Archive for January, 2007


Wednesday, January 24th, 2007

WILLIAM KAPLAN  Commentary From Toronto Globe and Mail
Stephen Harper’s Conservatives, who shut down funding for Charter challenges and abolished the Law Commission of Canada, clearly have some “interesting” plans for the justice agenda — including ramming through changes to the judicial-appointments process by giving police an official say in who gets appointed to the bench.
Our entire justice system depends on the police being supervised by the courts. When police officers act arbitrarily or illegally, it is judges who have to respond. Only independent judges can perform that function. Giving the police a say in the judicial-appointments process, and thereby creating an impression that judges are beholden to the police, is just wrong.
“The voices of police are critical in our legal system,” then-justice minister Vic Toews observed last November, adding that the time had come to change Canada’s judicial-appointments process by adding representatives from the law-enforcement community to the independent judicial advisory committees. The subtext could not have been more clear: Appointing judges who believed in “law and order” was the government’s priority.
What Mr. Toews failed to understand is that judges decide cases according to the law. To be sure, they bring a lifetime of experience to that process, but it is the obligation of the judiciary to apply the law, regardless of personal views or political leanings. Permitting an interest group, any interest group — and make no mistake, the police are an interest group — to participate in the appointment process with the stated goal of influencing legal outcomes sends the message that this government thinks it is acceptable for political ideals to influence judicial results.
Reaction was predictable. The Canadian Association of Chiefs of Police, whose motto is “Leading Progressive Change in Policing,” warmly welcomed the reform. The police chiefs liked the idea of giving the police representation on committees previously comprised of members of the law society, the judiciary, the Canadian Bar Association and, of course, lay people appointed by the minister himself. But just about no one else did.
And so, last week, the government announced the new committee members, among them a Vancouver detective, the president of the Ontario Provincial Police Association, and the former head of the Toronto Police Association, the union representing uniformed and civilian employees in Toronto. Their job: to assess the fitness of applicants for the federal bench and then to recommend to the minister who gets the nod.
The independent judicial advisory committees were established in the late 1980s to depoliticize the appointment process. Adding representatives of law enforcement organizations will have the exact opposite effect. The committees have always had lay members. And there is absolutely nothing wrong with that lay membership including people from the law-enforcement community. But conferring upon that group automatic institutional membership on our independent, judicial advisory committees is not only misguided, it is dangerous. And it is wrong.
Men and women should be selected for the bench because of their legal skills and character. They must have 10 years experience as lawyers, and as they are selected from among the bar, that provides ample opportunity for the independent judicial advisory committees to ensure a fully representative bench, given the increasing diversity within the legal profession. Giving privileged status to the police in judicial appointments does the opposite. It is also a political fraud.
Once appointed, we depend on our judges, among their other important duties, to serve as a bulwark against the arbitrary actions of the state. Canadian police are professional and serve the public well. I admire and respect police officers. I just don’t want them selecting judges. By putting the police on the committees, we are sending out a bad message: that their approval is required to establish fitness for the judiciary. The last thing we need as a qualification for appointment as a judge is a litmus test of police approval. One side in disputes about the Charter and the criminal law — the police — should have no role to play in determining who judges their conduct.
The government was encouraged by the likes of the Canadian Bar Association and Canada’s Supreme Court Chief Justice to consult before proceeding. It decided not to. It must have thought it knew better. It is hard to imagine what will come next (from this government or its replacement). Mandatory representation from victims’ rights organizations and other special-interest pleaders, depending on the stripe of the party in power? It is a slippery slope. The new Minister of Justice, Rob Nicholson, should reconsider.
William Kaplan is a Toronto lawyer.


Monday, January 22nd, 2007

Jeannie Shawl


[JURIST] The US Supreme Court [official website; JURIST news archive] handed down decisions in three cases Monday, Jan. 22, 2007, including Cunningham v. California [Duke Law case backgrounder; JURIST report] where the Court struck down as unconstitutional California sentencing rules that allow judges to exercise discretion to tack on additional years to prison sentences beyond that determined by a jury. The Court overturned a California Court of Appeal decision [PDF text; modification, PDF], holding that California’s Determinate Sentencing Law [backgrounder, PDF] allows judges to impose enhanced sentences based on a judge’s, not the jury’s, finding of facts and therefore violates the Sixth and Fourteenth Amendments of the US Constitution. Read the Court’s opinion [text] per Justice Ginsburg, along with a dissent [text] from Justice Kennedy and a second dissent [text] from Justice Alito. AP has more.

In the consolidated cases of Jones v. Bock and Williams v. Overton [Duke Law case backgrounder; JURIST report], the Court rejected rules established by the US Court of Appeals for the Sixth Circuit as to when a prisoner can file a lawsuit contesting prison conditions under the Prison Litigation Reform Act of 1995 (PLRA) [text, see Title VIII]. According to the Court, the PLRA “requires prisoners to exhaust prison grievance procedures before filing suit,” but Sixth Circuit rules concerning when a prisoner has exhausted other administrative procedures go too far:
The Sixth Circuit, along with some other lower courts, adopted several procedural rules designed to implement this exhaustion requirement and facilitate early judicial screening. These rules require a prisoner to allege and demonstrate exhaustion in his complaint, permit suit only against defendants who were identified by the prisoner in his grievance, and require courts to dismiss the entire action if the prisoner fails to satisfy the exhaustion requirement as to any single claim in his complaint. Other lower courts declined to adopt such rules. We granted certiorari to resolve the conflict and now conclude that these rules are not required by the PLRA, and that crafting and imposing them exceeds the proper limits on the judicial role.
Read the Court’s unanimous opinion [text] per Chief Justice Roberts. AP has more.

Finally, in Osborn v. Haley [Duke Law case backgrounder], the Court held that a lawsuit filed in state court by Pat Osborn, an employee of a private contractor, against a Forest Service employee who Osborn alleged influenced the contractor’s decision to fire Osborn should be heard in federal court. After the lawsuit had been filed in state court, the US attorney general certified that the government employee, Barry Haley, had acted within the scope of his employment, removed the case to federal court, and sought to have the lawsuit dismissed under the Westfall Act [text], which provides tort immunity to government employees for acts committed within the scope of their employment. The federal district court hearing the case remanded it back to state court after concluding that it must accept Osborn’s allegations – that Haley acted outside the scope of employment – as true. The district court ruling was overturned by a federal appeals court. The Supreme Court upheld the Sixth Circuit’s decision [PDF text] in the case and ruled that the case should not have been remanded to state court, holding that for purposes of removal, the attorney general’s certification gave the federal court “exclusive competence to adjudicate the case.” The Court also held that certification under the Westfall Act was proper “when a federal officer charged with misconduct asserts, and the Attorney General concludes, that the incident or episode in suit never occurred.” Read the Court’s opinion [text] per Justice Ginsburg, along with a concurrence in part and dissent in part [text] from Justice Souter, a second concurrence in part and dissent in part [text] from Justice Breyer, and a dissent [text] from Justice Scalia.


Monday, January 22nd, 2007

Gov. Ernie Fletcher said Monday that his general counsel, Jim Deckard, was offered the position of executive director of the Kentucky Bar Association. “That’s quite a high honor. He’s done a fine job here,” Fletcher said of Deckard.

On Monday Deckard said that he had decided to accept the position after talking with the governor.  Deckard was one of seven finalists in the national search conducted by the KBA Board of Governors. The position pays $127,000 a year.
Deckard replaces Bruce Davis who is retiring.  Davis has held the position since l971.

During the 24 years that Davis served as director the Ky. Bar membership has grown from 3,500 Ky. licensed lawyers to over 15,000.  Davis worked to get the new Bar Center built in Frankfort, and has overseen numerous programs that benefit the bar and the public.

Kentucky’s continuing legal education program is one of the most extensive the United States and is believed to be the only CLE program that does not charge admission to attendees.


Monday, January 22nd, 2007

By Tony Mauro  First Amendment Center legal correspondent

WASHINGTON — When President Bush signed the Bipartisan Campaign Finance Reform Act in 2002, he did so with reservations. The law, he said, presented “serious constitutional concerns.�
From then on, his administration has dutifully defended the law’s constitutionality, and the Supreme Court has largely gone along. But now, with two Bush appointees on the Court, the president’s initial concerns may gain new potency, with the result that a significant part of the law may soon be struck down.
On Jan. 19, the Supreme Court agreed to consider a case this term that endangers what was long viewed as the most vulnerable provision of the law: its pre-election ban on “electioneering communications� directly funded by corporations and unions.
Retired Justice Sandra Day O’Connor supported the ban, but critics of the law are pinning their hopes on her successor, Samuel Alito Jr., to cast a fifth vote against it. (Chief Justice John Roberts Jr., the other Bush appointee, may also oppose the law, but so did his predecessor, the late William Rehnquist.)
“It’s great news that a new Supreme Court will take a fresh look� at the law, said Curt Levey, executive director of the Committee for Justice, which fought for the confirmation of Bush’s nominees. Levey predicted that the “constitutionalist� Alito would provide the key vote to strike down the ad ban.
In his 15 years as an appeals judge, Alito did not rule in a campaign-finance case, but if Levey is right, Alito would join with Roberts and the Court’s three other campaign-law critics, Antonin Scalia, Clarence Thomas and Anthony Kennedy, to strike down the statute.
At issue in Federal Election Commission v. Wisconsin Right to Life is a series of ads financed by the Wisconsin anti-abortion group in 2004. The ads criticized by name Sens. Russ Feingold and Herb Kohl, both Democrats, for blocking Bush’s judicial nominees. But because Feingold was running for re-election, the messages ran afoul of the law, which bans messages referring to clearly identified candidates within 60 days of a general election or 30 days of a primary — if those messages are financed directly by corporations or unions. The law allows such ads if they are paid for by corporate or union political-action committees, which are governed by greater regulation and disclosure rules.
In its 2003 ruling in McConnell v. FEC, the high court upheld the electioneering-ad ban on its face — in other words, in the absence of any dispute over a real advertisement. When Wisconsin Right to Life sought an injunction against enforcement of the law, the district court interpreted the McConnell ruling also to preclude challenges to the law in real disputes.
But when the Wisconsin case went to the Supreme Court in January 2006, just days before Bush appointee Alito replaced O’Connor, the Court rejected that view, ruling that the McConnell decision did not foreclose further challenges to the law as applied to real advertisements.
During oral arguments, Roberts also accused government lawyers of a “classic bait and switch,� because before McConnell, they argued that as-applied challenges would be allowed, and now they were arguing such challenges were precluded.
The Wisconsin case returned to lower courts, where a three-judge panel struck down the electioneering-ad provision as a First Amendment violation. Going strictly by the words of the disputed ads, the panel concluded they were not intended to influence an election.
The Bush administration appealed directly to the Supreme Court, prompting the Court to accept review on Jan. 19. The Court ordered an expedited briefing schedule so that the case can be ruled on before this term expires in June instead of next term — which begins in October, when a ruling would come perilously close to the 2008 election primaries.
In the case now before the Court, the administration defends the “bright line� ad ban as the best way to keep corporations and unions from evading it. The brief by Solicitor General Paul Clement also asserts that the context of the ads, not just their words, should be assessed in determining if they are meant to influence an election.
In a separate brief on behalf of Sen. John McCain, R-Ariz., and other supporters of the law, former Solicitor General Seth Waxman argues that the lower court ruling “stands as an obstacle to the full achievement of the purposes of a critically important federal law.� (McCain also filed a case on this matter, McCain v. Wisconsin Right to Life, which has been consolidated with the FEC case.)
In its brief, Wisconsin Right to Life also urged the high court to review the issue, arguing that its ads were a form of “grassroots lobbying� that should be protected by the First Amendment.


Court sidesteps ruling on campaign finance
Justices say lower court should take new look at challenge to federal restrictions on political ads. 01.23.06

Federal court: Issue ads OK during election season
Judges rule 2-1 that groups may mention candidates by name in commercials as long as they are trying to influence public policy, not sway election. 12.22.06

Federal court asked to toss Wis. judicial-campaign rules
Lawsuit says regulations limiting judicial candidates’ comments violate free speech, deprive citizens of information they need to cast informed votes. 01.03.07

Justices will hear campaign-finance case
FEC v. Wisconsin Right to Life involves restrictions on issue ads by special-interest groups, corporations, labor unions during election campaigns. 01.19.07

2006-07 Supreme Court case tracker

Campaign finance overview

Analysis/Commentary summary page
View the latest analysis and commentary throughout the First Amendment Center Online.


Saturday, January 20th, 2007

Penn. Governor  Rendell has proposed a plan to allow  a nominating panel to nominate five candidates for appellate offices. The Governor would choose the top choice which would also require State Senate confirmation. This plan is close to the plan that Ky. Supreme Court Justice McAnulty recently suggested be considered in Kentucky.


MARK SCOLFORO  Associated Press
HARRISBURG, Pa.The 1968 constitutional convention that created the current structure of Pennsylvania’s court system found itself deadlocked over whether appellate judges should be elected.

 That debate was reignited last week when Gov. Ed Rendell proposed having an “independent expert panel” help select “only the most qualified jurists” for the Supreme, Superior and Commonwealth courts.

 The question of how to fill the appeals court benches has surfaced repeatedly throughout Pennsylvania history. The judges were appointed until 1850, and since then the state has employed both nonpartisan elections (in which political affiliation is not listed on the ballot) and partisan elections – the current system.

 Across the country, the percentage of state judges who face some sort of election has remained essentially flat over the past century – nearly 90 percent – according to the National Center for State Courts. Pennsylvania is currently one of just six states that elects judges at all levels in partisan elections.

 Back in 1968, the constitutional convention handed the decision to voters, who opted the following spring for direct elections by a margin of just 19,000 out of nearly 1.3 million votes cast.

 The current method, in which the judges run in partisan elections, then periodically face voters in unopposed “retention” elections, is biased against well-qualified lawyers who may lack political connections, said John Estey, the Democratic governor’s chief of staff.

 “Those people really – unless they have some political aspirations, or they want to learn about it – have no way of putting their names into the mix,” Estey said.
Changing the system would involve amending the Pennsylvania Constitution, a process that requires approval by the Legislature in two successive sessions and then by voters.

 Rendell is proposing a 14-member nominating commission that would give the governor a list of five names for each vacancy. The governor would send his choice from that list to the Senate for simple-majority confirmation.

 The commission would consist of four gubernatorial appointees (no more than two lawyers, no more than two from a single political party, and all from different counties); one chosen by each of the General Assembly’s four caucuses; and six “public” members selected from civic groups, unions, business organizations, lawyers’ groups, non-lawyer professional groups and law-enforcement associations.

 The finer points include staggered commission terms, public disclosure of the names sent to the governor, and having the commission pick the judge or justice whenever the governor and Senate reach an impasse. Four years after a jurist is selected, he or she would face a 10-year retention election.

 It would only apply to future vacancies, and take effect after Rendell leaves office.
Critics of the partisan-election method argue that many voters know little or nothing about the candidates except what they see on the ballot – name, party affiliation and county of residence. Qualifications become a minor factor and campaigning, they say, is harmful to the judges’ public image.

 “It’s a crap shoot,” said Lynn V. Marks, executive director of Pennsylvanians for Modern Courts, a nonpartisan court-reform group. “So much of it depends on their ballot position, how much money they might raise from lawyers.”
The Pennsylvania Bar Association, which has supported a form of appellate-court merit selection since 1947, believes it could eventually lead to a similar system for county judges.

 “It’s critical for us to get the appellate judges selected by merit,” said bar association president Ken Horoho. “I think once that happens and people see that that is the best process by which to get good, qualified judges elected and retained, then I think we can re-evaluate whether or not we’ll recommend it to the county bars.”

 Supporters of direct elections say voters should have the power to decide, and predict that the composition of a merit-selection panel will be controversial.
“My basic instinct is that it’s a democratic process, and in all probability people should have the opportunity to choose their judges,” said Superior Court Senior Judge Bob Colville, a Democrat who won judicial election in Allegheny County but lost a Supreme Court race.

 “I’m not sure that the governor’s wrong,” he said. “I’m just saying there are pros and cons to each of them.”


Saturday, January 20th, 2007

WASHINGTON, Jan. 19 — The Supreme Court stepped back into the debate over campaign finance regulation on Friday, announcing an expedited review of a ruling last month that substantially narrowed the application of a major provision of the McCain-Feingold federal campaign law.
At issue is a section of the 2002 statute that imposes a blackout period before elections on television advertisements that meet the law’s definition of “electioneering communications� and that are paid for from the general treasuries of corporations or labor unions.
The question is how to reconcile that provision with the free-speech rights of groups that say they are engaged in grass-roots lobbying, the sort of genuine issue advertising the First Amendment protects.
The court heard the same case a year ago, shortly before Justice Samuel A. Alito Jr. took his seat last January. Faced with the prospect of a 4-to-4 deadlock in the absence of Justice Sandra Day O’Connor, who was days away from retirement and would not have been able to participate in a decision, the court then sent the case back to the lower court.
While that move postponed the court’s encounter with the Bipartisan Campaign Reform Act, as the McCain-Feingold law is formally known, an eventual encounter was inevitable because Congress, in passing the law, made Supreme Court review mandatory.
The plaintiff is a Wisconsin anti-abortion group that in 2004 sought to run three television commercials criticizing a Senate filibuster against President Bush’s judicial nominees and urging viewers to ask the state’s two senators to permit the nominations to come to a vote.
One of the senators, Russell D. Feingold, was up for re-election; the other, Herb Kohl, was not. The advertisements said nothing about voting for or against either man. Advised by the Federal Election Commission that the television spots would be barred as electioneering communications during the 60 days before the November election, the group, Wisconsin Right to Life Inc., filed a lawsuit intended to test the provision’s constitutionality.
A special three-judge Federal District Court here at first turned back the challenge under the Supreme Court’s ruling in 2003, which by a 5-to-4 vote upheld all major provisions of the McCain-Feingold law against a variety of challenges. But in their ruling last January, which was unanimous and unsigned, the justices said the district court had misinterpreted the 2003 decision as a blanket endorsement of the law.
The court said it had not meant to foreclose a finding that the electioneering-communication provision, which imposes a blackout 30 days before a primary and 60 days before a general election, might be found unconstitutional in particular applications.
That was a surprise to the Federal Election Commission and many election lawyers, who had regarded the constitutionality of the provision as settled. In a 2-to-1 decision issued on Dec. 21, the district court ruled that the statute’s application to the Wisconsin Right to Life television spots would indeed be unconstitutional.
Both the Federal Election Commission and several Congressional supporters of the law, including Senator John McCain, the Arizona Republican who was one of the chief sponsors, filed expedited appeals from that ruling. The federal agency said the district court’s decision was based on a “seriously flawed� analysis that would undermine “a critical component of the campaign-finance reform that Congress enacted� and that the Supreme Court had declared to be constitutional on its face.
The election commission did suggest that the case might now be moot, a finding that the Supreme Court is free to make after it hears the argument in late April. Federal courts can retain jurisdiction over disputes that they deem moot but “capable of repetition,� a plausible description of the Wisconsin Right to Life case because the group’s lawyer, James Bopp Jr., has brought a number of such cases and is committed to continuing his challenge.
“Politicians should not be able to use campaign finance laws like McCain-Feingold to prohibit citizen groups from engaging in grass-roots lobbying,� Mr. Bopp said.
The basic argument in the cases — Federal Election Commission v. Wisconsin Right to Life Inc., No. 06-969; and McCain v. Wisconsin Right to Life Inc., No. 06-970 — is over how the district court analyzed the advertisements in finding that they were genuine issue ads rather than thinly veiled campaign commercials.
The majority said that because judges “should not be in the business of trying to read any speaker’s mind,� courts should limit their analysis to “language within the four corners� of a commercial. Noting that the ads did not “promote, attack, support or oppose� any candidate, the court said it would accept Wisconsin Right to Life’s assertion that the ads were not “intended to influence the voters’ decisions� and so were not subject to the blackout period.
The dissenting judge said that the only way to separate a genuine issue ad from a “sham� was to examine the advertisement’s “purpose and effect� in its full context.
Justice Alito may well be in a position to determine the outcome, or perhaps even the course of federal campaign regulation if he departs from Justice O’Connor’s across-the-board support of the McCain-Feingold law. Chief Justice John G. Roberts Jr. is not in that position, because his predecessor, Chief Justice William H. Rehnquist, was one of the four dissenters from the court’s 2003 decision upholding the law.
Among other cases the court accepted on Friday was a challenge by two governments, those of India and Mongolia, to New York City’s effort to collect property taxes on the portions of their United Nations missions that are used to house staff members.
The question in the case — Permanent Mission of India v. New York, No. 06-134 — is whether the city’s suit to collect the taxes, some $18 million dating from 1981, should have been barred by sovereign immunity.
More Articles in Washington »


Friday, January 19th, 2007

Opinion by Glenn Harlan Reynolds

SOLDIERS AND POLICE are supposed to be different. Soldiers are aimed at enemies from outside the country. They are trained to kill those enemies, and their supporters. In fact, “killing people and breaking things� are their main reasons for existence.

 Police look inward. They’re supposed to protect their fellow citizens from criminals, and to maintain order with a minimum of force.
It’s the difference between Audie Murphy and Andy Griffith. But nowadays, police are looking, and acting, more like soldiers than cops, with bad consequences. And those who suffer the consequences are usually innocent civilians. The trend toward militarizing police began in the ’60s and ’70s when standoffs with the Black Panthers, the Symbionese Liberation Army, and the University of Texas bell tower gunman Charles Whitman convinced many police departments that they needed more than .38 specials to deal with unusual, high-intensity threats. In 1965 Los Angeles inspector Daryl Gates, who later became police chief, signed off on the formation of a specially trained and equipped unit that he wanted to call the Special Weapons Attack Team. (The name was changed to the more palatable Special Weapons and Tactics). SWAT programs soon expanded beyond big cities with gang problems.
Abetting this trend was the federal government’s willingness to make surplus military equipment available to police and sheriffs’ departments. All sorts of hardware is available, from M-16s to body armor to armored personnel carriers and even helicopters. Lots of police departments grabbed the gear and started SWAT teams, even if they had no real need for them. The materiel was free, and it was fun. I don’t blame the police. Heck, if somebody gave me a Bradley Fighting Vehicle to play with, I’d probably start a SWAT team, too—so long as I didn’t have to foot the maintenance bill.
Thus, the sheriff’s department in landlocked Boone County, Ind., has an amphibious armored personnel carrier. (According to that county’s sheriff-elect, the vehicle has been used to deliver prescriptions to snow-bound elderly residents, and to provide protection during a suspected hostage situation.) Jasper, Fla.,—with 2000 inhabitants and two murders in the past 12 years—obtained seven M-16s from the federal government, leading an area newspaper to run a story with the subhead, “Three stoplights, seven M-16s.�
This approach, though, has led to problems both obvious and subtle. The obvious problem should be especially apparent to readers of this magazine: Once you’ve got a cool tool, you kind of want to use it. That’s true whether it’s a pneumatic drill, a laser level or an armored fighting vehicle. SWAT teams, designed to deal with rare events, wound up doing routine police work, like serving drug warrants.
The subtle effect is also real: Dress like a soldier and you think you’re at war. And, in wartime, civil liberties—or possible innocence—of the people on “the other side� don’t come up much. But the police aren’t at war with the citizens they serve, or at least they’re not supposed to be.
The combination of these two factors has led to some tragic mistakes: “no knock� drug raids, involving “dynamic entry,� where the wrong house has been targeted or where the raid was based on informants’ tips that turned out to be just plain wrong.
On Sept. 23, 2006, a SWAT team descended on the home of a farmer and his schoolteacher wife in Bedford County, Va. “I was held at gunpoint, searched, taunted and led into the house,� A.J. Nuckols wrote to his local paper. “I was scared beyond description. I feared there had been a murder and I was a suspect.� When the couple’s three children came home, the police grilled them, too. The family was held under guard for five hours as the SWAT team ransacked the place, seizing computers, a digital camera, DVDs and VHS tapes. Ten days later, the cops returned the belongings. It turned out that a special anti-child-porn police unit had made a mistake while tracing an computer address and sent the SWAT team to the wrong home.
Sometimes, homeowners are killed in these actions; other times, it’s the officers. When a narcotics task force raided a duplex apartment in Jefferson Davis County, Miss., in 2001, they arrested one tenant, then burst into the adjacent apartment of Cory Maye. Thinking a burglar had broken into the bedroom he shared with his toddler daughter. Maye shot the officer fatally. Maye was convicted of murder and sentenced to death. However, his sentencing was overturned, and a motion for a new trial is still pending.
And, in a case that is now drawing national attention, 92-year-old Kathryn Johnston, who lived in a high-crime neighborhood of Atlanta, recently opened fire on police when they broke down her door while executing a drug warrant. They returned fire, killing her. It’s hard to believe any of this would have happened had the police taken a less aggressive approach in the first place.
It used to be that police came to the door, announced themselves and, once a homeowner responded, entered the premises. Most policemen still work this way. But an alarming number now break down doors first and ask questions later. Don’t get me wrong: Police often do dangerous work and they need equipment that’s going to protect them. And dynamic entry is valid when dealing with desperate criminals, but these tactics put ordinary citizens—and the police—at risk. And when they do, it’s often hard to get redress. Lawsuits against police and supervisors face strict legal limits in the form of “qualified immunity,� and prosecutors, who work with the police on a regular basis, are unlikely to bring criminal charges against officers who negligently kill people. But homeowners confronted with tactics like flash-bang grenades and shouting that are intended to disorient targets, tend to be held to a much higher standard. The result, as in the Cory Maye case, is that people who do the laudable thing and defend their homes against unknown, armed intruders sometimes wind up being prosecuted for murder.
I discussed the issue with political commentator Radley Balko, who wrote a troubling report titled “Overkill: The Rise of Paramilitary Police Raids in America.� Balko said that the problem is more common than people realize. He suggests that accountability and transparency are what we need. I agree. Police raids should be videotaped, in an archival format that discourages tampering. And I think we need legal reform, too. Police who raid the wrong house, or who fail to give homeowners adequate warning except in truly life-or-death situations, shouldn’t benefit from official immunity.
Our homes are supposed to be our castles. The police shouldn’t treat them like enemy camps.


Friday, January 19th, 2007



News Flash: Candidates for vacant Ct. of Appeals seat must file by Tuesday Jan. 30, 2007


   The Chief Justice has issued an important press release that may be of interest to you or someone you know.   Court of Appeals Judge R.W. Dyche has resigned the office to which he was elected in Nov. on the Court of Appeals to accept a position on the Worker’s Compensation Board.  That creates a vacancy on the Court of Appeals.


That means that anyone wishing to run for that office (election to be held November 2007) MUST file their candidacy papers no later than 4:00 P.M. Tuesday, January 30, 2006.  That is just 11 days from now.


The election is to select the person who will serve the balance of the current eight year term. The 27 counties which comprise the 3rd. District, Division 1, Court of Appeals District are: Adair, Bell, Casey, Clay, Clinton, Cumberland, Estill, Garrard, Green, Jackson, Knox, Laurel, Lee, Leslie, Lincoln, Marion, McCreary, Metcalfe, Monroe, Nelson, Pulaski, Rockcastle, Russell, Taylor, Washington, Wayne, Whitley


You should be able to find filing papers at any Circuit Clerk’s Office. Those papers should be filed with the Sec. of State in Frankfort by close of business on January 30, 2007.


In the meantime, the Judicial Nominating Committee for that Court of Appeals District will nominate candidates to serve until the November election is certified.


                                 Procedures  for Judicial Nominating Process

When a judicial vacancy occurs, the executive secretary of the Judicial Nominating Commission publishes a notice of vacancy in the judicial circuit or the judicial district affected.
 Attorneys can recommend someone or nominate themselves. The names of the applicants are not released. Once nominations occur, the individuals interested in the position return a questionnaire to the Office of Chief Justice.
The Chief Justice then meets with the Judicial Nominating Commission to choose three nominees. Because the Kentucky Constitution requires that three names be submitted to the governor, in some cases the commission submits an attorney’s name even though the attorney did not apply.
A letter naming the three nominees is sent to the Governor for review. When the governor appoints a replacement, his office makes the announcement. If the Governor has not acted within 60 days, then the Chief Justice may make the appointment.
The person appointed will be notified by the Governor’s Office, and then may take office as soon as they are sworn in, (assuming the Governor’s Executive Order has been filed, and this usually will happen contemporaneous with the Governor’s announcement.)
Many nominees take a week or so to get their personal affairs re: their law practice in order before taking office.
A judge appointed in this manner will serve until the next general election. If the next election is before the expiration of the regular term of office, the nominee will only serve until the election results are in…and then will be replaced by the person elected unless he/she is the winner of the election.
Each judicial District has a Judicial Nominating Commission.  They are elected by the judicial district Bar members or if a citizen they are appointed. The Commission contains citizen and lawyer members.  Names of Commission members are maintained by the Ky. Bar Association. The Chief Justice is Chairman of all local nominating Commissions. 

Chief Justices Press Release:


Seat on Kentucky Court of Appeals now vacant for 3rd Appellate District, Division 1
Candidate filing deadline with Kentucky Secretary of State is Tuesday, Jan. 30

 FRANKFORT, Ky., Jan. 18, 2007 ¾ By virtue of the decision of R.W. Dyche III of London to forego accepting election to the office of judge of the Court of Appeals for the 3rd Appellate District, Division 1, a vacancy has been created pursuant to KRS 62.010. An election to fill that vacancy will be held Nov. 6, 2007, subject to a primary election on May 22, 2007. The Secretary of State is now accepting candidate filings from those who are qualified. The filing deadline is Tuesday, Jan. 30, 2007, at 4 p.m.

 The 3rd Appellate District is comprised of Adair, Bell, Casey, Clay, Clinton, Cumberland, Estill, Garrard, Green, Jackson, Knox, Laurel, Lee, Leslie, Lincoln, Marion, McCreary, Metcalfe, Monroe, Nelson, Pulaski, Rockcastle, Russell, Taylor, Washington, Wayne and Whitley counties.

 For more information on filing for this office, contact Mary Sue Helm, election administrator for Trey Grayson, secretary of state, by calling 502-564-3490.

Appalachian Defense Fund has job opening for attorney

Thursday, January 18th, 2007

Appalachian Research and Defense Fund of Ky., Inc., (Appalred) is seeking an Executive Director.  Appalred provides a full range of legal services to low income clients in thirty-seven rural Appalachian counties in eastern and south central Kentucky through a network of ten area offices, and a support office on the campus of the University of Kentucky in Lexington.  This geographical area has one of the nation’s highest poverty populations exceeding 250,000 persons.  Appalred currently has a staff consisting of thirty-one (30) attorneys, four (4) paralegals, and supporting staff.  The program’s annual budget is approximately four million dollars.  About forty percent (45%) of its funding is from the Legal Services Corporation (LSC) and sixty percent (55%) is from non-LSC sources,  including state filing fee and general appropriation revenues; IOLTA; VAWA State and Federal support; and the Administration on Aging.  Appalred’s administrative office is in Prestonsburg, Kentucky.

          Appalred has a history of over 35 years of aggressive advocacy on behalf of low income clients and client groups in its service area.  Appalred staff has been involved in precedent setting  cases in poverty law related areas including consumer law, housing and domestic relations.  Appalred has a network of domestic violence specialists concentrating on issues of spouse and family abuse.  Appalred also has a staff of benefits counselors who focus on services to senior citizens.  Appalred has a long history of involvement in environmental, mine safety, and federal black lung issues.  These matters are now handled by the Appalachian Citizens Law Center in Prestonsburg, whose staff works cooperatively with Appalred.  Appalred staff presently serves over 5,000 clients a year.

          Most of the office locations are in communities of 3,000 to 5,000 persons, except for Richmond and Somerset, which have populations of approximately 27,152 and 15,000 respectively.  All offices are up-to-date with computer technology and have excellent library facilities.  There are community colleges or four year institutions in all of the communities where vacancies are being filled.  All offices are also located within a short driving distance of outstanding mountains, lakes and streams for camping and outdoor activities.

          Appalred’s Executive Director is responsible for the overall administration of the program subject to the direction and policy making of a 17 member Board of Directors which includes 11 attorneys, and six client Board Members.  The administrative staff, in addition to the Director,  consists of a Deputy Director, (presumably vacant) an  Administrative Assistant, the Director of Fiscal and Personnel Records, and her Assistant.  The Program’s Litigation Director is based in the Richmond, KY office, along with the program’s new centralized telephonic intake system. The offices’ Directing Attorneys are highly experienced. Most of them have been in charge of their offices for many years. 

          The  Executive Director, by virtue of his/her position also sits on the Board of Directors of the Office of Kentucky Legal Service Programs (OKLSP), one of two non-LSC supported state support entities.  OKLSP is largely responsible for statewide advocacy and for specialized litigation in cases affecting low income clients  which programs cannot handle because of LSC restrictions.  The other statewide entity, whose staff works closely with Appalred is the Access to Justice Foundation (AJF).  It handles fund-raising on a statewide basis, particularly in the Kentucky Legislature and a variety of other support functions including staff training, and the administration of the statewide web site, Access to Justice  Appalred’s Executive Director also participate in the Kentucky legal services statewide planning process, and ensures Appalred’s ongoing commitment to that process.  Additional duties include fund raising and grant writing; bar relations at the state and local  level; and participation in various statewide and local human services task forces.

          The Program seeks an Executive Director with excellent  leadership and administrative skills who is able to direct a network of rural offices; who is both a “hands on� leader and one who is willing and able to delegate authority to the program’s leadership team.  He/she should be able to communicate effectively with internal and external customers; energetic; visionary; willing and able to collaborate with other legal services directors, state and county officials, and other nonprofit organizations.  Applicants should have a documented history of experience in legal services and/or a comparable agency which provides free legal services to low income persons.

          The salary is commensurate with experience. Interested applicants should respond by February 15, 2007 to: Hon. John M. Rosenberg, Interim Director, Appalachian Research and Defense Fund, of KY., 120 North Front Avenue, Prestonsburg, KY 41653. For questions, call Diane Fish, Administrative Assistant, at 606-886-9876, ext. 129.

Governors Legal Counsel nominee for KBA Director position.

Thursday, January 18th, 2007

The KBA search committee has put three names forward to the KBA’s board of governors for the position of Director of the Ky. Bar Association.  reports that one of the three names is James Deckard, Gov. Fletcher’s current general counsel and who was previously Chief of Staff for Chief Justice Joseph Lambert.


Apparently the Board is meeting on Thursday or Friday of this week to vote which candidate it will recommend to the Kentucky Supreme Court.


Last week, the Attorney General was allowed by an order of the Franklin Circuit Court to turn over Grand Jury records of the Merit System investigation concerning the activities of several attorneys who appear to be under investigation by the KBA.


The KBA Director would nominally be in charge of the KBA investigating committee that will be looking into whether or not attorneys on behalf of Gov. Fletcher committed any disciplinary violations during the merit scandal investigation.


The KBA is the disciplinary body for over 15,000 lawyers licensed to practice law in the Commonwealth of Kentucky.



Thursday, January 18th, 2007

    Louisville patrons of the trendy Raw Sushi Lounge will gather tonight to eat raw fish off the bodies of nude women, well a few banana leaves short of being nude. “Several sushi creations will be atop near-naked women who will serve as human platters.�

The Courier Journal reports: “As artists of mixed media create and showcase their works, several female models will take turns lying on tables clad only in flesh-colored pasties and flesh-colored panties.  Then they’ll be draped with bamboo leaves, covered – ‘artistically not inappropriately’ with sushi and surrounded by garnishes.�

“The model becomes a form of living art, it’s a showcase of the female form�, said Lounge co-owner David Grace.

    We have seen similar events on television and haven’t noticed that the “human platters� were wearing any flesh colored knickers, but it sure didn’t look like it.  We suppose that the artsy-craftsy East End crowd in Louisville is just more conservative than they are in New York or L.A. or Pikeville.  

   The Courier-Journal didn’t ask the important question ….will the patrons who collect their food from the navel of the human platter, be allowed to use their hands?  The example we saw on television forbade the use of hands.  One had to collect their calories only by using their mouths.

   I  guess my old running buddies,  Leroy, Dwayne and Bubba (from Owen County) would really enjoy being invited to such an event.  They have been doing about the same thing for many years in Biker bars, or so they have told me.  I am sworn to secrecy by “the Guy Oath�, which they made me take, and I can not go into more detail.

We hope the Courier-Journal puts their new million dollar color presses to work, and provides us with pictures of this event in their week-end edition, in the interest of filling the vast cultural vacuum in which the rest of us reside.


The shoe finally drops. Fletcher Appoints Court of Appeals Judge R.W. Dyche to the Kentucky Workers Compensation Board. Howard is logical replacement.

Thursday, January 18th, 2007

    In the strange story of Judge Dyche, the mystery is now resolved. Judge Dyche filed for re-election in Jan. of 2006.  Then he retired in June.  The Gov. appointed Judge Howard to serve out the remaining seven months of the Dyche term. 

However, Dyche was the only person on the ballot for the November election, and everyone was kept in the dark as to whether he intended to accept the office he was elected to in Nov. or was he going to remain retired. 

Chief Justice Lambert apparently felt that Dyche might be planning to remain in office, after his retirement and double-dip by receiving both retirement benefits and a salary for assuming his old job.  His retirement benefits should have about equaled a full salary of some $120,000 a year, making him eligible for a total annual payment of about $240,000.  The Chief Justice sought and obtained legislation prohibiting double-dipping in the judicial branch. 

The salary paid to members of the Worker’s Comp. Board is equal to that of a Circuit Judge, currently about $115,000.  So it appears that Dyche will now be able to double-dip.

Judge Howard, not being elected, ended his term of office on Jan. 1, 2007.  He is expected to be a logical candidate for re-appointment for the vacancy created by the appointment of Judge Dyche to the Worker’s Compensation Board.

The Governors office issued the following press release Thursday Jan. 18, 2007.

FRANKFORT, Ky. – Governor Ernie Fletcher has appointed R. W. Dyche III, of London, to the Kentucky Workers’ Compensation Board.
“I appreciate Governor Fletcher’s confidence in me and will serve to the best of my ability,� said Dyche.
Dyche served as a judge on the Kentucky Court of Appeals from 1986-2006.  He previously served as judge for the 27th Judicial District of Kentucky from 1978-1986, including two stints as Chief Regional District Judge.  Dyche received a bachelor’s degree in government from Centre College and a juris doctorate from the University of Kentucky College of Law.  He is a member of the Kentucky Bar Association and has served on the Judicial Conduct Commission of Kentucky, the Kentucky Continuing Judicial Education Commission and the Ethics Committee of the Kentucky Judiciary. 
Since 1987 and pursuant to KRS 342.285, the Kentucky Workers’ Compensation Board has been the first step in the appellate process in a workers’ compensation litigated claim.  The three members of the board are appointed to four-year terms by the governor, subject to confirmation by the state Senate.  Board members must possess qualifications of Court of Appeals judges.


Thursday, January 18th, 2007

WASHINGTON, Jan. 9 — Senior lawmakers, emboldened by the recent restrictions on AT&T and the change in control of Congress, have begun drafting legislation that would prevent high-speed Internet companies from charging content providers for priority access.
The first significant so-called net neutrality legislation of the new Congressional session was introduced Tuesday by Senator Byron L. Dorgan, Democrat of South Dakota, and Senator Olympia J. Snowe of Maine, one of the few Republicans in Congress to support such a measure.
“The success of the Internet has been its openness and the ability of anyone anywhere in this country to go on the Internet and reach the world,� Mr. Dorgan said. “If the big interests who control the pipes become gatekeepers who erect tolls, it will have a significant impact on the Internet as we know it.�
In the House, Representative Edward J. Markey, the Massachusetts Democrat who heads the Energy and Commerce Subcommittee on Telecommunications and the Internet, said recently that he would introduce legislation soon and planned to hold hearings.
Despite the flurry of activity, the proposals face significant political impediments and no one expects that they will be adopted quickly. But the fight promises to be a bonanza for lobbyists and a fund-raising tool for lawmakers. It pits Internet giants like Google, Yahoo, eBay and Amazon, which support the legislation, against telecommunication titans like Verizon, AT&T and large cable companies like Comcast.
The debate may also affect the plans of the companies to develop new services and to consider certain mergers or acquisitions.
Consumer groups have allied themselves with content providers. The groups maintain that without the legislation, some content providers would be discouraged from offering services while others would impose costs on providers that would either discourage them from offering new services or pass them on to consumers. They also feel that small companies would be unable to compete.
But the telephone and cable companies say that efforts to limit their ability to charge for faster service would discourage the pipeline companies from making billions of dollars in investments to upgrade their networks, and would, as a practical matter, be even more harmful to consumers.
Beyond the debate, the fight over net neutrality is, like most regulatory political battles, a fight over money and competing business models. Companies like Google, Yahoo and many content providers do not want to pay for the kinds of faster Internet service that will enable consumers to more quickly download videos and play games.
In their thirst to continue to grow rapidly, content providers are looking to expand, but they consider any attempt by the telephone and cable companies to charge them for priority services as restricting their ability to move into new areas.
On the other hand, the telephone and cable companies — the so-called Internet pipes — want to be able to charge for access, particularly as they begin competing with content providers by offering their video services and programming.
The phone companies have also been studying a business model not unlike that of the cable TV industry: charging premiums to certain content providers for greater access to their pipes.
They say that existing rules, as well as sound business judgment, would preclude them from trying to degrade or slow their broadband service and that what they oppose is regulation that would prevent them from charging for offering a faster service. They also point out that many content providers are already charging customers for priority services, so that what they are proposing is not unduly restrictive.

New DUI blog by Steve Isaacs OF Lexington

Thursday, January 18th, 2007

NEW dui blog by steve isaacs OF LEXINGTON
Attorney Steve Issacs of Lexington, has announced that he is hosting a blog dedicated to dui defense law.  We have reviewed his site and find many useful articles.

The site is titled: Kentucky DUI  Defense Lawyer.  It may be located at 


Wednesday, January 17th, 2007

Mark Nickolas, host of was indicted by the Franklin County Grand Jury on charges that he did not file state income taxes for 2003, 2004 and 2005.

In a story published on the Polwatchers blog, by Herald Leader reporters Brammer and Stamper, Nickolas denied the charges, saying in an e-mail:

“the returns were filed and all state taxes paid on them last year.”
Polwatchers reported that “Nickolas attorney, Thomas Clay of Louisville, said he mailed Nickolas’ tax returns for the years in question to the Revenue Department on Dec. 18. He said the checks cleared on Dec. 28.
Clay provided the Herald-Leader with electronic copies of two cleared checks, one showing a payment of $1,048 for “2003 – tax return payment” and another of $5,309 for “2004 – tax return payment.” Both checks were dated Dec. 16, 2006 and are labeled “The Foundation For Kentucky’s Future, Inc., Mark Nickolas, Chairman.”
Clay said Nickolas’ 2005 tax return required no payment.
After viewing the canceled checks, Cleveland said he was “confused.”
“Revenue tells me today that they don’t have any records of him paying his taxes or filing his return,” Cleveland said. “I’m faxing the canceled checks to the Revenue Department and saying ‘you’ve got some explaining to do.’”
Had he known Nickolas had paid his taxes “I wouldn’t have bothered to present the case,” Cleveland said.â€?

    Cleveland in a story reported by the Courier Journal on their web site that Cleveland who was presented with the request to indict by the Revenue Department said, “He must have made an enemy.�

     LawReader knows of at least one example where a tax check for $37,000 was mailed to the Dept. of Revenue earlier this year, and it took them several months to find the money and properly credit the account of the taxpayer.  At that time, a Dept. of Revenue representative cited the large number of changes in tax laws that went into effect in the Dept. of Revenue for causing confusion in their department.



Wednesday, January 17th, 2007

Several U.S. Supreme Court justices on Tuesday signaled the court could overturn a longstanding lower court ruling to make it easier for creditors to recover attorneys’ fees in bankruptcy disputes. 

The justices grappled with the intricacies of federal bankruptcy law during oral argument in a case pitting PG&E Corp.’s Pacific Gas & Electric unit against Travelers Casualty & Surety Co., a division of St. Paul Travelers Co. 

A decision by the court allowing creditors to recover attorneys’ fees would benefit banks, financial services companies and other likely creditors in bankruptcy cases. 

At issue in the case is whether a creditor can recover attorneys’ fees incurred while litigating federal bankruptcy issues. The 9th Circuit U.S. Court of Appeals ruled in a 1991 case that attorneys’ fees could not be recovered, because federal law does not authorize it. That ruling, in Fobian v. Western Farm Credit Bureau, is known as the “Fobian rule.” 

On Tuesday, G. Eric Brunstad, a lawyer representing Travelers, argued before the justices that the Fobian rule should be overturned because it has no basis in federal law and “exists outside the structure of the bankruptcy code.” 

Justice Stephen Breyer admitted at one point to being “totally puzzled” by an arcane aspect of bankruptcy law, while Justices Anthony Kennedy and Ruth Bader Ginsburg signaled a willingness to overturn the Fobian rule. 

PG&E’s attorneys, meanwhile, argued in court filings that to allow the recovery of fees would encourage frivolous claims and overwhelm bankruptcy courts. 

The dispute stems from PG&E’s bankruptcy filing in April 2001. Travelers had provided PG&E with a $100 million bond to cover PG&E’s workers’ compensation obligations. Travelers filed a claim related to the bond in bankruptcy court and PG&E subsequently sued Travelers. 

As part of a contract providing for the issuance of the bond, PG&E had committed to pay Travelers’ attorneys’ fees in the event of litigation. Travelers sought to recover $167,000 in fees, but PG&E refused. 

The 9th Circuit sided with PG&E in February 2006, citing the Fobian rule. E. Joshua Rosenkranz, PG&E’s lawyer, did not defend the Fobian rule during oral argument, but instead told the justices that several provisions of federal bankruptcy law barred Travelers from recovering the fees. 

Rosenkranz also said in court filings that Travelers’ participation in its bankruptcy proceedings was unnecessary because PG&E never defaulted on the surety bond and did not owe Travelers money when it entered bankruptcy. 

Justice David Souter echoed that view, telling Brunstad that Travelers’ $167,000 litigation “accomplished absolutely nothing.” 

“That’s absolutely false, Justice Souter,” Brunstad responded. He argued that Travelers had to secure its rights to be reimbursed for any future default during PG&E’s bankruptcy proceedings or risk losing those rights. 

Chief Justice John Roberts criticized Rosenkranz, PG&E’s attorney, for dropping his defense of the Fobian rule and submitting alternative arguments to the court after the justices agreed to hear the case. In earlier filings, PG&E had defended the Fobian rule. 

“You want us to reach out and decide a question” not before the court, Roberts said. 

Nevertheless, Roberts said the court should rule on the 9th Circuit’s standard. Ginsburg and Stevens said the court should send PG&E’s other arguments regarding federal bankruptcy law back to the 9th Circuit to resolve. 

The case is Travelers v. Pacific Gas & Electric, 05-1429. 

Courier Journal endorses Senior Status Judge program but gets several facts wrong.

Tuesday, January 16th, 2007

In recent news articles criticism of the Senior Status Judge program have focused on the issue that all judges who meet the time of service and age requirements are allowed into the program.  It is argued that not every judge should be allowed into the program.  Apparently other states require some form of approval before a judge is accepted into a senior judge program.

 The law in Kentucky appears to allow the Chief Justice to admit or deny admission to the program to any judge.  Once a judge retires he/she must apply for admission to the Ky. program. The law permits the Chief Justice to grant admission to the program or to deny admission.  There are no guidelines for the Chief Justice’s decision in the statute.  We interpret the law to empower the Chief Justice to grant or  deny the application of any judge without having to explain his reasons.

 The law makes all judges eligible to apply for admission to the program. The statute states:

 KRS 21.580
1. In the event the retiring judge elects to retire as a “Senior Status Special
Judge” under this subsection, he shall commit to serve, upon
appointment by the Chief Justice of the Commonwealth, as special judge
for one hundred twenty (120) work days per year for a term of five (5)
years without compensation other than the retirement benefits under this

3. Subject to Section 110(5)(b) of the Kentucky Constitution, the Chief
Justice shall give due regard, when practical, to the desirability of
appointing Senior Status Special Judges to serve within their judicial
region as defined by the regional administration charter.


(This section empowers the Chief Justice to assign a Senior Status Judge to serve in a county other than the one from which he/she was originally elected.)

2) The Senior Status Program for Special Judges created by this section shall be open to any member who is a judge in office on the June 24, 2003, and who subsequently retires as a Senior Status Special Judge on or before January 31, 2009.


(We interpret section (2) to mean all judges are eligible to apply, but the portion of Section (1) that says upon appointment by the Chief Justice appears to give the CJ decision making power to make or not make an appointment.  This section does not say all judges have the right to be admitted to the program.)

The Courier Journal article also said the program was scheduled to expire on June 30, 2007.  However this statute was amended in 2000 to extend the program to Jan. 31, 2009.



Monday, January 15th, 2007

Editorial by LawReader Senior Editor Stan Billingsley

Ky. Supreme Court Justice William Eugene McAnulty Jr. says he would like to see reforms made in the selection process for appellate judges.

Justice McAnulty said he would like to see the state’s district, circuit and trial judges become part of the selection process for the Kentucky Court of Appeals. Justices currently are elected to that court. He said another idea for reform is to have appointment by the governor with the consent of the Senate.

“I don’t throw these ideas for reform out lightly or as set in concrete,” he said. “I want to plant a seed throughout the state.”

We salute Justice McAnulty for focusing on this issue.  We recall prior efforts to find an alternative to the direct election of all judges.

About half of all states select judges by a non-elective process.  Some states have implemented a plan called the Missouri Plan where Judges are appointed and then stand periodically for an election process where he does not run against an opponent but is subject to an approve or disapprove vote by the public.

It is widely believed that the public demands that all judges be elected.  We know of no opinion poll that actually supports that belief.  It may or may not be true. 

There appears to be a better argument for direct election of trial judges than appellate judges.  Justice McAnulty appears to recognize this and only calls for a change in the election process of appellate judges.

After 23 years on the bench as a trial judge, I will hazard to make some observations on this topic.

I have seen many judges defeated since the creation of the new court system which was approved by the voters in 1976.  Many of the judges who were defeated, but certainly not all, had one thing in common.   Most of the defeated judges over the last 25 years have been those judges who worked hard to give the appearance that they were what I call “police judges�. 

Most of these defeated trial judges dedicated themselves showing that they were hard boiled law and order super prosecutors.   They ran their courts without  compassion for the people who came before them and appeared to believe the Bill of Rights was a troublesome impediment to “real justice�. 

The complaints you would hear about them if you took the time to ask, were of the nature that they always granted Commonwealth motions and rarely granted defense motions.  They treated suppression motions as wasteful exercises.  They almost always denied defense suppression motions.  They were likely to deny defense motions for continuances while granting Commonwealth motions for continuances whenever raised.  They had a blind eye to the bill of rights.  They imposed high bonds which gave the distinct impression that they recognized that anyone who was charged was already guilty. 

In their sentencing process, they imposed tough jail sentences for even minor offenses. When a defense lawyer filed a twenty page brief on some constitutional issue, they responded with a two paragraph boilerplate denial and didn’t give the defense bar the courtesy of  directly discussing the issues raised in the movant’s brief.

In almost all of these instances where a trial judge was removed from office by the public, you could find adequate evidence that the public had become aware of such biased practices and responded by removing the judge.

Obviously there are examples where the judge was really a very good judge, was fair to all and was still removed by the election process.  We can specifically recall several female judges in Northern Kentucky who were appointed but not subsequently retained.  We certainly can’t place them in the category of police judges, and undoubtedly there are other examples which are contrary to my “police judge� model.  But I believe the  basic rule is correct.  The rule holds that “the public once they determine that a judge is unfairly biased in favor of the Commonwealth will promptly remove that judge from office.�

This demonstrates to me that the public is aware of the conduct of trial judges.  They do pay attention.  And when the public is  properly informed about a judges conduct on the bench, they will act to remove such judges.   This convinces me that the direct election of trial judges is an important power that should be reserved for the public.  

On the other hand, the public and most members of the bar, have little knowledge of potential bias on the part of appellate judges.  We doubt that you could take a poll on the street of any city in the state and find more than a small percentage of the public that even knows the name of their appellate judges.

The process of the election of appellate judges has become so expensive that many who are highly qualified for the office, choose not to run for office.   This last year there were several appellate judges who retired rather than face an election where they would have to raise hundreds of thousands of dollars.  We will never know how many outstanding attorneys who would make great appellate judges chose not to run due to the burdens of the electoral process. 

We all have seen examples where a judge is highly qualified to discuss and rule on important and complex legal issues but might be a bit of an introvert, and might not have the personality for winning elections.  These types are probably the ones we should seek to place on the appellate bench.  One must ask if the current electoral process prevents our very best legal minds from being able to advance to the appellate bench.

Justice McAnulty is correct to revisit this issue.  Something should be done about the selection process.  We feel this is important because it affects the retention process of appellate judges.  I believe we should focus on creating a process where a good judge is not removed easily. 

Let us begin by noting that the current system has not produced a bad group of judges.  There are many new faces on the Court of Appeals and the Supreme Court this year and we can’t find even one among them whom we feel is not qualified for the job.  That fact, and I believe it is a fact, should cause us to proceed carefully in this process if we are going to make a change.

Some years ago I had the opportunity to attend a week long judicial education class at Harvard Law School.  During that week I got to speak to many judges from states that did not elect their judges.  Many states have a process where the Governor has a major role the selection and appointment process.  I asked these judges if they feared political cleansing of the bench when a new governor came in and had a different party affiliation than his predecessor.   Almost uniformly they responded that  the public wouldn’t stand for that, and that in practice their Chief Executive did not play politics by engaging in wholesale removal of judges, but did exercise their option to remove the few bad apples from time to time.  They liked their system of appointed judges as it seemed to work well.

Justice McAnulty calls for creating a process where the states trial judges “become part of the selective process for the Ky. Court of Appeals�.  He may be on to something.         I would however see no reason why that theory shouldn’t also apply to the selection process of  Supreme Court Justices.

This process could begin with the Judicial Nominating Commissions.  The Judicial Nominating Commissions could be enlarged to include all elected trial judges from the judicial district which they represent.  This would only require a simple statutory amendment to KRS 34.010 .  
  Once this was accomplished, then vacancies on the appellate courts (and frankly we don’t see why this simple rule couldn’t be used also for trial court vacancies and Supreme Court vacancies), would have the influence of the trial judges added to the selection process.

This first small step would not alter the election process, and it would not affect those candidates who were not seeking an appointment, but it would be a start.
 The next phase would be to seek the creation of a Study Group by the Chief Justice or by the Legislature or by the Governor, to study the issue, and to present a comprehensive plan for the enactment of a selection process for the appellate courts.

The Missouri Plan has the advantage of allowing the public a role in deciding if a judge should be retained.  We feel a preference to allow the public to determine if a judge should be removed, than allowing the sitting Governor to make that decision.
  We don’t want to create a system where any judge fears removal by the Governor if they “wronglyâ€? decide a case involving the Governor…and of course….recent history shows that Governors can be involved in issues that come before the courts.
 In the judicial elections held last November it was reported that 36 of the 40 judicial appointments made by Governor Fletcher were retained by the public.  So maybe the appointment part of the current process is working fine.  The retention process should be the focus of any reform.
  In a retention election, the sitting judge would not have an opponent spending hundreds of thousands of dollars to remove him.  He would still however be subject to the influence of special interest groups who want to punish the appellate judge who they find objectionable. 
 We need only to look at the Ohio Supreme Court races to see where business and insurance interests have spent small fortunes in attempting to remove judges they felt had ruled against their interests.  The nature of the retention election however, is quite different than running against a named challenger.  The public can focus on the judges record in a retention election…and if you believe in the electoral process, then you must have faith in the public being able to sort our these issues.
  I personally favor the retention election process over a totally appointive process where the Chief Executive or a Retention Committee can choose not only to appoint a judge but to remove him/her from office.
 Let the discussion begin.

New York is having reform forced on them by Fed. Court.

New York under the gun to change selection of Supreme Court justices 

By Dan Wiessner
Albany Bureau the Journal News 

ALBANY – New York is facing a federal court order to reform its system for nominating state Supreme Court justices, but, with the clock ticking, lawmakers are divided. 

For decades, political parties picked candidates at special “judicial conventions” and then placed their names on the general election ballot. But last January a federal judge ruled the system unconstitutional. 

Because political bosses controlled the conventions – hand-picking delegates, who then selected the judges the political parties wanted – judicial elections amounted to a fixed system, not open and fair to the public. New York is the only state in the country that uses a convention system. 

If state legislators and Gov. Eliot Spitzer don’t reach a solution by June, the federal court could impose one in time for the 2007 elections. 

In that scenario, the court could order open primaries, a system similar to most political elections in the state but one that some in the legal community hate because it could force judges to raise and spend millions in campaign dollars, which could later hurt their image of neutrality. 

Open primaries would have a “corrosive effect” on the judiciary, said Judge Jonathan Lippman, New York’s chief administrative judge. 

Supreme Court, despite the name, is not New York’s top court but its state-level trial court. There are currently 12 Supreme Court districts in the state’s 62 counties. 

And there are three competing options for reforming Supreme Court elections: Modify the convention system, institute a merit-based appointment system using screening committees, or stage open primaries similar to those in other statewide elections. 

Defenders of conventions, as well as supporters of the merit system, say that judges must be insulated from the political process in order to preserve integrity. Spitzer said he wants the state to gradually move to “merit selection” of all judges. 

But proponents of primaries contend that elections are the only way to gauge that integrity. 

“Merit selection takes the decision away from the voters and puts it in the hands of an elitist clique,” said Sen. George Winner, R-Elmira. “I don’t think there’s a great deal of support for it” in the Legislature. 

Winner said the best solution is to make judicial districts smaller and impose residency requirements. That would lessen the need for campaign dollars and ensure that rural counties are well-represented, he said. 

The Republican-led Senate passed a measure last year that would institute a primary system, but the bill died in the Democrat-controlled Assembly. 

The Trial Lawyers Association and the Brennan Center – the think tank that filed the lawsuit that overturned the convention system – also favor open primaries. They say that would allow the public to evaluate the justices regularly. Also, they say that if the districts are made smaller, a primary system would create more diversity in the judicial ranks. 

“In a lot of upstate districts, there are zero minority judges,” said Frederick Schwarz of the Brennan Center. “If you split those districts up by county, largely urban areas would end up having some fair representation of minorities.” 

The Brennan Center also supports a law to publicly finance judicial campaigns in order to shield candidates from needing to solicit donations. 

But opponents of open primaries – including many Supreme Court justices – say they will cost more and force judges to engage in aggressive and inappropriate campaigning. It would create “judgeships for sale to the highest bidder,” said Michael Cardozo, a lawyer for the New York City council. 

“From a public policy perspective, an open primary is something to be devoutly avoided,” Cardozo told a Senate hearing panel last week. 

Also at the hearing, Justice David Demarest of St. Lawrence County, one of 24 justices up for re-election this year, said primaries are too expensive and districts too large for justices to mount effective campaigns. 

“That’s the reason conventions were implemented in the first place,” he said. 

Under merit-based selection, elected officials appoint justices from a list of nominees designated by a nonpartisan commission. The appointment is then subject to legislative confirmation. That’s the system for filling spots on the Court of Appeals, the state’s highest court. 

Supporters of merit selection, including Spitzer, argue that judicial elections politicize judgeships and turn nominations into political favors. 

“The courts have been compromised by a party-dominated system of judicial selection that permits unqualified judges to reach the bench,” said Spitzer spokeswoman Christine Anderson. “Merit selection removes politics from judicial appointments.” 

But that would require an amendment to the state constitution which wouldn’t take effect until 2010, as two separately elected Legislatures must pass the measure and it would then have to be approved by voters. Until then, Anderson said, the governor will urge the Legislature to set up independent screening panels to review and approve candidates. 

Three options
A federal court has ordered New York to scrap its process for electing Supreme Court justices because the old system – in which party bosses handpicked delegates to conventions to then select candidates – was essentially fixed and not fair to the public. Lawmakers must come up with a plan by June. The contenders:
- Open primaries. Similar to other elections, anyone could thrown their name in, raise money and run. Opponents say this would have a “corrosive” effect because justices would have to raise large sums and that could hurt their image of impartiality.
- A new convention system. Require nonpartisan panels to first screen a candidate’s credentials, then submit a list of qualified candidates to the delegates. Give delegates longer terms so they’re not as subject to political pressure.
- Merit selection. Require nonpartisan panels to first screen a candidate’s credentials, then submit a list of qualified candidates to elected officials. Nominees would be subject to legislative confirmation.




Sunday, January 14th, 2007

  The Courier Journal published a front page article on Jan. 14, 2007 in which Jefferson County Public Defender Dan Goyette complained that Judge Paula Fitzgerald who was admitted to the Senior Status Judges program shouldn’t be assigned to continue working in the county where she was defeated.  (Read C-J article  Senior judge program sparks many objections)

   Some attorneys in Jefferson County have been criticalo f Judge Fitzgerald during her service on the bench.  On the other hand some have spoken very favorable of her skills.  One conclusion we have often heard about Judge Fitzgerald is that she is a very kind and caring person.  If she was eccentric to some degree, we would suggest that many judges also have their eccentricities.  We are not aware of any formal complaints against Judge Fitzgerald during her service, nor have we found any of her decisions which were overruled by the Court of Appeals or Supreme Court.  (If she has had any decision overruled by a Jefferson Circuit Court, it would not show up in our data base.) 
 One must acknowledge, that regardless of what some attorneys think about Judge Fitzgerald she was several times elected to her office by a majority of the voters in Jefferson County who took the time to vote.Goyette was quoted as saying:“Jefferson County Public Defender Dan Goyette said that considering Kentucky’s deep-seated tradition of electing judges, “it seems incongruous” to allow judges who have failed to win re-election to continue presiding over cases involving the same citizenry that removed them from office.
“The situation is exacerbated by the fact that there is no review mechanism … to determine their suitability to continue serving, notwithstanding having been ‘unelected,’ ” said Goyette, chairman of Citizens for Better Judges, which promotes the election of qualified candidates.â€?
   The Act which created the Senior Status Judge Program allows a great deal of discretion to the Chief Justice to assign any judge in the program to serve anywhere in the state.  Other provisions of the law allow the Chief Justice to assign even active sitting judges to be assigned by the Chief Justice to any court in the state.  There have been occasions where a judge was being investigated for something, and the Chief Justice temporarily assigned that Judge to some other jurisdiction.  That broad authority is contained in Section 110 of the Kentucky Constitution:Section 110 (b) The Chief Justice of the Commonwealth shall be the executive head of the Court of Justice and he shall appoint such administrative assistants as he deems necessary. He shall assign temporarily any justice or judge of the Commonwealth, active or retired, to sit in any court other than the Supreme Court when he deems such assignment necessary for the prompt disposition of causes. The Chief Justice shall submit the budget for the Court of Justice and perform all other necessary administrative functions relating to the court. Section 110 of the Constitution applies to active or retired judges.  The Senior Status Judge Act also gives the Chief Justice discretion in making judicial assignments.  See: Section 3. of KRS 21.580 which states:“… the Chief Justice shall give due regard, when practical, to the desirability of appointing Senior Status Special Judges to serve within their judicial
region as defined by the regional administration charter.�

 All this requires of the Chief Justice is that he consider allowing a judge to continue to serve in the district in which he was elected. 
                         the senior status judge act
  KRS 21.580 Senior Status Program for Special Judges. (Effective until January 31, 2009).
 (1) As a pilot project to determine the effectiveness of using senior retired judges to combat backlog and delay in Kentucky courts, there is hereby created a “Senior
Status Program for Special Judges.”
 The program shall be implemented as follows:
(a) KRS 21.400(1) and any other provision in KRS Chapter 21 to the contrary
notwithstanding, a member who retires at a time when combining his total
years of judicial service credit and his age equals or exceeds the number
seventy-five (75), may elect, within ninety (90) days following retirement, to
participate in the “Senior Status Program for Special Judges,” if he complies
with the provisions of this subsection. In that event, the member shall be
entitled to a service retirement allowance, commencing at the member’s
normal retirement age, payable monthly during his lifetime in an amount equal
to five percent (5%) of his final compensation multiplied by the number of
years of his judicial service, not to exceed twenty (20) years of judicial service
at the five percent (5%) factor, not to exceed one hundred percent (100%) of
final compensation. “Final compensation”, notwithstanding any provision to
the contrary, for all members retiring under any provision of KRS 21.345 to
21.570 or this section, or similar statutes governing the same positions, as
defined in KRS 21.400 shall be based on a period of thirty-six (36) months.
Any nonjudicial time shall be counted as is otherwise provided in KRS
Chapter 21, but in no event shall service retirement allowance exceed one
hundred percent (100%) of final compensation.
1. In the event the retiring judge elects to retire as a “Senior Status Special
Judge” under this subsection, he shall commit to serve, upon
appointment by the Chief Justice of the Commonwealth, as special judge
for one hundred twenty (120) work days per year for a term of five (5)
years without compensation other than the retirement benefits under this
The Senior Status Special Judge may agree to work more
than one hundred twenty (120) days in any year within the five (5) years
of service; however, the Senior Status Special Judge shall be
compensated as otherwise provided by law, in addition to his retirement
benefits, for any days served in excess of one hundred twenty (120) in
that year.
If the Senior Status Special Judge has not served a total of six
hundred (600) days within the five (5) year period outlined in this
subsection, the Chief Justice shall require the Senior Status Special
Judge to serve at no additional compensation to the Senior Status
Special Judge, until the six hundred (600) day period is served by the
Senior Status Special Judge.
The Senior Status Special Judge and the Chief Justice may agree in writing to serve less than the one hundred twenty (120) days in any one (1) or more of the five (5) years; however, any of the days not served in a given year shall be served at the end of
the five (5) year period set forth in this subsection.
2. Should any member electing to retire under the Senior Status Program
for Special Judges fail, when ordered by the Chief Justice to serve the
requisite number of days not to exceed one hundred twenty (120) days a
year for the five (5) year period outlined in this subsection, unless
otherwise agreed in writing, he shall no longer be eligible for benefits
computed under this subsection and shall return to the benefits otherwise
provided under this chapter.
3. Subject to Section 110(5)(b) of the Kentucky Constitution, the Chief
Justice shall give due regard, when practical, to the desirability of
appointing Senior Status Special Judges to serve within their judicial
region as defined by the regional administration charter.
(b) The inviolable contract provisions of Kentucky law, KRS 21.480, shall apply
during the period of time that KRS 21.580 is effective; however, no other
provisions of 2000 Ky. Acts ch. 305 shall be considered subject to an
inviolable contract of the Commonwealth.
(c) Nothing contained in this section shall be construed to invalidate provisions in
the current law which require a penalty for retiring before the normal
retirement age.
(2) The Senior Status Program for Special Judges created by this section shall be open
to any member who is a judge in office on the June 24, 2003, and who subsequently
retires as a Senior Status Special Judge on or before January 31, 2009.
Effective: June 24, 2003
History: Amended 2003 Ky. Acts ch. 128, sec. 6, effective June 24, 2003. — Amended
2002 Ky. Acts ch. 258, sec. 1, effective July 15, 2002. — Repealed 2000 Ky. Acts ch.
305, sec. 4, effective July 1, 2007 — Created 2000 Ky. Acts ch. 305, sec. 1, effective
July 14, 2000.
Legislative Research Commission Note (6/24/2003). 2000 Ky. Acts ch. 305, sec. 1,
created KRS 21.580, which established the Senior Status Program for Special Judges.
Section 4 of the same Act repealed KRS 21.580 effective July 1, 2007. Thereafter,
2002 Ky. Acts ch. 258, sec. 1, amended KRS 21.580 to change the retirement date
from June 30, 2007, to January 31, 2009, and 2003 Ky. Acts ch. 128, sec. 6,
amended KRS 21.580 to extend eligibility for the program to judges in office on June
24, 2003. Neither of these Acts specifically addresses the repeal set out in the 2000


Pentagon Official Attacks Top Law Firms For Representing Detainees

Sunday, January 14th, 2007

Free Internet Press:    The senior Pentagon official in charge of military detainees suspected of terrorism said in an interview this week that he was dismayed that lawyers at many of the nation’s top firms were representing prisoners at Guantanamo Bay, Cuba, and that the firms’ corporate clients should consider ending their business ties.
The comments by Charles D. Stimson, the deputy assistant secretary of defense for detainee affairs, produced an instant torrent of anger from lawyers, legal ethics specialists and bar association officials, who said Friday that his comments were repellent and displayed an ignorance of the duties of lawyers to represent people in legal trouble.
“This is prejudicial to the administration of justice,” said Stephen Gillers, a law professor at New York University  and an authority on legal ethics. “it’s possible that lawyers willing to undertake what has been long viewed as an admirable chore will decline to do so for fear of antagonizing important clients.
“We have a senior government official suggesting that representing these people somehow compromises American interests, and he even names the firms, giving a target to corporate America.”
Stimson made his remarks in an interview on Thursday with Federal News Radio, a local Washington-based station that is aimed at an audience of government employees.
The same point appeared Friday on the editorial page of the Wall Street Journal, where Robert L. Pollock, a member of the newspaper’s editorial board, cited the list of law firms and quoted an unnamed “senior U.S. official” as saying, “Corporate C.E.O.’s seeing this should ask firms to choose between lucrative retainers and representing terrorists.”
In his radio interview, Stimson said: “I think the news story that you’re really going to start seeing in the next couple of weeks is this: As a result of a FOIA request through a major news organization, somebody asked, ‘Who are the lawyers around this country representing detainees down there?’ and you know what, it’s shocking.” The F.O.I.A. reference was to a Freedom of Information Act request submitted by Monica Crowley, a conservative syndicated talk show host, asking for the names of all the lawyers and law firms representing Guantanamo detainees in federal court cases.
Stimson, who is himself a lawyer, then went on to name more than a dozen of the firms listed on the 14-page report provided to Crowley, describing them as “the major law firms in this country”. He said, “I think, quite honestly, when corporate C.E.O.’s see that those firms are representing the very terrorists who hit their bottom line back in 2001, those C.E.O.’s are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out.”
Karen J. Mathis, a Denver lawyer who is president of the American Bar Association, said: “Lawyers represent people in criminal cases to fulfill a core American value: the treatment of all people equally before the law. To impugn those who are doing this critical work – and doing it on a volunteer basis – is deeply offensive to members of the legal profession, and we hope to all Americans.”
In an interview on Friday, Attorney General Alberto R. Gonzales said he had no problem with the current system of representation. “Good lawyers representing the detainees is the best way to ensure that justice is done in these cases,” he said.
Neither the White House nor the Pentagon had any official comment, but officials sought to distance themselves from Stimson’s view. His comments “do not represent the views of the Defense Department or the thinking of its leadership,” said a senior Pentagon official. He would not allow his name to be used, seemingly to lessen the force of his rebuke. Stimson did not return a call on Friday seeking comment.
The role of major law firms agreeing to take on the cases of Guantanamo prisoners challenging their detentions in federal courts has hardly been a secret and has been the subject of many news articles that have generally cast their efforts in a favorable light. Michael Ratner, who heads the Center for Constitutional Rights, a New York-based human rights group that is coordinating the legal representation for the Guantanamo detainees, said about 500 lawyers from about 120 law firms had volunteered their services to represent Guantanamo prisoners.
When asked in the radio interview who was paying for the legal representation, Stimson replied: “It’s not clear, is it? Some will maintain that they are doing it out of the goodness of their heart, that they’re doing it pro bono, and I suspect they are; others are receiving moneys from who knows where, and I’d be curious to have them explain that.”
Lawyers expressed outrage at that, asserting that they are not being paid and that Stimson had tried to suggest they were by innuendo. Of the approximately 500 lawyers coordinated by the Center for Constitutional Rights, no one is being paid, said Ratner. One Washington law firm, Shearman & Sterling, which has represented Kuwaiti detainees, has received money from the families of the prisoners, but Thomas Wilner, a lawyer there, said they had donated all of it to charities related to the September 2001 terrorist attacks. Ratner said that there were two other defense lawyers not under his group’s umbrella and that he did not know whether they were paid.
Christopher Moore, a lawyer at the New York firm Cleary, Gottlieb, Steen & Hamilton who represented an Uzbeki detainee who has since been released, said: “We believe in the concept of justice and that every person is entitled to counsel. Any suggestion that our representation was anything other than a pro bono basis is untrue and unprofessional.” Moore said he had made four trips to Guantanamo and one to Albania at the firm’s expense, to see his client freed.
Senator Patrick J. Leahy, the Vermont Democrat who is chairman of the Judiciary Committee, wrote to President Bush on Friday asking him to disavow Stimson’s remarks.
Stimson, who was a Navy lawyer, graduated from George Mason University Law School. In a 2006 interview with the magazine of Kenyon College, his alma mater, Stimson said that he was learning “to choose my words carefully because I am a public figure on a very, very controversial topic.”
Intellpuke: Regarding Mr. Stimson’s comments and innuendo toward the lawyers and law firms representing detainees: What a load of crap! You can read this article by New York Times correspondent Neil A. Lewis, reporting from Washington, D.C., in context here: