Archive for September, 2006

District Judge Candidate Claims Smear Tactic re: 2d Amendment

Tuesday, September 19th, 2006

Editor’s Note:   This press release was sent to LawReader. We will publish claims regarding campaign practices if verified by the candidate. 

Carrollton attorney Elizabeth Chandler Lester, who decisively won the Primary election for District Judge in Carroll, Owen and Grant counties, is finding out that politics can be a dirty business. 

 Supporters of Lester provided her with a copy of a document in the form of an affidavit by Owen County resident Colleen Stiver which is being faxed from the office of attorney William Fulmer.  Both Fulmer and Stiver are campaign supporters of John Brent Threlkeld. 

Threlkeld, who ran a distant second to Lester in the Primary election, faces Lester again in the November General Election. The document, purported to have been notarized in Tennessee, contains an accusation that Mrs. Lester opposes private gun ownership.  Lester has challenged the claim as being “completely false.?

In a letter, Mrs. Lester has notified Ms. Stiver with regard to the affidavit.  Lester has asked Stiver to review the signature and contents.  “If this document is not a fabrication or a hoax, I consider this an untruthful personal attack.  This will not go unanswered.  I intend to expose it for what it is?, stated Lester.

In her letter to Stiver, Lester stated, “Allow me to clearly and emphatically state that I have never made these statements.  Not to you.  Not to anyone. 

Additionally, the positions stated in this affidavit do not reflect my opinions or beliefs.  Like my father, I am a member of the National Rifle Association, and my husband has a permit to carry a concealed weapon. Someone is clearly trying to use this fabricated information in a deceitful manner to try to damage me, my reputation, or perhaps for their own political gain.?

Former FTC Official says Outdated Court Rulings Stymie Mergers Regulators

Tuesday, September 19th, 2006

Cecile Kohrs Lindell  The Deal

Courts are behind the times when it comes to reviewing merger cases, making it harder for regulators to block the ones that may harm competition, according to an antitrust lawyer who recently left a senior post at the Federal Trade Commission.
Speaking to a gathering of fellow antitrust attorneys on Wednesday, Susan Creighton, formerly the head of the FTC’s Bureau of Competition and now a partner at Wilson, Sonsini, Goodrich & Rosati, said federal judges continue to base merger review decisions on court precedents established in the 1960s that emphasize the number of players remaining in a market post-merger.
That’s a big problem today for antitrust enforcers at the FTC and the Department of Justice because they place primary focus on assessing the potential competitive harms of a merger, with much less importance put on the market’s structure.
In typical merger reviews today, regulators analyze a range of economic data to assess whether the deal will likely cause prices to increase and only then focus on which other competitors exist and how they manage to constrain prices. That market structure data, she explained, is really secondary to the harm caused to consumers.
The disconnect between current regulatory techniques and the longstanding methods the courts use explains some of the most high-profile losses regulators suffered when they have tried to block mergers in the past few years.
When the Justice Department tried to stop the Oracle Corp.-PeopleSoft Inc. merger, U.S. District Court Judge Vaughn Walker began his ruling against the government with a careful analysis of the market structure, Creighton said, and “the analysis the judge did was completely backward.” After 29 pages discussing the structure of the market for enterprise application software, he discussed competitive effects for “five pages at the end.”
Walker’s decision said that since there were other competitors, the government’s arguments to block the merger weren’t persuasive.
Creighton said the court’s continuing focus on market structure can probably be attributed to a judge’s need to base decisions on precedential merger cases and the dearth of recent Supreme Court merger rulings.
Existing precedents are decades old and tend to focus on the number of competitors in a market.
This prevailing judicial process was cast by a Supreme Court case decided in 1962, when the government tried to block Brown Shoe Co.’s 1955 purchase of G. R. Kinney Shoe Co. The analysis of Chief Justice Earl Warren began with a careful review of the market for shoes and ended up with the decision that the merger, which would have resulted in one company having less than 10 percent of the shoe sales in the country, would harm competition.
That antiquated process is not how today’s enforcers evaluate mergers, according to Creighton. “My pervasive experience at the FTC is the first question is, ‘Do we think it will be causing competitive effects?’”
Today, if there is evidence of uniform pricing, no price drop when new competitors enter a market or a price hike when other competition leaves the market, deal approval is likely without an intense review of market structure, Creighton said.
But if there is a high probability of price increases if a merger is completed, she suggested parties may have to head to court and hope for a judge who is willing to hear arguments about the range of competitors, including those who may be entering a market, and so on.
If you don’t have a good story about why the merger is good, there may be some reasons to advise clients to quit negotiating for antitrust approval with agency attorneys and “go straight to court,” if their arguments about competition in the market is better, she said.
Despite their outdatedness, most antitrust lawyers agree that Brown Shoe and cases like it are unlikely to be replaced as controlling precedent soon because merger cases rarely make it to the Supreme Court. Because few companies can afford to keep a deal on hold for the three years or so appeals take to reach the top court, most deals unwind if the government successfully blocks them at a lower court level. The merger between H. J. Heinz Co. and Beech-Nut Nutrition Corp. in 2001 was one of the few deals that made it even to the appeals court level. The FTC convinced the appeals panel to stop the deal.



Shiver me timbers Matey. Tuesday Sept. 19th. is Talk Like A Pirate Day.

Monday, September 18th, 2006

Blame it on Owensboro native Johnny Depp.  His character in Pirates of the Caribbean has inspired a rash of Pirate Talk. This has lead to Tuesday being declared as Talk Like A Pirate Day.
You can get your Pirate Talk audio tape broadcast on by callling 502-582-4480. 

 E-mail LawReader at with your Pirate Talk spiel and we will award a LawReader pin to the best entry. 

 You can visit for a mini lesson. 

 The following are some videos you can call up to get you in the right frame of mind.

Cap’n Slappy and Ol’ Chumbucket demonstrate the finer points of pirattitude:

ABC News Consultant Jack Cloonan an Ex-FBI Agent, Says Harsh Interrogation Doesn’t Work. Read the Geneva Convention for yourself.

Sunday, September 17th, 2006

LawReader note: The administration and Congress are currently debating a proposal to  -clarify-  Article III of the Geneva Convention.   Three Republican Senators have joined with the Democrats to oppose Bush plan.  This debate was started when the U.S. Supreme in July ruled that the Geneva Convention applied to Al Quadi insurgents, and not just to uniformed warriors of states.  Senator McCain, a former prisoner of war, leads the debate against the Bush plan.  He says any clafification should be made by military law and not as a ex post facto interpertation of the Geneva Convention.  He and many military leaders say that the treatment of U.S. soldiers captured in the futue is the issue…and that the Bush plan would place future U.S. prisoners of other nations at peril.

To read full text of Geneva Convention go to:
To Read Article III of the Geneva Convention relative to the Treatment of Prisoners of War, Geneva. Lists the rights of prisoners of war.   Go to: Convention III
 Amid a debate between President Bush and bipartisan members of Congress over how harshly to question terror detainees, a former FBI agent said some of the most aggressive interrogation techniques in dispute are rarely effective anyway.
“Generally speaking, those don’t work,” said Jack Cloonan, a former FBI agent and an ABC News consultant.
“I think water boarding is one we’ve all heard about, and I think the public understands what the term means,” Cloonan told Bill Weir on ABC News’ “Good Morning America Weekend.” “We sort of fake drown somebody.”
This week, President Bush felt strong backlash against his campaign to legalize aggressive interrogation procedures, even from fellow Republicans.
Having questioned many subjects himself, Cloonan knows the goals of those leading interrogations.
“They want to induce stress and they want to get information from these people very quickly,” he said.
Talking Rather Than Torture
Cloonan said there are more fruitful practices.
“Knowing the subject matter, building rapport and having that time to get that person to know you works, and I’ve done it many times,” he said.
Because those being interrogated expect to be tortured, they’re caught off guard by non-violent approaches, and often release information more easily, Cloonan said.
“In their manual it says the opposition will torture you, so they expect it,” he said. “When you don’t do it, it has the opposite effect.”
Among interrogators, Cloonan says there’s always been a moral debate about torture.
“Some people think it works, some people don’t,” he said. “The boss has made the decision, now it’s a question of giving these people protection.”
Cloonan dismissed the notion of the “ticking time-bomb” scenario in which interrogators must beat information out of someone quickly to prevent an attack.
“Let’s deal with the reality of the situation: Generally speaking, that’s not going to happen,” he said. “It doesn’t happen in the real world, so we don’t need to go to that level.”

State Supreme Court Says DiGiuro Family Can Sue Ragland- Civil Claim based on murder is found to be an exception to statute of limitations.

Sunday, September 17th, 2006

Frankfort  – The Kentucky Supreme Court has ruled that a wrongful death lawsuit filed against the man accused of killing a UK football player may continue.

Trent DiGiuro was shot in 1994 in Lexington while sitting on his front porch. Shane Ragland of Lexington was arrested six years later, convicted in 2002 and sentenced to 30 years in prison. The conviction has since been overturned, and Ragland has been granted a new trial.

DiGiuro’s estate sued Ragland after his conviction, but a Fayette Circuit Court judge threw out the case, saying the one-year statute of limitations for a wrongful death lawsuit had passed. In 2004, the Kentucky Court of Appeals reversed that decision, saying that wrongful-death lawsuits arising from murder deserve an exception to the statute of limitations.

Ragland appealed the case to the Supreme Court. The state Supreme Court upheld the Court of Appeals decision this week.

This decsion has not been posted by the Supreme Court as of Sept. 16.  LawReader will post the case as soon as it is officially released. The case number is 2004-SC-000560.

State Police raid Bourbon Circuit Clerks Office. Clerk and Deputy suspended.

Sunday, September 17th, 2006

LEX 18 News Headlines -  Kentucky State police have accused the Bourbon County circuit clerk and chief deputy clerk of official misconduct.

Circuit clerk Sherry Rankin and chief deputy clerk Whitney Jones were escorted from the Bourbon County courthouse Thursday by police and are suspended until further notice. Police say there’s evidence that points to some records being changed.

State police obtained a search warrant for the offices of both Rankin and Jones and seized some items, but won’t say anything more about the investigation.

Oldham Co. Attorney Fendley named top child support collecter. Other Attorneys and Counties honored by Division of Child Support.

Saturday, September 16th, 2006

The Ky. Division of Child Support, within the cabinet’s Department for Community Based Services (DCBS), administers child support enforcement jointly with local contractors. The division rated the performance of contractors in all 120 Kentucky counties during the fiscal year that ended June 30, 2006. In most instances, the Kentucky Division of Child Support contracts with a county attorney to administer its work, but in some cases a special prosecutor can be appointed.
Awards were presented for counties that made significant improvement in paternity establishment, child support establishment, child support collections and arrearage collections and for overall performance in all categories.

County Attorney John Fendley and Oldham county lead the state once again. Other top performers, in rank order, are as follows:

• County Attorney Jennifer Hutchison-Corbin, Adair County
• County Attorney Dale Morris, Larue County
• Special Prosecutor Stephen Dallas, Owen County
• County Attorney William Hagenbuch, Allen County
• Special Prosecutor Stephen Dallas, Boone County
• County Attorney Steve O’Connor, Morgan County
• County Attorney Hamilton Simms, Washington County
• County Attorney H.B. Quinn, Trigg County
• Assistant County Attorney Jeffery Dean, Pendleton County
• Special Prosecutor Stephen Dallas, Harrison County
• County Attorney Clint Prow, Webster County

Magoffin County, led by Special Prosecutor Mike Fox, jumped 48 spots from 87th in 2005 to 39th in 2006 in all categories combined. Magoffin increased its paternity establishment ratio by 8.57 percent, order establishment by 11.93 percent, current support collections by 4.14 percent and arrearage collections by 4.53 percent.
Carter County Attorney Fox, who was appointed special prosecutor for Magoffin County, said he had reservations about taking on Magoffin County’s child support program about five years ago when it was “at the bottom of the barrel in terms of performance. But there was no place to go but up.?
Fox’s team has worked hard to make people understand that paying child support is an obligation, he said. He’s also learned he gets greater cooperation by “being consistent and being fair.?
In a rural community, Fox said, “people know what is happening with other cases. When they have faith that you are doing the right thing, they are more willing to comply.?
Other awards went to counties showing significant improvement in paternity establishment, child support establishment, child support collections and arrearage collections in 2006. Those winners are as follows:

• Owsley County, County Attorney Henley McIntosh – Increased paternity establishment ratio by 12.61 percent. Owsley County also showed significant improvement in child support establishment, with an increase of 10.86 percent.
• Bell County, County Attorney Neil Ward — Increased child support establishment by 10.85 percent.
• Meade County, County Attorney Darren Sipes – Increased child support establishment by 11.69 percent.
• Warren County, County Attorney Amy Milliken – Increased child support establishment by 12.59 percent.
• Calloway County, County Attorney David Harrington – Increased child support establishment by 12.05 percent.
• Bracken County, Special Prosecutor John Price – Increased child support establishment by 12.8 percent.
• Garrard County, County Attorney Jeff Moss – Increased child support establishment by 10.01 percent.
• Woodford County, County Attorney Alan George — Increased child support collections by 5.33 percent.
• Bullitt County, Special Prosecutor Stephen Dallas — Increased child support collections by 5.09 percent.
• Robertson County, Special Prosecutor John Price – Increased child support collections by 8.31 percent. Robertson County also increased arrearage collections by 5.88 percent.
• Ballard County, County Attorney Mike Stacey — Increased child support collections by 5.51 percent.
• Martin County, County Attorney Kennis Maynard — increased child support collections by 6.53 percent.
• Metcalfe County, County Attorney Sharon Bowles Howard — Increased child support collections by 6.97 percent.
• Webster County, County Attorney Clint Prow — Increased arrearage collections by 8.03 percent.
• Letcher County, County Attorney Harold Bolling — Increased arrearage collections by 5.47 percent.”




Friday, September 15th, 2006

LawReader columnist, Judge Stephen Horner, reports the following story in his weekly column for Sept. 16, 2006.
State Atty.-Gen. Greg Stumbo lashed at Gov. Ernie Fletchers veracity in a Sep. 9 speech at the St. John’s Picnic in Paducah, according to a Sep. 10 story by Bill Bartleman in The Paducah Sun.  “He spent $5 million of your money to cover up wrongdoing and crimes in his administration,? Stumbo said. “For 18 months, he told you that there was nothing to this investigation and that no one broke the law. But now I can show you a document that he signed that effectively says that is not true.?

 Stumbo’s outburst came, however, just 16 days after he agreed to dismiss a special Franklin County Grand Jury indictment returned on May 11 that accused Fletcher of three misdemeanor counts – official misconduct, political discrimination, and conspiracy to violate the state merit system law – without a plea agreement.   Stumbo’s rationale for the dismissal was that Fletcher would pardon himself before he went out of office thus precluding a trial on the charges from ever taking place.  Special Franklin District Judge David Melcher had previously ruled that Fletcher could not be tried as long as he held the Governor’s office. 

 Stumbo’s office began an investigation of Fletcher’s merit system hiring practices on May 13, 2005, and in early June 2005 a special grand jury was convened.  The still-in-session grand jury has met for at least 64 days, has heard from over 150 witnesses, and has indicted 15 persons in open court on a total of 63 misdemeanor counts and 23 felony counts.  Fletcher pardoned 13 people on Aug. 29, 2005.  A fourteenth person is Sam Beverage who was indicted for post-pardon conduct, and whose trial was scheduled for Sep. 25, 2006.  Fletcher, himself, is the fifteenth and last indictee.  The grand jury also indicted 14 unidentified persons under seal whose indictments were dismissed by court order because the activity of which they were accused occurred before the date of Fletcher’s general pardon, and because Fletcher’s general pardon was found by the state Supreme Court on May 18, 2006 to cover any indictment based upon any pre-pardon conduct related to the state merit system law.  The terms of the dismissal provided that the additional 14 indictments would remain under seal and not be revealed to the public.

 (Comment:  Stumbo’s attack just adds more fuel to the fire of speculation that Stumbo’s dismissal of the charges against Fletcher was self-serving – to eliminate the legal prohibition against Stumbo from running against Fletcher next year for so long as the charges were pending and unresolved.)

Sheryl Snyder takes exception to Courier Journal editioral regarding Deckard.

Friday, September 15th, 2006

     Louisville Attorney Sheryl G. Snyder responded today to criticism of Jim Deckard, general counsel to Governor Fletcher regarding a portion of the various articles, including the Courier Journal editorial about the issue. Snyder has represented six governors of both parties and is recognized as one of the best litigators in the state.  

 Snyder does not discuss the Section 28 problem or the Judicial Code of Conduct issue regarding the nomination of Court of Appeals Judge Jeff Taylor for a position as Regent of Murray State University. Those issues were raised in a prior LawReader editorial.  Regardless of Snyder’s interpertation of Roberts Rules of Order, and we agree with his interpertation, the remaining three issues make the nomination questionable particularly  from Judge Taylors perspective. 

1) Snyder does not discuss the fact that the statutes governing appointment of Regents mandate that the Governor appoint from among the original three nominees to the position.  The latest three nominees brought the total nominees to nine.  The first three nominees have filed a lawsuit to have their status clarified.

2) If the Governor actually selects Judge Taylor from among the three nominees, it is certain to spark claims that Taylor will have automatically vacated his judicial position. This is based on the separation of powers issue.  Taylor is a judicial officer and cannot also hold an executive office position according to Sec. 28 of the Ky. Constitution.  Was this a wise appointment in view of this issue?  Did Deckard advise the Govenor on this point?3) The Judicial Code of Conduct strongly suggests that a judicial officer should not serve on a Board of Regents since he will be dealing with many issues that conflict with his judicial office.  No mention of this issue is made by Snyder.  The late Chief Justice Robert Stephens sought an appointment to the U.K. Board of Trustees and failed. At that time this issue was throughly discussed and one must conclude that Stephans lost…will Taylor be more successful than a sitting Chief Justice?

 Snyder also backs the legal reasoning of Judge Melchers decision regarding a governors immunity from prosecution while in office.  He does not support that argument with any legal citation or authority….nor did Judge Melcher.  This ruling in unique in the United States. 

-LawReader Senior Editor, Stan Billingsley-

The Snyder response: By Sheryl G. Snyder Special to The Courier-Journal
“My wife and I chuckled at the lampoon thrown in my direction by a Sept. 8 editorial. But the derisive criticism of Jim Deckard, general counsel to the Governor, warrants a response.
At issue is the Governor’s appointment of Court of Appeals Judge Jeff Taylor to the Murray State University Board of Regents. Judge Taylor was one of three nominees on a slate approved by a 3-2 majority vote of the Postsecondary Education Nominating Committee. The editorial wrongly asserted that the 3-2 vote was legally insufficient to approve the list of nominees.
However, controlling case law from the Kentucky Supreme Court squarely holds that a majority vote “means a majority of those present and voting” [Payne v. Petrie, 419 S.W.2d 761, 764 (Ky. 1967)].
The “majority” is therefore determined by those present who vote. A member who is present, but abstains from voting, is not counted in determining the majority vote.
Because six of its seven members were present, the nominating committee had a quorum present. Because one of the six members present abstained, a “majority vote” was a majority of the five who voted.
The 3-2 vote was therefore a majority vote approving the slate of nominees. The editorial was simply wrong in saying four votes were necessary for approval of the slate.
The editorial embellished its argument, asserting “that Roberts Rules of Order says, ‘An abstention will have the same effect as a ‘no’ vote.’ ” But Robert’s Rules says no such thing. What Robert’s Rules actually says is: “To ‘abstain’ means not to vote at all . . . ” (p. 44, 9th ed.).
Robert’s Rules also defines “majority vote” as “more than half of the members present and voting . . .” (p. 4). A member who is present counts for determining whether a quorum is present, but “[i]f he does not wish to vote he answers present (or abstain)” (p. 414).
By announcing “present” and not voting, the member is “neutral” (p. 398). Accordingly, “when a quorum of a governing body is present those members who are present and do not vote will be considered as acquiescing with the majority” whether the majority is affirmative or negative [Pierce v. Board, 616 S.W.2d 800, 801 (Ky. App. 1981)].
Clearly, the editorial was simply wrong to assert that an abstention is always counted as a “no” vote.
The editorial writer’s misconception of the law may seem trivial in this instance, but it is the most recent example of the polemical drumbeat by editorial writers (and bloggers) over the last year and a half contending that the Fletcher administration ignores the rule of law and claims to be above the law. Just as the Kentucky Supreme Court correctly applied the law when it upheld the Governor’s grant of amnesty, and just as Special Judge David Melcher correctly applied the law when he held that a sitting Governor cannot be prosecuted for official actions while in office and can only be impeached, Deckard correctly applied the law when he advised the Governor that the 3-2 vote was a majority vote approving the slate of nominees for the Murray State University Board of Regents.
Sheryl G. Snyder, a Louisville lawyer, has represented each of the last six governors of Kentucky on constitutional questions, including Gov. Fletcher in the budget impasse and pardoning power cases.?

Retired Justice Johnstone criticizes some blogs for harm to justice system. Bloggers respond.

Thursday, September 14th, 2006

Diana Skaggs posted the following comments on her Divorce Law Blog regarding Retired Kentucky Supreme Court Justice Martin E. Johnstone’s comments in the Louisville Bar Briefs (see copy of these comments at bottom of this article) which cite the challenges blogs pose to the judiciary were directed at political blogs and not legal blogs, I am pleased to report.

Further, he is most interested in participating in a forum to air concerns of the bench and the bar.
As retired Judge Stan Billingsley noted on his LawReader blog, announcing the formation of the American Association of Internet Journalists this summer, membership would impose ethical standards, which include:
“Report and interpret honestly, striving for accuracy, fairness and disclosure of all essential facts. Do not suppress relevant available facts, nor give distorting emphasis.
Make efforts to give the subject of any damaging report an opportunity to comment, preferably in that same report.
Urge the fair correction of errors.
Do not allow personal beliefs or commitments to undermine accuracy, fairness and independence. Where a political bias is present it should be identified and disclosed publicly online.”
If these principles were followed, some of the perceived harm to the judicial branch of government caused by the political blogs may be mitigated. Although the most ranting of political blogs will not likely join, publicly posting a seal of membership may lend credibility to the rest.
Our July 31, 2006 post announcing the formation of this association provides several other links to articles on the increasing influence of blogs.
Finally, while we’re blogging about blogs, the Indiana Law Blog, winner of the Indiana Judges Association media award, posted today Blogs are emerging as a powerful tool for lawyers, judges and law professors. 

See standards of the American Internet Journalists Association at: American Association of Internet Journalists.  

The non-profit association is inviting membership applications for those bloggers and web site hosts that commit to the Code of Ethics of Internet Journalists. 

Diana Skaggs of Louisville provides an excellent resource regarding Ky. Divorce law and practice at: 

The following are the original comments of Justice Johnstone:

Bloggers Among Greatest Challenges Facing State Judiciary

Upon his retirement as Deputy Chief Justice of the Supreme Court of Kentucky, Hon. Martin E. Johnstone was interviewed by Daniel T. Goyette, Chief Public Defender for Louisville Metro/Jefferson County, KY. Justice Johnstone served over thirty years with distinction in every level of our state’s judiciary. The interview is published in the October, 2006 issue of the Louisville Bar Briefs, the newspaper of the Louisville Bar Association, and unfortunately is not available online.
In response to the questions, “What is the greatest challenge facing the state judiciary in Kentucky? What can lawyers do to improve the Court of Justice?” Justice Johnstone replied, “There are many, but perhaps the greatest challenge to Kentucky’s judiciary are the attacks on its integrity and independence, and the blind labeling by pundits, bloggers, and other so-called court-watchers of judges being “activists.” …

“Recently bloggers have made the judiciary a favorite target with accusations and allegations that are usually without any basis in fact, yet leave the member of the judiciary unable to counter. This barrage of baseless criticism continues a deterioration of the public’s opinion about the judiciary and the bar that endangers the constitutional bedrock of our republic. I have suggested over the years that local bar associations and individual lawyers have the ability to help by putting groups together that could respond to these attacks on the judiciary. I hope to see, and be part of, such efforts in the future.”
I would suggest that he start a blog as part of that effort! We know to whom his criticism is directed, but most of the dozen or so blawgers in Kentucky, and certainly all listed on this site, are responsible and restrained. Blogs can be an asset to the judicial system, as the Indiana judiciary recognized by its award just this week to the Indiana Law Blog.
And, so long as we require our jurists to be subject to the political process of election, the erosion of the public confidence in our judiciary will continue. That is the issue of constitutional proportions.

Mark Nickolas of, Kentucky’s most read political blog, commented on the Johnstone comments as follows:

“Are you kidding me? Johnstone is pretty much complaining that the 1st Amendment applies to criticism of the Judiciary. And what a joke to claim that the deterioration of the public’s opinion of the Judiciary is about what blogs write, as opposed to what that writing reveals about the actions of those on the court. (See Ross Harris contributions and the grand jury investigation, Footnote 16, William McAnulty appointment, allowing Fletcher’s campaign contributors to sit on Supreme Court to hear his own case, not mention THIS LIST).

We have witnessed some of the most shameless acts of judicial activism by his court — including his own disjointed, illogical and convoluted opinion in the Fletcher case –not to mention the absurdity of Chief Justice Lambert’s Footnote 16, a manufactured piece of law that was grounded in nothing more than Lambert’s desire to help his corrupt buddy, Governor Fletcher.

Apparently, Johnstone has qualified his statement to say he was speaking of political blogs, not legal blogs. Hmmm, I wonder who was the target of his remarks?
I have a suggestion. Now that Johnstone is no longer a supreme court justice (nor is a trustee of the University of Louisville thanks to the light shined on that deal by an unnamed political blog), he’s free to speak out. Maybe he should answer questions about his own conduct and the conduct of his court, rather than blame a political blog for pointing them out.

Finally, before he continues to spew his nonsense that blogs “have made the judiciary a favorite target with accusations and allegations that are usually without any basis in fact,” he might want to think about who fed certain political bloggers with the things they’ve reported.

Fletcher denies he admitted wrongdoing in plea bargain.

Thursday, September 14th, 2006

The Associated Press reported that  Gov. Ernie Fletcher denies that he was personally involved in any wrong doing as charged in three misdemeandor indictments which were dismissed as part of a plea bargain agreement.
When Gov. Ernie Fletcher signed a deal last month to have his misdemeanor charges dropped, he acknowledged that prosecutors’ evidence “strongly indicates wrongdoing,” he agreed his administration’s actions were “inappropriate” and, as the head of state government, he accepted responsibility.
But, that agreement was a “mere generalized statement” in which he did not acknowledge involvement or responsibility, according to a recent federal court filing on Fletcher’s behalf. The papers were filed in federal district court as part of a case involving state Transportation Cabinet employee Almeda Wireman.
Fletcher, according to the federal filing, acknowledged in the deal with state prosecutors that evidence indicated wrongdoing by his administration — not himself.
“By the agreed order, Fletcher has not admitted that he was personally involved in any wrongful conduct relating to the personnel actions with the merit system of employment. … Nowhere in the agreed order does Fletcher acknowledge that he was personally involved in any wrongful conduct relating to personnel actions,” according to the filing.
Although Fletcher might have accepted “ultimate responsibility” for some of the alleged occurrences, he did not have any personal involvement in the Wireman case, Spencer Noe, one of Fletcher’s attorneys, said in a telephone interview.

Jefferson Family Court issues new Rules of Practice. See other Family Court Resources.

Tuesday, September 12th, 2006

The Jefferson Family Court has created a new web site which is located at:

Jefferson Family Court Site .  


They also have published new Rules for the Jefferson Family Court which became effective on Sept. 2, 2006.

To read new rules go to:    rules:

Other Resources for Kentucky Family Courts:

Family Court Sites
Map of Family Court Sites
Administrative Department
Divorce Education
Domestic Violence Treatment Providers (40KB-PDF)
Family Court Amendment(25KB-PDF)
Kentucky Family Court’s History: A Snapshot in Time
Family Court Judges Contact Information
Local Rules of Practice
Family Matters Newsletters

Backroom Showdown on Whistleblower Rights

Monday, September 11th, 2006

WASHINGTON – September 11 – On the anniversary of 9/11, the Government Accountability Project (GAP) is highlighting a little-noticed backroom showdown over whether to restore credible government whistleblower protection rights. Today, GAP is delivering its legal rebuttal to Justice Department attacks on legislation to overhaul the Whistleblower Protection Act (WPA), which was unanimously approved by the Senate in June as an amendment to the 2007 defense authorization bill. All House members on a conference committee reconciling House and Senate versions of the defense authorization legislation will receive the rebuttal.

GAP Legal Director Tom Devine explained, “This is a test to determine whether the House Republican leadership’s antiterrorism commitment means restoring rights for professionals on America’s front lines, or is just a smokescreen for billions of dollars in additional pork to homeland security contractors. Most significantly, their choice will reveal whether Congress wants to know about real threats to America’s security.?

This past June, the Senate unanimously added the whistleblower reform to the defense bill, after a Supreme Court decision canceled constitutional free speech rights for government employees. Although the House Government Reform Committee has unanimously approved an even broader version of the Senate legislation, the House did not consider whistleblower provisions when it passed its version of the defense bill. This week, members of a joint conference committee expect to resolve the differences.

In a briefing packet to the defense bill conferees, Devine contended, “Whistleblowers are America’s human failsafe against terrorism and other threats when the bureaucracy lets us down. Under current law they can’t defend themselves against cover-ups that sustain government homeland and national security breakdowns.?

Protecting government employees’ freedom to warn is the key for the 9/11 Commission’s recommendation to prevent another tragedy: Protect the flow of information that provides advance alarms of threats and vulnerabilities. Whistleblowers repeatedly have proved they are in the pivotal position for that lesson to be properly learned and implemented.

This summer, whistleblowers convinced the Department of Homeland Security to stop routinely blowing the cover of its undercover Air Marshals, who now will have a chance to thwart future hijackers. Other whistleblowers exposed how DHS routinely makes immigration decisions on residency without checking evidence files on terrorist connections flagged for specific applicants.

Devine emphasized, “9/11 is the most blatant lesson of what could happen again if we silence or don’t listen to whistleblowers warnings. Just months before the tragedy, whistleblowers were ignored when exposing a total security breakdown at the same Boston airport gate that hijackers exploited on 9/11. Secrecy enforced by repression is a clear and present danger to America’s safety, because it covers up bureaucratic breakdowns that sustain America’s vulnerability to terrorism.?

A May Supreme Court decision, Garcetti v. Ceballos, took away free speech protections for any government worker to disclose fraud, waste or abuse on the job. The Court ruled that current whistleblower laws make constitutional rights unnecessary. However, the WPA has been routinely gutted by hostile judicial activism since it was strengthened in 1994. The law routinely creates far more reprisal victims than it helps. Since 1994, the specialty court with monopoly power over the law’s interpretation has ruled against whistleblowers in 122 out of 123 decisions on the merits. Since 1999, Merit Board administrative hearings have ruled against them in 53 out of 55 cases, including all since 2003 when the president’s newly-appointed Board chairman took office.

Devine charged, “The Justice Department’s objections to the conferees assume ignorance and are an insult to Congress. DOJ merely reiterated without further explanation a list of criticisms that the Senate Homeland Security Committee unanimously has rejected three times since 2002, along with heavily-researched committee reports explaining how the administration’s attacks could not withstand scrutiny. The Justice Department even trotted out old objections for House conferees that it gave up on before the Senate vote, after the Homeland Security Committee successfully called the bureaucratic bluffs.?

The Senate legislation has four cornerstones – 1) restoration of paper rights previously approved by Congress and thrice erased by judicial activism; 2) normal access to appeals courts so Congress isn’t forced to re-legislate this law after another five years of judicial activism; 3) due process rights against security clearance retaliation (the primary harassment tactic against whistleblowers challenging security breaches, because it is not currently covered by the whistleblower law); and 4) protection against gag orders on whistleblowing disclosures of unclassified information, a move that also codifies protection for a wide range of disclosures from food and drug safety to scientific freedom on climate change.

Legislation unanimously passed by the House Government Reform Committee closely mirrors the Senate legislation, with three additions: 1) providing access to jury trials for a fair day in court, as available to corporate workers since the 2002 Sarbanes Oxley law; 2) extending WPA coverage to all workers paid with taxpayers funds, including airport baggage screeners, government contractor employees, and intelligence agency whistleblowers; and 3) limiting the “states secrets privilege? so it does not cancel national security whistleblower reprisal cases.

In August, House Government Reform Committee Chairman Tom Davis (R.-Va), pioneer House sponsor Todd Platts (R.-Pa.), and Ranking GRC Member Henry Waxman (D.-Cal.) wrote to the defense conference leaders, House Armed Services Committee Chairman Duncan Hunter (R-Cal.) and Ike Skelton (D.-Mo.), asking that the conference consider the House committee’s reforms as well. Devine commented, “All employees paid with taxpayer funds should have the same whistleblower rights protecting corporate workers approved by Congress in the 2002 Sarbanes Oxley law. Those defending America’s families from another 9/11 need protection just as strong as those defending America’s investments from another Enron.”

The Make it Safe Coalition, made up of 40 taxpayer rights, good government and national security organizations, has reinforced the message to Congress. The group explained in a letter to Hunter and Skelton last month that whistleblowers consistently have sacrificed their careers, because “they did not have the legal right to defend themselves when they tried to defend the public.?

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You can now see the entire Ky. State Budget for 2006-2008 biennium

Monday, September 11th, 2006

Your assignment today, is to read the Ky. State Budget!  This link provides you access to the authorized spending approved by the legislature and signed by the Governor for the 2006-2008 biennium.

The materials are presented in pdf format, and if your computer doesn’t have pdf, just go online for a free download.  Most computers made in the last ten years already are loaded with pdf. readers.


Go to: Budget of the Commonwealth of Kentucky – 2006- 2008

New telephone area code needed by late 2007 for western Kentucky

Monday, September 11th, 2006

The Kentucky Public Service Commission has announced that a new area code is needed for western Kentucky.

Area code 270 is projected to run out of available phone numbers in late 2007, the Kentucky Public Service Commission (PSC) has opened a proceeding to determine how to create a new area code in the western half of the state.

Adair, Grant, Grayson and Livingston counties court projects should advance this thursday

Sunday, September 10th, 2006

Court Facilities Standards Committee to review judicial center projects planned for Adair, Grant and Livingston counties


Meeting is open to the public Thursday, Sept. 7, 2006, 9 a.m. EDT

Who: The Court Facilities Standards Committee is a 10-member body comprised of representatives from the Kentucky Executive, Judicial and Legislative branches of government and a county official appointed by the governor. The committee reviews design plans, cost estimates and financing proposals for new court facilities statewide. Kentucky state Rep. Gross Clay Lindsay chairs the 10-member committee. Chief Justice of Kentucky Joseph E. Lambert, AOC Director Melinda Wheeler and Kentucky Court of Appeals Chief Judge Sara Combs will also be in attendance.
The Court Facilities Standards Committee operates under the auspices of the Administrative Office of the Courts (AOC) in Frankfort, which is the operational arm of the Kentucky Court of Justice. The AOC Court Facilities Department oversees court facility construction, renovation and maintenance throughout the Commonwealth.

What: The committee will be discussing new judicial center projects for Adair, Grant, Grayson and Livingston counties, which are four of the 18 judicial center projects approved by the 2005 General Assembly and funded by the 2006 General Assembly:

Adair County, new judicial center, 32,600 square feet, $10,468,000
Grant County, new judicial center, 45,400 square feet, $14,523,000
Grayson County, new judicial center, 35,000 square feet, $11,507,000
Livingston County, new judicial center, 21,900 square feet, $7,583,000

When: Thursday, Sept. 7, 2006, 9 a.m. EDT

Where: Administrative Office of the Courts Conference Room, 100 Millcreeek Park, Frankfort

Contact: Leigh Anne Hiatt, APR, public information officer, Administrative Office of the Courts, 502-573-2350, cell 502-545-2839,



Sunday, September 10th, 2006


The currently popular Vomit Test should be replaced by the Four Way Test in Frankfort.

    We are confronted with a political situation in Kentucky today where state officials have involved themselves in many situations where they may have been technically correct in their actions, but nevertheless they have outraged the public.

In law school we learned of the “Vomit Test?.  The theory behind the “Vomit Test? is that it is okay to do something if it doesn’t make you vomit. Politicians for centuries have used a similar test and called it “The Smell Test?.  These theories are being used to justify “technically okay? decisions and decisions that do not require even a semblance of the gag factor such as “we can get away from this since we are in power.?

   This “technically okay? practice has been evident in legal opinions that have been issued to justify actions of the Governor and his administration. It has been evident in the merit system scandal, the appointment of partisans by the Governor to serve as special judges on cases to be heard that involve the Governor. The refusal to appoint regents even though they were properly nominated, the use of a questionable legal theories to justify the selection of nominees with less than a majority of the eligible votes.

This theory is evident in the issuance of blanket pardons and the subsequent claim by most that their innocence has thereby been proven.  Nonsense, a pardon does not prove anyone’s innocence. 

The dilatory tactics of  the Governor in turning over evidence to the grand jury, the endless appeals, tampering with the makeup of  judicial panels, the banning of selective blogs from access by state workers, the veto of budgetary funding for the election of judges so that the Governor could personally make the appointments instead of letting the public elect them,  the surprise dismissal of all criminal charges on the grounds that the Governor was never going to have to face a trial anyway, has left a bad taste in the collective mouth of the public.  The Attorney General still has not provided a justification of this plea agreement that passes the “Vomit Test?.  For a year he shouted “Fire? and then like Emily Litrello, the Saturday Night Live character, told us, “Never mind.?

And don’t get me started on the outrageous claim that the Governor was immune from prosecution while in office, when there was not one relevant case on point cited by the court to support such a theory.  The Governor as a matter of common decency should have refused to hide behind such a ruling.  This country is a democracy and we have long ago (recall the Magna Carta) reduced the theory of the “King Can do No Wrong? to a limited application in civil claims.

   These “technically okay? theories has been used to justify the questionable forced recusal of judges and then their replacement with judges more to the administrations liking. (Remember the attack on the Franklin District Judge who was replaced by Judge Melcher?)  This skill in playing the recusal game was learned by the Governor’s legal counsel Jim Deckard, from his days as legal counsel to the Supreme Court where he was involved in the forced recusal of judges based only on the naked power of the Chief Justice and without reference to the standards for recusals imposed by the Code of Judicial Conduct. This practice has imposed a chill on the entire judiciary. The judges appointed as replacements and judges who accepted interim appointments while facing an election have had their independence brought into question.

     I have heard a common opinion expressed frequently by people over the last year.  They seem to all be saying something to the effect:  “I am shocked that they would do that….? (add the scandal of the day to complete that sentence).

     Most people have higher expectations of morals and character for our political officials than we have been seeing lately.  It is not good enough that officials justify something by a claim that it is “legally okay?.  Politicians may win the battle when they only use the justification “we can get away with this? but they lose the war with the public.

The “legally okay? or “technically okay? theories may be good enough for a press conferences full of bobblehead partisans, but the public knows when the Emperor isn’t wearing knickers no matter how fancy the spin.

 Again I will state for emphasis…many people in Kentucky are literally shocked at the gall and lack of shame being displayed time and time again in Frankfort.  Must there be new laws passed in the future to prevent things that in the past have been prevented by a common sense of decency?  We already have 27,700 statutes in the KRS, how many more will be needed to clean up this mess?  (Note: God only needed ten.)

     There are simple moral tests that should be used by our political leaders and their advisors in all aspects of governing this state. These tests if followed may help them avoid shooting themselves in the foot so often.  One I would recommend is used by the Rotarians (similar tests are used by moral people the world over), it is called the Four Way Test. 

     Many of the practices cited in this article, and many which have not been mentioned, may have passed the “Vomit Test? by the width of a hair, but that standard is not good enough. The public is entitled to more.

Every decision made in Frankfort by every advisor, every state worker, every elected official, and by all of us in our daily lives, should be evaluated by the standards of the “Four Way Test.?

The Rotarians Four Way Test

Is it the truth?
Is it fair to all concerned?
Will it build goodwill and better friendships?
Will it be beneficial to all concerned?

    The simple and straightforward Four Way Test was written by Chicago Rotarian Herbert J Taylor in 1932. It is not necessarily a catechism but rather a purely subjective form of self-analysis.

I would suggest one other consideration to be added to the four way test. 

“Is this proposal just for partisan advantage, or is it in the best interest of the state.”

   It is never to late to begin doing the right thing.

Postscript:  Sept. 12, 2006.  The following quote was included in a column by conservative columnist Cal Thomas:

“…the object of modern politics is not to say and do things that benefit the country and promote the general welfare but to gain or maintain political power. Gaining power, including themeans to getting it, is all that matters.”

A great writer tells the beautiful story of a great jurist.

Sunday, September 10th, 2006

Andy Wolfson has written a story about U.S. District Judge Ed Johnstone who at the age of 84 has decided to stop trying cases.  We strongly reccomend that you read this story for two reasons.  First it illuminates an amazing jurist who was a World War II hero, and became a highly respected public servant who is revered by everyone who knows him.  Johnstone’s life and career will stand for a long time as an example of how our brief existence should be conducted.

The second reason you should read this article is for the pure joy of Andy Wolfson’s writing.  You hardly know he is there. His words flow like a gentle river and carries you along effortlessly. What a great piece of literature. 

Stop whatever you are doing and see for yourself. Go to:

Compassion has ruled judge’s career

Latest opinions of Ky. Ct. of Appeals & Sup. Ct. with LawReader synopsis

Saturday, September 9th, 2006

LawReader has posted 25 opinions with synopsis for the Ky. COURT OF APPEALS FOR SEPT. 8, 2006  

Also 59 Decisions with synopsis issued by the KY. SUPREME COURT FOR AUGUST, 2006 .

To read the full synopsis and full text sign up as a LawReader user at for only $34.95 per month. There is no faster way to stay current in the latest developments in the law.
Court of Appeals- cases Sept. 9, 2006:

 Case No.

1 the jury was not sworn, the law is clear that jeopardy had not attached

2 Because appellant failed to file appeals from the earlier orders setting child support and the CR 60.02 motions raised issues that could have been raised on appeal, the appeals herein are dismissed.

3 …because Vincent Thomas had filed his appearance as trial counsel, and had been the attorney primarily handling the filing of documents on behalf of Discover Bank, Wilson was also required to send notice of the hearing to him- court’s dismissal set aside

4 A court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.?

5 An attorney fee cannot be fixed with arithmetical accuracy. The factors to be considered are well summarized in Axton v. Vance, (standards are set out).  -  , we must also presume that the legislature did not intend to cloak Ky. Lottery Commission with sovereign immunity.

6 CHFS, did make a reasonable accommodation; hence, summary judgment dismissing that claim was also proper.  —  …the trial court improperly ruled that Burkich failed to exhaust her administrative remedies under KRS Chapter 18A.

7 the district court acted appropriately and in accordance with its statutory duties in transferring the juvenile cause to circuit court.

8 there was substantial evidence to support the court’s conclusion that Glenna was entitled to an award of maintenance

9 summary judgment upheld – , there is no evidence to support a finding that Republic  Bank owed a fiduciary duty to Millennium and its principal officers.

10 there were no genuine questions of material fact as to the obviousness of the hazard and the reasonableness of RAA’s precautions.

11 the trial court properly considered evidence of the parties’ course of performance, course of dealing and the usage of trade to interpret the contract. – that Thrift Bit was only entitled to recover damages for the 2000 contract year.

12 electrical cords affixed to floor of a doorway were an open and obvious hazard and not unreasonably dangerous

13 amendment of indictment did not have the effect of charging a new offense in the absence of a showing of prejudice

14 an ordinance which lists a road segment length shorter than that listed in an earlier ordinance does not operate as a discontinuation of the road segment as a county road.

15 a defendant is required to avail himself of RCr 11.42 while in custody under sentence or on probation, parole or conditional discharge, as to any ground of which he is aware, or should be aware, during the period when this remedy is available to him

16 The court concluded that Davis’s predecessor in title acquired her lot from the parties’ common grantor before the adjacent lot was acquired by appellants’ predecessor in title, and that it follows as a matter of law that Davis’s title rights are superior and any overlaps in the properties’ legal descriptions must be decided in her favor.

17 TO BE PUBLISHED :Generally, a contract of adhesion is a standardized

contract, which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it.

18 “[F]or a mistrial to be proper, the harmful event must be of such magnitude that a litigant would be denied a fair and impartial trial and the prejudicial effect could be removed in no other way

19 the trial court erred by failing, upon remand, to conduct an evidentiary hearing on the condemnation,

20 there exists substantial evidence of a probative value to support the Commission’s finding that Berryman voluntarily quit her employment, thus disqualifying her from receiving unemployment benefits

21 The record is conflicting as to whether Kelly provided the answers to Osborne’s questions, or whether Osborne provided the answers himself. This issue goes directly to the question of whether Kelly made statements in the application with which she later allegedly failed to abide.

Summary judgment set aside.

22 …an alternative-dispute resolution plan that provides different rights than those set out in KRS 342.020 is not necessarily invalid as long as the plan does not diminish employee rights.

23 11.42 motion denied

24 that the ALJ’s decision on remand is supported by substantial evidence

25 TO BE PUBLISHED : A tryout is for the benefit of the employer, as well as the applicant, and if it involves a hazardous job we see no valid reason why the applicant should not be

entitled to the protection of the [workers’ compensation] statute.

Kentucky Supreme Court Decisions for August 2006:
Important cases:


1 Sleep deprivation does not make confession involuntary


3 For a gift to be delivered, it must be shown that the owner parted with dominion and control over the gift

4 neither Appellant nor his wife ever expressly invoked the spousal testimony privilege,

5 A public nuisance is not the subject of a suit by a private individual, unless he has sustained some special injury thereby

6 the defendant was unlawfully arrested in his home, his statement was nonetheless admissible because it was made several hours after the arrest at the police station and could not be considered the product of the unlawful entry

7 Even if a juror should have been removed for cause, such error does not violate the constitutional right to an impartial jury if the person did not actually sit on the jury

8″in order for Miranda rights to be invoked, there must be (1) custody and (2) interrogation”

9 KRS § 23A.205(2) requires the court to find that the Appellant is unable to pay the costs and will be unable to pay the costs in the foreseeable future .

10 While Appellant had at one time moved the trial court to allow the introduction of mitigation evidence under the truth-in-sentencing statute, we believe that request was effectively withdrawn when he subsequently filed a motion in limine requesting “that the retrial be limited to the PFO phase and not a full truth-in-sentencing proceeding .”

11″[c]ontrary to the language of RCr 9.48, the use of the word `shall’ in KRE 615 makes exclusion mandatory and removes the separation of witnesses from the trial judge’s discretion in the absence of one of the enumerated exceptions.”   ” We went on to hold that the trial court erred when it allowed the victim to sit at counsel table, because the victim did not qualify under exception (3) in KRE 615 .

12 The knives were a link in the chain of proof and were properly admitted into evidence .

13 A trial court may infringe upon the defendant’s right to pursue, an alternative perpetrator theory, if the evidence is “‘unsupported,’ ‘speculative,’

14 the first claim did not rise to the level of palpable error and a proper foundation was laid for admission of the codefendant’s statements

15 It is only when intoxication reaches the state in which one has hallucinations or ‘begins to confabulate to compensate for his loss of memory for recent events’ that the truth of what he says becomes strongly suspect. –   Loss of inhibitions and muscular coordination, impaired judgment, and subsequent amnesia do not necessarily (if at all) indicate that an intoxicated person did not know what he was saying when he said it.

16 Def.  was charged with four separate counts of theft by unlawful taking . The three guns and the other items were stolen from the same residence at the same time, and under our decisions only one theft occurred.”

17 Facts support conviction

18 IAD did not commence until the prisoner’s request for final disposition of the charges against him had actually been delivered to the court or prosecuting officer of the jurisdiction that had lodged the detainer against him.

19″any attempt to run the persistent felony offender conviction either concurrently with or consecutively to the underlying offense on which it is based . . . is improper.”

20 the reading of the entire indictment against Appellant was NOT unduly prejudicial

21 Def. did not meet his burden of proof on the issue of undisclosed juror bias,

22 Harmless error

23 evidence of propensity for violence not error

24 although he entered through a gate, he knew that he did not have a right to enter the property because it was fenced, which gave notice that the land was not to be entered upon

25 trial court did not abuse its discretion in finding the kidnapping exemption statute to be inapplicable in this case.

26 The ultimate decision to shackle a defendant rests within the sound discretion of the trial

court, and will only be overturned on appeal upon a demonstration that this discretion was abused.

27 The jury took an ample amount of time in deliberating

28 KRS 342.185 does not operate as a statute of repose in gradual injury claims and that a rule of discovery applies

29corrected version of #28

30 Court of Appeals misconstrued KRS 342.315.

31 this Court has consistently taken the position that “an appellate court cannot reevaluate the evidence or substitute its judgment as to the credibility of a witness for that of the trial court and the jury

32 The trial judge did not err when she refused to suppress the inculpatory statements made by Duncan to police.

33 ALJ did not err by considering impairment due to a pre-existing lumbar condition

34 Reconsideration of award denied

35 Award upheld

36 another employer was unlikely to accommodate her condition, and that her physical condition made it unlikely that she would be able to earn the same or a greater wage for the indefinite future .

37 DeLeon sustained a work-related injury resulting in an  permanent partial impairment

38 the record does not establish conclusively whether the requirements of due process were met, this matter must be remanded to the trial court to hear evidence and make findings of fact

39 The statute is clear-it does not require the physicians to be university employees or, in the words of the majority opinion, “affiliated with” the medical schools.

40 Award affirmed

41 vacated and remanded for additional findings regarding KRS 342.730(1)(c)1 but affirmed in all other respects

42 Since Dept. of Revenue has failed to show it lacks an adequate remedy by appeal, we affirm the denial of the petition for an extraordinary writ

43 The statute is clear-it does not require the physicians to be university employees or, in the words of the majority opinion, “affiliated with” the medical schools.

44 Denial of order denying his motion to proceed in forma pauperis

45 Attorney Robert Meredith, publicly reprimanded

46 Attorneys David Weinberg be publicly reprimanded for his violations of SCR 3.130-1 .3, SCR 3 .130-1 .4(a) and (b), and SCR 3.130-5.1(a) and (b). Moreover, it is ordered that Deno Capello be publicly reprimanded for his violations of SCR 3.130-1 .3, SCR 3 .130-1 .4(a) and (b), and SCR 3.130-5 .1(a) and (b)

47 same


49 Attorney Melbourn Mills temporary suspension

50 Temporary Suspension of William J . Gallion,


51 Attorney Steven F. Claypoole suspended for 30 days

52Temporary Suspension against Shirley A. Cunningham, Jr

53Rodney McDaniel suspended 30 days,

54Steve P. Robey, is publicly reprimanded

55Bryan K. Burlew suspended for 181 days

56 Alecia Lococo suspended for six months

57 Attorney Jason Michael Nemes fined

58 a writ of mandamus is available to a petitioner only when there is no other adequate remedy by appeal,

59 Maxwell Hammond suspended from practice of law

KBA DECISIONS (Discliplinary Rulings)

Suggestions for judicial candidates confronted with voter surveys

Friday, September 8th, 2006

Marcia Coyle The National Law Journal

 When Tennessee Court of Criminal Appeals Judge John Everett Williams, who was up for retention election this year, got his questionnaire from the Tennessee Family Action Council soliciting his views on abortion, the death penalty, same-sex marriage, evolution and other issues, he declined to respond, citing Chief Justice John G. Roberts Jr. as setting “the gold standard” on ethical conduct during his U.S. Supreme Court confirmation hearings.

“As did Justice Roberts, I do not wish to hint or signal that I am predisposed to rule on any matter that may come before me as a judge,” wrote Williams in June, one of 64 Tennessee judges receiving the questionnaire.

Questionnaires for judicial candidates have been an “issue” since at least 2000, according to court and election officials, because they raise concerns about sitting judges and judicial candidates campaigning and making promises just as other political candidates do.

But this year, the questionnaires are proliferating, more sophisticated and seemingly coordinated across states.

“My impression is there are more questionnaires and most are coming from what would be considered religious right groups and they are being vetted by the same folks working with each other,” said Cynthia Gray, director of the Center for Judicial Ethics at the American Judicature Society. “I’m not suggesting that’s a bad thing.”

She said that there is probably a “reluctant consensus” that judicial candidates have a First Amendment right to respond to these questions. “However, there are also a lot of people, including incumbent judges and judicial candidates, who don’t necessarily think it’s a good idea.”

Concerns about the questionnaires have reached the National Center for State Courts whose National Ad Hoc Advisory Committee on Judicial Campaign Oversight is preparing to send a letter to state courts, state bar associations and others with recommendations on how to deal with them.

Noting there is “no simple right answer” on how to respond, the advisory committee makes five recommendations:

Don’t be rushed into deciding how to handle the questionnaire: The committee says questionnaires often come just a few days before the “due” date for response.

Never use the preprinted answers on the questionnaire: Simplifying a legal or political issue to a yes/no answer is “inconsistent” with a judge’s role, and there’s no legal obligation to discuss any issue, according to the committee.

Consider responding with a letter that educates voters on the role of judges.

Distinguish general interest, nonadvocacy groups from special interest advocacy groups and be consistent in dealing with their questionnaires.

And never use a judicial canon of ethics to justify a decision not to respond.

That last recommendation is necessary because the result of citing a judicial canon as the reason for no response is a lawsuit, said committee member Roy Schotland of Georgetown University Law Center.

Schotland noted that questionnaires sent to judicial candidates in Tennessee, Kansas and Georgia contain almost identical footnotes to the “decline to respond” option.

The footnote states that that particular response indicates that the candidate would answer the question but for canons of conduct prohibiting pledges and promises, or statements that commit the candidate to positions on issues that may come before the court.

If a judicial candidate does cite those canons, it’s a “pretty fair bet” the state and/or its judicial ethics commission will be sued, agreed Gray. Within weeks of issuing an advisory opinion counseling against answering questionnaires, Gray said, Kansas was sued. And there have been similar suits against Indiana, Alaska, Kentucky, Pennsylvania, Florida and North Dakota, she said.


The lawyer behind most of those suits is James Bopp Jr. of Bopp, Coleson & Bostrom of Terre Haute, Ind., general counsel to the National Right to Life Committee and the victorious attorney in Republican Party of Minnesota v. White, 536 U.S. 762 (2002).

In White, the U.S. Supreme Court held that the so-called “announce clause” of the Minnesota judicial code, which prohibited judicial candidates from stating their views on legal issues within the province of the court for which they were running, violated the First Amendment.

Bopp confirms that he and his clients, relying on White, have been filing suits based on judges’ responses that they can’t answer the questionnaires because of judicial canons. And they have been remarkably successful.

“We’ve challenged a number of canons,” he said, including those prohibiting judges from making campaign pledges and promises, and those prohibiting judges from committing themselves to certain positions once they are on the bench.

“The regulators and/or the courts in interpreting these clauses were prohibiting judges from announcing their views. My view is that’s just cut and dry. The Supreme Court said you can announce your views and they can’t prohibit it through some other clause.”

Bopp also believes recusal and solicitation clauses are vulnerable to First Amendment attack and he is waging those attacks in the Kansas lawsuit.

A federal trial judge recently issued a temporary injunction in the Kansas suit after finding that the plaintiffs are substantially likely to succeed on the merits of their claim that the pledge and promise and commit clauses unconstitutionally chill a substantial amount of protected speech.

The court also found that plaintiffs are substantially likely to show that the clause barring solicitation of campaign funds is underinclusive and fails to address problems of partiality that are inherent in a system of judicial elections. However, the court rejected the plaintiffs’ challenge to the recusal canon.

Recusal should not be required, said Bopp, where a judge has expressed a view on an issue but says he or she can keep an open mind. And solicitation clauses should not be used to bar a judicial candidate from seeking signatures on a nomination petition, he added.


On the opposite side of Bopp in the Kansas and Indiana lawsuits is George T. Patton Jr. of the Washington office of Indianapolis’ Bose, McKinney & Evans.

The Kansas case is now pending appeal of the injunction in the 10th U.S. Circuit Court of Appeals. Kansas Judicial Watch v. Stout, No. 06-3290.

In Pennsylvania, a federal district judge dismissed the challenge to the pledge and promise and commit clauses after finding that the plaintiffs had no standing. That case is pending appeal in the 3rd Circuit. Pennsylvania Family Institute v. Black, No. 05-5259.

And a suit in which Bopp successfully challenged those clauses in the Alaskan code of judicial conduct is pending appeal in the 9th Circuit. Alaska Right to Life PAC v. Feldman, Nos. 05-35902, 05-36027.

Patton noted that challenges to those clauses succeeded in Kentucky, which settled the lawsuit after the 6th Circuit denied its appeal of the injunction in that case, and in North Dakota, which decided not to appeal.

In the Indiana case, Patton said, he is awaiting a ruling on his motion to dismiss for lack of standing. The plaintiffs are Indiana Right to Life and an individual who is not a judge or judicial candidate.

Patton said that he spoke to all of the judges who received a questionnaire and they said that despite their First Amendment right to speak on those issues, they chose not to answer. Indiana Right to Life then asked to depose the judges. The trial judge denied his motion for a protective order.

“This is what judges need to know — the goal is to get them under oath and to ask: Did you contact the ethics commission and did the commission tell you not to answer? If there were no canons, would you answer?” said Patton. “They are trying to take a right and make an obligation out of it.”

In 2002, the Supreme Court in its White decision could not have envisioned fallout from its ruling such as judges being deposed, detailed questionnaires being sent by special interest groups and the breadth of the pending legal challenges, said Patton.

“In the White opinion, Justice [Antonin] Scalia makes very clear the distinction between the announce clause and the pledge and promise and commit clauses,” he said. “It shows that once you get a foot in the door, you try to crack the door more widely open.”

And Bopp apparently has a large foot. Next on his list, he said, are First Amendment challenges to state rules prohibiting judicial candidates in nonpartisan competitive and retention elections from identifying their political party preference.

“It’s a real good shorthand for giving your general philosophy,” said Bopp, who recently filed such a lawsuit in Kentucky. “I think stating your party preference is indistinguishable from announcing your views.”