Archive for November, 2006

LawReader posts 30 new Ct. of Appeals decisions Nov. 24th.

Friday, November 24th, 2006

Stay current with new court rulings. LawReader posts all decisions without hours with synopsis. To join LawReader go to and sign up online for only $34.95 per month.

1 RECUSAL: The question of recusal should have been brought “immediately upon discovery of the facts upon which the disqualification rests

2 to be published: juvenile law: the infancy defense has been displaced by the enactment of Kentucky’s statutory scheme.

3 oral settlement agreement – eviction: When parties have agreed on the essential terms of a settlement, and all that remains is to memorialize the agreement in writing, the parties are bound by the terms of the oral agreement.?
4 sentencing: – if a defendant commits a felony while on probation for a prior felony, the sentence on the second felony may not be run consecutively with the sentence on the first felony

5 discovery – obstensible agency of physician: the principles of ostensible agency are generally applicable in the context of treatment at hospital emergency room “absent evidence that the patient knew or should have known that the treating physician was not a hospital employee when the treatment was performed (not afterwards).? (i.e.  Under doctrine of ostensible agency emergency room physician presumed to be agent of hospital.)
6 maintenance: the family court’s findings of fact in support of its maintenance decision are not clearly erroneous and, in light of those findings, it did not abuse its discretion in declining to award Joy maintenance

7 to be published:  bankruptcy discharge of notes:the attempted payment of the promissory notes, which payment was later set aside as a preference in bankruptcy, did not operate to discharge the notes or the co-makers’ obligation to pay them
8 11.42 motion denied :( Flashlight Rapist) 11.42 motion denied: conclusory allegations unsupported by specific facts do not justify the court conducting an evidentiary hearing
9 sovereign immunity: Claim precluded by KRS 65.2001, “a local government shall not be liable for injuries or losses resulting from: Any claim arising from the exercise of judicial, quasi-judicial, legislative or quasi-legislative authority or others, exercise of judgment or discretion vested in the local government,..?

10 marital property – maintenance: We will only reverse an award of maintenance if we find that the trial court abused its discretion or based its decision on findings of fact that are clearly erroneous

11 challenge to a fine: the proper procedure for challenging the inclusion of the fine in the final judgment was a motion pursuant to Ky. R. Crim. P. 8.10 to withdraw guilty plea and, if necessary, a direct appeal from the denial of the motion. (Not a 60.02 motion.)

12 death voids maintenance award: KRS 403.250 is clear and unambiguous. If the maintenance obligation is to extend beyond death, it must expressly be so provided in the decree, or it must otherwise be agreed to in writing.
13 custody determination under krs 403.430: The court erred by treating the dispute as one of custody modification under KRS 403.340 rather than a custody determination under KRS 403.270, findings of fact were required to be made

14 easement: The circuit court was acting within its jurisdiction and authority in ordering Christ Church to remove all modifications to the physical surface of the 60-foot easement.
Great Quote by Judge Taylor: “Christ Church’s attempt to relitigate the enforceability of the Tandys’ easement through semantical gerrymandering is disingenuous at best.?
15 pedicurist’s liability release form held ineffective: The language of the release is too vague for an ordinary patron to determine that protection from negligence is the only reasonable construction. 
16 suspension of visitation: Mr. Collins alone is responsible for the continued suspension of visitation due to his failure to comply with the evaluation order of the family court judge

17 HIPPA: there is no private right of action under HIPAA. for dissemination of urine test results to prison officials

18 REVOCATION  JURISDICTION FOR PRE-TRIAL DIVERSION: the court here did not lose jurisdiction to revoke McElroy’s pretrial diversion

19 SUBJECT MATTER JURISDICTION: the circuit court did not have jurisdiction over this case. As the indictment contained only misdemeanor charges, the district court’s jurisdiction would necessarily be exclusive.  Editors note:  The Court of Appeals apparently means that due to the pardon of Groves by Gov. Fletcher, the indictment must be dismissed, but only the District Court has jurisdiction to dismiss, and it was improper for the Circuit Court to assume that function.

20 SUBJECT MATTER JURISDICTION: the circuit court did not have jurisdiction to dismiss the indictment which only contained misdemeanors offenses. Editors note:  The Court of Appeals apparently means that due to the pardon of  Fields by Gov. Fletcher, the indictment must be dismissed, but only the District Court has jurisdiction to dismiss, and it was improper for the Circuit Court to assume that function.

21 SUBJECT MATTER JURISDICTION: the circuit court did not have jurisdiction to dismiss the indictment which only contained misdemeanors offenses Editors note:  The Court of Appeals apparently means that due to the pardon of Disponett, the indictment must be dismissed, but only the District Court has jurisdiction to dismiss, and it was improper for the Circuit Court to assume that function.
22 Court to assume that function.

21 SUBJECT MATTER JURISDICTION: the circuit court did not have jurisdiction to dismiss the indictment which only contained misdemeanors offenses Editors note:  The Court of Appeals apparently means that due to the pardon of Hughes, the indictment must be dismissed, but only the District Court has jurisdiction to dismiss, and it was improper for the Circuit Court to assume that function.
23 due process for firing of police officer: the discharge (of the police officer) was not arbitrary based in no small part on Leonard’s own admissions as to his abuse of authority. Further, the court found that the hearing fully complied with the requirements of KRS 15.520.
24 change of custody: the trial court properly determined that Penny did not meet the statutory requirements to warrant a change in custody

25 sentencing: if a defendant commits a felony while on probation for a prior
felony, the sentence on the second felony may not be run consecutively with the sentence on the first felony
26 joint custody: an inability of the parties to cooperate on matters concerning the children  is an ample basis for the trial court to have exercised its discretion and decided against joint custody
27 statute of limitations legal malpractice: The legal negligence (malpractice) limitations period is one year from the date of injury

28 60.02 relief: Except for shock probation, the trial court does not have jurisdiction to probate a defendant post-conviction. Claim for 60.02 relief improper.
29 joint custody: the circuit court did not abuse its discretion in awarding joint custody of the parties’ daughter with the child’s mother as primary residential custodian and, inasmuch as Hall failed to preserve the issue of the adequacy of the court’s factual findings

30 worker’s comp: the Board properly deferred to the ALJ’s prerogative as sole arbiter of the weight, credibility, substance and inferences to be drawn from the evidence

New copyright rules. You can now change software in your cell phone to change to another carrier.

Friday, November 24th, 2006

The Copyright Office obtained approval by the Library of Congress  of a new copyright rule that allows owners of  cell phones to break the software locks on their handsets to use them with competing carriers under new copyright rules that will stay in effect for three years.
So if you have a cell phone you like and a provider you don’t, just go to the new carrier and they can change the internal software coding to allow you to use your old phone with the new carrier.
Another rule adopted this week will allow “film professors to copy snippets from DVD’s for educational compilations, and another rule that will allow blind people to use software to read copyprotected electronic books.
The Library of Congress, headed by James Billington, did not approve a rule to allow copying of DVDS on iPods.

LawReader posts synopsis of 51 Ky. Sup. Ct. rulings.

Thursday, November 23rd, 2006

LawReader has posted a complete synopsis of all 51 Ky. Supreme Court rulings issued this week. LawReader subscribers can read the full synopsis and the full text of each case. To subscribe go to and sign up online.
This is the greatest collection of Ky. law you can access online.  Updated daily. Only $34.95 per month.



1 RODNEY MCDANIEL is hereby permanently disbarred
2 PATRICK HERMAN NOBLE  APPLICATION for reinstatement granted
3 DAVID S. O’BRIEN suspended for 90 days.
6 SHERIDAN MARTIN is suspended from the practice of law in Kentucky for a period of two years


7 TO BE PUBLISHED: WARRANTLESS SEARCH: of physician’s office violated 4th Amendment
8 TO BE PUBLISHED: REAL ESTATE DISCLOSURES:(T)he party claiming harm must establish six elements of fraud by clear and convincing evidence as follows: a) material representation b) which is false c) known to be false or made recklessly d) made with inducement to be acted upon e) acted in reliance thereon and f) causing injury
9 TO BE PUBLISHED: LABOR : individuals who are employed in a bona fide supervisory capacity are not “employees” at all under KRS 337.285
11 TO BE PUBLISHED: EVIDENCE: DNA evidence improperly admitted, but found to be a harmless error since no prejudice resulted to defendant.
12 TO BE PUBLISHED: LICENSE TO PRESCRIBE DRUGS LIMITED: a licensed dentist with a required DEA permit does not have the lawful authority to prescribe controlled substances to non-patients for non-medical reasons in return for payment in the form of the illicit drugs. KRS 218A.1404 is applicable and the indictment is valid.
13 TO BE PUBLISHED:  HARMLESS ERROR: we find it was an abuse of discretion for the trial court to admit evidence of firearms for which no connection to the drug trafficking scheme was shown.  —-Although the trial court erred in admitting the testimony and photographs of the firearms, any error in this circumstance was harmless
14 TO BE PUBLISHED:  FORFEITURE OF FIREARMS:when Commonwealth seeks to obtain forfeiture of firearms allegedly used in furtherance of a violation of KRS Chapter 218A, the Commonwealth bears the initial burden of producing some evidence, however slight, to link the firearms it seeks to forfeit to the alleged violations of KRS 218A. The burden only shifts to the opponent of the forfeiture if the Commonwealth meets its initial tracing burden .
15 COMPETENCY HEARING: the trial court erred in failing to conduct a competency hearing
16 ALL FEMALE JURY NOT DISCRIMINATORY: Exclusion of all men from jury panel not denial of equal protection. Defendant did not object when 12 women were seated.
18 TO BE PUBLISHED:  NUDE DANCING ORDINANCE:Ordinance regulating Nude Dancing upheld.
19 TO BE PUBLISHED:  PLAIN FEEL SEARCH Exceeded exception to 4th. Amendment  – the plain feel exception was inapplicable because “[p]rior to inspecting the pill bottle removed from Jones’s pocket, the officer had no way to know whether or not Jones had a valid prescription for the medicine in the bottle..
20 TO BE PUBLISHED:  NO FAULT STATUTE OF LIMITATIONS: The No-Fault automobile two-year statute of limitation (due to misrepresentation of defendant) did not begin to run until Plaintiff received notice of the true facts
21 addendum to #14 above
22 addendum to #13above
23 TO BE PUBLISHED:  Under the “UNDERTAKER’S DOCTRINE .” one who undertakes to render services for the protection of third persons liability for failure to exercise reasonable care, providing certain requirements are met.
24 *HARMLESS ERROR: Judge answered question of jury out of presence of defendant and attorneys. Majority held it to be a harmless error. See Editors note of 4-3 decision.
25 EXPERT WITNESS–LAY WITNESS: the trial court erred when it allowed Sheriff Charlie Maiden to testify to matters requiring expert knowledge without qualifying him as an expert
26 CHANGE OF VENUE – PRE-TRIAL PUBLICITY: The “mere fact that jurors may have heard, talked or read about a case does not require a change of venue, absent a showing that there is a reasonable likelihood that the accounts or descriptions of the investigation and judicial proceedings have prejudiced the defendant . . .
27 11.42 MOTION: RCr 11 .42 is not to be used as a vehicle to raise issues which could have been raised on direct appeal
28 *  TO BE PUBLISHED:  SUMMARY JUDGMENT ON NOTE MARKED PAID: Borrower in possession of mortgage marked PAID by the Bank entitled to summary judgment 
29 PEREMPTORY STRIKE : Objection to peremptory strike of juror not objected too.
30 OUT-OF-COURT IDENTIFICATION . “[a] single-person-show-up identification is inherently suggestive …But this sort of identification is not always inadmissible
31 DOUBLE JEOPARDY: Because the jury found him guilty of the wanton murder Appellant  CORRECTLY contends that a conviction for wanton endangerment arising from the same course of conduct would constitute double jeopardy
32 DEFENDANT UNIFORMED AT PLEA: Error for court to fail to hold evidentiary hearing when attorney stated at time of plea that client was uninformed about facts of case.
33. addendum to prior case
34 *  TO BE PUBLISHED:  EXECUTION BY LETHAL INJECTION:The lethal injection method used in Kentucky is not a violation of the Eighth Amendment to the United States Constitution or Section 17 of the Kentucky Constitution’s ban on cruel and unusual punishment
35 TO BE PUBLISHED:  FAILURE TO ENTER OBJECTION: prejudice to the defendant MAY NOT be presumed from trial counsel’s failure to object to the allocation of an inadequate number of peremptory challenges.
36 INVESTIGATORY POWERS OF POLICE:There was no requirement that the police contact Scott’s attorney who represented him on unrelated charges prior to investigating the possible sexual assault
37 MISTRIAL – DOUBLE JEOPARDY: It is not enough that the prosecutor erred or even acted intentionally for there to be bad faith. The prosecutor must act with intent to provoke the defendant into moving for a mistrial in order to have a better chance at convicting the defendant in a subsequent trial
38 no palpable error
39 AMENDMENT TO THE INDICTMENT: was made during his first trial, without objection…NO ERROR
40 * TO BE PUBLISHED:   MARRIAGE: we cannot agree that the legislature has declared that the marriage of a female under the age of 16 is against the public policy of Kentucky.
41 JURY INSTRUCTION: The JURY instruction was appropriate given the facts of this case.
42 JURORS – PRIOR BAD ACTS – “[A defendant] does not have a constitutional right
to have a particular person sit as a juror. He merely has the right to have a particular class of persons on the jury and the right to exclude certain individuals.  –   A trial court has discretion to allow evidence of convictions more than ten years old
44 INTENT TO COMMIT CRIME:  this Court adopted the standard that “substantial steps . . . are overt acts’ . . . which convincingly demonstrate a firm purpose to commit a crime, while allowing police intervention, based upon observation of such incriminating conduct, in order to prevent the crime when criminal intent becomes apparent
45 SPEEDY TRIAL – 31 month delay in trial after indictment not prejudicial under these facts
46 DOUBLE JEOPARDY – WRIT OF PROHIBITION: This Court has determined that, while not mandatory, double jeopardy may be an appropriate subject
for a writ of prohibition

47 TO BE PUBLISHED:   REOPENING WORKER’S COMP CLAIM: Because KRS 342.125(1)(d) requires only a “worsening of impairment,” we have determined that the claimant was not required to prove a greater permanent impairment rating in order to receive permanent total disability benefits at reopening.
48 WORKER’S CLAIM: worker’s claim was timely filed
49 WORKER’S CLAIM:  an ALJ has discretion to grant a voluntary dismissal without prejudice
50 WORKER’S CLAIM:  An Administrative Law Judge (ALJ) correctly dismissed a claim for death benefits after finding that James Tussey failed to follow competent medical advice, that his behavior was unreasonable, and that it caused his death.
51 WORKER’S CLAIM:  As the party seeking additional benefits, it was the claimant’s burden to convince the ALJ that she had become totally disabled at reopening .

Justice Sandra Day O Connor regrets her 2002 vote allowing judges expression of their political views in Minnesota v. White

Thursday, November 23rd, 2006

By Paul Greenberg   Tribune Media Services
The latest critic of a Supreme Court ruling turns out to be the justice who supplied the key vote in its favor: Sandra Day O Connor.Addressing a legal conference in Texas, the former associate justice of the U.S. Supreme Court had some second thoughts about her opinion in Minnesota v. White back in 2002, which struck down that state’s restrictions on judges’ expressing their political views in campaigns for the bench.

The case was decided 5 to 4, and Justice O’Connor’s concurring opinion made all the difference.
Renowned in her time on the court as its swing vote, she’s now swinging back.What do you suppose has changed her mind, or at least softened her opinion?
Well, the former associate justice has been on a crusade since she left the court. She’s concerned about threats to the independence of the American judiciary, as all of us should be. As usual, the threat comes from those who believe we the fickle people should be able to repeal unpopular decisions at will, or recall judges who deliver unpopular opinions, and in general subject fundamental law to the transient moods of ever-shifting public opinion.It may have occurred to Justice O’Connor, too late, that judges, too, can threaten the independence of the judiciary. Because when judicial candidates start holding forth on the issues of the day, they become like all other politicians, and the judiciary becomes just as politicized as the legislative and executive branches of government.

There’s a reason judges, like military officers, accept restrictions on their political speech: because they have the personal dignity and political impartiality of their profession to uphold. When the judiciary is no longer considered above the passions and machinations of ordinary politics, neither is the law, and something of inestimable value is lost to a society that rests on the rule of law.
Justice O’Connor says she isn’t in the habit of revisiting her opinions on the bench, but it sounds as if she’s making an exception for this one. Minnesota v. White, she notes, “has produced a lot of very disturbing trends in state election of judges.”She was doubtless referring to the unseemly electioneering, complete with vicious advertising, that has started to characterize judicial races across the country in the wake of Minnesota v. White.

Justice O’Connor long has opposed the election of judges in the first place. (After all, she was appointed to the judiciary, so that must demonstrate the superiority of appointed judges.) But in Minnesota v. White, she seems to have gotten carried away by her animus toward an elected judiciary. If some states insist on electing their judges, she ruled, then they must allow judicial candidates to campaign on the issues as freely – and irresponsibly – as other politicians.States that elect their judges, Justice O’Connor as well as said, deserve whatever happens to them – and to respect for their law.

It was not a very thoughtful opinion, which is what happens when judges get carried away by their passions, in this case a prejudice against an elected judiciary.
By freeing judges of limits on their speech, Justice O’Connor invited the demagoguery that may be the greatest threat to the judicial independence she so cherishes. Hers was a very logical decision in Minnesota v. White – too logical. Like any extreme of reason separated from experience, it lost touch with reality.Here in Arkansas, there’s a perfect example of a judge who, by taking political stands on everything from the war in Iraq to the University of Arkansas basketball program, seems to have set out to systematically undermine the public’s faith in the impartiality of the judiciary. Rather than being above political passions, His Honor Wendell Griffen of this state’s Court of Appeals has come to embody them.
By now this Great Pontificator has handed down extra-judicial opinions on military tribunals, the federal government’s performance in Katrina’s aftermath, the suitability of John Roberts’ appointment as chief justice of the United States Supreme Court, the state’s minimum wage … and, well, one loses count.Suffice it to note that Judge Griffen’s political comments have inspired more than 10 investigations by the state’s judicial discipline commission, plus at least one protracted court case.

Every time he makes one of his provocative speeches, the judge waves Minnesota v. White around like a permission slip to demagogue the issues as much as he likes.
But courts do reverse course. Just as Sandra Day O’Connor seems to have changed hers. And a couple of new justices have joined the Supreme Court since her time on the bench. There is hope that reason, the kind buttressed by experience, will yet triumph.Paul Greenberg is the Pulitzer prize-winning editorial page editor of the Arkansas Democrat-Gazette. His e-mail address is pgreenberg@

U.S. Justice Department prosecutes Chicago politico for merit system violations but so far gives Republican Fletcher a free pass.

Tuesday, November 21st, 2006

          The U.S. Department of Justice prosecuted a Democratic official in Chicago for virtually the same offense for which Kentucky Governor Fletcher and his indicted, but pardoned, workers got a free pass.  Robert Sorich a Democratic worker for Chicago Mayor Richard Daley, was sentenced on Nov. 13th. to 46 months in Federal prison.  See news story at Chicago Tribune story on sentencing of Robert Sorich.

      In Kentucky, when his administration was charged with similar offenses, Republican Governor Ernie Fletcher issued a blanket pardon to all state workers and party officials who were indicted for merit system violations. 

Fletcher won several favorable court rulings, one of which held that a Governor could not be prosecuted for a crime while he was in office.  Shortly before Fletcher’s scheduled trial in State Court he entered into a plea agreement with the blessing of the Attorney General, a Democrat, and avoided prosecution.
 Fletcher has subsequently criticized the work of the Grand Jury that indicted him.

 The plea bargain entered to by Gov. Fletcher does not prevent the U.S. Department of Justice from investigating Fletcher and his administration and prosecuting them for Title 18 violations of the United States Code. 

See: Excerpt from Federal Indictment charging  Sorich rewarded political cronies with City jobs and promotions in violation of civil service laws.  

The U.S. Attorney for the Eastern District of Kentucky Amul Thapar, who was appointed by President Bush, would have jurisdiction to investigate and prosecute Fletcher.  Many of the funds used to pay the workers alleged in the Kentucky indictments were at least partially Federal funds budgeted to the Ky. Dept. of Transportation.  Such a use of federal funds provided the grounds for the Justice Department to intervene into the political hiring practices of the administration of the City of Chicago. Thapar when appointed U.S. Attorney made the pointed statement that “nobody was above the law?.  It is not known if he intends to pursue an investigation of the Fletcher Administration.

   A failure of the Justice Department to take these offenses seriously in Kentucky will surely raise the question that the Justice Department appears more willing to prosecute Democrats in the State of Illinois then it does Republicans in Kentucky, even though the alleged crimes appear identical. 
 Sorich gets 46 months . Daley’s ex-patronage chief refuses to apologizeBy Dan Mihalopoulos and Rudolph Bush
Chicago Tribune staff reporters  -  Published November 21, 2006
Mayor Richard Daley’s former patronage chief stood defiant Monday as he was sentenced to almost 4 years behind bars for his central role in a political hiring scheme at City Hall.

A longtime City Hall insider from Daley’s Bridgeport power base, Robert Sorich pointedly refused to apologize for his crimes before the judge slapped him with a 3-year, 10-month sentence.
“I just want to stand before the court and my family and friends and let them know I am not a broken man,” said Sorich, 43.

“I tried to do my best, and I tried to be fair,” Sorich said of his 12 years as a top aide in Daley’s Office of Intergovernmental Affairs.

U.S. District Judge David Coar rejected that, saying Sorich sat near the top of a hiring system that amounted to “corruption with a capital `c.’”

“If I thought that by sentencing you I could stop this type of hiring corruption in the city of Chicago, I would throw this building at you…. But it won’t,” the judge told Sorich during an emotional hearing.

Monday’s sentencing almost certainly is not the final chapter of an investigation that has reached into the mayor’s office. During Sorich’s trial, prosecutors said that others involved in the hiring fraud would face justice. On Monday, prosecutors again suggested that they have developed evidence against higher-ranking former city officials in Daley’s administration.

Coar gave Sorich a more lenient sentence than the 5 years, 11 months that prosecutors had sought. Sorich’s lawyers had asked that he receive probation.

Sorich and two other former city officials, Timothy McCarthy, 39, and Patrick Slattery, 43, were convicted in July of rigging city hiring to ensure that Daley’s political loyalists received well-paying blue-collar jobs and promotions. A fourth man, former Streets and Sanitation Managing Deputy Commissioner John Sullivan, 39, was convicted of lying to federal agents.

“The people of the city deserve better,” Coar told Sorich. “Frankly, I don’t give a hoot if this has been going on for the past 200 years. It still stinks.”

Coar sentenced Slattery, Sorich’s best friend, to 2 years, 3 months in prison. McCarthy received an 18-month sentence, and Sullivan must serve 2 months in custody and 4 months in home confinement.

Unlike Sorich and Slattery, McCarthy and Sullivan have cooperated with prosecutors in the ongoing federal investigation.

Ties to the Daley family

Sorich, Slattery and McCarthy have long-standing ties to the Daley family’s 11th Ward Democratic Organization. Sullivan is from the Beverly neighborhood.

Daley has denied any knowledge of corruption in his administration, but Monday’s sentences are the latest blow in an investigation that has struck at the heart of his political machine.

In the courtroom packed tightly with supporters of the four defendants, there were starkly different views of how serious a crime–if any crime at all–was committed when the men helped pro-Daley political workers get city jobs.

With his own courtroom overflowing, Coar moved the hearing to the large ceremonial courtroom in the Dirksen U.S. Courthouse to accommodate about 200 supporters of the four defendants.

Family members, friends, priests and co-workers of the defendants faced Coar as he sat alone on a curved bench designed for a large panel of judges. Coar acknowledged the crowd and the “incredible number” of letters he received on behalf of the defendants.

But he also sounded a warning to those who believed the men did not deserve their fates or that they had not committed crimes. “A jury has found otherwise,” he said.

The tense crowd listened as Sorich’s lead attorney, Thomas Anthony Durkin, returned to themes he sounded throughout the trial–that overzealous prosecutors want to criminalize politics and topple Daley.
 Excerpt from Federal Indictment charging  Sorich rewarded political cronies with City jobs and promotions in violation of civil service laws.

 Violations: Title 18, United States Code,
 17.                   It was part of the scheme that: 
A. SORICH together with Individual A and others, engaged in a systematic effort to provide financial benefits, in the form of City jobs and promotions, in exchange for campaign work. In addition, in some cases SORICH and others rewarded other favored persons and groups with City jobs and promotions. As part of this scheme, SORICH (and, beginning in or about 2001 when he assumed his role at IGA, McCARTHY) corrupted the City’s personnel process by directing the awarding of jobs and promotions in non-policymaking positions to candidates pre-selected by IGA through sham and rigged interviews coordinated by Personnel Directors and conducted by Interviewers.
B.         Campaign Coordinators met with SORICH, and beginning in 2001 with McCARTHY, to submit the names of workers for whom the Campaign Coordinators sought favorable jobs or promotions. SORICH and McCARTHY accepted the submitted names and weighed competing requests from Campaign Coordinators. 
C.         SORICH and McCARTHY selected those candidates who were to receive jobs or promotions, in return for campaign-related work and in some cases because of other favored status. SORICH and McCARTHY forwarded these names to Personnel Directors to award positions to those individuals pre-selected by IGA. SORICH and McCARTHY knew and understood that the pre-selected candidates would be awarded positions through the false and fraudulent manipulation of interview scoring and without regard to written criteria in place to evaluate candidates for no policymaking positions. 

International Law is United States Law too.

Tuesday, November 21st, 2006

JURIST Guest Columnist Benjamin Davis of the University of Toledo College of Law says that despite recent disparaging comments by US Homeland Secretary Michael Chertoff, international law is also American law, and we must respect our obligations as citizens of the international community, not arbitrarily dismiss or avoid them so as to facilitate torture of detainees or other wrongful acts…

In a recent speech to the Federalist Society, US Homeland Security Secretary and formal federal judge Michael Chertoff said: “International law is being used as a rhetorical weapon against us,”

Chertoff cited members of the European Parliament in particular as harboring an “increasingly activist, left-wing and even elitist philosophy of law” at odds with American practices and interests. But he also said the same pattern could be seen in the policies of the United Nations and other international bodies.

“What we see here is a vision of international law that if taken aggressively would literally strike at the heart of some of our basic fundamental principals — separation of powers, respect for the Senate’s ability to ratify treaties and … reject treaties,” Chertoff said.

This speech of Secretary Chertoff is a very important for Americans to ponder because it highlights one of the key aspects of international law – horizontal enforcement: other states (and international bodies through which those states operate) pushing one state to comply with international law obligations as each of those states determine what those obligations are.

At the same time, what the vision of Secretary Chertoff simply does not appreciate is the internal capacity of American citizens to join with those external voices to insist on compliance by the United States with international law obligations. Or maybe, Secretary Chertoff is making an effort to create division between those Americans who support international law and non-Americans – appealing to nationalist sentiment in a hope of dividing and conquering. It is an old tactic.

It is important that internally we speak with great force about the need for the United States to comply with its obligations. We must have fire in our belly, as Justice Robert Jackson said in a speech to the American Society of International in 1945.

Key to Chertoff’s vision is his limited sense of the Common Article 3 standard of detainee treatment under the Geneva Conventions. In international law, however, there is a wonderful rule that no state can avail itself of its internal law to extract itself from its international obligations.

Chertoff and the New Sovereigntists are seeking to subvert that rule to make United States internal law flow throughout the world as their unique vision of the only law that is to be respected.

Now, it is possible for state practice to evolve – and the United States may seek to make state practice evolve – so that torture, cruel inhuman and degrading treatment and other barbarities are considered fine in international law. However, it is also possible that Americans and foreigners and parts of the American government and foreign governments may resist such a development by pushing the United States to comply with the spirit and letter, object and purpose of its international law obligations.

We must resist Chertoff’s vision, for in that vision the result is precisely what we fought our American Revolution to avoid – the individual being put at the mercy of an all powerful state controlled by an all powerful leader.

We can only hope that by continued pressure on our elected leaders, the bureaucracy, the Presidency and the courts we can help these persons understand that international law is OUR law and they as well as us are to comply with that law.

Thus, when Chertoff as head of the Criminal Division of Justice gave advice and comfort to torturers in other government agencies by agreeing that if certain harsh interrogation techniques were used then the Criminal Division would not prosecute, he should understand that as a matter of domestic (war crimes) and international law that was wrong.

But the domestic law doctrine of prosecutorial discretion which might be of avail in a domestic arena would be of no help to him in a prosecution on the international plane for aiding and abetting torture and cruel, inhuman and degrading treatment.

And a day of reckoning is coming. Chertoff should dare to travel to Europe.

Similarly the Military Commissions Act’s attempt to pervert the Third and Fourth Geneva Convention is of no avail in extracting the United States from its international obligations.
Benjamin Davis is a professor at the University of Toledo College of Law


NEW WORDS: Essential vocabulary additions for the Workplace Environment.

Tuesday, November 21st, 2006

1. BLAMESTORMING: Sitting around in a group, discussing why a deadline
  Was missed or a project failed, and who was responsible.
  2. SEAGULL MANAGER: A manager, who flies in, makes a lot of noise, Craps on everything, and then leaves.
  3. ASSMOSIS: The process by which some people seem to absorb success
  And advancement by kissing up to the boss rather than working hard.
  4. SALMON DAY: The experience of spending an entire day swimming upstream
  only to get screwed and die in the end.
  5. CUBE FARM: An office filled with cubicles
  6. PRAIRIE DOGGING: When someone yells or drops something loudly in a cube farm, and people’s heads pop up over the walls to see what’s going on.
  7. CROP DUSTING: Surreptitiously passing gas while passing through a Cube Farm.
     8. SITCOMS: Single Income, Two Children, Oppressive Mortgage. What Yuppies get into when they have children and one of them stops working to stay home with the kids.
  9. STRESS PUPPY: A person who seems to thrive on being stressed out and whiny.
10. SWIPEOUT: An ATM or credit card that has been rendered useless because magnetic strip is worn away from extensive use.
  11. XEROX SUBSIDY: Euphemism for swiping free photocopies from one’s workplace.
  12. IRRITAINMENT: Entertainment and media spectacles that are Annoying but
  you find yourself unable to stop watching them.
 The J-Lo and Ben wedding (or not) was a prime example – Michael Jackson, another…
  13. PERCUSSIVE MAINTENANCE: The fine art of whacking the crap out of an
  electronic device to get it to work again.
  14. ADMINISPHERE: The rarefied organizational layers beginning just above
  the rank and file. Decisions that fall from the  adminisphere are often
  profoundly inappropriate or irrelevant to the problems they were designed
  to solve.
  15. 404: Someone who’s clueless. From the World Wide Web error Message
  “404 Not Found,” meaning that the requested site could not be located.
  16. GENERICA: Features of the American landscape that are exactly the
  Same no matter where one is, such as fast food joints, strip malls, and subdivisions.
  17. MOUSE POTATO: The on-line, wired generation’s answer to the couch potato.
  18. WOOFS: Well-Off Older Folks.
  19. OHNOSECOND: That minuscule fraction of time in which you realize that
  you’ve just made a BIG e-mistake. (Like after hitting send on an e-mail by



When the Supreme Court Lost Its Conscience. Chief Justice Taney and the Dred Scott decision.

Tuesday, November 21st, 2006

The man behind Dred Scott, and his clash with Lincoln.

Even the most reasonably literate American may find it difficult to name more than three of the past chief justices of the U.S. Supreme Court. But of those three, one of them will almost certainly be Roger Brooke Taney, the author, in 1857, of the court’s most reviled decision, Dred Scott v. Sandford

Born in 1777 into an Annapolis family that had held land and slaves in Maryland since the 1660s, Taney had what one fellow lawyer, William Pinckney, irritably called the “infernal apostolic manner” of a man born with a silver spoon in his mouth. But Taney was also a talented lawyer, rising in 1827 to become attorney general of Maryland; three years later, he was named U.S. attorney general by President Andrew Jackson. 

It may seem odd to find Taney allied politically with Jackson, the paladin of the American common man. But the Jacksonian democracy was administered by the cream of America’s planter aristocracy–and that included Taney. In 1833, Jackson declared political war on the Second Bank of the United States, a fight that was the keystone of Jackson’s populist strategy to turn back the tide of the Industrial Revolution in America. And Taney was the only man in the president’s cabinet who supported Jackson’s move to defund the bank (by withdrawing federal tax-revenue deposits). The attorney general’s reward was a Supreme Court nomination in 1834 and confirmation as chief justice in 1836. 

In “Lincoln and Chief Justice Taney,” James F. Simon, who teaches at New York Law School, finds the roots of Taney’s opinions as chief justice in this passionate embrace of Jacksonian democracy. And to give it particularly sharp contrast, Mr. Simon plays Taney’s career against the career of the man with whom Taney was doomed to collide: Abraham Lincoln. Nearly everything about Lincoln ran in the opposite direction to Taney’s universe, and they ultimately came to smash over slavery. It was Lincoln’s abiding conviction that slavery was a violation of natural law, an iniquity that the Framers of the Constitution had intended to tolerate only long enough for it to die out peaceably. The federal government was obliged, Lincoln thought, to prod the process along with every weapon short of direct interference in the slave states. 


For Taney, black slavery was precisely what guaranteed the white man’s paradise so beloved of the Jacksonians. Although Taney had actually emancipated his own family slaves, he fully expected that Congress would descend into legislative paralysis the moment it began debating the morality of slavery. When it did, in the 1850s over the question of whether Congress could restrict the spread of slavery into the Western territories, Taney used the appeal of a Missouri slave, Dred Scott, to settle the controversy by judicial fiat. 

The opinion Taney wrote for the majority in Dred Scott not only guaranteed slaveholders’ ability to move slavery into the territories but also tacked on the gratuitous announcement that blacks were incapable of rising to the level of citizenship and therefore had no rights, under the Constitution, that could be violated by enslavement. 

This unwillingness to see anything wrong in slavery galled Lincoln, and when he was inaugurated as president in 1861 (with Taney administering the oath of office), Lincoln made brutally clear that his administration would not allow slaveholders to convert the territories into slave states. What followed, of course, was the Civil War. And almost as if Taney had no vision larger than the triumph of his own party, he used every legal wrench he possessed as chief justice to try to obstruct and cripple the Union war effort. 

When Union soldiers arrested a Confederate recruiter in Maryland, Taney attempted to spring him with a writ of habeas corpus. When blockade runners sued the federal government for seizing their cargoes, Taney tried to muster enough votes on the court to declare the blockade unconstitutional. He wrote memoranda denouncing Lincoln’s Emancipation Proclamation, the military draft and the administration’s war-finance measures; Taney then waited for appeals that would allow him to issue these memoranda as opinions. As Mr. Simon shows, the man who fashioned the legal weapons that armed Andrew Jackson against the Second Bank now denied another president the authority, as commander in chief, to save the Union. 

Mr. Simon’s long suit is his easy way with the complexities of 19th-century jurisprudence. As sympathetic as he struggles to be with Taney as a man, Mr. Simon leaves little doubt that Lincoln’s “broad exercise of executive power during the Civil War” properly balanced “the legitimate security needs of the nation under siege” against the “individual rights of its citizens.” 


On the other hand, Mr. Simon is less sure of himself in writing about Lincoln’s life and the Civil War. His chapters on Lincoln are so dense with detail that it is difficult to know which parts are relevant to the coming conflict with Taney. The author’s account of the Civil War years is pocked with simple errors: The Union commander at Stones’ River was William Starke Rosecrans, not Rosencrans, for instance, and Gen. George McClellan was stripped of overall command of the Union armies in March, rather than July, 1862. 

And Mr. Simon misses an important opportunity to ask whether, in the long run, Taney’s collision with Lincoln is proof that politics will always trump constitutional theory when it comes to deciding the fiercest of our controversies. We like to expect a lofty impartiality from our judiciary; in practice, we have hardly ever gotten it. Taney’s early years as chief justice, writes Mr. Simon, were marked by a “careful, pragmatic approach to constitutional problems.” But once issues with real political cash-value arrived on his docket, Taney could not resist a “rigid march to his doctrinaire conclusions.” 

Still, “Lincoln and Chief Justice Taney” is a forceful reminder that the Civil War was more than a conflict of soldiers and that, under the rule of law, the decisions of courts could make fully as much difference–and be fully as much of a struggle–as the results of battles. 

Mr. Guelzo, the author of “Lincoln’s Emancipation Proclamation,” is the director of Civil War Era Studies at Gettysburg College in Pennsylvania. You can buy “Lincoln and Chief Justice Taney” from the OpinionJournal bookstore.  


California Court limits Internet Defamation Liability

Tuesday, November 21st, 2006

Granting immunity to all but the initial sources of defamatory statements protects freedom of expression, state high court says.
By Maura Dolan,   Reprinted from Los Angeles Times                     SAN FRANCISCO — Internet users and providers cannot be held liable for posting defamatory material written by someone else, the California Supreme Court ruled unanimously Monday.

“The prospect of blanket immunity for those who intentionally redistribute defamatory statements on the Internet has disturbing implications,” Justice Carol Corrigan wrote for the court. But, she added, immunity “serves to protect online freedom of expression and to encourage self-regulation.”

Monday’s decision was consistent with holdings by many federal appeals courts and one other state high court. “The courts are now uniform,” said Ann Brick, who represented the American Civil Liberties Union of Northern California in the case.

But attorneys on both sides of the case said the California Supreme Court went further than other courts by giving immunity to all Internet users except the original author.

“What you couldn’t put in your print newspaper, you can put in your Internet newspaper,” said Christopher E. Grell, who represented two doctors who said they were defamed. “The notion of fact-checking and verifying things doesn’t apply to the Internet.”

Mark Goldowitz, the lawyer for the defendant, cited a line in the ruling that the decision brought “the law of libel from the Gutenberg era to the cyberspace era.”

Unlike hard-copy publications, the Internet allows users to “immediately respond and correct any harm,” said Goldowitz.

“Not everyone has a printing press, but everyone can start a blog or post on a news group.”

Although the court did not specifically address media websites, lawyers on both sides of the case said the ruling would protect newspapers and other media that report defamatory remarks by third parties on their websites but not on their pages or on air.

The decision overturned a Court of Appeal ruling and threw out a lawsuit claiming that Ilena Rosenthal, a San Diego activist for breast implant victims, defamed Dr. Stephen J. Barrett and Dr. Terry Polevoy on the websites of two news groups.

Barrett and Polevoy operated websites aimed at exposing health fraud in various kinds of alternative medicine. They said Rosenthal, a supporter of alternative medicine, made the postings even after she was told they were libelous.

Rosenthal wrote in one posting that Barrett, a retired psychiatrist in Philadelphia, was “arrogant, bizarre, closed minded; emotionally disturbed, professionally incompetent, intellectually dishonest … a quack, a thug, a bully, a Nazi.”

She similarly described Polevoy, who works in Canada, and accused him of making antiSemitic remarks.

An Alameda County Superior Court judge threw out the doctors’ lawsuit against Rosenthal, ruling that her postings involved the public interest and for the most part contained no assertions that could be proven false.

But the court determined that one statement in an article Rosenthal received from Tim Bolen, subtitled “Opinion by Tim Bolen,” was problematic. The article accused Polevoy of stalking a Canadian radio producer.

The trial court decided nonetheless that Rosenthal could not be held liable because she had not written the original posting.

A libel case against Bolen for first making the stalking allegation is pending. Bolen describes himself as a crisis management consultant and health advocate.

In ruling for Rosenthal, the California Supreme Court interpreted a provision of the Communications Decency Act of 1996. Although many courts have ruled on the provision, the Rosenthal case was the first in which an Internet user with no responsibility for the site carrying the posting claimed federal immunity.

The court explained that Internet defamation law differs from that of other media.

“Book, newspaper or magazine publishers are liable for defamation on the same basis as authors,” Corrigan wrote. “Book sellers, news vendors or other ‘distributors’ … may only be held liable if they knew or had reason to know of a publication’s defamatory content.”

Congress “chose to protect even the most active Internet publishers, those who take an aggressive role in republishing third-party content,” she wrote.

She also cited practical reasons for ruling in favor of Internet freedom. If California permitted defamation suits against those who post others’ work, the state could be inundated with lawsuits.

“Adopting a rule of liability … would be an open invitation to forum shopping by defamation plaintiffs,” Corrigan wrote.

She said the threat of liability also would reduce the flow of ideas on the Internet. “The volume and range of Internet communications make the ‘heckler’s veto’ a real threat,” Corrigan said.

Grell, who represents the doctors, said he has not yet decided whether to appeal to the U.S. Supreme Court. Noting that the court twice referred to blanket immunity as troubling, the lawyer said Congress should now amend the law to increase Internet accountability.

The case generated many friend of the court briefs, including those from Google, EBay, Microsoft Corp. and law professors who specialize in Internet law. They all sided with Rosenthal.

Congress intended “to promote a vibrant and robust Internet fostering the principles of free speech,” Michael Kwun, Google’s senior litigation counsel, said in praising the court’s action.

Rosenthal did not return a call for comment Monday but said on a website that she was gratified by the ruling. She described the litigation as “exhausting” and said it was “intended to silence my voice and exhaust my resources.”

Times staff writer Chris Gaither contributed to this report.


No. Ky. Bar Association to honor two lawyers, seven judges

Monday, November 20th, 2006

Ky Post staff report 

Two attorneys will receive awards and seven judges will be honored at the Northern Kentucky Bar Association’s annual gala/dinner dance Dec. 1. 

William T. “Bill” Robinson III, the director of the Northern Kentucky office of Greenbaum Doll and McDonald, is this year’s winner of the Distinguished Lawyer Award. 

One of Robinson’s former partners, E. Andre Busald, said, “Some say Bill is the Tiger Woods of lawyers. I say Tiger Woods is the Bill Robinson of golfers.” 

Asa Rouse, of Walton, is this year’s recipient of the Lifetime Achievement Award. Rouse retired in 1994 after 41 years of law practice. He is being honored for his years as a trial lawyer, his commitment to justice and influence on younger lawyers. 

The association will also honor the following judges: Kentucky Supreme Court Justice Donald Wintersheimer; Campbell County judges William Wehr and Leonard Kopowski; Kenton County judges Frank Trusty and Douglas Stephens; and Harrison County judge William Probus. 

Incoming Northern Kentucky Bar Association chair Christine Sevindik will begin her tenure at the event 

Bi-partisanship has been strangled in the cradle on Judicial nominee vote issue.

Monday, November 20th, 2006

ABC news has reported that Sen. McConnell, the Senate’s next Republican leader,  issued a veiled threat to block action on legislation if Democrats refuse to allow confirmation votes on President Bush’s troubled judicial nominations.

Sen. Mitch McConnell of Kentucky, who will become minority leader Jan. 4, told the conservative Federalist Society Friday not to feel bad about the Senate election results because Republicans will hold 49 seats in a body that requires 60 votes to end a filibuster and bring legislation or presidential nominees to a final vote.

If the “Democrats want our cooperation, they’ll give the president’s judicial nominees an up-or-down vote,” McConnell said.

Vice President Dick Cheney told the same group Friday that Republicans’ loss of Congress in last week’s election won’t dissuade Bush from continuing to nominate strict-constructionist judges to the federal bench.

Democrats have used filibusters and the threat of them to block several of Bush’s more conservative federal appeals court nominees who had the support of a majority of senators but lacked the 60 pledges needed to force a vote.

Majority Leader Bill Frist, R-Tenn., became so irked that he brought the Senate to the brink of shutting down by threatening to get a parliamentary ruling forbidding filibusters on judicial nominations.

Only a bipartisan “Gang of 14″ senators seven Republicans and seven Democrats averted the showdown with an agreement to allow some of Bush’s nominees to be confirmed. Democrats subsequently rejected the idea of using filibusters to block Bush’s two Supreme Court nominees Chief Justice John Roberts and Justice Samuel Alito.

“Senator McConnell wants bipartisan cooperation but that’s a two-way street,” his spokesman, Don Stewart, said Friday. “You can’t expect easy cooperation on issues of importance to them unless they respect issues of importance to us, including the principle that judges deserve an up-or-down vote.”



Monday, November 20th, 2006

LawReader weekly publishes all decisions of Ky. appeallate courts. LawReader has published l6 decisions of the Court of Appeals including five published opinions this week. LawReader subscribers may read the full synopsis and full text. Sign up for
 for only $34.95 a month.  

Important cases:

1 TO BE PUBLISHED: “knock and talk?:  the federal courts have found the “knock and talk? procedure, … is a reasonable investigative tool for officers to use in an attempt to gain an individual’s consent to search that individual’s residence.

2 Open Records: under KRS 61.880, an individual may initially seek enforcement with the attorney general and if denied relief, the individual may then file an action in the circuit court for review of the attorney general’s adverse decision. KRS 61.880(5)

3 Contempt of Court:  the circuit court erred by failing to make a finding of fact regarding Michael’s ability to satisfy the judgment before incarceration

4 Summary Judgment / Causation Product Liability: that the word “impossible,? as set forth in the standard for summary judgment, is meant to be “used in a practical sense, not in an absolute sense.?  –  Before liability for injury resulting from the use of a product may be established, it must be shown that the product was the legal cause of the harm.

5 TO BE PUBLISHED: DISQUALIFICATION OF JURY: two statutes form a bar disqualifying any juror from serving on both the grand jury and the petit jury within a twenty-four-month period.

6 UNDUE INFLUENCE: “it is not sufficient for the contestant to show that there was opportunity to exercise undue influence or that there was a possibility that it was exercised,? the Appellants did not meet their burden of proof

7 11.42 motion DENIED

8 WORKER’S COMP: In order to reverse the decision of the ALJ, it must be shown that there was no substantial evidence of probative value to support her decision

9 SERVICE OF COURT NOTICES: “A notice mailed to an incorrect address and not received by the addressee is not in compliance with CR 5.02.?

10 WILL CONTEST EVIDENCE:  Most courts now recognize that “statements showing state of mind are admissible under the state of mind exception to prove the doing of a subsequent act.?

11 TO BE PUBLISHED: AMENDMENT OF FINAL JUDGMENT: the provisions of CR 60.01 require that any correction of a clerical mistake sought while an appeal is pending may be made only by leave of the appellate court.

12 11.42 MOTION: claim of ineffective assistance of counsel is clearly refuted by the record

13 TO BE PUBLISHED: WORKER’S COMP. REOPENING: An increase in disability, such as an increase from permanent partial disability to permanent total disability, is sufficient for additional benefits even though the claimant’s impairment rating did not change from the original award

14 AMENDMENT OF JUDGMENT: The Warren Circuit Court lost jurisdiction of the judgment ten days from the date the original default judgment was signed and entered

15 CORRECTION OF ALJ’S RULING: Since the ALJ’s opinion is either factually incorrect or legally incorrect, the Board had no alternative but to vacate it and remand for further findings and analysis, as it did.

16 TO BE PUBLISHED: WORKER’S COMP. REOPENING OF FINAL DECISION: evidence of the expert’s recantation, submitted more than one year after the award had become final, did not constitute a “mistake? authorizing a de novo review of the issue of causation.– the Board’s expansive construction of what constitutes “mistake? undermines the doctrine of res judicata,

A Somber Annual Meeting for Conservative Federalist Society Lawyers

Sunday, November 19th, 2006

By NEIL A. LEWIS  Reprinted from the N.Y. Times
WASHINGTON, Nov. 18 — For the last 20 years, the Federalist Society, a conclave of conservative lawyers, has steadily flourished, even when there was a Democrat in the White House. But the recent election results, along with increased partisan bitterness over judicial nominations, may have given an unaccustomed jolt to members of the group, whose annual convention concluded on Saturday.
Skip to next paragraph The event has usually been one in which many society members could look at their reflections in the hallway mirrors of the Mayflower Hotel here and, with only a little imagination, see themselves wearing a judge’s robes.

No group has been more influential in sending up candidates for the federal courts; when President Bush took office in 2001, the society had recommended to him the majority of his first slate of 11 federal appeals court judges. His appointments to the Supreme Court, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., were both active in the Federalist Society and enjoyed strong support from it.

But the wheel of judicial fortune has turned. The Senate Democrats who will be seated in January will constitute a majority, and they say they are determined to block any of Mr. Bush’s judicial nominees whom they deem too conservative.

Since that might include almost all of his nominees, there was a little less jauntiness as the conservative lawyers gathered this year.

How glum was the mood? “Well, I guess I’ve just about climbed back from the ledge — the one I was about to jump off of,? said Daniel McLaughlin, a New York lawyer who attended the convention. Mr. McLaughlin said he could not stop fretting over who would be confirmed to the federal bench in the next two years.

John C. Yoo, a law professor at the University of California, Berkeley, who was a senior Justice Department official, said the mood at the convention was notably grim because of the likelihood that Democrats would block any identifiable conservatives from the federal appeals courts or the Supreme Court.

That is probably an accurate assessment. Senator Charles E. Schumer, a New York Democrat who has been outspoken in opposing Mr. Bush’s nominees, said Friday that the election results “dramatically changed everything.?

“The days when the Federalist Society would get just about anything it wanted are over,? Mr. Schumer said.

On Friday morning, Senator Arlen Specter of Pennsylvania, the departing chairman of the Judiciary Committee, offered a pep talk to the subdued conservatives. “There’ll be another election,? Mr. Specter said, and Democrats would have to answer then for any nominees they obstructed.

The Federalist Society was founded in 1981 by a handful of conservative law students who thought of themselves as an oppressed minority. They complained that they were victims of a kind of ideological neglect on campus: conservative law students were not taken seriously, they said, or worse, were hissed at in class when they expressed their views.

But with its single-mindedness about getting conservative judges on the federal bench and its success working within Republican Party politics, the group became deeply envied by its liberal counterparts. Members found it a valuable networking tool on two fronts. It provided a matchmaking service between conservative judges and recent law school graduates eager to gain a prestigious clerkship. And for older lawyers, a speech before the society, usually denouncing some liberal notion, was a way to be noticed by its judicial scouting machine.

Eugene B. Meyer, the society’s president, said he understood that there might now be some short-term discouragement among members. “But I suspect they will get even more enthusiastic afterwards,? Mr. Meyer said.

The group thinks of itself largely as a place to debate serious legal ideas, he said, and while “it might be harder to get the types of things we want discussed, heard and undertaken, we’ll be largely unaffected in the long term.?

Mr. Meyer said the Federalist Society would adapt to the vicissitudes of politics and might not, for example, expect such a star-studded roster of Republican speakers and honorees. (This convention featured appearances by Justices Alito and Antonin Scalia and Vice President Dick Cheney).

The group is still growing, with the greatest enthusiasm at its law school chapters.

Professor Yoo said that the widespread dismay at the gathering was only over the prospect of judicial nominations, and that it did not signal any lessening of interest in conservative ideas. “The Bush effort to remake the judiciary has crested,? he said. “We all will have to play defense for a while on this.?

But as to the contentious issue of the reach of presidential authority, the Federalist Society membership is not united. Professor Yoo, who wrote several memorandums while in the Justice Department arguing that the president’s power is expanded during a war on terrorism, represents one wing of the conservatives, while many in the group are smaller-government libertarians.

At a spirited panel discussion Friday with Professor Yoo, one of the revered figures of the group, Prof. Richard Epstein of the University of Chicago Law School, branded as dangerous the notion of expanded powers for the executive branch because of the continuing fight against terrorism.

“This is an issue which splits this group right down the middle,? Professor Epstein said.


Kentucky law is confusing on which party should be placed at top of ballot.

Sunday, November 19th, 2006

Jim Adams of the Courier-Journal has pointed out confusion in Kentucky ballot positioning of candidates names. LawReader provides the full text of the two statutes that have created this problem. See below.  This would appear to be an issue that needs to be settled by the 2007 legislature before it ends up in court.

Top line on ballot can offer an edge – Some say Kentucky’s rules unfairly favor one candidate
By Jim Adams Reprinted from The Courier-Journal    Nov. 18, 2006
For decades in Kentucky, the decision about which candidate’s name goes first on ballots in most general election partisan races has come down to one question: Which party carried the state in the previous presidential election?
After Bill Clinton won Kentucky in 1992, for example, Democratic candidates got the top line in most of the races, until 2000, when George W. Bush won the state, and Republicans took the honors.
In the most recent election this month — as a result of Bush’s 2004 win in Kentucky — Republicans were first and Democrats second on ballots in all 120 Kentucky counties.
Kentucky is one of at least 18 states that decide “ballot order” based on past election results, but some experts — and some candidates — say it may be unfair and should be changed.
Democrat Scott Alexander of Hazard, for example, believes ballot position may have been an unfair deciding factor in his razor-thin loss Nov. 7 in a battle for a seat in the state House.
Having ended up just 40 votes behind incumbent Republican Brandon Smith, out of 13,918 votes cast, Alexander pointed out that he would have won if just 21 Smith voters had voted for him instead.
“I definitely think it (ballot position) made 21 votes of difference,” he said.
Smith disagreed, arguing that name recognition and personal contact with voters are far bigger factors. “You don’t order the first thing off the menu,” he said.
But Jon A. Krosnick, a professor of communication, political science and psychology at Stanford University in Palo Alto, Calif., thinks Alexander has a strong argument.
“He should absolutely go to court,” said Krosnick, who has emerged nationally as a critic of election systems like those in Kentucky. “As far as I’m concerned, it’s the only way these laws are going to get changed — through legal efforts.”
Across the country, politicians, social scientists and others are debating the role of ballot order and the “primacy effect” — the idea that someone faced with a choice from among a group of items is inclined, even if only slightly, to select the first one offered.
Three months ago, for example, the New Hampshire Supreme Court considered the primacy effect and concluded that a state statute giving first ballot position to candidates of the party that earned the most votes in the last election violated a section of the state’s constitution that gives every resident “an equal right to be elected into office.”
Kentucky’s constitution has a similar section that declares, “All elections shall be free and equal.”
In the New Hampshire case, the state’s secretary of state, William Gardner, testified that “studies showed that the primacy effect can confer as much as a six to ten percent advantage upon candidates whose names appear on lists as long as twelve candidates.”
In a Nov. 4 New York Times piece, Krosnick wrote that “candidates listed first on the ballot get about two percentage points more votes on average than they would have if they had been listed later (flipping a 49 to 51 defeat into a 51 to 49 victory).”
In one study of Ohio elections, Krosnick found a ballot order effect in about half the races studied.
And a study that Krosnick and two colleagues published in 2004 even suggested that ballot order may have decided the 2000 presidential election.
Examining results in three states that rotate candidates’ names on ballots — California, North Dakota and Ohio — they found President Bush won more votes in all three states when he was listed first on the ballot than when he was listed last.
If that same “primacy effect” carried over to Florida — where Bush was first on all ballots under a state law tied to previous election results — the margin probably was sufficient to have given him the win there and, as a result, the presidency, the academics concluded.
“In that light, it seems all the more important for states to remove the bias in name ordering prevalent around the country so that Americans can have full confidence in the outcomes of its electoral contests,” Krosnick and his colleagues wrote.
A different group of academics has argued that evidence of the frequency and the extent of the primacy effect is “muddled.” But even those skeptics — including Richard L. Hasen, a professor at Loyola Law School in Los Angeles who specializes in election law — do not dispute that the effect exists to some degree.
Asked last week what he thinks of Kentucky’s procedure tying ballot order to the last presidential election, Hasen said: “If I were sitting in the Kentucky legislature, I would not vote for that rule. But if I were sitting as a judge and was asked to strike it down, I’m not sure what I would do.”
But Hasen and two other professors who have studied ballot order — Krosnick and R. Michael Alvarez, a professor of political science at California Institute of Technology in Pasadena, Calif. — said in recent interviews that they believe the best ballot-ordering systems are those that select candidates at random, and rotate their names on ballots.
Krosnick said he believes the optimum system is in Ohio, which rotates candidates’ names from precinct to precinct, so that all candidates will be listed first in roughly an equal number of precincts. Seven states currently rotate candidates’ names in some fashion.
Election review
To examine whether ballot order may have played a part in the recent election in Kentucky, The Courier-Journal reviewed the Nov. 7 returns in the state’s 50 contested judicial races for seats at the Circuit Court level or higher — nonpartisan races in which ballot placement is decided at random, under a different state statute.
The newspaper found that:
Candidates in the first ballot position won at a higher rate than those in the second position. Thirty-four candidates who held the first position won. Only 15 candidates who held the second position won, and one who held a fourth position won. That’s a “win” rate of 68 percent among those listed first on the judicial ballots, compared with 32 percent for the “down-ballot” candidates.
Incumbents who had first-place ballot positions fared even better. Of the 18 incumbents who drew first-place positions, 15 won and only three lost, a “win” rate of 83 percent. Of the 12 incumbents who drew second spots on the ballot, five won and seven lost, a “win” rate of 42 percent, about half that of the candidates who were first on the ballot.
The newspaper presented those results to Krosnick, who concluded that they were statistically significant. “… Most likely, you have identified a real difference that is due to the effect of name order,” he said.
Hopkins Circuit Judge Susan Wesley McClure may have felt some of the effect.
She drew the second ballot position in the race to retain her seat in Madisonville in Western Kentucky — a draw she said concerned her the minute she learned of it. She said she even tried to lead voters to her name on the ballot by circulating literature that said, “Vote ’2′ keep Judge McClure.”
But, she said, “No one really understood what that meant. ‘Why are you using the number 2?’ ”
She lost by less than 5 percentage points to James C. Brantley.
“You can never get inside the mind of the voter and find out what is their basis for voting for someone, the real basis for it,” McClure said. But, “I would think rotation (of candidates’ names on ballots) … would give you a better equalization of any benefit that ballot placement would have.”
Hasen and Alvarez said they believe ballot order is less of a factor when voters are given other “cues” on which to base their decision — such as party affiliation or incumbency.
“I’m skeptical that ballot order matters in certain kinds of elections, especially general elections where there are party labels,” Hasen said.
But in nonpartisan races about which there has been little media coverage and the voter is unlikely to know much about the candidates, ballot order might become more important, the professors said.
“In those kinds of races, the research has shown … that these kinds of primacy effects can actually be operative and sometimes can be profound,” Alvarez said.
Reporter Jim Adams can be reached at (502) 582-4199.

  KRS 118.225 Determination of order of names on ballot.

(1) For the purpose of determining the order in which the names of candidates or slates
of candidates to be voted for by the electors of the entire state shall be certified and
printed on the ballots with the designation of the respective offices, the Secretary of
State shall prepare lists of the counties of each congressional district of the state. He
shall arrange the surnames of all candidates or slates of candidates for each office in
alphabetical order for the First Congressional District, and the names shall be
certified in this order to the county clerks of all the counties comprising that district.
 For each succeeding congressional district, taken in numerical order, the name
appearing first for each office in the last preceding district shall be placed last, and
the name appearing second in the last preceding district shall be placed first, and
each other name shall be moved up one (1) place. The lists shall be certified

(2) For all other offices for which nomination papers and petitions are filed with the
Secretary of State, the order of names of candidates for each office shall be
determined by lot at a public drawing to be held in the office of the Secretary of
State at 2 p.m., standard time, on the Thursday following the last Tuesday in
January preceding the primary, twenty-six (26) days before a runoff primary, or the
Thursday following the second Tuesday in August preceding the general election.

(3) For all offices for which nomination papers and petitions are filed in the office of
the county clerk, the order in which the names of candidates for each office are to
be printed on the ballot shall be determined by lot at a public drawing in the office
of the county clerk at 2 p.m., standard time, on the Thursday following the last
Tuesday in January before the primary or the Thursday following the second
Tuesday in August preceding the general election.

(4) If the number of certified candidates or slates of candidates cannot be placed on a
ballot which can be accommodated on voting machines currently in use in the
county, the county clerk shall notify the State Board of Elections, as provided in
KRS 118.215.
 Effective: July 15, 1996
History: Amended 1996 Ky. Acts ch. 195, sec. 15, effective July 15, 1996. — Amended
1992 Ky. Acts ch. 288, sec. 40, effective July 14, 1992; and ch. 296, sec. 10,
effective July 14, 1992. — Amended 1990 Ky. Acts ch. 48, sec. 43, effective July 13,
1990. — Amended 1986 Ky. Acts ch. 470, sec. 26, effective July 15, 1986. –
Amended 1984 Ky. Acts ch. 185, sec. 14, effective July 13, 1984. — Amended 1982
Ky. Acts ch. 394, sec. 22, effective July 15, 1982. — Amended 1976 (1st Extra. Sess.)
Ky. Acts ch. 1, sec. 10, effective March 19, 1977. — Created 1974 Ky. Acts ch. 130,
sec. 112, effective June 21, 1974.
2002-2004 Budget Reference. See State/Executive Branch Budget, 2003 Ky. Acts
ch. 156, pt. I, sec. A, item 8, at 1727; and State/Executive Branch Budget
Memorandum, 2003 Ky. Acts ch. 143, at 616 (Final Budget Memorandum, at 203).

KRS 118.215 Certification of candidates or slates by Secretary of State — Order of
listing county offices — Use of supplemental paper ballots — Approval of State
Board of Elections — Ballot position unalterable.

(1) After the order of the names has been determined as provided in KRS 118.225, the
Secretary of State shall certify, to the county clerks of the respective counties
entitled to participate in the nomination or election of the respective candidates, the
name, place of residence, and party of each candidate or slate of candidates for each
office, as specified in the nomination papers or certificates and petitions of
nomination filed with him, and shall designate the device with which the candidate
groups, slates of candidates, or lists of candidates of each party shall be printed, in
the order in which they are to appear on the ballot, with precedence to be given to
the party that polled the highest number of votes at the preceding election for
presidential electors, followed by the political party which received the second
highest number of votes, with the order of any other political parties and
independents to be determined by lot.
 Candidates for county offices and local state offices shall be listed in the following order: Commonwealth’s attorney, circuit clerk, property valuation administrator, county judge/executive, county attorney, county clerk, sheriff, jailer, county commissioner, coroner, justice of the peace, and constable. The names of candidates for President and Vice President shall be certified in lieu of certifying the names of the candidates for presidential electors. The names shall be certified as follows:
(a) Not later than the second Monday after the filing deadline for the primary;
(b) Not less than twenty-five (25) days before a runoff primary;
(c) Not later than the second Monday after the filing deadline for the general
election, except as provided in paragraph (d) of this subsection; and
(d) Not later than the Thursday after the first Tuesday in September preceding a
general election, for those years in which there is an election for President and
Vice President of the United States.

(2) Except as otherwise provided in subsection (3) of this section, all independent
candidates or slates of candidates whose nominating petitions are filed with the
county clerk or the Secretary of State shall be listed under the title and device
designated by them as provided in KRS 118.315, or if none is designated, under the
word “independent,” and shall be placed on the ballot in a separate column or
columns or in a separate line or lines according to the office which they seek. The
order in which independent candidates or slates of candidates shall appear on the
ballot shall be determined by lot by the county clerk. If the same device is selected
by two (2) groups of petitioners, it shall be given to the first selecting it and the
county clerk shall permit the other group to select a suitable device. This section
shall not apply to candidates for municipal offices which come under subsection (3)
of this section.

(3) The ballots used at any election in which city officers are to be elected as provided
in subsection (2) of this section shall contain the names of candidates for the city
offices grouped according to the offices they seek, and the candidates shall be
immediately arranged with and designated by the title of office they seek. The order
in which the names of the candidates for each office are to be printed on the ballot
shall be determined by lot. Each group of candidates for each separate office for
which the candidates are to be elected shall be clearly separated from other groups
on the ballot and spaced to avoid confusion on the part of the voter.

(4) The Secretary of State shall not knowingly certify to the county clerk of any county
the name of any candidate or slate of candidates who has not filed the required
nomination papers, nor knowingly fail to certify the name of any candidate or slate
of candidates who has filed the required nomination papers.

(5) If the county clerk determines that the number of certified candidates or slates of
candidates cannot be placed on a ballot which can be accommodated by the voting
machines currently in use by the county, he shall so notify the State Board of
Elections not later than the last Tuesday in February preceding the primary or the
last Tuesday in August preceding the general election. The State Board of Elections
shall meet within five (5) days of the notice, review the ballot conditions, and
determine whether supplemental paper ballots are necessary for the election. Upon
approval of the State Board of Elections, supplemental paper ballots may be used
for nonpartisan candidates or slates of candidates for an office or offices and public
questions submitted for a yes or no vote. All candidates or slates of candidates for
any particular office shall be placed either on the machine ballot or on the paper
ballot. Supplemental paper ballots may also be used to conduct the voting, in the
instance of a small precinct as provided in KRS 117.066.
(6) The ballot position of a candidate or slate of candidates shall not be changed after
the ballot position has been designated by the county clerk.
 Effective: April 2, 2002
History: Amended 2002 Ky. Acts ch. 129, sec. 4, effective April 2, 2002. — Amended
1996 Ky. Acts ch. 195, sec. 14, effective July 15, 1996. — Amended 1992 Ky. Acts
ch. 288, sec. 39, effective July 14, 1992; and ch. 296, sec. 9, effective July 14,1992. -
- Amended 1990 Ky. Acts ch. 48, sec. 42, effective July 13, 1990; and ch. 169,
sec. 7, effective July 13, 1990. — Amended 1986 Ky. Acts ch. 470, sec. 25, effective
July 15, 1986. — Amended 1984 ch. 185, sec. 13, effective July 13, 1984. –
Amended 1982 Ky. Acts ch. 394, sec. 21, effective July 15, 1982. — Amended 1976
(1st Extra. Sess.) ch. 1, sec. 2, effective March 19, 1977. — Amended 1976 Ky. Acts
ch. 199, sec. 2, effective June 19, 1976; and ch. 247, sec. 9, effective June 19 1976. -
- Created 1974 Ky. Acts ch. 130, sec. 111, effective June 21, 1974.
2002-2004 Budget Reference. See State/Executive Branch Budget, 2003 Ky. Acts
ch. 156, pt. I, sec. A, item 8, at 1727; and State/Executive Branch Budget
Memorandum, 2003 Ky. Acts ch. 143, at 616 (Final Budget Memorandum, at 203).

effective June 19 1976. -Back to Top

Heleringer v. Brown, 104 S.W.3d 397 (Ky. 05/07/2003) Despite our view that disqualification may result from a judicial act or may be a condition, there remains a question whether the Fletcher-Bates slate ever came into existence due to Bates’ lack of Kentucky residence. Under KRS 118.125, a slate of candidates must file notification and declaration papers with the Secretary of State. Upon filing, the Secretary of State “shall examine the notification and declaration form of each candidate to determine whether it is regular on its face.” Thereafter, when the order of appearance on the ballot has been determined, the Secretary of State must certify to county clerks the name, place of residence, and party affiliation of “each candidate or slate of candidates for each office….”

Silence: Misconceptions remain 40 years after Miranda vs. Arizona

Sunday, November 19th, 2006
By Mark Leberfinger,

Frederick William Asper last week heard some of the most famous words engrained in the public’s consciousness over the last two generations:

“You have the right to remain silent.?

Asper was read his Miranda rights after his arrest in the second of two southern Blair County vehicle chases. He didn’t have to answer questions from police.

“Anything you say can and will be used against you in a court of law.?

Asper spoke to Martinsburg police. He said he recently had returned from Kentucky and was the driver of a vehicle stolen from that state. He also admitted to fleeing from the officer trying to stop him, court documents state.

Asper later invoked his right to remain silent. He said he wouldn’t answer questions that Magisterial District Judge Craig E. Ormsby asked for a bail questionnaire.

“My attorney advised me to decline to answer,? Asper said.

Asper knew his rights of self-incrimination and right to counsel. That might not have been the case 40 years ago.

The Miranda warning today commonly is heard on the streets of America, in movie theaters and on television.

The warning was created after the June 1966 ruling by the U.S. Supreme Court in the case of Miranda v. Arizona, dealing with the admissibility of statements made during “custodial interrogations.?

Protections of the Fifth and Sixth Amendments were at stake in the case. The Fifth Amendment protects against self-incrimination, while the Sixth Amendment gives a person the right to counsel.

The ruling was hailed as a victory for citizens’ rights and viewed as a victory for criminals. A constitutional law professor, an area defense attorney and police, however, say the high court’s ruling protects police and citizens.

The true proof of the success of the ruling is that the Miranda warning is an accepted part of police procedure, said Bruce A. Antkowiak, assistant professor at the Duquesne University School of Law.

But there still are public misconceptions about what Miranda means.

“The people’s rights are protected under Miranda v. Arizona, but there’s still a lot of judicial interpretation of whether a person is actually in custody [before Miranda takes effect],? Ebensburg defense attorney David L. Beyer said.

Miranda also took center stage two weeks ago as an Armstrong County judge tossed out the alleged confession of a woman arrested for cutting a fetus from another woman’s womb. The judge ruled that state police didn’t have enough evidence to take Peggy Jo Conner into custody.

State police said they read Conner her Miranda rights three times before she gave her statement. Conner testified that she didn’t feel she was free to go until she gave her final statement and that troopers told her if she wasn’t guilty, she didn’t need an attorney.

Armstrong County District Attorney Scott Andreassi said he has other evidence, including an apparently blood-covered crowbar, to continue his prosecution.

Landmark case

Miranda v. Arizona came about because of the 1963 arrest of Ernesto Miranda in Phoenix.

Miranda was picked out of a photo lineup by an alleged rape and kidnapping victim. After his arrest, Miranda confessed to the crimes. The officers hadn’t informed Miranda of his Fifth and Sixth Amendment rights.

His statement said he was aware of his constitutional right against self-incrimination. An attorney was not present during questioning.

Miranda was found guilty and sentenced to 40 to 60 years in prison.

Before Miranda, courts looked at the totality of the circumstances of each case to determine whether a confession was voluntary, Antkowiak said.

“The concern was the reliability of the confession. The courts have always realized that there are few things in the prosecution more important — or I should say, more devastating — to a defendant than having the prosecution present to a jury his own words confessing to a crime,? said Antkowiak, a former assistant U.S. attorney and defense attorney.

Miranda appealed to the Arizona Supreme Court, which upheld his conviction. Miranda’s case then went to the U.S. Supreme Court.

The highest court in the land overturned the Arizona ruling by a 5-4 vote.

Chief Justice Earl Warren wrote the landmark opinion.

“The principles announced today deal with the protection which must be given to the privilege against self-incrimination when the individual is first subjected to police interrogation while in custody at the station or otherwise deprived of his freedom of action in any significant way,? Warren wrote.

It’s the system created that made Miranda such an important case, to the point in which Congress in 1968 tried to sidestep the majority justices’ intent through a national crimes law.

The Miranda practice

A Miranda warning takes effect after a person is in “custodial interrogation,? either when an arrest occurs or when a “reasonable person? would feel their freedom had been restricted in any significant way.

“Miranda warnings do not have to be given every time a police officer talks to a citizen. That is just a first-class myth,? Antkowiak said.

Logan Township police have a written policy on interviews and interrogations.

“It is the policy of the Logan Township Police Department that all officers understand and follow this policy in order to observe due process rights of suspects and to guard against any charges of police coercion or intimidation during interrogation,? the policy states.

Noncustodial situations in which Miranda is not required include investigatory stop and frisk; questioning during a routine traffic stop, even DUI stops until a custodial interrogation begins; and when information or statements are made spontaneously, voluntarily and without prompting by police.

“Was a person in custody? Were they free to leave? That’s where there are problems,? Beyer said. “There are situations when police officers start questioning a person in their home. One officer is standing by the door, another by the exit. Is that person in custody? I say that clearly you are, but the courts haven’t always seen it that way. This is the problem with Miranda; the gray areas cause problems for defense attorneys but, all in all, Miranda works.?

When in doubt, the warning should be given, but “it is dangerous and damaging? to give Miranda warnings when they are not required, Logan’s policy states.

“If you give the warning in a circumstance where it’s not required, the person may take it the wrong way and stop talking,? Logan Police Chief Ron Heller said.

Township officers are given a Miranda warning card to read to suspects. They are not permitted to ad lib the warning or recite it from memory.

“Otherwise, they can’t testify to what they actually said in the warning to a suspect,? Heller said.

Another public myth about Miranda is that if the warning is not given, the arrest is no good and the case must to be thrown out, Antkowiak said.

“If the police do not want to interrogate someone, if they arrest someone and really don’t want to talk to them about what happened — they know what happened — it’s a case where they’re perfectly willing to prosecute the case without any kind of statement from the guy, they don’t have to give Miranda warnings,? he said.

Courts since Miranda

Miranda is a constitutional principle that Congress can’t overturn with its own law, the Supreme Court under Chief Justice William Rehnquist ruled.

In a 1968 crime bill, Congress outlined its own Miranda principles as to whether a confession was voluntary and admissible in court. A Miranda warning was one of several factors courts need to consider.

An error in any of the four steps approved by Congress didn’t necessarily mean the confession should be tossed out.

“During the time I was an assistant U.S. attorney, I never knew of any federal prosecutor who brought it up in court,? Antkowiak said.

The provision was used in Dickerson v. U.S., a 2000 case before the Supreme Court. Dickerson claimed that he was not read his Miranda rights in a timely manner during a bank robbery investigation.

Police weren’t allowed to search Dickerson’s apartment, but officers saw a large amount of money while there. He submitted to voluntary questioning but confessed after he was told police received a search warrant for his apartment.

A U.S. District Court agreed with Dickerson and tossed out the confession and evidence, but the Fourth U.S. Circuit Court of Appeals used the 1968 law to overturn the lower court ruling.

The Reinquist ruling stated that there is no justification for overturning Miranda.

Four years after Dickerson, the U.S. Supreme Court ruled in U.S. v. Patane that evidence obtained from information received in an improper interview is admissible in court, Antkowiak said.

Pennsylvania courts take Miranda one step further than the federal courts with the “Massachusetts Rule.?

Even if a judge rules that a confession may be used at trial, the jury can make its own determination whether the confession was voluntary without coercion, Antkowiak said.

Miranda will continue to be an accepted legal doctrine, but “exclusionary rule? issues will be where changes occur in the interpretation of the 40-year-old ruling, both in the federal and Pennsylvania courts, Antkowiak said.

The Pennsylvania Superior Court has accepted the Patane doctrine of evidence admissibility, but it has never been considered by the state Supreme Court, which traditionally has sided with the rights of private citizens under Article I, Sections 8 and 9 of the state Constitution.

Mirror Staff Writer Mark Leberfinger is at 946-7462.

Will McConnell be overshadowed by Trent Lott? Murtha never heard you do not touch the Queen.

Saturday, November 18th, 2006


     Kentucky Senator Mitch McConnell is known for his skills at political strategy.  He generally avoids the press, and every interview he does looks painful.  He is now in a position where speaking for his party to the press is one of the primary roles required by his new position as Minority Party Leader in the Senate.  That job may have been made more difficult due to Trent Lotts one vote victory over McConnells nominee Lamar Alexander of Tennessee, for the position of Minority Whip in the Senate.    Photos and tv clips of the newly elected Republican Senatorial leadership  revealed a potential problem for Ky. Senator Mitch McConnell who was elected as Minority Leader of the Senate by his Republican peers.  Photogenic Lott, was removed from the position of Majority Leader in 2002 due to alleged racist remarks he made at a birthday party honoring Strom Thurmond.   In last weeks congressional election McConnell was first denied the position of Senate Majority leader due to his parties loss of the Senate.  The second blow to McConnell came when Lott was returned to leadership as Minority Whip.

   The tv clips showed McConnell being virtually ignored by the tv cameras while the focus was placed on Sen. Lott.  Lott appeared jovial and smiling and McConnell appeared stunned and his usual gloomy self.  McConnell offered few comments for the press.  The photos in the national media revealed Mcconnell looking over the shoulder of Trent Lott like he was the secondary power.  It seems that at the very moment of McConnells rise to preeminence in his party, that he was pushed aside by the re-born Lott.  This can not have made McConnell a happy camper.  This couple may have a marriage shorter than Brittany and Fed Ex.

+ enlarge
McConnell now has the former Majority Leader looking over his shoulder ready to point out any McConnell error.   He must be thinking about a palace coup ….even if Lott is not yet doing so.   This has been a very bad year for McConnell.  His handpicked candidate for Kentucky Governor goes and gets indicted, and now the Democrats steal his power in the Senate from him just as he reaches out to grab the crown he has waited for so long.

   ABC news reported the scene. They clearly recognized that McConnell was not a happy camper.  Trent Lott said as his election to the whip position was announced with McConnell standing behind himt:

“I defer this day to our leader and will work together with him.”
The leader Lott was referring to is Senator Mitch McConnell of Kentucky, who at the same press conference was obviously trying to downplay Lott’s comeback.

 McConnell repeatedly used the word “new” to characterize the slate of Republican leaders.
“I do underscore new,” McConnell said. “Every single member of this leadership team is in a new job. It’s the first time I can recall that happening. Every single member of this leadership is brand new. We represent a vigorous minority of 49 in a body where it takes 60 to anything. We are unified in our desire to work with Democrats across party lines and see what we can accomplish for the country.”
When reporters tried to follow up on the “elephant in the room” question, asking Lott if he felt vindicated by today’s narrow victory, McConnell cut the question off and ended the press conference, saying, “Thanks. Talk to you later.”

McConnell walked off with other Senators after the press conference. Trent Lott, the comeback kid, was beaming as he inched slowly around the Capitol building inside the amoeba of flashing still photographers that surrounded him.

    Democratic Leader in the House also has a problem with an underling.

   In the Democratic House, Nancy Pelosi also sustained her first defeat when her nominee for House Majority Leader, John Murtha, was rejected by a wide margin with the election Rep. Steny Hoyer from Pennsylvania.  It was our observation that photos of Murtha standing next to Pelosi with his big beefy arm wrapped around her was not the kind of image that she wanted to present upon her ascendancy to the Speakership of the House.   It would seem that Murtha, a gentlemen of a certain age, doesn’t understand that he was making Pelosi uncomfortable….You don’t put your arm around the Queen…you don’t touch the Queen!!  For that act alone he deserved to be defeated by Steny Hoyer.

Hoyer and Pelosi have now locked horns twice and each has one victory.  He opposed her for House Majority Leader several years ago and lost.  This time she campaigned for Murtha and Hoyer bested her by a wide margin.

Trent Lott elected to Senate Republican leadership post

By Carl Hulse and David Stout / The New York Times
Published: November 15, 2006
WASHINGTON: Senator Trent Lott of Mississippi, who was driven from the Republican leadership four years ago after he made a racially insensitive comment at a birthday party for Senator Strom Thurmond, returned Wednesday to the Senate’s top ranks, winning election as minority whip in the next session by a single vote.
Lott won the post over Senator Lamar Alexander, who had predicted Tuesday that he had enough support to win. The 49 Republicans who will make up the new Senate chose Lott by a vote of 25 to 24 in secret balloting.
“I’m honored to be a part of this leadership team to support Mitch McConnell and all of my colleagues to do a job that I’ve always really loved the most – count the votes,” Lott said in a Capitol corridor appearance with other Republican leaders.
Lott, who turned 65 Oct. 9, will be second in command to Senator Mitch McConnell of Kentucky, who was unanimously elected minority leader for the next Senate session. McConnell had been party whip, while Senator Bill Frist of Tennessee was party leader. Frist is retiring from the Senate.

McConnell promised to work with Democrats. “But we will be a robust minority, a vigorous minority, and hopefully a minority that is only in that condition for a couple of years,” he said. Other members of the Republican leadership team will be Senators Jon Kyl of Arizona, Kay Bailey Hutchison of Texas, John Cornyn of Texas and John Ensign of Nevada.
Lott’s return to leadership may be a reflection of the Republicans’ sudden discomfort at being in the minority and their desire to have an effective tactician as they try to outmaneuver Democrats and work to regain the majority in the elections two years from now.
Lott’s downfall began in December 2002, at the 100th birthday party for Thurmond of South Carolina, who was longtime segregationist and the 1948 Dixiecrat candidate for president. “I want to say this about my state,” Lott began in tribute. “When Strom Thurmond ran for president, we voted for him. We’re proud of it. And if the rest of the country had followed our lead, we wouldn’t have had all these problems over the years, either.”
The senator apologized for his “poor choice of words,” emphasizing that he was not embracing “discarded policies of the past.”
But the damage was done, with President George W. Bush declaring that the senator’s remarks “do not reflect the spirit of this country.”
So Lott stepped aside, blaming his setback on some Republicans as well as Democrats. In the years that followed, he made little secret of his bitterness, at one point suggesting that the White House consider “bringing in some new people,” an unsubtle jab at Karl Rove, the president’s political strategist who had helped engineer Lott’s removal.
On Wednesday, Lott declined the opportunity to gloat. Asked if he felt vindicated, he said: “I’m going to shock you by starting off with the right frame of mind. I defer on this occasion to our leader, and we’ll work together with him and talking about substance more later. The spotlight belongs on him.”
Across the Capitol, House Republicans are enduring their own unease as they deliberate their new leadership.
“We need the person who can get us back in the majority the fastest,” Representative Jeb Hensarling of Texas said Tuesday.
Still in shock over losing their 12-year majority to Democrats, House Republicans are engaged in their second leadership fight in a year, this one part of a soul-searching over how they lost the election and what they can do about it.
The current majority leader, Representative John Boehner of Ohio, the top candidate for minority leader, said Republicans focused too much on simply retaining power.
A rival, Representative Mike Pence of Indiana, said Republicans needed to return to their small-government ideology.
Another rival, Representative Joe Barton of Texas, said House Republicans had to restore a more open leadership style, with increased involvement from the rank and file.
All want the reversal in fortune to be temporary and say they can be the strongest foil for Democrats who will have to deliver legislative results and in two years defend seats gained this year in Republican territory.

Republican Court rules that President Bush overstepped presidential powers by intervening in capital cases.

Saturday, November 18th, 2006

Judges say he had no authority to order hearings for 46 Mexicans


Texas’ top criminal court rebuffed President Bush on Wednesday, ruling that he overstepped his bounds last year when he told state courts to give new hearings to more than a dozen death row inmates from Mexico.

The unanimous opinion from the all-Republican Court of Criminal Appeals was the first decision in dozens of cases pending across the nation that rely heavily on the president’s unusual intervention on behalf of 46 condemned Mexican inmates.

“We hold that the President has exceeded his constitutional authority by intruding into the independent powers of the judiciary,” Judge Michael Keasler wrote for the nine-member court.

Though the context was different, the Texas judges’ logic faintly echoed a U.S. Supreme Court ruling earlier this year that threw out the tribunals that Bush created to try terrorism suspects.

In both cases, the courts said Bush erred in acting unilaterally.

In other respects, the Texas court seemed to draw a new limit on presidential power and, for that reason, one expert said its decision could draw the scrutiny of the nation’s highest court.

The Texas ruling specifically addressed Jose Ernesto Medellin, a gang member convicted of participating in the 1993 murder and rape of Jennifer Ertman, 14, and Elizabeth Peña, 16, in Houston.

But the decision is expected to dictate the results in 12 similar cases filed by others on death row in Livingston.

Bush waded into the process last year after the International Court of Justice, the judicial arm of the United Nations, decided that arrests of the Mexican inmates had violated the Vienna Convention on Consular Relations.

Specifically, the World Court said they deserved new hearings — not necessarily new trials — because they weren’t told they could contact the Mexican consulate upon arrest, a requirement of the 1967 treaty.

Bush, allowing his support for capital punishment to bow to diplomatic interests, said the United States would recognize the World Court ruling out of respect but not because it had to.

This directive, spelled out in a short memo to the U.S. attorney general, represented an unprecedented usurpation of the judiciary’s job of interpreting and applying the law, including treaties, the Texas court ruled.

Crucial to the judges’ analysis was the fact that Bush acted alone, without explicit approval from Congress and without first reaching an agreement with Mexico to resolve this treaty dispute.

Additionally, the court said, Medellin wasn’t entitled to a new hearing because he had failed to complain at trial about the violation of his consular rights.

Sandra Babcock, who represented Medellin and frequently works on behalf of the Mexican government in capital cases, described the court’s refusal to grant her client the hearing as a mistake with international implications.

“By denying him even that opportunity, the Texas court has undermined the security of Americans abroad who depend on the Vienna Convention for protection,” she said.

Roe Wilson, a Harris County prosecutor who handled the appeal, described the Texas decision as unremarkable in light of a Supreme Court ruling in June that indicated U.S. law trumped the World Court ruling.

“We follow our laws, and under our law, you don’t exclude a confession if there’s been a violation of the Vienna Convention,” she said.



Julian Ku, a professor of international law at William & Mary School of Law in Williamsburg, Va., said some of the ruling’s reasoning might be vulnerable to second-guessing because it seemed to break some new ground.


The judges suggested that if Bush first had reached a formal agreement with his counterpart in Mexico, he might now have the necessary authority to order state courts to give the inmates new hearings.

“That argument alone is likely to attract the attention of the Supreme Court,” Ku said.

The White House and Justice Department had no immediate comment.

Neither did the office of Mexican President Vicente Fox, but the court’s ruling was predictably unwelcome in Mexico.

“It is a violation of human rights, and I strongly reject this decision,” said Maria Eugenia Campos Galvan, a congresswoman from the border state of Chihuahua and a member of the Foreign Relations Committee.

Kent Scheidegger of the Criminal Justice Legal Foundation, which argued on Texas’ behalf, said in a statement that the consular flap has needlessly delayed justice.

“While the constitutional issues here are important, underneath them is a patently meritless claim delaying a long overdue execution,” he said.

Express-News staff writers John MacCormack in San Antonio and Dane Schiller in Mexico City contributed to this report.


Jockeys Guild sues own lawyer for not filing answer in lawsuit.

Saturday, November 18th, 2006


   The Jockeys Guild filed suit in Los Angeles court on Nov. 15th, 2006 against their former attorney Lloyd Ownbey of Pasedena, California.  The suit alleges that he failed to respond to a lawsuit filed against the guild in U.S. District Court in Louisiana, and his failure resulted in a default judgment of $250,000.

The lawsuit also claims Ownbey failed to advise the guilds board about unfair terms in its contract the a consulting firm.  Claims in a lawsuit give only one side of the case.

Possibility of primary runoff election looms for 2007. Read full text of Ky. statute.

Saturday, November 18th, 2006

    Secretary of State Trey Grayson has issued a press release advising potential candidates in next years gubernatorial primary election, that for the first time in Kentucky election history, a runoff election may occur.  The primary runoff election law, KRS 118.245 was adopted in l992 but has never been utilized. (See statute below).

If a gubernatorial slate (Governor and his Lt. Governor) gets the most votes in their party primary election, but get less than 40% of the total votes cast, then 35 days after the primary a runoff election will be conducted, Grayson said. The two slates receiving the most votes would participate in the runoff election.

The deadline for filing for the 2007 gubernatorial election contest is Jan. 31, 2007.  Such a runoff may be possible next year if there are numerous candidates in the party primarys.

Greyson said such an election would cost the state about $5 million dollars.  Of that sum  counties would have to pony up $3 million and the state would pick up $2 million of the cost of the statewide election.

The Registry of Election finance says that if a runoff election is req          uired, the candidates involved would be allowed to continue fund raising up to the date of the runoff election. provides extensive election law resources to subscribers. Go to:

ELECTION LAW RESOURCES Fed. and State election procedures, Reporting requirements, Filling vacancies, Party by-laws, surveys, voter’s guides etc.
ELECTION REPORTING & FINANCE RESOURCES Ky. resources for campaign reporting requirements
ELECTION RESULTS, Polls, Board of Elections
 The primary runoff law states:

KRS 118.245 Number of votes necessary to nominate candidates or slates — Runoff
primary – Breaking of tie vote — Section not applicable to presidential

(1) The candidate for office, other than the offices of Governor and Lieutenant
Governor, receiving the highest number of votes in a primary election for the office
for which he is a candidate shall be the nominee of his party for that office and shall
receive the certificate of nomination.

(2) A slate of candidates for Governor and Lieutenant Governor that receives not less than forty percent (40%) of its party’s votes cast shall be the nominee of its party for those offices and that slate of candidates shall receive the certificate of nomination; except that if two (2) slates of candidates receive forty percent (40%) or more of their party’s votes, the slate receiving the higher number of votes shall be its party’s nominee, and no runoff primary shall be conducted.

(3) A slate of candidates for Governor and Lieutenant Governor that receives the
highest number of its party’s votes but which number is less than forty percent
(40%) of the votes cast for all slates of candidates of that party, shall be required to
participate in a runoff primary with the slate of candidates of the same party
receiving the second highest number of votes.

(4) The slate of candidates receiving the highest number of votes in a runoff primary
shall be the nominees of that party for Governor and Lieutenant Governor, and that
slate of candidates shall receive the certificate of nomination.

(5) Subject to the foregoing provisions relating to a runoff primary, if two (2) or more
slates of candidates in a primary election are found to have received the next highest
and equal number of votes for the nomination for election to the offices of Governor
and Lieutenant Governor, the slate which will appear on the ballot in a runoff
primary shall be determined by lot in the manner the state board directs, in the
presence of not less than three (3) other persons.

6) Subject to the foregoing provisions relating to a runoff primary, if two (2) or more
candidates or slates of candidates in a runoff primary or primary election are found
to have received the highest and an equal number of votes for nomination to the
same office, the election shall be determined by lot in the manner the board directs,
in the presence of not less than three (3) other persons. This section does not apply
to presidential primaries.


Effective: July 14, 1992
History: Amended 1992 Ky. Acts ch. 288, sec. 41, effective July 14, 1992. — Amended
1986 Ky. Acts ch. 29, sec. 13, effective July 15, 1986. — Amended 1984 Ky. Acts
ch. 111, sec. 63, effective July 13, 1984; and ch. 185, sec. 15, effective July 13,
1984. — Amended 1982 Ky. Acts ch. 394, sec. 23, effective July 15, 1982. — Created
1974 Ky. Acts ch. 130, sec. 114, effective June 21, 1974.
2002-2004 Budget Reference. See State/Executive Branch Budget, 2003 Ky. Acts
ch. 156, pt. I, sec. A, item 8, at 1727; and State/Executive Branch Budget
Memorandum, 2003 Ky. Acts ch. 143, at 616 (Final Budget Memorandum, at 203).


Georgia v. Randolph reaffirmed: Warrantless search & seizure allowed to assist victims of physical abuse

Saturday, November 18th, 2006

by Laura L. Scarry     This issue, I follow up my last column, which discussed the United States Supreme Court’s decision in Georgia v. Randolph1. In the Randolph case, the Court addressed whether law enforcement officers entering a residence violate the Fourth Amendment when one occupant consents to a search but a co-occupant does not. Specifically, the Court held when police officers are at the door of a residence in the presence of a husband and wife, and the wife consents to a search of the residence but the husband unequivocally denies the police access, the officers are not permitted to conduct a search of the residence. Despite the Court’s express statement to the contrary, the dissenting opinion expressed concern the majority opinion would limit law enforcement’s ability to assist victims of domestic violence. 

Recently, the Supreme Court reaffirmed the Randolph majority’s opinion the police would be permitted to enter to assist victims of physical abuse in situations where they have probable cause to believe the victim is seriously injured or faces an imminent threat of abuse. Last May, the Court held in Brigham City, Utah, v. Stuart et al2 that police officers may enter a home without a warrant when they have an objectively reasonable basis for believing an occupant is seriously injured or imminently threatened with such injury. 

The Facts
The case arose from a fairly innocuous call. On July 23, 2000, at approximately 0300 hrs, officers of the Brigham City (Utah) Police Department responded to a call concerning a loud party at a residence. When they arrived, they heard shouting from inside the house. They proceeded down the driveway to investigate and observed two juveniles drinking beer in the backyard. 

When they entered the backyard, they saw an altercation in the kitchen through the rear screen door and window. Four adults attempted to restrain a juvenile, but the juvenile broke free and punched one of the adults in the face. The blow was so forceful the adult victim spat blood into a nearby sink. The other adults continued to try to restrain the juvenile by pressing him up against a refrigerator with such force the appliance began moving across the floor. 

At this point, one of the officers opened the screen door and announced his presence. However, nobody noticed the officer amongst the melee. He entered the kitchen and again announced his office, and it was only then the occupants became aware of the police presence. The altercation ceased. 

The officers arrested all four adults, charging them with contributing to the delinquency of a minor, disorderly conduct and intoxication. The case seemed pretty simple for the prosecutor — the police observed the altercation and the adults were intoxicated. However, the adults’ attorney filed a motion to suppress all evidence obtained after the police entered the house, arguing the warrantless entry violated the Fourth Amendment. The trial court agreed and granted the motion. The Utah Court of Appeals affirmed. 

The prosecutor appealed to the Utah Supreme Court, arguing the police officers’ warrantless search did not violate the Fourth Amendment because 1) they were responding to a person in need of medical attention, and 2) exigent circumstances warranted entry into the home to prevent physical harm to the occupants inside. The Utah Supreme Court rejected both arguments, and the prosecution appealed to the United States Supreme Court. 

The Supreme Court Opinion
The United States Supreme Court took the case “in light of the differences among state courts and the Courts of Appeals concerning the appropriate Fourth Amendment standard governing warrantless entry by law enforcement in an emergency setting.”3 In a unanimous opinion, Chief Justice Roberts wrote the police may enter a home without a warrant when they have an objectively reasonable basis for believing an occupant is seriously injured or imminently threatened with such injury.4 

The Fourth Amendment protects against unreasonable searches and seizures. Generally, police officers need a warrant to conduct a lawful search or seizure. However, there are exceptions to the warrant requirement, such as consent to search, the plain view doctrine, police inventories and exigent circumstances, to name a few. 

Writing for the Court in Stuart, Roberts stated, “Warrants are generally required to search a person’s home or his person unless ‘the exigencies of the situation’ make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.”According to the Court, an example of an exigent circumstance is the need to assist individuals who are seriously injured or threatened with such injury. 

The attorney representing the adults argued the police were more interested in making arrests and not really interested in rendering medical attention or subduing the violence. The Court rejected this argument because the test for determining “reasonableness” under the Fourth Amendment does not take into account the officers’ subjective motivations. As long as the circumstances viewed objectively justify the officers’ actions, the Fourth Amendment is not violated.6 

The Court also rejected the argument the offenders’ conduct was not serious enough to justify the intrusion into the residence. Under these circumstances, the officers had an objectively reasonable basis to believe the victim might need medical attention and the violence in the residence was only beginning. In fact, the Court stated, “[n]othing in the Fourth Amendment required them to wait until another blow rendered someone ‘unconscious’ or ‘semi-conscious’ or worse before entering. The role of a police officer includes preventing violence and restoring order, not simply rendering first aid to casualties; an officer is not like a boxing (or hockey) referee, poised to stop a bout only if it becomes too one-sided.”7 

The Court also found the officers’ manner of entry was reasonable. Specifically, the Court found officers did not violate the knock-and-announce rule. Here, after observing the punch, the officers knocked on the door and announced their presence. No one responded. The Court stated that once the announcement was made, the officers were allowed to enter. It would “serve no purpose to require [the police] to stand dumbly at the door awaiting a response while those within brawled on, oblivious to [the police] presence.”8 

In summary, if police officers responding to a call at a residence have an objectively reasonable basis for believing an occupant is seriously injured or imminently threatened with such injury, they may enter the residence even if they do not possess a warrant. Under these circumstances, law enforcement officers will not violate the Fourth Amendment. 

Do not construe this column as legal advice. Officers should consult with an attorney in their jurisdiction for legal advice on any specific issue. 


  1. 126 S.Ct. 1515 (2006). 

  2. 126 S.Ct. 1943 (2006). 

  3. Id. at 1947. 

  4. Id. at 1946. 

  5. Id. at 1947 (citing Mincey v. Arizona, 437 U.S. 385,  393-94 (1978)). 

  6. Id. at 1948. 

  7. Id. at 1949. 

  8. Id. 

LAURA L. SCARRY is a partner in the law firm of DeAno and Scarry in Wheaton, Ill. She represents law enforcement officials against claims of civil rights violations in state and federal courts. Scarry was a police officer with the Lake Forest (Ill.) Police Department from 1986–1992.