15th, 2006


This weeks column includes news regarding:

Court of Appeals Orders Sealed Indictments Dismissed

Update on Fletcher-Withheld E-mails

Melcher Dismisses Indictment Against Nighbert

Fletcher Waiting to Set Up Legal Defense Fund

Fletcher Shrugs Off Criticism

Fletcher Floats Proposal to Amend Constitution To Appoint A-G and Treasurer

NKY Comment on Fletcher’s Re-electability and Fund-raising

Fletcher Draws Support With Pork

Stumbo Seeks Ouster of Personnel Board Chairman

Fletcher Sued by Organization Representing Nickolas

Poll on Fletcher Attributed to McConnell, et al

Newspaper Editorial Comments

Newspaper Columnists’ Comments

LawReader posts all Ky. Court of Appeals cases released on July 14, 2006

Saturday, July 15th, 2006

 Lawreader publishes a synopsis for all decisions of the Court of Appeals and Ky. Sup. Court.

This week there were 33 cases.  For full synopsis and full text subscribe to, the best legal research value in America. Only $34.95 per month.

1 KRS 403.200(2), does not require that the court enter findings of fact before determining the amount and duration of maintenance  award

2 failure of defense counsel to advise Appellee of potential deportation consequences was not cognizable as a claim for ineffective assistance of counsel

3 Issues as to all parties not included in dismissal as to one party, therefore, this is not a final judgment and cannot be appealed

4 Even if there was no probable cause for burglary, the arrest was justified by defendant’s fleeing and evading arrest

5 TO BE PUBLISHED: Building owner who warns contractor of dangerous roof, does not need to also warn subcontractor , as duty to warn is fulfilled

6 testimony from a daughter that she had never seen her dad have any illegal drugs in the house opened the door, under KRE 405(b), to cross examination as to specific instances of conduct and to the admission of evidence of her father’s previous guilty plea to drug trafficking

7Adoption procedures, involuntary termination issues discussed.

8Summary upheld. Real estate brokers contract did not impose duty to assist in obtaining financing.

9 the trial court erred in characterizing certain property as marital or nonmarital and failed to make the requisite findings on certain property issues before the court – the character of the property, i.e., whether it is marital, nonmarital, or both, is determined by the source of the funds used to acquire property

10 a social guest is a licensee. It makes no difference however cordially he may have been invited and urged to come  -   fire investigator need not be licensed in this state in order to be allowed to testify as expert witness

11 We remand for a reconsideration of Peter’s motion based upon the actual custody arrangement

12 the rights of a company under a guarantee agreement survive the merger of that company with another, even though the originally-guaranteed company is not the survivor corporation of the merger

13 In deciding whether to strike a juror for cause, the trial court must discern from the totality of the circumstances whether the juror possesses the requisite mental attitude of appropriate indifference.

14 Court can not order warning order fee paid if no party to the action is liable for fee and made party of this action.

15 Defendant has the burden of establishing that there is a reasonable probability that the result of the trial would have been different if the withheld exculpatory evidence were disclosed to the defense

16  TO BE PUBLISHED (condemnation case) KRS 177.081(1) does not violate the separation-of-powers provisions in the Kentucky Constitution.

17 the legislature has defined “employer? as a person having eight or more employees. This court is not at liberty to change the law – therefore dentist not subject to sex discrimination firing claim for discharging assistant who became pregnant.

18 substantial evidence supports the trial court’s ruling

19 Def. was only subject to a misdemeanor, the trial court erred in not dismissing this action for lack of jurisdiction.

20 TO BE PUBLISHED:  Defamation by church: – Although the jury normally determines whether a privilege was abused, a motion for summary judgment is appropriate when the record shows no facts which would lead to the conclusion that the Appellees acted with malice.

21 When challenging trial strategy, an appellant “must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy

22 Yocum was convicted of other offenses that occurred during the “set off? period. As such, we conclude that the court properly enforced the true agreement of the parties and denied Yocum’s motion to have the charge amended to a misdemeanor.

23 the trial court did not err by requiring def. to prove the invalidity of his plea rather than requiring the Commonwealth to prove its validity

24 issue preclusion, a subset of res judicata, “bars the parties from relitigating any issue actually litigated and finally decided in an earlier action.?

25 Mother denied right to relocate to Indiana with child there was no right to relocate, as in Fenwick, on the basis that no primary residential custodian was designated in the case at bar.

26 Medical expert not required. Layman can testify about malpractice when physician who had previously removed patients gall bladder, forgot he had done so, and operated second time to remove the non-existent gall bladder.

27 a defendant’s family situation is relevant to mitigation upon sentencing but failure to object when court refused such evidence meant error was not preserved

28 worker must show that the evidence was such that the finding against him was unreasonable on the basis of reliable, probative, and material evidence contained in the whole record

29 alj decision upheld

30 It is a fundamental, “primary rule of statutory construction that the enumeration of particular things excludes the idea of something else not mentioned.?

31 The test of “objective medical findings? applies to proof of an injury, whereas the proof of causation is within the realm of “reasonable medical probability.?

32 the findings of the ALJ on causation and impairment were supported by substantial medical evidence

33 the claimant in a workers’ compensation claim bears the burden of proving each of the essential elements of the cause of action

Senator Roeding decried for gay bashing comments.

Saturday, July 15th, 2006

LawReader editorial: Senator Roeding was quoted by a Ky. Post reporter as commenting on the call for his resignation by the Log Cabin Repubicans by asking, “Who are they?”

This is a truly strange question by a college educated professional politician. Perhaps there is something going here that might also explain his unusual removal by his own party from a leadership position in the State Senate in 2005.

 The Log Cabin Republicans, a national organization, have been around for more than 25 years.  They have been featured in a number of Republican platform debates at National Presidential nomination conventions and they frequently issue press releases on various issues relating to gay rights.  How Senator Roeding could be clueless about this portion of his own political party may be as tellling as his quoted comments in denouncing them as “A bunch of queers.” 

The Log Cabine Republicans maintain a web site at  . A review of their news releases verifies their Republican bona fides.

The following article details endorsement of the Log Cabin Republicans by California Governor Arnold Schwartzenegger:

(Los Angeles, CA) – An overflow crowd of over 375 people joined special guests Governor Arnold Schwarzenegger and first lady Maria Shriver at an event to support the work of Log Cabin Republicans.  In a rousing speech, Schwarzenegger declared that he was “committed to being a Governor for all Californians? and was “proud to stand side by side with Log Cabin in their work to offer basic fairness for gay and lesbian citizens.?  He went on to say, “A person should only be limited by his dreams and not by his background, and not by his heritage and not by his sexual orientation.?  He went on to say, “We are united in the values of love, tolerance, and understanding…working together we can create a better future for California where everybody matters and every family counts.?

Log Cabin endorsed and campaigned for Arnold Schwarzenegger in the 2003 recall election and continues to support his efforts to bring people together to build an even brighter future for the great state of California.  “When he took the oath of office, Arnold Schwarzenegger said he would be governor of all the people-and he reinforced that inclusive message in his first-ever address to a gay and lesbian organization,? said Log Cabin Republicans President Patrick Guerriero.


The Gay wing of the Republican Party represented by the Log Cabin Republicans demonstrates that gays are found in all political parties.  Gays are present in every community. They are respected leaders of our religious organizations, businesses, schools, and legislatures. They are our brothers and sisters, parents and children.

Gays bashers today sound as bigoted as the anti-integration bigots who resisted all efforts to recognize and protect the civil rights of black and minority americans.

The positive thing about Senator Roedings bigoted speech, and his narrow outlook,  is that it has been met with strong critizism by the press and by other Republicans.  We may be at a point were Gay bashers no longer get a free pass.

Senate Republican Majority Leader David Williams, affirmitively called Roeding on his comments and set an example of tolerance for his party.  Other Repubicans were less critical, but none endorsed or supported Roeding’s views.

A day after calling gays “the wrong kind of people,” State Sen. Richard “Dick” Roeding continued his verbal barrage on homosexuals, calling a Republican group that advocates gay and lesbian rights “a bunch of queers.”

After learning that the Kentucky Log Cabin Republicans had called for Roeding’s resignation, the Lakeside Park Republican used the derogatory term to describe the group in an interview with The Post.

The Log Cabin Republicans called for Roeding’s resignation after he said that the University of Louisville was wrong to offer health benefits to gay and lesbian domestic partners as a way to make the university competitive and attract talent.

“I don’t want to entice any of these people into our state,” Roeding told the Louisville Courier-Journal in a story published Friday. “Those are the wrong kind of people.”

The Kentucky Log Cabin Republicans, a state affiliate of the national organization that advocates for homosexuals, also called on GOP leaders to denounce Roeding’s comments.

After hearing of Roeding’s “queers” remark, Senate President David Williams, R-Burkesville, said he called Roeding Friday. Williams said he told Roeding, “Most people feel that is an unacceptable term to use and I regretted the fact that he used the term and that he should refrain from using that term because it’s inappropriate.”

Williams said Roeding apologized.

“I accept his apology for using the term,” Williams said.

Kenton County Republican Party Chairman Greg Shumate also condemned Roeding’s comment.

“Dick Roeding has been a very effective legislator for Northern Kentucky, however, legislators, as we all, should refrain from using derogatory terms,” he said.

Roeding’s comments in the Courier-Journal were in response to U of L’s Board of Trustees’ 14-1 decision Thursday to let nonmarried gay and straight partners of employees to participate in health insurance as a way to make the school competitive with colleges that are enacting similar policies across the country.

The decision makes the university the first public college in the state to extend benefits to domestic partners.

Northern Kentucky University continues to research the issue, specifically the cost and how to define domestic partners, said NKU spokesman Chris Cole.

“Community standards must also be considered,” he said.

Roeding said he would oppose any attempt by NKU to change its policy.

“It’s a financial issue,” he said. “How can we go ahead and offer more health care benefits when we can’t pay for what we’ve got now? Let’s be realistic.”

Extending benefits to domestic partners at U of L would not cost the university because partners would be responsible for paying premiums.

Local Republican legislators had little to say about Roeding’s remarks.

“I don’t agree with the U of L decision, but it’s their decision and they’ll have to live with it,” Sen. Damon Thayer, R-Georgetown, said. “That’s really all I have to say on the matter.”

State Rep. Jon Draud, R-Edgewood, said, “I would just say I believe in treating everyone with dignity and respect, all human beings.”

State Senators Katie Stine, R-Southgate, and Jack Westwood, R-Crescent Springs, couldn’t be reached for comment.

Stine, Westwood and Roeding co-authored a letter in 2002 to University of Kentucky President Lee Todd warning him not to pursue an expansion of employee benefits to same-sex partners at UK.

As a result of U of L’s decision, UK officials say they are now considering it.

Some local Democrats said they were outraged by Roeding’s remarks.

“The Republican Party needs to remove him from office,” Kenton County Democratic Party vice chairman Nathan Smith said. “If not, they are protecting a bigot.”

State Rep. Dennis Keene, D-Wilder, said Roeding’s comments don’t reflect the views of most Northern Kentuckians he encounters.

“That just represents a very small minority of hatred and they try to impose that on the rest of us and I think that’s wrong,” he said.

In Ohio, a state representative from Ohio has sued Miami University over its decision to begin offering benefits in 2004 to same-sex partners.

Rep. Tom Brinkman, R-Cincinnati, said the policy violates Ohio’s constitutional ban on gay marriage passed by voters in 2004.
By Stephenie Steitzer
Ky Post staff reporter

Kentucky Post Editorial:  July 15, 2006

The wrong kind of people
Democracy, for all its wondrous benefits, comes at a high price sometimes, one of the costs being the fact that, from time to time, those elected to represent us don’t represent us at all. In the worst case, they do or say things that offend us. So it is with Dick Roeding, a Lakeside Park Republican who has been in the Kentucky Senate since 1991.

This week, Roeding mixed himself up in the University of Louisville’s decision to offer health benefits to domestic partners, and in so doing the senator came across as a bigot unfit for further public service.

“I find this very repulsive,” Roeding said of U of L’s plans, according to the Louisville Courier-Journal. And he continued: “I don’t want to entice any of those people into our state. Those are the wrong kind of people.”

Let’s hear it again: The wrong kind of people.

In case you’re thinking Roeding was misquoted, or that those statements don’t reflect his genuine sentiments, consider what he said when a Kentucky Post reporter called to get his reaction to criticism of his remarks from the Republican Log Cabin organization. “Who are they?” Reading asked our reporter. Told they were a gay rights organization within the GOP, Roeding said, “Oh, a bunch of queers.”

It’s infuriating to hear this kind of talk out of anyone. And it is dumbfounding to hear a senior sitting member of the Kentucky General Assembly declaring law-abiding, contributing, constructive citizens as the wrong kind of people.

You get the sense that if Roeding were born in another century he might be opposing the end of slavery, or the immigration of the Irish – they, too, were the wrong kind of people in their day. The gay rights movement has fought long and hard to bring American consciousness along, and it is a fight not yet finished. The country remains divided over the definition of marriage, and whether it must involve one of each gender; reasonable people may disagree. But mostly, America – led really by business, not government – has gotten to the point that job benefits for domestic partners are about fairness. And, in fact, they are good for the employer, whose goal is to recruit and retain the best workers without regard to race, gender, religion or bedroom practices after hours.

In this regard the University of Louisville’s trustees deserve credit for being the first to tackle the issue head-on. Even though health benefits for same-sex employees are now offered at nearly 300 universities across the country, and have become commonplace in America’s major corporations, Kentucky schools have been reluctant to offer them for fear of provoking a backlash from the Legislature.

After watching what happened in Ohio, maybe it’s hard to blame them. Miami University’s reward for offering such benefits to its employees, after all, was to be sued by a right-wing Republican state representative, Tom Brinkman of Mount Lookout, for violating a new Ohio law dealing with same-sex marriages. As the legal bills mount, the litigation is wending its way through court, drawing attention, and amicus briefs, from organizations across the country.

If this country had a more rational approach to health insurance, we wouldn’t even be having this debate. But for all but the poorest Americans, access to affordable insurance is often tied to employment. Hence the ability to obtain coverage for a partner who isn’t working, or who is an independent contractor or works for a company that doesn’t offer health benefits, becomes important. Heterosexual couples have the option of marriage – and, under most plans, of thus qualifying for family plan health benefits. Homosexual couples don’t have that option.

But there’s something larger at stake here. Kentucky – like any other state – needs all the intellectual capital, all the talent, that it can get. Whether anyone likes it or not, some percentage of the population is gay. What Roeding and others like him are really doing is marginalizing an entire segment of the population. That’s not just wrong, it’s stupid.

Judge Melcher dismisses Nighbert Indictment due to blanket pardon

Friday, July 14th, 2006

FRANKFORT, Ky. – A judge dismissed an indictment against Transportation Secretary Bill Nighbert on Friday because he was covered by a blanket pardon issued by Gov. Ernie Fletcher last year.

Special Judge David E. Melcher said the grand jury that indicted Nighbert based the charges partially on alleged conduct covered by Fletcher’s pardon.

Melcher said he is duty bound to follow instructions from the Kentucky Supreme Court, which ruled previously that when a pardon has been issued, no court has the right to continue legal proceedings against the pardoned person.

Nighbert is “very, very happy” with the dismissal, his defense attorney, Howard Mann of Corbin, said Friday afternoon.

“Quite frankly, I think it should have been dismissed a long time ago, because the pardon decision by the Kentucky Supreme Court basically took care of a lot of these issues,” Mann said.

For the past year, a special grand jury has been investigating whether Fletcher’s administration illegally rewarded political supporters with state jobs after he took office in 2003.

The grand jury has indicted 29 people, including Fletcher, who is charged with conspiracy, official misconduct and political discrimination, all misdemeanors.

Fletcher announced in August that he had issued a blanket pardon for anyone charged in the grand jury probe. However, he didn’t extend the pardon to himself.

Nighbert was charged in September with seeking reprisals against an employee who testified to the Franklin County grand jury about personnel matters at the cabinet.

The indictment against Nighbert alleged that he rejected a supervisor’s recommendation that Missy McCray, a personnel officer at the cabinet, get a bonus for superior work because she previously testified to the special grand jury.

The indictment also alleged that Nighbert told McCray “that if it were 20 years ago, ‘I probably would have come back there and socked you in the mouth.’”

The judge left open the option for prosecutors to seek a new indictment against Nighbert focusing solely on conduct not covered by the pardon.

Vicki Glass, spokeswoman for the attorney general’s office, said prosecutors are reviewing Melcher’s order.

“As we stated in the pleading, it is unfortunate that the governor pardoned Secretary Nighbert for reprisal against a whistleblower,” Glass said.

Jodi Whitaker, spokeswoman for the Fletcher administration, said she has no comment on the judge’s ruling.

Nighbert also had been indicted on a charge of conspiring to fire the cabinet’s deputy inspector general. That charge was pardoned and dismissed.

Associated Press


Judicial Conduct Commission asks Fed. Judge to throw out candidate Marcus Carey lawsuit

Friday, July 14th, 2006

The Kentucky Judicial Conduct Commission and the state Bar Association want a federal judge to throw out a lawsuit challenging the state’s rules concerning candidates’ speech during judicial campaigns.

Marcus Carey, who is running for the state Supreme Court, sued members of the commission and Bar Association last month, alleging that provisions in the state’s judicial conduct code violate his First Amendment right to free speech.

Carey says he wants to be able to state his views on political issues, tell voters his political party affiliation, seek endorsements from other candidates and directly solicit contributions during the campaign. Carey says all are prohibited by the judicial canons in judges’ elections.

Carey, 53, an Erlanger lawyer, is also challenging the rules under which lawyers are allowed to ask that judges be removed from a case because of potential bias.

In motions to dismiss Carey’s complaint, the judicial and legal oversight bodies argue that Carey’s case is based on hypotheticals — what he might want to do. The state courts have not ruled on any of Carey’s arguments and it is therefore too soon for the federal courts to weigh in, they argue.

“Carey has failed to show any likelihood that the harm he alleges will come to pass,” a motion by the Judicial Conduct Commission states.

Carey’s challenge to the rules regarding recusal should also be dismissed because Carey is not a sitting judge — he’s just a candidate, said Mark Overstreet, an attorney for the bar.

The Bar Association and commission also say the rules aren’t as restrictive as Carey contends.

This is the second legal challenge to the state’s rules about what candidates can and cannot do in judicial campaigns.

In 2004, the Lexington-based Family Foundation filed a lawsuit challenging a provision in the conduct code commonly called “the commit clause.” The provision prohibits judicial candidates from making statements that “commit or appear to commit” a candidate to a stance on a particular issue.

In October 2004, a federal judge issued an injunction, barring the state Judicial Conduct Commission from enforcing the provision.

The commission agreed not to enforce the clause. The Supreme Court, which writes ethics rules regarding judges, changed the wording of the provision in 2005.

Carey is challenging the new provision, saying it is too vague and confusing. The provision prohibits candidates from “intentionally or recklessly” making statements that a “reasonable person” would determine as taking a stance on a particular issue. But Bar Association lawyers argue that Carey can still make statements about issues, he just can’t say he will rule a certain way on a case.

Carey’s opponent for the 6th District Supreme Court seat in Northern Kentucky is Court of Appeals Judge Wil Schroder.

Carey referred questions to his attorney, James Bopp Jr. of Terre Haute, Ind. Bopp did not return calls asking for comment.

By Beth Musgrave