Archive for February, 2007

BLUEGRASSREPORT.ORG REPORTS THAT ROBBIE RUDOLPH MAY BE SUED FOR RETALIATING AGAINST WOMAN CLAIMING SEXUAL HARASSMENT AGAINST FORMER MURRAY STATE ATHLETIC DIRECTOR

Wednesday, February 14th, 2007

BluegrassReport.org has published a story from Murray, Ky. detailing efforts to bring Lt. Gov. candidate Robbie Rudolph into a gender harassment lawsuit. The posting states in part:

 

“An explosive development in the ongoing Murray State University saga as it relates to Governor Fletcher’s (R) running mate, Robbie Rudolph, and his aggressive efforts to help his friend E.W. Dennison, the school’s former athletic director who was fired from the school.

 

Now, a woman named Annazette Fields (the wife of the former MSU women’s basketball coach) has asked a federal court judge to allow her to amend her lawsuit against Dennison for sexual harassment to allow her to include Robbie Rudolph as a named defendant for his efforts to “effectuate the campaign of retaliation against the Plaintiff by written and other communications with the individual members of the Murray State University Board of Regents…for the purpose of discrediting, disparaging, embarrassing and humiliating the Plaintiff in her employment at Murray State University.” (Note: I am not certain whether the motion is still pending or if the court has granted plaintiff’s leave to amend.)

 

(Click here for the original complaint, motion to amend, and the first amended complaint).?

 

For the full story go to:  www.bluegrassreport.org

 

KENTUCKY RULES FOR CLASS ACTION PRACTICE NEED REFORM

Wednesday, February 14th, 2007

 

 

                  A study by LawReader Senior Editor Stan Billingsley
 

COMPARISION OF KY. RULES FOR CLASS ACTION PRACTICE WITH FEDERAL RULES –
ISSUES THAT SHOULD BE CONSIDERED FOR INCLUSION IN THE KENTUCKY RULES FOR CLASS ACTION PRACTICE –
JUSTICE LUKOWSKY’S ARGUMENT FOR MAKING RULES CONSISTENT –
 

As a former Circuit Judge who has been required to try portions of several class action cases, I suggest that there is a great need for updating of CR 23, Kentucky’s Rules for Class Action  Practice. 
 

When I was assigned to hear some aspects of a class action, the first thing I did was to look up the Civil Rules regarding Class Action practice.  Those rules are found in CR 23.
 

I quickly found that the rules provided only general guidelines for the allowance or denial of a class action certification motion, provided some requirements for notices, and gave extremely broad discretion to the trial court to approve or deny a settlement. I then went to the Chase Law School library to seek further guidance in how such a case was to be practiced.  I found little guidance or authority that instructed me in the many issues inherent in such cases, which are totally foreign to traditional conduct of traditional civil cases.
 

The general nature of Kentucky’s CR 23 rules provides little guidance to the trial Judge in handling the many issues that come with such cases.  For example CR 23 says a judge must approve a settlement, but provides no guidance on how damages within the class are to be distributed, how attorney fees are to be evaluated and awarded, or what to do with excess funds after the settlement awards.  These matters are left to the trial court to work out for himself.  
 

As recent history has revealed, if the judge working his way through this type of case makes a decision which is “bad? in hindsight, then he can expect the media and the Judicial Conduct Commission to be doing some serious “Monday morning quarterbacking? when they review his decisions.  Judges as well as lawyers can be sanctioned for any decision or act that in hindsight brings the bar or the bench into disrepute.  That standard for review of one’s conduct has no clear definition in the law. It is allowed to mean whatever the party reviewing the conduct of the judge or attorney says it means. 
 

Further the Ky. Rules do not allow the trial judge to appoint a class counsel.  This is permitted under the Federal Rules for Class Action practice FR 23 (c).
 

The trial court is given no apparent authority to review fees paid to trial consultants and expert witnesses.  Consultants and expert witnesses are essential to the successful practice of class action cases. They contract with the party that hires them, and the court should not be put in the position of unduly limiting a party from hiring whom they wish.
 

We would respectfully suggest, that there is a great need for a serious review of CR 23 and consideration should be given to make the CR 23 identical to the wording of the Federal Rules for class action practice found in FR 23.
 

We have provided a chart below that readily shows the differences between the Ky. Rules and the Federal Rules regarding class action practice.
 

We also suggest that additional guidelines should be written to provide assistance to future trial judges who must deal with class action cases.  Justice Lukowsky authored a decision in 1978 which called for making the Ky. Rules of Criminal Procedure consistent with the Federal Rules of Criminal Procedure.  Subsequently his advice was substantially taken and the Ky. Rules were made highly consistent with Federal Rules.
 

The procedure to accomplish such a review of existing class action rules is for the Chief Justice to request the Civil Rules Committee of the Supreme Court to conduct such a review.  The results of their work would then be presented to the members of the Ky. Bar Association for their comments.  The Supreme Court would then approve or not approve the new rules presented.
 

We believe these reforms are needed by the public, by future parties of class action cases, and for the protection of the trial judges who must hear such cases and presently have little or no guidance or precedent to follow.
 

COMPARISON OF FEDERAL RULES OF PROCEDURE AND KY. RULES RE: CLASS ACTION PRACTICE

Federal Rules Re: Class Action
Practice
Ky. Rules Re: Class Action Practice
     Federal Rule 23. Class Actions
(a) Prerequisites to a Class Action.
One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
    Fed. & Ky. Rules identical
 

CR 23.01 PREREQUISITES TO CLASS ACTION
 Subject to the provisions of Rule 23.02, one or more members of a class may sue or be sued as representative parties on behalf of all only if (a) the class is so numerous that joinder of all members is impracticable, (b) there are questions of law or fact common to the class, (c) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (d) the representative parties will fairly and adequately protect the interests of the class.
[Amended eff. 1-1-78; prior amendment eff. 7-1-69; adopted eff. 7-1-53]
 

 

Fed. & Ky. Rules identical

(b) Class Actions Maintainable.
An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
(1) the prosecution of separate actions by or against individual members of the class would create a risk of
(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
(B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.
Fed. & Ky. Rules identical
CR 23.02 CLASS ACTIONS MAINTAINABLE
    An action may be maintained as a class action if the prerequisites of Rule 23.01 are satisfied, and in addition:
     (a) The prosecution of separate actions by or against individual members of the class would create a risk of
     (i) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or,
    (ii) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
  (b) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
 (c) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (i) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (ii) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (iii) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (iv) the difficulties likely to be encountered in the management of a class action.
[Amended eff. 1-1-78; adopted eff. 7-1-69]
  Fed. & Ky. Rules identical
(c) Determining by Order Whether to Certify a Class Action; Appointing Class Counsel; Notice and Membership in Class; Judgment; Multiple Classes and Subclasses.
(1) (A) When a person sues or is sued as a representative of a class, the court must — at an early practicable time — determine by order whether to certify the action as a class action..
(B) An order certifying a class action must define the class and the class claims, issues, or defenses, and must appoint class counsel under Rule 23(g).
(C) An order under Rule 23(c)(1) may be altered or amended before final judgment.
(2) (A) For any class certified under Rule 23(b)(1) or (2), the court may direct appropriate notice to the class.
(B) For any class certified under Rule 23(b)(3), the court must direct to class members the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.
The notice must concisely and clearly state in plain, easily understood language:
the nature of the action,
the definition of the class certified,
the class claims, issues, or defenses,
that a class member may enter an appearance through counsel if the member so desires,
that the court will exclude from the class any member who requests exclusion, stating when and how members may elect to be excluded, and
the binding effect of a class judgment on class members under Rule 23(c)(3).
(3) The judgment in an action maintained as a class action under subdivision (b)(1) or (b)(2), whether or not favorable to the class, shall include and describe those whom the court finds to be members of the class.  The judgment in an action maintained as a class action under subdivision (b)(3), whether or not favorable to the class, shall include and specify or describe those to whom the notice provided in subdivision (c)(2) was directed, and who have not requested exclusion, and whom the court finds to be members of the class.
(4) When appropriate (A) an action may be brought or maintained as a class action with respect to particular issues, or (B) a class may be divided into subclasses and each subclass treated as a class, and the provisions of this rule shall then be construed and applied accordingly.
Provisions underlined are not included in Ky. Rule
CR 23.03 DETERMINATION BY ORDER WHETHER CLASS ACTION TO BE MAINTAINED; NOTICE; JUDGMENT; ACTIONS CONDUCTED PARTIALLY AS CLASS ACTIONS
(1) As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this rule may be conditional, and may be altered or amended before the decision on the merits.
(2) In any class action maintained under Rule 23.02(c), the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.
The notice shall advise each member that
(a) the court will exclude him from the class if he so requests by a specified date;
(b) the judgment, whether favorable or not, will include all members who do not request exclusion; and
(c) any member who does not request exclusion may, if he desires, enter an appearance through his counsel.
(3) The judgment in an action maintained as a class action under paragraphs (a) or (b) of Rule 23.02, whether or not favorable to the class, shall include and describe those whom the court finds to be members of the class.
The judgment in an action maintained as a class action under Rule 23.02(c), whether or not favorable to the class, shall include and specify or describe those to whom the notice provided in Rule 23.03(b) was directed, and who have not requested exclusion, and whom the court finds to be members of the class.
(4) When appropriate (a) an action may be brought or maintained as a class action with respect to particular issues, or (b) a class may be divided into subclasses and each subclass treated as a class, and the provisions of Rule 23 shall then be construed and applied accordingly.
[Amended eff. 1-1-78; adopted eff. 7-1-69]
 

Provision underlined not contained in Fed. Rule
 

 

 

 

 

 

 

 

(d) Orders in Conduct of Actions.
In the conduct of actions to which this rule applies, the court may make appropriate orders:
(1) determining the course of proceedings or prescribing measures to prevent undue repetition or complication in the presentation of evidence or argument;
 (2) requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in such manner as the court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action;
(3) imposing conditions on the representative parties or on intervenors;
 (4) requiring that the pleadings be amended to eliminate therefrom allegations as to representation of absent persons, and that the action proceed accordingly;
 (5) dealing with similar procedural matters. The orders may be combined with an order under Rule 16, and may be altered or amended as may be desirable from time to time.
Fed. & Ky. Rules identical
CR 23.04 ORDERS IN CONDUCT OF ACTIONS
   In the conduct of actions to which Rule 23 applies, the court may make appropriate orders:
(a) determining the course of proceedings or prescribing measures to prevent undue repetition or complication in the presentation of evidence or argument;
(b) requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in such manner as the court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action;
(c) imposing conditions on the representative parties or on intervenors;
(d) requiring that the pleadings be amended to eliminate therefrom allegations as to representation of absent persons, and that the action proceed accordingly;
(e) dealing with similar procedural matters. The orders may be combined with an order under Rule 16, and may be altered or amended as may be desirable from time to time.
[Amended eff. 1-1-78; adopted eff. 7-1-69]
 

 

Fed. & Ky. Rules identical
 

(e) Settlement, Voluntary Dismissal, or Compromise.
(1) (A) The court must approve any settlement, voluntary dismissal, or compromise of the claims, issues, or defenses of a certified class.
(B) The court must direct notice in a reasonable manner to all class members who would be bound by a proposed settlement, voluntary dismissal, or compromise.
(C) The court may approve a settlement, voluntary dismissal, or compromise that would bind class members only after a hearing and on finding that the settlement, voluntary dismissal, or compromise is fair, reasonable, and adequate.
(2) The parties seeking approval of a settlement, voluntary dismissal, or compromise under Rule 23(e)(1) must file a statement identifying any agreement made in connection with the proposed settlement, voluntary dismissal, or compromise.
(3) In an action previously certified as a class action under Rule 23(b)(3), the court may refuse to approve a settlement unless it affords a new opportunity to request exclusion to individual class members who had an earlier opportunity to request exclusion but did not do so.
(4) (A) Any class member may object to a proposed settlement, voluntary dismissal, or compromise that requires court approval under Rule 23(e)(1)(A).
(B) An objection made under Rule 23(e)(4)(A) may be withdrawn only with the court’s approval
Provisions underlined are not in Ky. Rule
CR 23.05 DISMISSAL OR COMPROMISE
   A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs.
[Adopted eff. 7-1-69]
 

 

 

No similar provision in KY. Rule
No similar provision in KY. Rule
No similar provision in KY. Rule
No similar provision in KY. Rule
No similar provision in KY. Rule
 

(f) Appeals.
A court of appeals may in its discretion permit an appeal from an order of a district court granting or denying class action certification under this rule if application is made to it within ten days after entry of the order.
An appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders.
 

 

 

Appeal of Ky. Class action judgment conducted under CR 73 thru 76
 

INTERLOCUTORY APPEAL FROM TRIAL COURT ORDERS IS RESTRICTED UNDER KY. RULES

(g) Class Counsel.                                         (1) Appointing Class Counsel.
(A) Unless a statute provides otherwise, a court that certifies a class must appoint class counsel.
(B) An attorney appointed to serve as class counsel must fairly and adequately represent the interests of the class.
(C) In appointing class counsel, the court (i) must consider:   the work counsel has done in identifying or investigating potential claims in the action,
 counsel’s experience in handling class actions, other complex litigation, and claims of the type asserted in the action,
 counsel’s knowledge of the applicable law, and
  the resources counsel will commit to representing the class;
(ii) may consider any other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class;
(iii) may direct potential class counsel to provide information on any subject pertinent to the appointment and to propose terms for attorney fees and nontaxable costs; and
(iv) may make further orders in connection with the appointment.
(2) Appointment Procedure.                           (A) The court may designate interim counsel to act on behalf of the putative class before determining whether to certify the action as a class action.
(B) When there is one applicant for appointment as class counsel, the court may appoint that applicant only if the applicant is adequate under Rule 23(g)(1)(B) and (C). If more than one adequate applicant seeks appointment as class counsel, the court must appoint the applicant best able to represent the interests of the class.
(C) The order appointing class counsel may include provisions about the award of attorney fees or nontaxable costs under Rule 23(h).
 

 

No similar provision in KY. Rule
No similar provision in KY. Rule
No similar provision in KY. Rule
 

 

No similar provision in KY. Rule
No similar provision in KY. Rule
No similar provision in KY. Rule
No similar provision in KY. Rule
No similar provision in KY. Rule
No similar provision in KY. Rule
No similar provision in KY. Rule
No similar provision in KY. Rule
No similar provision in KY. Rule
No similar provision in KY. Rule

(h) Attorney Fees Award.
In an action certified as a class action, the court may award reasonable attorney fees and nontaxable costs authorized by law or by agreement of the parties as follows:
(1) Motion for Award of Attorney Fees.             A claim for an award of attorney fees and nontaxable costs must be made by motion under
Rule 54(d)(2), subject to the provisions of this subdivision, at a time set by the court. Notice of the motion must be served on all parties and, for motions by class counsel, directed to class members in a reasonable manner.
(2) Objections to Motion.  A class member, or a party from whom payment is sought, may object to the motion.
(3) Hearing and Findings.  The court may hold a hearing and must find the facts and state its conclusions of law on the motion under Rule 52(a).
(4) Reference to Special Master or Magistrate Judge.  The court may refer issues related to the amount of the award to a special master or to a magistrate judge as provided in Rule 54(d)(2)(D).
 

 

 

 

No similar provision in KY. Rule
No similar provision in KY. Rule
No similar provision in KY. Rule
No similar provision in KY. Rule
No similar provision in KY. Rule
 

 

 

 

ISSUES THAT SHOULD BE CONSIDERED FOR INCLUSION IN THE KENTUCKY RULES FOR CLASS ACTION PRACTICE
Class Counsel
Trial Courts would benefit from being able to name the class counsel as is permitted under the Federal Class Action Rules.  This would give the trial court more control over the case.
Attn. Fees
Kentucky has little statutory or case law providing guidelines on award of attorney fees in class actions. 
The court and parties, would benefit from attorney fee guidelines.
The Ky. Bar Assoc. has jurisdiction to hear fee disputes, but that is remedial. A rule providing guidelines would be preventive.
Excess Settlement Funds
For a number of reasons cases from time to time have excess funds left over.  Federal Courts often prefer a Cy Pres award, which allows these funds to be awarded for public purpose or benefit.
Certification of Class Standards
The basis for the court making a determination allowing or disallowing certification of a class, are extremely general and perhaps leave too much discretion to the trial court.
Disclosure of Settlement Details
The public interest in knowing the details of settlements is great.  Secrecy is currently imposed by defendants and insurers with court approval, sometimes to the detriment of the parties. 
 

Damages are awarded partly to deter future bad conduct by others. If the damages are kept secret this purpose of the justice system is thwarted.
 

At the very least there should be a disclosure of settlement details to all parties and class members.

No guidance on procedure for awarding class members a fair portion of the settlement based on their actual individual damage.
In many class actions some class members have sustained injuries greatly in excess of what others have sustained and are entitled to be awarded a higher per cent of recovery that those less injured.
 

The procedures for determining how the differences are determined is left to the trial judges discretion.  This is often done by the appointment of a Master Commissioner to conduct hearings and make awards. This is not an uncommon or improper procedure.
 

However, any system for determining damages of individual class members after a settlement, should be determined by procedures set out in the rules.
 

Consultants and Experts
Consultants and Expert Witnesses are essential to the conduct of large class actions.
The trial court has no discretion over who is hired, and little discretion to determine what they are paid.  Some guidelines should be provided to assist the trial court.
 

 

 

 

THE LUKOWSKY SOLUTION
 

In l978 Justice Lukowsky argued that the Ky. Rules of Criminal Procedure should be made more consistent with the Federal Rules of Criminal Procedure.  We believe some of his comments are just as applicable to the need for the Ky. Class Action Rules and the Federal Class Action Rules to be identical.
 

The application of Federal case rulings and interpretation of the Federal Class Action Rules would provide the courts of Kentucky with a wealth of precedent and guidance.
 

The body of law developed by the Kentucky Appellate Courts interpreting the Ky. Class Action Rules is almost non-existent.  The body of law developed by the Federal Courts regarding the practice of Class Action cases, is rich with precedent.
 

If the Ky. Rules were amended to make them identical to the Federal Rules, a great deal of guidance would be given to the trial court dealing with class action cases.
 

We believe that Justice Lukowsky’s decision in Whorton v.Commonwealth, admirably justifies the argument for revising Ky.’s Class Action Rules and making them more consistent with the Federal Rules.
 

Justice Lukowsky reasoned:
 [31]    
Whorton v. Commonwealth of Kentucky, 570 S.W.2d 627 (Ky. 07/25/1978)

The judgment is reversed with directions for a new trial.

[32]         All concur except for CLAYTON and STEPHENSON, JJ., who dissent.

[33]         LUKOWSKY, Justice, concurring.

[34]         I concur with my brothers in the result we reach in this case. However, it seems to me that this case provides a forum in which we should articulate the paradoxical philosophies with which we are besieged and propose a course of action to minimize the problems which they create.

[35]         In the field of criminal procedure we have observed a decisional process by the Supreme Court of the United States which has crushed the status of the several states as “insulated chambers” of legal experimentation. The fuel which has fed this juggernaut is the concept that the due process clause of the Fourteenth Amendment of the Constitution of the United States makes the First, Fourth, Fifth, Sixth and Eighth Amendments of that document binding upon the several states.

[36]         The purpose of this discussion is not to ascertain whether this fuel is historically distilled or artificially synthesized. Rather it is to examine the path made by the steamroller and determine how it may be traveled most smoothly.

[37]         Most of the path in Kentucky was free of obstacles because the federal constitutional rules imposed by these decisions were in force here as matters of state law long prior to their enunciation by the Supreme Court of the United States. However, as the Supreme Court continues its journey it digs deeper in the terrain of state procedure, destroys traditional state prerogatives and causes adjustments to be made which are of uncalculated impact. The court has also chosen to examine but has refrained so far from disturbing other state procedural devices. It is fair to say that this process has nationalized criminal procedure, even though there are those who would dispute this conclusion The course of the Burger court is not significantly different from that of the Warren court, except that it has limited the use of federal habeas corpus as a method of enforcing these newly promulgated constitutional rights.

[38]         State systems of criminal procedure are like delicate Swiss watches. They are designed to equally balance the rights of the parties. When the balance is externally disturbed the shockwave requires a reevaluation and readjustment of the entire system.

[39]         Taylor v. Kentucky, U.S. , 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978), provides a perfect example. The case in effect establishes the principle that the due process clause of the Fourteenth Amendment requires a state trial judge to instruct the jury on the presumption of innocence when requested by a criminal defendant. The system of instructing juries developed in Kentucky prohibits instructions on presumptions and permissible inferences. The theory is that to avoid undue influence by the trial judge on the fact finding process for or against either party the instructions should simply focus the attention of the jury on those ultimate facts which it must decide in order to reach a verdict. Consequently, the instructions are skeletal in form, given prior to closing argument and leave to the lawyers the task of fleshing them out in closing argument insofar as the evidentiary facts of the case, the weight of the evidence and the credibility of the witnesses are concerned.

[40]         This rule was a two-edged sword and cut equally for and against both sides of the case. For example, we recently held that the Commonwealth was not entitled to an instruction on either the presumption of sanity or the presumption of knowledge which arises from the possession of recently stolen goods. Mason v. Commonwealth, Ky., 565 S.W.2d 140 (1978); Wells v. Commonwealth, Ky., 561 S.W.2d 85 (1978). Obviously, Taylor, supra, requires the restoration of balance to the rights of the parties. No thought was given to this aspect of the problem by those who mandated the change because they were neither conversant with the operation of the system, nor responsible for its maintenance.

[41]         A trial is no more than a search for the truth. The method by which that search is conducted is of little import so long as it is rational, fair to all parties and civilized. The concept of a national mode of criminal procedure is not too unpalatable to be swallowed in America a century after the Civil War. The Supreme Court of the United States has made it clear that it will no longer pay homage to “federalism” by permitting the states to experiment with an ever lengthening list of new found “fundamental” rights of defendants in criminal cases.

[42]         We should abandon the obsolete fortresses of local criminal procedure. Their unique character may be matters of pride, but their use does not so improve the search for the truth as to justify the time and energy lost in their defense. The litigation they spawn diffuses our efforts to apply, develop, and interpret substantive law and subordinates the question of guilt or innocence to the justification for the retention of local practices.

[43]         I would end the conflict and equalize the position of the parties now by:

[44]         1. Amending our Rules of Criminal Procedure to conform as closely as possible with the Federal Rules of Criminal Procedure including: ……

 [49]        This approach would insure that if the Supreme Court of the United States should reverse a Kentucky case on procedural grounds it would have to dine on a procedure, which it prepared and we could take comfort in the lament of the homemaker that the dullest food is that which you cook yourself.

-Justice LUKOWSKY  -  July 25, 1978 -

WE RECEIVED VALENTINE FRIENDSHIP CARD IDEAS FOR MEN

Wednesday, February 14th, 2007

True Friendship (With none of that Sissy Crap!)

Are you tired of those sissy “friendship” poems that always sound good,
but never actually come close to reality?*

*Well, here is a series of promises that actually speak of _true
friendship_.

You will see no cutesy little smiley faces on this card-
just the stone cold truth of our friendship.

1 When you are sad* — I will help you get drunk and plot revenge
against the sorry bastard who made you that way.
2. When you are blue* — I will try to dislodge whatever is choking you.*
3. When you smile — I will know you finally got laid.
4. When you are scared — I will rag on you about it every chance I
get
5. When you are worried — I will tell you horrible stories about how
much worse it could be until you quit whining.** **
6. When you are confused — I will use little words.
7. When you are sick — Stay the hell away from me until you are well
again.   I don’t want to catch whatever you have.
8. When you fall — I will point and laugh at your clumsy ass.
9. This is my oath…..I pledge it to the end. “Why?” you may
ask….”because you are my friend”

Friendship is like peeing your pants: everyone can see it, but only you
can feel the true warmth.

Send this to “all 10″ of your friends, then get depressed because you
can only think of four! (don’t send it back to me….I don’t want
to hear it!!!)

And remember….when life hands you Lemons, ask for tequila and salt and
call me over !

ABA ADOPTS NEW POLICIES ON JUDICIAL CONDUCT, MANAGEMENT OF TREATMENT FACILITIES, TREATMENT OF HOMELESS, PRO BONO RULES FOR OUT-OF-STATE LAWYERS

Wednesday, February 14th, 2007

MIAMI, Feb. 13, 2007 – The American Bar Association’s policy-making House of Delegates has revised the Model Code of Judicial Conduct to provide clear guidance to judges regarding their professional and personal conduct and to assure the public that effective standards exist to regulate the conduct of judges. The House met Feb. 12 to debate an array of timely issues of critical importance to the legal profession and the nation.

Changes in the Model Code include items addressing political activities of judges, prohibiting judges from making pledges or commitments regarding cases that may come before them, identifying conduct permitted for judicial election candidates, and addressing the acceptance of gifts. 


In other action, the ABA House adopted a recommendation opposing laws or policies that punish the homeless for engaging in life-sustaining practices conducted in public spaces when no other alternative space is available. Such behavior would include eating, sleeping and camping. 

 

In addition, the new policy opposes enactment of statutes or policies that punish people who provide food or shelter to people who are homeless. The resolution also urges national, state, territorial and local bar associations to work in cooperation with courts, lawmakers and advocates to revise laws and policies to recognize the problems faced by the homeless when the demand for shelter and services exceeds supply.

The policy-making body also agreed to a resolution calling for the regulation of residential treatment facilities, often called boot camps, for at-risk children, as well as two resolutions to assist military personnel. The first of these reaffirmed ABA policy urging Congress to make mandatory the provision of civil legal assistance to all low-income active-duty servicemembers and their dependents. The second urges federal, state and local lawmakers to respond to the increasing social and family support needs of the young and teenage children of deployed American military members.

The ABA Task Force on Hurricane Katrina, shortly after its creation last year, recognized the need for a model rule that would allow out-of-state lawyers to provide pro bono (free) legal services in an affected jurisdiction when an emergency affecting the justice system has occurred. New ABA policy addresses this need, and also offers a provision for lawyers from an affected jurisdiction to practice in an unaffected locale after an emergency affecting the justice system has occurred.

In other actions, the House adopted policy:

* Urging Congress to take immediate action to enact a substantial pay raise for the federal judiciary.
* Reaffirming the association’s commitment to the core values of the profession including the independence of the legal profession; expressing support for those lawyers and law firms that provide pro bono services; condemning attacks on the independence of the legal profession; and urging state and local bar associations to educate the public on the vital role that lawyers who provide services to unpopular clients or causes perform for the benefit of the American system of justice.
* Urging Congress and the Executive Branch to partner with the insurance industry to promote availability of terrorism risk insurance.
* Supporting enactment of “apology legislation? at the state and territorial levels, to enable medical providers or their staff to apologize for unanticipated outcomes of medical care relating only to pain, suffering or death, without that statement being admissible in court as evidence of an admission of liability.
* Encouraging jurisdictions to develop community supervision programs that allow less serious criminal offenders to avoid incarceration and conviction records.
* Urging jurisdictions to develop and implement meaningful graduated sanctions for violations of probation or parole.
* Urging governments to support professional associations and organizations to develop programs to train criminal justice professionals in understanding, adopting and utilizing factors that promote the sound exercise of their discretion.
* Urging state agencies and licensing boards to develop and enforce policy on the employment of people with convictions, including contractors and vendors who do business with the state.
* Urging jurisdictions to afford prisoners meaningful access to the courts and ensure that they are subject to procedures applicable to the general public when bringing lawsuits.
* Supporting the traditional right of private employers and property owners to exclude from the workplace and their property persons who are carrying firearms or other weapons.

The ABA House of Delegates is the association’s policy-making body. The 546 delegates represent states and territories, ABA entities, state and local bar associations, affiliated organizations and other constituencies.

With more than 413,000 members, the American Bar Association is the largest voluntary professional membership organization in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law in a democratic society.

Source: ABA

FED. JUDGE HALTS GOVERNORS DEPOSITION. EYEBROWS ARE RAISED

Wednesday, February 14th, 2007

WHAS television political reporter Mark Hebert has posted the following comments on his blog.

U.S. District Judge Karen Caldwell has temporarily halted the planned deposition of her husband’s boss in a civil case. 

 

Huh? You say. Well, Judge Caldwell has stopped the attornies for fired state transportation cabinet employee Mike Duncan from getting Governor Ernie Fletcher’s deposition on Feb. 20th. Attorney Tom Clay had planned to question Fletcher that day about his knowledge of Duncan’s firing, a firing that led Duncan to sue the Fletcher administration in federal court. 

 

It could be argued that Caldwell has a potential conflict of interest in hearing this case. Her husband is Lloyd Cress, a Lexington attorney who’s been a high ranking official in the Fletcher administration. Fletcher promoted Cress to deputy secretary in the Environmental and Public Protection cabinet in October. 


Judge Caldwell is a highly regarded former U.S. Attorney who prosecuted many of the BOPTROT cases against state lawmakers back in the early 1990s.
 

 

Posted by mark.hebert at February 13, 2007 08:31 PM 

 

Kentucky – Some Interesting History Factoids

Tuesday, February 13th, 2007

 
1792 – Kentucky was the first state on the western frontier to join the
Union

1816 – (first promoted) Mammoth Cave, with 336+ miles of mapped passages, is the world’s longest cave. It is 379 feet deep and contains at least 5 levels of passages. It’s second only to Niagara Falls as the most popular tourist attraction in the US. It became a National Park on July 1, 1941.

1856 – The first enamel bathtub was made in Louisville

1883 – The first electric light bulb was shown in Louisville. Thomas Alva
Edison introduced his invention to crowds at the Southern Exposition.

1887 – Mother’s Day was first observed in Henderson by teacher Mary S.
Wilson. It became a national holiday in 1916.

1893 – “Happy Birthday to You”, probably the most sung song in the world,
was written by two Louisville sisters – Mildred and Patricia Hill.

Late 19th century – Bibb lettuce was first cultivated by Jack Bibb in
Frankfort, Kentucky

1896 – The first (known) set of all male quintuplets was born in Paducah.

1934 – Cheeseburgers were first tasted at Kaelin’s restaurant in Louisville.

1937 – The first Wigwam Village Motel, with units in the shape of a “teepee”, was built by Frank A. Redford in Cave City.

The world’s largest baseball bat, a full one hundred twenty (120) feet tall
and weighing 68,000 pounds, can be seen at the Louiville Slugger Museum in
Louisville (Jefferson Co.).

Chevrolet Corvettes are manufactured only in Bowling Green.

Covington (St. Mary’s Cathedral-Basilica of the Assumption) is home to the
world’s largest hand blown stained glass window in existence. It measures
an astounding 24 feet by 67 feet and contains 117 different figures.

The wordl’s largest crucifix, standing at sixty (60) feet tall,  

is in Bardstown (Nelson Co.).

Fort Knox holds more than $6 billion worth of gold –  

the largest amount stored anywhere in the world.

The JIF plant in Lexington is the world’s largest peanut butter producing
facility.

Kentucky has more resort parks than any other state in the nation.

Middlesboro is the only United States city built inside a meteor crater.

Newport is home to The World Peace Bell, the world’s largest free-swinging
bell.

Pike County is the world’s largest producer of coal.

Pikeville annually leads the nation (per capita) in consumption of
Pepsi-Cola.

Post-It Notes are made exclusively in Cynthiana, Ky.

Shaker Village (Pleasant Hill) is the largest historic community of its kind
in the United States.

Christian County is ‘wet’, while Bourbon County is ‘dry’.

Barren County has the most fertile land in the state.

One part of Kentucky is completely separated from the rest of the state by
the Mississippi River.

FORMER MURRAY STATE UNIVERSITY PRESIDENT ALEXANDER REJECTS NUISANCE SETTLEMENT OFFER BY FORMER COACH. Says case needs to have a full and open airing

Tuesday, February 13th, 2007

King Alexander Refuses To Settle In Litigation  The Murray State NewsFormer University President F. King Alexander said he will not be a party to a monetary settlement in the ongoing litigation with former athletics director E.W. Dennison in a memo released Monday.

“I am aware that now the MSU Board of Regents is considering a monetary settlement of the case brought against the Board of Regents and me by E.W. Dennison, a former employee in the Athletics Department at MSU,” Alexander wrote. “I understand from counsel that the kind of agreement that the Board is contemplating is frequently referred to in legal circles as a ‘nuisance settlement’ which simply pays a plaintiff to go away, desist in being bothersome, and cease causing fruitless expenditures of time and money. However, I do not believe that this is good education policy nor does it appear to be good legal strategy. In my opinion, any monetary settlement to pay off the plaintiff in this instance would encourage other meritless claims against the University and inhibit future administrations from properly addressing personnel decisions.”

Alexander went on to praise the judge for his previous dismissal of 50 of the 52 claims by Dennison in the suit, and said paying off the plaintiff to avoid litigation on the final two claims would be “a tragic and irresponsible waste of money.”

“I believe that it would be healthful for the University and the people of Kentucky for this case to go to trial and to have a full and open airing of the entirety of the issues involved. The public needs to know the facts of this case and all its attendant circumstances. I hope that the Board will opt for full transparency and public disclosure through the medium of the trial that has already been scheduled by the court.

“I have made my position clear to the court that I will not be a party to this settlement decision. Indeed, I strongly oppose it. It is my wish that the Board will understand and agree with me.”

REVIEW KBA ETHICS OPINIONS ONLINE WITH LAWREADER

Tuesday, February 13th, 2007

LawReader will from time to time present interesting ethics questions and the answers provided by the KBA ethics committee.  We will begin with the most recent opinion.
KBA E-359
Question: Is it ever permissible for a defense lawyer to charge a contingent fee in a civil case?
Answer: Yes.
References: Wolfram, Modern Legal Ethics 9.4 (1986); Hazard & Hodes, The Law of Lawyering 1.5:401 (1991); Wunschel Firm v. Clabaugh, 291 N.W.2d 331 (Iowa 1980); ABA Formal Op. 93-373 (1993).
 OPINION
The question is presented by a lawyer who has been approached by an insurance company to defend its insureds, but pursuant to an unconventional fee arrangement.
The traditions of the bar have long recognized the propriety of a lawyer charging contingent fees in cases in which the lawyer’s work will generate a res, and in which the client might not be able to pay on an hourly basis. The rules do prohibit contingent fees in criminal and divorce cases. See Rule 1.5.
Neither the Rules nor the earlier Code contain any prohibition of all contingent fees for lawyers defending civil cases. See Wolfram, Modern Legal Ethics 9.4 (1986); Hazard & Hodes, The Law of Lawyering 1.5:401 (1991).
Professor Wolfram puts it this way: “If a client, fully advised about the matter by a lawyer, prefers to have the lawyer share some risk of loss in return for a higher fee payment, which will be the usual trade-off, it is hard to see why the rich should not have what the poor are forced by circumstances to accept.” Yet, elsewhere in his treatise there appear hints that even Professor Wolfram would concede that just because ballroom dancing is legal, that that is no reason for someone to take it up.
With that last thought in mind, we stress that the lawyer who would charge a contingent fee or bonus for result should also expect to bear the burden of proving that the method of computing the charge, and the amount of the fee, are reasonable and rational under the circumstances and are settled in writing at the outset of the representation. Rule 1.5.
For example, in Wunschel Firm v. Clabaugh, 291 N.W.2d 331 (Iowa 1980), the Court concluded that it should not enforce a contingent fee agreement relied upon by a law firm representing a defendant in a defamation case, since the fee claimed was based on a percentage (33 1/3%) of the difference between the unliquidated damages claimed in the complaint and the amount ultimately awarded or provided by any settlement agreement. Given the fact that the amounts claimed by plaintiffs routinely bear little relation to ultimate recoveries, the method of computation was deemed irrational, and likely to result in fee charges more or less unrelated to risk and effort.
 
RICHARD H UNDERWOOD
ETHICS COMMITTEE CHAIR
To view other ethics opinions for Ky. Go to:

Ethics Opinions:  http://www.uky.edu/Law/Library/ky_ethics_opinions.html
 

BANKRUPTCY COURT IN COVINGTON CLOSED TUESDAY FEB. 13

Monday, February 12th, 2007
The Bankruptcy Court for the Eastern District of Kentucky in Covington will be closed on Tuesday February 13, 2007 pursuant to the Order of Judge Bunning.  Please see the Bankruptcy Court’s website for more details at www.ebky.uscourts.gov


U.S. Dist. Court for the Eastern District announces new rule re: caption of pleadings

Monday, February 12th, 2007

 

The .U. S. District Court for the Eastern Dist. Of Kentucky has announced a new rule regarding the caption of pleadings to be used.  This rule change was brought about by the creation of three administrative districts for the Eastern District.  The new caption headings are listed below.
 

Those new administrative divisions are:
Northern –Ashland,
Central – Frankfort, and
Southern-London
 

 

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CLERK’S OFFICE
 

January 3, 2007
 

NOTICE
 

Pursuant to the Administrative Order of the Court entered on December 21, 2006,
effective January 1, 2007, the United States District Court for the Eastern District of Kentucky has been divided into three administrative divisions: Northern Division, Central Division, and Southern Division.
 

The Northern Division will consist of what has been referred to before this date as the
Ashland and Covington jury divisions. The Central Division will consist of what has been
referred to before this date as the Lexington and Frankfort jury divisions. The Southern
Division will consist of what has been referred to before this date as the London and Pikeville jury divisions.
 

Under the direction of Chief Judge Joseph M. Hood, in order to reflect these
administrative divisions, the captions of proposed orders and pleadings should be formatted in one of the following styles:
 

Alternate Format Style A
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
at ASHLAND
 

Alternate Format Style C
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at LONDON
 

Alternate Format Style B
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at FRANKFORT
 

The amended caption should be made effective January 1, 2007, to be contemporaneous
with the effective date of the Administrative Order.
 

s/Leslie G. Whitmer
 

CLERK, UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY

SEX, BLACKMAIL, AND THE RULES OF CIVIL PROCEDURE

Monday, February 12th, 2007

In a real life Texas drama we find similarities to Rudyard Kipling’s The Man Who Would Be King. 

 

Mary Alice Robbins – Texas Lawyer 

Two San Antonio, Texas, lawyers, married to each other, face a trial on theft charges based on allegations that the wife had sexual liaisons with four men whom the husband subsequently threatened with litigation unless they compensated him for his emotional distress. 

The trial in State v. Mary Roberts, Ted Roberts is scheduled to begin on Feb. 12 before Judge Sid Harle in San Antonio’s 226th District Court. 

A Bexar County grand jury first indicted the two lawyers on the theft charges in 2005, identifying the four men who are the complainants only by their initials. A second Bexar County grand jury reindicted the couple in 2006, this time naming the four men: Steve Riebel, Geoffrey Ferguson, Paul Fitzgerald and Reagan Sakai. 

The second indictments allege that Mary and Ted Roberts unlawfully appropriated the four men’s money by deception and by coercion. According to the indictments, the alleged offenses — violations of Texas Penal Code §§31.01 and 31.03 — occurred between Oct. 1, 2001, and April 2, 2002. 

Cliff Herberg, Bexar County’s first assistant district attorney, says the allegation is that the wife had sexual liaisons with the men and her husband subsequently approached them to demand payments or he would expose them to hatred, contempt and ridicule. 

Riebel, Ferguson and Sakai did not return telephone calls seeking comment before press time. “It’s a very personal matter,” Fitzgerald says, declining further comment. 

At least one of the men met Mary Roberts online. 

“My client had some information posted on a Web site, and he was contacted by Mary Roberts,” says Van G. Hilley, who represents Riebel. 

Hilley, a partner in San Antonio’s Goldstein, Goldstein & Hilley, says Riebel had a relationship with Mary Roberts and thought he had settled the matter with her husband. “He was very sorry that it happened,” Hilley says. 

Herberg says Ted Roberts collected about $144,000 total from the four men. If the jury finds Mary and Ted Roberts guilty of theft, each could be convicted of a second-degree felony, punishable by up to 20 years in prison and up to a $10,000 fine. 

Ted Roberts, principal in Ted H. Roberts in San Antonio, is certified in personal injury law and civil trial law by the Texas Board of Legal Specialization, according to the State Bar’s Web site. As noted on that Web site, Mary Roberts’ primary areas of practice include ethics and legal malpractice, law office management, real estate and wills, and trusts and probate. She is an attorney in her husband’s firm. 

San Antonio solo Michael McCrum, who represents the couple, contends Ted Roberts presented the men with whom his wife had the affairs with demand letters and copies of petitions that Ted Roberts proposed to file under Rule 202 of the Texas Civil Rules of Procedure in contemplation of filing a suit for intentional infliction of emotional distress. 

“He found out about the affairs, and he was incensed,” McCrum says of Ted Roberts. 

McCrum says that instead of beating the men up, like some husbands would do, Ted Roberts chose to present them with the demand letters and petitions. He says Roberts told the men that he could file a tort claim against each of them for having the affairs with his wife. 

“They settled; their wives didn’t know this had happened,” McCrum says. 

McCrum contends the state is trying to prosecute his clients for something that civil lawyers do all the time — send demand letters and present petitions they plan to file under Rule 202. 

“By stretching statutory words to an unprecedented interpretation, the state seeks to criminalize as “theft the presentment and subsequent settlement of potential claims authorized under the Texas Rules of Civil Procedure,” Mary and Ted Roberts alleged in one of several motions to quash their indictments that Harle dismissed in October 2006. 

McCrum says the outcome of his clients’ case could impact every civil lawyer in Texas who writes a demand letter. “Their demand letters can come under attack by a DA,” he contends. 

“We dispute that version of the facts,” Herberg says. “If we thought this was something that all lawyers do, they wouldn’t have been charged.” 

TWO THINGS 

Rod Phelan, a commercial trial lawyer and partner in Baker Botts in Dallas, says lawyers are supposed to use Rule 202 for two things: to investigate whether they have a claim or to preserve testimony of a witness who would not be available to testify because the witness either is dying or is leaving the jurisdiction. 

Ted Roberts’ use of Rule 202 “sounds like an odd use of the rule,” Phelan says. But he adds, “That doesn’t have anything to do with whether it’s criminally actionable.” 

Phelan says there is “a kernel of truth” in the point that McCrum is making. “The line between extortion or blackmail and making a demand to settle a colorable claim is gray,” he says. “What seems to a defendant as extortion or blackmail may seem to the plaintiff as a bona fide claim.” 

Bill Dorsaneo, a Southern Methodist University Dedman School of Law professor who teaches and writes on Texas civil procedure, says demand letters that lawyers write have been regarded as privileged. 

Dorsaneo says he’s surprised that the criminal law would allow the criminal prosecution of a lawyer for doing something that would be privileged in the civil context. “I’m not sure it’s a good idea,” he says. 

The couple argued in their motions to quash that the theft statute is unconstitutionally vague and/or overly broad and that the indictment failed to state an offense. McCrum says Harle dismissed the motions without prejudice, and he says he will re-urge the motions at the end of the state’s case. 

Herberg says the theft statute has been around for a long time. “We don’t think it’s vague,” he says. 

Williamson County District Attorney John Bradley, who has followed the case, says he thinks the theft provisions in the Penal Code are the “best fit” for prosecuting Mary and Ted Roberts. 

“You obviously have to get a jury to believe the lawyer [Ted Roberts] was manipulating the legal system to get that money,” Bradley says. 

Bradley says he doesn’t think it’s a good argument to contend that Ted Roberts merely did what civil lawyers do all the time when Roberts presented his demand letter and petition to each of the men who had a relationship with his wife. 

“The unique thing going on here is he [Ted Roberts] was litigating for himself,” Bradley says. 

 

JUDGE SAYS KEEP SENIOR JUDGE PROGRAM. JEFFERSON PROSECUTOR SAYS NOT WITHOUT MAJOR CHANGES. CHIEF JUSTICE MAY BE ABLE TO MAKE CHANGES

Sunday, February 11th, 2007

By Lawreader senior editor stan billingsley
Pulaski Circuit Judge, David Tapp, submitted an editorial to the Commonwealth Journal this week calling for the retention of the Senior Status Judge Program.  His editorial is posted below.
 

In response to the Tapp article, Jefferson County Commonwealth Attorney Dave Stengel strongly criticized the judges position on the senior judges program and said:
 

****
I recently read with a not minor level of incredulity that article by  Circuit Judge David Tapp advocating that we keep Kentucky’s senior status judges. I also think that we should keep the senior status judges, but with major changes to the program. I also stop short of calling Judge Tapp untruthful but his omissions in his article are the equivalent of leaving, NOT out of the ten commandments.  -Dave Stengel-
 

****
 

Disclosure:  The author is a retired judge who completed his requirements under the Senior Status Judge program in March of 2006.
 

    Stengel has called for adoption of rules that would subject such appointments to reasonable oversight and control.  He appeared angered over the assignment of former Jefferson District Judge Paula Fitzgerald as a senior status judge serving in her former district from which she had been elected several times.
 

LawReader has not heard specific proposals for /reasonable/ changes in the current law. We would suggest that the legislature should be careful in not doing anything that allows a local prosecutor to be a major force in determining which judges serve in his district.
 

If a judge is dependent on the continued good will of a prosecutor, or a public defender, than the judges ability to be fair and impartial will be seriously compromised.
 

The current provision of the Ky. Constitution dealing with the appointment and assignment of retired judges provides adequate protection of the public.
 

The Chief Justice is granted broad powers which should not be tampered with.  Any attempt by the legislature to write legislation contrary to the powers granted the Chief Justice by Section 110 would surely be found to be unconstitutional.
 

Section 110 of the Ky. Constitution states:
 

The Chief Justice of the Commonwealth shall be the executive head of the Court of Justice…. 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.
If the Chief Justice is convinced that a judge is not wanted back in his/her home county, he can assign that judge elsewhere.  While current law requires the Chief Justice to consider assigning a senior judge back to their home county, it allows him to assign senior judges elsewhere.  The Chief Justice can act and in doing so not taint such assignment decisions with issues relating to interference by prosecutors and public defenders.
 See KRS 21.580 which states:
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.
 

   We believe there can be an accommodation between those who want some reasonable changes in the current program, and the Chief Justice.
 

This could be accomplished by the Chief Justice on his own initiative creating some guidelines by which he will make appointments and assignments.  We see no way the legislature can impose such a program on the Chief Justice or future Chief Justices by legislation.
 

The legislature can of course kill the entire program, and that would not be in the greater interest of the public.  The senior judge program has been a very useful method to reduce huge caseloads.  The public has also benefited from obtaining the service of these retired judges at a fraction of the cost it would cost the state to create new judgeships.
 

If the program is allowed to terminate in 2009, then the legislature should get ready to appropriate approximately $16,000,000 each year, to create and fund enough judgeships to equal the work of the current 48 senior status judges who are serving for only an annual enhancement to their retirement benefits.
 

The Tapp Article
 

By David Tapp The Somerset (Ky.) Commonwealth Journal – David Tapp is a circuit judge who serves Pulaski, Rockcastle and Lincoln counties.
Kentucky’s senior status judges serve every county, whenever needed, and in every type of case from the simple to the complex, all without receiving one additional cent in compensation except for increased retirement benefits.
This program, which allows Kentucky to benefit from its most experienced and well-educated judges, is set to expire in 2009 unless the General Assembly acts soon.
Caseloads suffer when judges retire, are absent due to illness or injury, or otherwise unavailable. In response to concerns regarding ever-expanding dockets and delayed resolution of important cases, Kentucky adopted a program designed to encourage judges who are eligible for retirement to serve an additional five years with no pay, but with the incentive of an increased retirement benefit.
Like so many other beneficial programs, however, some cannot resist tinkering with a good thing. Recent criticisms suggest that unqualified judges are permitted to serve and that the cost of senior judges is simply too much for Kentucky to bear. In fact, Kentucky cannot afford to lose its senior judges.
Take, for example, Laurel County. A long-serving and talented judge will soon be called to active duty for service in connection with the war in Iraq. He may be gone as long as 18 months. Without the senior status program, Laurel County – which had over 9,000 cases filed for each District Court Judge last year – will depend on other already overburdened judges to fill in with the almost certain result that important criminal and civil cases will not get the prompt attention that they deserve.
The suggestion that “unqualified judges” are permitted to participate in the senior status program is without merit. To qualify for the program, a judge’s years of experience and age must equal the number 75. Thus, a judge who is 55 years old would be required to have 20 years of judicial service before being eligible as a senior status judge. Any judge enrolled in the program is by definition very experienced and has repeatedly been elected by the citizens of the Commonwealth.
Another recent criticism suggests that a judge who has been defeated for re-election should not be permitted to participate because they have been found wanting by the electorate. This is the worse type of analysis for it ignores the vagaries of elections, the inexplicable results that sometimes occur, and the reality that sometimes more than one qualified candidate may vie for the same office.
Take for example, Michael Henry, a judge of tremendous intellect who consistently exhibited the very best in demeanor and virtue in his many years of valuable service to the people of this region. Judge Henry, after years on the bench, was defeated in the most recent election. Despite his defeat, no one, not even the candidate who successfully ran against him, has voiced any criticism of Judge Henry’s abilities, skill or performance.
But for the senior status program, Judge Henry’s talents would now be lost. Instead, Judge Henry remains available for 600 days over the next five years to fill vacancies when a judge is called to active duty military service like in Laurel County, or when a judge passes away, or attending a judicial education program, or any of another hundred reasons why a substitute judge is needed.
Inevitably, judges are going to be unavailable for any number of legitimate reasons. Obviously, the Commonwealth cannot allow important legal matters to stagnate during these absences. Asking the already overwhelmed judges around the state to pick up the slack is simply not a reasonable option. Thus, the Commonwealth may either add new judges or continue the senior status judge program.
Adding new judges comes with significant costs, including office space, equipment, support staff, and other expenses. A special judge, on the other hand, comes with none of this baggage. The office space and staff are already in place through the judge being replaced. In fact, using a senior status judge to reduce a backlog, or fill in when needed, costs not a single cent in increased salary. And it is certainly not unreasonable to reward senior judges with an increased retirement benefit for asking them to stick around for an additional five years after being eligible to retire.Kentucky cannot afford to let this program lapse.
David Tapp is a circuit judge who serves Pulaski, Rockcastle and Lincoln counties.

THE MOST READ LAWREADER STORIES FOR THE FIRST YEAR ON OUR NEWS BLOG.

Sunday, February 11th, 2007

The most read stories, in order of popularity, posted on LawReader during the last year were:
1) Stan Chesley the Litigator Champion for little guy Sunday, May 28th, 2006
2) How Business Trounced The Trial Lawyers Friday, December 29th, 2006
3) Governor Fletchers Influence on the Appealate ladder of Com. v Fletcher       Aug. 13, 2006
  4) Senator Roeding decried for gay bashing comments. July 14, 2006
5) Can FDA preempt state laws on drug companies Failure to Warn July 12, 2006
6) Courier Journal Editorial praises KBA action against three Lexington attorneys. August 3, 2006
 7) U.S. Supreme Court ruling supports Stumbo argument that witness pardoned by Fletcher can not assert 5th. Amendment on basis of possible Federal prosecution July 6, 2006


8)LawReader » Blog Archive » The Shelby County Mutiny: Where does Judge Stewart go to get his good name back?

CT. OF APPEALS SAYS FIELD SOBRIETY TESTS NEED NOT BE RELIABLE – ARE NOT SUBJECT TO DAUBERT REVIEWS

Saturday, February 10th, 2007

By Lawreader senior editor stan billingsley
 

Attorney Steve Isaacs of Lexington sent us a copy of a scientific study that brings into question the reliability of field sobriety testing evidence. This  Study by Clemson Univ. of Field Sobriety Tests suggests that in many instances that field sobriety tests provide results about equal to those obtained by the flipping of a coin.
 

On Jan. 19, 2007, the Court of Appeals in an unpublished case (Bridgers v. Commonwealth), held that field sobriety tests did not have to be scientific reliable and therefore not subject to Daubert review standards.
 

The Daubert standards for admission of “scientific? evidence requires the scientific evidence to be subject to peer review of studies which support the efficacy of “scientific? evidence before it is allowed to be admitted. This study brings into question the reliability of standard Field Sobriety Tests.
 

We do not believe that the Ky. Supreme Court has ever directly ruled on whether or not an Daubert Evaluation should be applied to Field Sobriety Tests.  The State of Texas requires by statute, that jurors must determine if “probable cause? exists for arrests.
 

The Court of Appeals in an unpublished case (Bridgers v. Commonwealth,  Jan. 19, 2007) held that field sobriety testing evidence did not need to be proven to be scientificially reliable, and that police officers could testify either as a layman or as an expert on field sobriety testing.
 

We have found few Kentucky cases even using the term “Field Sobriety Test.?  The challenge to a FST test would require the defendant to employ a science expert and the fee would likely be prohibitive to most DUI defendants.  Lopez v. Com.
 

The current willingness of the courts  in allowing any police officer to testify about FST’s operates to sidestep Daubert Standards.   Once admitted into evidence, the rebuttal or challenge of such evidence places a difficult burden on the wallets of those who would challenge the scientific efficacy of the test.  The cost of appealing District Court issues to the appellate level is prohibitive to most defendants.
 
The Clemson study makes a compelling argument that defendants should challenge the scientific reliability of FST.  Further, the administration of such tests by field officers should always be challenged.
 

The FST’s originate in the National Highway Traffic Safety Administration of the U.S. Dept. of Transportation.  They recommend three basic tests, and provide instruction for the administration of the tests.  Not many officers can relate correctly the tests approved by the NHTSA, and few can administer and score these tests in accordance with NHTSA guidelines.   Nevertheless, they are allowed to present such evidence to the jury almost without limitation.  The NHTSA, having created FST’s, has shown no interest in controlling the  correct use of such tests.
 

The courts have swept this problem under the rug, along with the problem of failing to provide Daubert reviews, by the following reasoning:
 

 1) the objection does not affect admissibility, any errors raised go only to the weight of the evidence to be decided by the jury.  
 

2) Then the courts refuse an instruction where the jury must answer as to their finding of reliabiltity of the FST and address specifically the “weight of the evidence? issue.   The courts say: We only allow Bare Bones Instructions in Ky. and the defendant may “flesh out that argument on the law with the jury.?
 

3) Then when the Commonwealth objects to the defense lawyer’s argument  the courts restrict the defense argument 
 

4) Then on appeal the appellate courts finish off the FST challenge, and many other DUI issues, with the catchall doctrine of “harmless error?.
 

The result is that the Ky. Court of Appeals and the Ky. Supreme Court are sidestepping an actual Daubert evaluation, and are blessing the use of questionable scientific evidence by allowing FST tests to be introduced almost without limitation.
 

We would suggest that whether or not the police officers testimony is sufficient to justify an arrest, is an issue that should properly be presented to and decided by the jury.
 

LawReader has prepared a set of instructions to be submitted to the court for review of the  principle that the pass or failure evidence of a FST requires a finding of fact, and as such the fact should be determined by a jury, and not decided as a “matter of law? by the trial court when the defendant has requested a jury trial.  (See Jury Instructions Library)
 

In cases where all objections to admission of the FST results are denied by the trial court, and where the trial court will not give an instruction on probable cause, then the defense attorney still has the option of explaining all of this to the jury on closing argument. In fact, this procedure is rarely allowed by the trial court
 

If the trial court limits his argument about probable cause and Daubert requirements, then the whole charade created by the appellate courts about the defense being able to raise such issues to the jury, and to flesh out these issues to the jury on closing argument will be exposed.  . 
 

At some point, the appellate courts will have to confront the issue of allowing unscientific evidence to have unrestrained admission into evidence in violation of Daubert and other U.S. Supreme Court rulings.
 

If this issue is raised, and the Ky. Appellate courts continue to sidestep Daubert requirments, then the matter should be advanced to the 6th. Circuit Court of Appeals.


 We would suggest that the 6th. Circuit will be more inclined to give proper weight to Daubert.
 

CLEMSON UNIVERSITY STUDY:
 

Perceptual and Motor Skills, 1994, 79, 99-104. 8 Perceptual and Motor Skills 1994
 

FIELD SOBRIETY TESTS: ARE THEY DESIGNED FOR FAILURE?’
 

SPURGEON COLE AND RONALD H. NOWACZYK
 

Clemson. University Summary–Field sobriety tests have been used by law enforcement officers to identify alcohol-impaired drivers. Yet in 1981 Tharp. Burns. and Moskowitz found that 32.% of individuals in a laboratory setting who were judged to have an alcohol
level above the legal limit actually were below the level.
 

In this study, two groups of seven law enforcement officers each viewed videotapes, of 21 sober individuals performing a variety of field sobriety tests or normal-abilities tests, e.g.. reciting one’s address and phone number or walking in a normal manner. Officers judged a significantly larger number of the individuals as impaired when they performed the field sobriety tests than when they performed the normal-abilities tests.
 

 The need to reevaluate the predictive validity of field sobriety tests is discussed.
Field sobriety tests have been used throughout this century by police officers to
help them assess whether an individual is too impaired to drive an automobile.
 

A classic paper by Bjerver and Goldberg, (1951) examined the relationship between
performance on the field sobriety test and driving. Over the past two decades the
National Highway Transportation Safety Administration (NHTSA) has funded several
studies to examine the effectiveness of field sobriety tests in predicting a person’s
level of intoxication and driving impairment (e.g., Anderson. Schweitz. & Snyder.
1983; Burns & Moskowitz. 1977; Tharp, Burns, & Moskowitz. 1981).
 

In a 1977 report, Burns and Moskowitz examined a number of different tests
commonly used by officers. Based on the results from a laboratory study, they
recommended three tests, the Horizontal Gaze Nystagmus (HGN) test, the walk-and-turn
test, and the one leg stand test for further research.
 

The HGN measures the angle of gaze at the onset of jerking movement which can be influenced by alcohol consumption as well as other physiological factors. The other two tests require dividing, attention among mental and physical tasks.
 

Briefly, the walk-and-turn test requires a person to stand on a line in a heel-to-toe position while listening to instructions and then to take nine steps in a heel-to-toe fashion, pivot, and take nine more steps along a straight line.
 

The one-leg stand requires an individual to stand with arms at the side and extend one foot six inches off the ground and maintain that position while counting for 30 seconds without extending the arms or losing balance.
 

(For complete instructions see “DWI Detection and ‘Requests for reprints can be sent to either author at the Department of Psychology, Clemson University, Clemson, SC 29634.)
 

 The authors thank Ronnie Cole for his assistance in the completion of this study and Jack Davenport for his comments on an earlier draft of this manuscript.
 

Divided Attention Field Sobriety Testing” by NHTSA, 1987.) Although these
tests seemed to hold the most promise, the authors reported that false alarms are
a concern.
 

In the 1977 study, 47 percent of the subjects who would have been
arrested based on test performance actually had a blood alcohol concentration
(BAC) lower than .10 percent, the decision level used by officers.
 

A 1981 report by Tharp, et al employed the three previously mentioned
tests in another laboratory study. The error rate improved somewhat; 32 percent
of the participants judged to have BACs greater than .10 actually had BACs
lower than .10, the decision point used in many states for assuming driving
impairment. Reliability coefficients for these tests, however, were often below
accepted levels for standardized clinical tests. Reliable rests have coefficients of
approximately .85 or higher (Rosenthal & Rosnow, 1991).
 

 Test-retest reliability coefficients for the field sobriety tests ranged from.61 to .72 for individual tests and .77 for the total test score for 77 individuals who were dosed to the same BAC level on two occasions. Interrater reliability coefficients, based on having
different officers score performance on each occasion, were even lower, ranging
from .34 to .60 with .57 as an over-all test score.
 

Problems in scoring can be attributed, in part, to the lack of standardization
across many of the field sobriety test studies. In addition, a few miscues in
performance can result in an individual being scored as impaired (Anderson, et at..
1983). For example, a person is viewed as impaired for missing two of nine points on
the walk-and-turn test or two of five points on the one-leg stand test.
 

 The stringent scoring criteria as well as potential subjectivity in determining whether a point should be awarded may account for accuracy rates that vary from 72 to 96 percent among police agencies using these tests in the Anderson, et al. study. The fact that these tests are largely unfamiliar to most people and not well practiced may make it more
difficult for people to perform them.
 

As few as two miscues in performance can result in an individual being classified as impaired because of alcohol consumption when the problem may actually be the result of their unfamiliarity with the rest.
 

This study tested the hypothesis that sober individuals will find the field sobriety
tests difficult to perform and, as a result, will be judged to be impaired by officers
viewing their performance. Individuals who were completely sober were asked to
perform several field sobriety tests and several “normal-abilities” tests which should
be well known to individuals.
 

These latter tests included answering personal data questions, such as stating one’s address and phone number, as well as walking in a normal manner. Performance on the field sobriety tests and normal-abilities tests was videotaped. Law enforcement officers were asked to view these tapes and determine if these individuals were impaired (“too drunk to drive”).
 

If the field sobriety tests are difficult to perform under normal circumstances, then we can
expect officers to judge incorrectly individuals as being impaired on the basis of
the field sobriety test performance as compared with scores on the normal-abilities
tests.
 

METHOD
 

Subjects and Design
 

Fourteen police officers from the local municipality or county sheriff’s office
rated the performance of 21 individuals who had completed the field sobriety
and normal-abilities tests. These officers, with 1 to 17 years of law enforcement
experience (M = 11.7 yr.) were volunteers who were certified by the South
Carolina Academy for Police Officers which is a state requirement. As part of this
certification requirement they had completed the state DUI training program and
have had field experience with DUI detection. All officers were assigned to duties
in the field.
 

Ten males, seven white and three African-American. and eleven white females
served as participants. They were recruited from local businesses. The owners of
these businesses were asked if they had any employees who were willing to volunteer to serve in an experiment involving psychomotor tasks. Participants were currently employed, between 21 and 55 years of age, and not overweight, and had no known physical disabilities.
 

All individuals and officers were paid for their participation. The individuals
performed both field sobriety tests as well as normal-abilities tests. Half of
the officers were randomly assigned to each condition in which they viewed
performance on either the field sobriety or normal- abilities tests.
 

Tests Performed
 

Prior to the administration of the tests, each participant was administered the
Datamaster breathalyzer test. All participants had a BAC level of .00. Each
participant performed six field sobriety tests and four normal-abilities tests in the
same order in an indoor setting. The field sobriety tests included the walk-andturn
test, alphabet recitation, one-leg stand, a one-leg stand while tilting backward
with the eyes closed and touching the nose, a one-leg stand with counting, and a
one-leg extension test.
 

These tests were selected after interviewing a number of officers concerning tests they used in the field. None of these officers served in this study.
 

The Horizontal Gaze Nystagmus test was not included because it requires officers individually to monitor the participants’ eye movements which would have been difficult to videotape in a controlled fashion. It is also not included in the 1987 NHTSA self-instructional guide (NHTSA, 1987).
 

The four normal-abilities tests included counting from 1 to 10, reciting one’s Social
Security number, driver’s license number or date of birth, reciting one’s home address and phone number, and walking in a normal manner, turning around, and walking back to the starting point.
 

These tests were selected by the experimenters to sample motor and cognitive activities that are commonly performed by most individuals.
 

Standard instructions for each test were read by the experimenter. Participants
were told that they would perform a number of motor-coordination tasks that would last approximately 30 minutes.
 

These instructions were based on those used by law enforcement in South Carolina and followed NHTSA guidelines. If participants had questions regarding the instructions,
the experimenter reread the appropriate section. The reading of instructions was included on the videotape. The tests were performed indoors in a meeting room where distractions were minimal. A 7.62-cm wide strip of tape was placed on the floor for the walk-and-turn test as per NHTSA requirements.
 

Procedure
 

Each officer watched a videotape of the 21 individuals performing one of the
two sets of tests. The order of performance of the individuals was the same for
both the field sobriety tests and normal-abilities tests. The officers were provided
with sheets of paper listing the participants by number. The officers were allowed
to take notes and were asked “Do you fee!, as a law enforcement officer, that the
following subjects, based on field sobriety tests performed on videotape, have had
too much to drink to drive.
 

Their responses, either “yes” or “no,” were recorded for each individual. The
decision was recorded by the officer immediately, after viewing the individual’s
performance and prior to viewing the next individual’s performance. Each officer
participated in individual sessions.
 

RESULTS
The proportion of officers who decided that an individual had “too much to
drink” was recorded for each individual separately for the field sobriety and normal abilities tests.
 

There was a significant difference as a function of test (t29 = 4.38,
p< .01). Forty-six percent of the officers' decisions were that an individual had "too
much to drink” from viewing the field sobriety tests. Fifteen percent of the decisions
from the normal-abilities tests were that a person had “too much to drink.”
Differences among individuals were apparent. Only three individuals were rated
as “unimpaired” by ail officers on both the field sobriety and normal-abilities tests.
 

One individual’s performance was rated as showing he had had “too much to drink”
based more on the normal-abilities tests (by three officers) than on the field sobriety
tests (none of the officers). Five individuals were rated as having had “too much to
drink” by all the officers who viewed the field sobriety tests. One other individual
was rated as having had “too much to drink” by all but one officer.
 

Of these six individuals only one was rated as “impaired” by as many as four of the officers who saw the same individuals performing the normal-abilities tests. Four of these individuals were rated as having had “too much to drink” by two or fewer of the officers viewing the normal abilities tests.
 

Discussion
 

The data indicate that judgments of impairment are influenced by the type of
test performed. An individual was more liken to be judged as impaired on the
basis of field sobriety test performance than on performance of the normal abilities
tests. Even without alcohol, the number of errors made by individuals
performing the field sobriety tests was sufficient for officers to judge that the
individuals had had too much to drink. These findings are consistent with other
studies reporting sizable percentages of individuals judged to be impaired when
they were not (Burns & Moskowitz, 1977; Tharp, et al, 1981).
 

While training of officers, standardization of test instructions, administration,
and scoring may reduce the number of incorrect classifications, the major obstacle
may be the field sobriety tests.
 

 The fact that these tests require unfamiliar and unpracticed motor sequences may put an individual at a disadvantage when performing them. To the law enforcement officer who has demonstrated the tests many times, the motor sequences may, seem easy and straightforward. It may also be that to the casual observer that the tests are easy to perform. Yet, when an untrained individual actually performs the test, then the difficulty of performing the tests at an acceptable level may become evident.
 

The reliance on field sobriety test performance by law enforcement officers in
their decision to arrest or not and by juries in their decision whether to convict a
person of driving under the influence underscores the need to examine field sobriety
tests critically. The tests should discriminate between the two populations of
individuals who are impaired and those who are not. Ideally, the tests should
separate the two populations, that is, increase d, the mean difference between the two
populations. The tests, however, may be doing nothing more than adjusting the
officer=s β, or criterion measure, downward.
 

These tests must be held to the same standards the scientific community would
expect of any reliable and valid test of behavior. This study brings the validity of field
sobriety tests into question. If law enforcement officials and the courts wish to
continue to use field sobriety tests as evidence of driving impairment, then further
study needs to be conducted addressing the direct relationship of performance on
these and other tests with driving. To date, research has concentrated on the
relationship between test performance and BAC and officers’ perceptions of
impairment. This study indicates that these perceptions may be faulty. (emphasis added)
 

 

REFERENCES
Anderson, T. E., Schweitz, M. B (1983) M. B. (1983) Field evaluation of a behavioral battery for DWI. Final Report, DOT-HS-806476. Bjerver, K.&: Goldberg, L. (1951} Effect of alcohol ingestion on driving ability: results of practical road tests and laboratory experiments. Quarterly Journal of Studies on Alcohol, 11, 1-30.
Burns, M., & Moskowitz, H. (1977) Psychophysical tests for DWI arrest.
Final Report, DOT-HS-802-424, NHTSA. ‘ NHTSA. (1987) DWI Detection and Divided Attention Field Sobriety Testing. Final Report, DOT-HS-807-186.
Rosenthal, R., &: Rosnow, R. L. (1991) Essentials of behavioral research
methods and data analysis. (2nd ed.) New York: McGraw-Hill.
Tharp, V., Burns, M., & Moskowitz, H. (1981) Development and field test of
Psychophysical tests for DWI arrests. Final Report, DOT-HS-805-864, NH’ISA.
Accepted May 23. 1994
 

KY. CASES:
 

The Kentucky Court of Appeals held in Bridgers v. Commonwealth, No. 2005-CA-001690-DG (Ky. App. 1/19/2007 that Kentucky courts CAN allow the admission of scientifically unreliable evidence (SFSTs) in DUI cases contrary to the holdings in US v HornDaubert, and Kumho Tire
 
  It should be noted that Bridger  (CofA Jan. 19, 2007)was an unpublished case.  It is also the first Ky. Case that attempts to evaluate the effect of Daubert on the admission of a FST. 
 
  Other cases have permitted FST evidence based on the theory that as a layman, ever one can express their opinion as to whether or not someone is intoxicated.
 

In Lopez the Circuit Court, acting as an appellate court reviewing a District Court ruled, held that the admission of the FST was improper since it was irrelevant.  The theory was the charge was a blood alcohol content of .08%, and whether of not the driver passed or failed the FST was not probity of his blood alcohol content.
 

The Court of Appeals and later the Supreme Court both refused to rule on the issue of the exclusion of the FST since the Commonwealth didn’t argue that issue in either court, and the case was decided on other issues.   It is important to note that Lopez was not decided or concerned with Daubert issues.
 
   The Court of Appeals has not to our knowledge issued a Published case in which a FST was directly reviewed in light of Daubert.  Nor has the Supreme Court.
 
Bridgers as an unpublished case is not to be cited as authority.
 
We believe that this issue is ripe for a review by the Ky. Supreme Court.  It would be helpful for the court to discuss why Daubert, Horn, etc. do not apply.
 
 

 

     The circuit court held that it was reversible error to permit the Commonwealth to introduce the videotape of the field sobriety test because, except for operating a motor vehicle, the only element of this offense is having a blood alcohol concentration of 0.08 or more.
 

 The circuit court reasoned that, since Appellant did not argue that his blood-alcohol level registered 0.08 because of a malfunctioning machine (rather than intoxication), the field sobriety test was irrelevant.1
 The circuit court then held that the statements by the prosecutor were not erroneous under the 2000 version of the statute, but that the instruction was erroneous, and directed the district court upon retrial to instruct the jury in accordance with the 2000 amendment of the statute.
        Appellant filed a motion for the Court of Appeals to take discretionary review of the instruction issue. The Commonwealth did not file a cross-motion with respect to the circuit court’s reversal for a new trial because of the admission of the field sobriety test. When the Court of Appeals denied discretionary review,
  Appellant moved this Court to take discretionary review of the instruction issue. Again, the Commonwealth did not file a cross-motion for discretionary review. Thus, the circuit court’s reversal for a new trial because of the admission of the field sobriety test is not an issue before this Court. Green River Dist. Health
764 S.W.2d 475, 479 (Ky.1989)’>Dep’t v. Wigginton, 764 S.W.2d 475, 479 (Ky.1989), superseded by statute on other grounds as stated Withers v. Univ. of Ky., 939 S.W.2d 340, 344-45 (Ky.1997). This case will be retried.
 

BILL TO PROVIDE LAW STUDENT LOAN ASSISTANCE FOR PUBLIC DEFENDERS ADVANCES

Friday, February 9th, 2007
A bill to pay up to $6000 a year towards the legal education of public defenders and others, for each year of public service has received bi-partisan support.

Republican Jeff Hoover is a co-sponser of the bill, and this bodes well for its potential for passage. The bill also allows assistance in refinancing student loans. See full text of bill below.


 The Courier Journal published the following editorial endorsing the bill:
If a county prosecutor is pursuing a case against a criminal who has injured you, or if a public defender is trying to exonerate you of false charges, you don’t want your lawyer out delivering pizzas.


 But it happens, even with conscientious attorneys.
Caught in a squeeze between low starting salaries and crushing law school loans, many young public-service lawyers in the judicial system either must take second jobs or move to better-paying positions in the private sector.


 Their salaries are disgraceful. New lawyers who work for Kentucky county or commonwealth’s attorneys, the state attorney general or offices of public defenders or legal-aid services may start for as little as $32,000 a year. But low pay is endemic in government service, and that won’t change soon.


 There is, however, a commendable proposal before the General Assembly to help young attorneys in those areas repay their law school loans. House Bill 226 would provide them up to $6,000 a year in student-loan payments.


 The total amount would be capped at $1.2 million a year (a pittance in government terms), and the money would come from court fees.


 Law school tuition and costs have soared far faster than public-payroll wages, and some students graduate with debts well in excess of $100,000. Without help, many will be forced to leave public service.


 The bill is endorsed by commonwealth’s and county attorneys around the state and by the deans of all three of Kentucky’s public law schools. A similar measure has passed the House during recent sessions but been blocked in the Senate.


 Opponents may argue that no one offered them such help when they were young, but law school expenses were much lower then. They can also insist that a similar case could be made for other valuable but underpaid public employees, such as teachers and social workers.


 But the legitimacy of other professions’ claims does not lessen the urgent need to help the state hire and retain young lawyers, without whom Kentucky’s courts cannot function.


 

Passing HB 226 should be a no-brainer.


 

HB 226 was sponsored by  
R. Wilkey, J. Hoover, L. Belcher, T. Edmonds, M. Marzian, R. Meeks, A. Simpson
Legislative History:
     AN ACT relating to the Public Service Student Law School Loan Assistance Program and making an appropriation therefor.

     Create new sections of KRS Chapter 164A to create the Public Service Student Law School Loan Assistance Program to defray indebtedness incurred for law school for eligible attorneys working in the Office of the Attorney General, the unified prosecutorial system, the Department of Public Advocacy, or nonprofit legal services organizations designated as eligible; require the program to be administered by the Kentucky Higher Education Assistance Authority which shall promulgate administrative regulations; create the Public Service Student Law School Loan Assistance Program trust fund in the State Treasury where interest and funds shall not lapse but be carried forward for the purposes of the program; amend KRS 42.320, the court cost distribution fund, to direct that 2% of each court cost, up to $1,200,000, deposited in the fund be paid to the Public Service Student Law School Loan Assistance Program; amend KRS 164A.337 to conform; appropriate up to $1,200,000 for loan program reimbursements and expenses.
     Feb 6-introduced in House; to Judiciary (H); posting waived
     Feb 7-reported favorably, 1st reading, to Calendar
     Feb 8-2nd reading, to Rules; recommitted to Appropriations and Revenue (H)
Full text of bill:

AN ACT relating to the Public Service Student Law School Loan Assistance Program and making an appropriation therefor.

Be it enacted by the General Assembly of the Commonwealth of Kentucky:


SECTION 1.   A NEW SECTION OF KRS CHAPTER 164A IS CREATED TO READ AS FOLLOWS:

As used in Sections 1 to 5 of this Act:

(1)     “Authorized reimbursement period” means a one (1) year period during which the student law school loan expenses of an eligible attorney are authorized to be reimbursed under Section 2 of this Act;

(2)     “Eligible attorney” means an attorney:

(a)     Currently working, either full-time or part-time, for the:

1.      Office of the Attorney General or the unified prosecutorial system pursuant to KRS Chapter 15, including assistant Commonwealth’s attorneys, assistant county attorneys, and assistant attorney generals; or

2.      Department of Public Advocacy under KRS Chapter 31, including those attorneys employed full-time by a nonprofit organization operating under a contract with the Department of Public Advocacy pursuant to KRS Chapter 31, and those working on contract with the Department of Public Advocacy pursuant to KRS Chapter 31; or

3.      Nonprofit legal services organizations designated as eligible to receive funds from the federal Legal Services Corporation to provide civil legal services to the indigent pursuant to KRS Chapter 27A;

(b)     Whose application under Section 2 of this Act has been accepted and authorized to receive assistance in the repayment of his or her student law school loan expenses by the Kentucky Higher Education Assistance Authority; and

(c)     Who is not participating in any other program to pay for student law school loan expenses;

(3)     “Full-time” means at least one hundred (100) hours per month;

(4)     “Part-time” means at least fifty (50) hours per month, but less than one hundred (100) hours per month;

(5)     “Student law school loan expenses” means the cumulative total of the eligible attorney’s outstanding student law school loans; and

(6)     “Student law school loan” means any indebtedness incurred by the eligible attorney solely to pay higher education expenses covering the cost of attendance at any law school at which the eligible attorney completed course work required to obtain a law degree. Student law school loan includes indebtedness used to refinance indebtedness that qualifies as a student law school loan, but shall not include any indebtedness:

(a)     Owed to a person who is related to the eligible attorney within the meaning of Section 267(b) of the Internal Revenue Code; or

(b)     Disallowed as a loss under Section 707(b)(1) of the Internal Revenue Code.

SECTION 2.   A NEW SECTION OF KRS CHAPTER 164A IS CREATED TO READ AS FOLLOWS:

(1)     The Public Service Student Law School Loan Assistance Program is hereby created and shall be administered by the Kentucky Higher Education Assistance Authority. Any eligible attorney as defined in Section 1 of this Act may apply to the Kentucky Higher Education Assistance Authority for assistance under the program in repaying the attorney’s student law school expenses.

(2)     To be accepted for student law school loan repayment assistance, an applying eligible attorney shall:

(a)     Be currently licensed to practice law in the Commonwealth of Kentucky; and

(b)     Sign a statement agreeing to remain in his or her present employment for a period of one (1) year or repay in full any funds that were paid to the eligible attorney during that reimbursement period.

(3)     The corporation specified in Section 6 of this Act shall, to the extent funds are appropriated and available for such purposes, and on a first-come, first-served basis, either advance a new loan to discharge the student law student school loans or authorize reimbursement to all eligible attorneys who apply and meet the qualifications of subsection (2) of this section.

SECTION 3.   A NEW SECTION OF KRS CHAPTER 164A IS CREATED TO READ AS FOLLOWS:

(1)     The Kentucky Higher Education Assistance Authority shall annually reimburse an eligible attorney for a portion of the attorney’s student law school loan expenses actually paid by the eligible attorney in the preceding year during the authorized reimbursement period, to the extent funds are appropriated and available, as determined under subsection (2) of this section.

(2)     The portion of student law school loan expenses to be reimbursed each year to an eligible attorney shall be an amount determined as follows:

(a)     For a full-time attorney, the amount shall be the aggregate of the lesser of the eligible attorney’s scheduled monthly payments for student law school loan expenses or five hundred dollars ($500) per month; and

(b)     For a part-time attorney, the amount shall be the aggregate of the lesser of one-half (1/2) of the eligible attorney’s scheduled monthly payments for student law school loan expenses or two hundred fifty dollars ($250) per month.

(3)     An eligible attorney receiving student law school loan assistance who voluntarily terminates his or her employment before the expiration of the authorized reimbursement period shall be required to repay in full any funds that were paid to the eligible attorney during that reimbursement period, with interest accruing at the annualized rate applicable to the student law school loan expenses reimbursed.

(4)     An eligible attorney receiving student law school loan assistance who takes a leave of absence or whose employment is involuntarily terminated shall be responsible for all student law school loan payments during the leave of absence or after the date of termination.

(5)     An eligible attorney whose employment is terminated after the expiration of his or her authorized reimbursement period shall be responsible for all future unpaid expenses.

(6)     After the expiration of an eligible attorney’s authorized reimbursement period, an attorney who desires further student law school loan assistance shall be required to reapply for the assistance for a new one (1) year period, under the provisions of Section 2 of this Act.

SECTION 4.   A NEW SECTION OF KRS CHAPTER 164A IS CREATED TO READ AS FOLLOWS:

(1)     The Kentucky Higher Education Assistance Authority shall administer the provisions of Sections 1 to 5 of this Act.

(2)     The Kentucky Higher Education Assistance Authority shall promulgate administrative regulations that create an application and repayment process for the administration of Sections 1 to 5 of this Act.

(3)     The Kentucky Higher Education Assistance Authority may, in accordance with any administrative regulations promulgated by the authority, delegate to the entities employing eligible attorneys the following responsibilities:

(a)     Certifying an applicant’s employment status; and

(b)     Notifying the authority of the termination of employment or leave of absence, last known residential address, business and residential phone numbers, and any information about new employment of an eligible attorney.

(4)     Reimbursement of student law school loan expenses shall not be awarded to any person who is in default on any obligation to the Kentucky Higher Education Assistance Authority or the Kentucky Higher Education Student Loan Corporation under any program administered by the Kentucky Higher Education Assistance Authority or the Kentucky Education Student Loan Corporation until financial obligations to the Kentucky Higher Education Student Loan Corporation are satisfied, except that ineligibility for this reason may be waived by the Kentucky Higher Education Assistance Authority at its sole discretion.

SECTION 5.   A NEW SECTION OF KRS CHAPTER 164A IS CREATED TO READ AS FOLLOWS:

(1)     The funds received to implement Sections 1 to 5 of this Act shall be credited to the Public Service Student Law School Loan Assistance Program trust fund, which is hereby created in the State Treasury.

(2)     Federal funds or other funds that may be made available to supplement or match state funds for the Public Service Student Law School Loan Assistance Program created by Section 2 of this Act shall be credited to the trust fund created in subsection (1) of this section.

(3)     Funds deposited to the credit of the Public Service Student Law School Loan Assistance Program trust fund, including funds recovered from attorneys that failed to complete their required service during the reimbursement period, shall be used to finance the Public Service Student Law School Loan Assistance Program created by Section 2 of this Act, as well as to defray administrative expenses incurred by the Kentucky Higher Education Assistance Authority and are hereby appropriated.

(4)     Funds unexpended at the close of a fiscal year shall not lapse but shall be carried forward to the next fiscal year.

(5)     Any interest earnings of the trust fund shall become part of the trust fund and shall not lapse to the general fund.

Section 6.   KRS 164A.337 is amended to read as follows:

(1)     The board is authorized to incorporate an organization pursuant to KRS Chapter 273 for the eleemosynary, charitable, and educational purposes of administering an endowment trust. The organization so created shall be an instrumentality of the Commonwealth, but shall possess no part of the sovereign powers of the Commonwealth. The corporation shall be created to qualify as a tax exempt organization pursuant to Section 501(c)(3) of the Internal Revenue Code.

(2)     The endowment trust created pursuant to subsection (1) of this section shall solicit and accept gifts, grants, donations, bequests, or other endowments, including general fund appropriations from the Commonwealth and grants from any federal or other governmental agency, for the purposes of the endowment trust.

(3)     The endowment trust shall provide assistance under the Public Service Student Law School Loan Assistance Program in accordance with the provisions of Sections 1 to 5 of this Act and student financial assistance benefits, including, but not limited to, grants, scholarships, or loans to pay higher education costs of members of the public, including but not limited to those individuals designated as beneficiaries of participation agreements under the Kentucky Educational Savings Plan Trust, who enroll in an institution of higher education in Kentucky.

(4)     The board is authorized to transfer to the endowment trust, after its qualification under Section 501(c)(3) of the Internal Revenue Code, any funds or assets then held in the endowment fund initially established pursuant to KRS 164A.335.

(5)     Any gifts, grants, or donations made by any governmental unit or any person, firm, partnership,[ or] corporation, or civic or nonprofit organization to the endowment trust shall be a grant, gift, or donation for the accomplishment of a valid public, eleemosynary, charitable, and educational purpose.

(6)     The endowment trust shall submit an annual audited report, in accordance with KRS 164A.365(1) and (2), to the program administrator not later than the fifteenth of each September.

Section 7.   KRS 42.320 is amended to read as follows:

(1)     There is hereby established the court cost distribution fund, which is created to provide a central account into which the court costs collected by all circuit clerks, under KRS 23A.205(1) and 24A.175(1), shall be paid.

(2)     The fund shall be administered by the Finance and Administration Cabinet, which shall make monthly disbursements from the fund according to the following schedule:

(a)     Forty-seven[Forty-nine] percent (47%)[(49%)] of each court cost shall be paid into the general fund;

(b)     Ten and eight-tenths percent (10.8%) of each court cost, up to five million four hundred thousand dollars ($5,400,000), shall be paid into the State Treasury for the benefit and use of the Kentucky Local Correctional Facilities Construction Authority under KRS 441.605 to 441.695;

(c)     Six and one-half percent (6.5%) of each court cost, up to three million two hundred fifty thousand dollars ($3,250,000), shall be paid into the spinal cord and head injury research trust fund created in KRS 211.504;

(d)     Five and one-half percent (5.5%) of each court cost, up to two million seven hundred fifty thousand dollars ($2,750,000), shall be paid into the traumatic brain injury trust fund created in KRS 211.476;

(e)     Five percent (5%) of each court cost, up to two million five hundred thousand dollars ($2,500,000), shall be paid into a trust and agency account with the Administrative Office of the Courts and is to be used by the circuit clerks to hire additional deputy clerks and to enhance deputy clerk salaries;

(f)     Three and one-half percent (3.5%) of each court cost, up to one million seven hundred fifty thousand dollars ($1,750,000), shall be paid to a special trust and agency account that shall not lapse for the Department of Public Advocacy;

(g)     Three and four-tenths percent (3.4%) of each court cost, up to one million seven hundred thousand dollars ($1,700,000), shall be paid into the crime victims’ compensation fund created in KRS 346.185;

(h)     Seven-tenths of one percent (0.7%) of each court cost, up to three hundred fifty thousand dollars ($350,000), shall be paid to the Justice Cabinet to defray the costs of conducting record checks on prospective firearms purchasers pursuant to the Brady Handgun Violence Prevention Act and for the collection, testing, and storing of DNA samples;

(i)      Ten and one-tenth percent (10.1%) of each court cost, up to five million fifty thousand dollars ($5,050,000), deposited in the fund shall be paid to the county sheriff in the county from which the court cost was received;[ and]

(j)      Five and one-half percent (5.5%) of each court cost, up to two million seven hundred fifty thousand dollars ($2,750,000), deposited in the fund shall be paid to the county treasurer in the county from which the court cost was received and shall be used by the fiscal court in that county for the purposes of defraying the costs of operation of the county jail and the transportation of prisoners; and

(k)     Two percent (2%) of each court cost, up to one million two hundred thousand dollars ($1,200,000) deposited in the fund shall be paid to the Public Service Student Law School Loan Assistance Program trust fund created in Section 5 of this Act.

(3)     Any moneys remaining in the fund after the monthly disbursements in subsection (2) of this section shall be paid into the general fund.

(4)     Any moneys collected above the prescribed amount shall be paid into the general fund.

POLICE MISCONDUCT RESULTS IN $3.9 MILLION DOLLAR SETTLEMENT FOR WRONGFULLY CONVICTED MAN. See authorities re: Exculpatory Evidence

Friday, February 9th, 2007

The Courier Journal in an article written by Andrew Wolfson, details police misconduct issues raised by William Gregory, a Louisville man who was wrongfully convicted of rape in 1993 for which he served seven years in prison.
The lawsuit filed by Gregory resulted in a settlement with the City of Louisville of $3.9 million and another $700,000 from the State of Kentucky.
The charges involved allegations that the police intentionally withheld exculpatory evidence and a forensics expert employed by the state, falsified a report by withholding evidence of hairs being found on the victim from a third person.
The article which can be read at http://www.courier-journal.com/apps/pbcs.dll/article?AID=/20070209/NEWS01/702090447 stated:
**********
A federal district judge previously had dismissed the city and the officers as defendants in Gregory’s suit, but a federal appeals court last April overturned that decision, saying Gregory had shown that Louisville police used discredited identification procedures to arrest him.
The appeals court found that the police department encouraged one-on-one “show-ups” — in which police present one person to a witness and ask if that person is the suspect — rather than using a more reliable procedure in which the witness is presented with several people from whom to pick.
The appellate panel also said Gregory presented evidence that the department failed to train officers about their duty to disclose evidence that suggests a suspect is innocent.
The court said Officer Steve Clark, who investigated the first attack, testified at a preliminary hearing that the victim failed to pick Gregory from a photo array but did not reveal that she picked another suspect.
Clark testified at the same hearing that the victim’s description “fit” Gregory, even though she described him as 5 feet, 6 inches tall and clean shaven, when, in fact, he’d worn a beard for 10 years and was 5 feet, 11½ inches tall.
The court said Detective John Tarter, who has since retired, failed to tell Gregory that a second victim failed to pick him out of a photo pack. Tarter then persuaded Gregory to submit to the one-on-one show-up, in which the same victim identified him
The settlement with the state was paid on behalf of forensic examiner Dawn Ross Katz, who found that five of the hairs in the stocking cap were consistent with hairs taken from Gregory.
He accused her of falsifying her results and failing to disclose that two of the hairs didn’t match his. The tests were done in 1992, before DNA testing for hair strands was available.
***********
The state has a duty to disclose exculpatory evidence.
The leading case on the dury to disclose exculpatory evidence is  Chavis v. Rowe, 643 F.2d 1281 (7th Cir. 1981).

The Chavis Court applied the general rule for disclosure of exculpatory evidence in criminal prosecutions set out in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) and United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976), stating:
[31]        [S]uppression by the prosecution of evidence clearly favorable to an accused violates due process where the evidence is material either to guilt or punishment, even if it was not specifically requested by the defendant. Evidence is material ‘if [it] creates a reasonable doubt that did not otherwise exist.’ [United States v. Agurs, 427 U.S.] at 112, 96 S. Ct. at 2401. This means:
[32]        If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt. Id. at 112-13, 96 S. Ct. at 2401-2402. Chavis, 643 F.2d at 1285.
[33]        The Court in Chavis further held that even though the disciplinary committee had access to the exculpatory evidence at the time of the hearing, due process still requires that the prisoner have access to the evidence prior to the hearing in order to “prepare the best defense he can and bring to the court’s attention any evidence helpful to his case.” Chavis, 643 F.2d at 1286.
Also see: Commonwealth of Kentucky v. Key, 633 S.W.2d 55 (Ky. 03/30/1982)
No one questions that under principles expressed in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1966), and United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the withholding by the state of information which ‘creates a reasonable doubt that would not otherwise exist’ is a denial of due process, regardless of good faith on the part of the governmental authorities responsible for the suppression….”

… we finally consider in passing the Commonwealth’s third argument that “no statutory duty exists to provide exculpatory evidence.” Our initial comments in considering the Commonwealth’s second argument are equally applicable here. The due process requirements mandated by the United States Supreme Court supersede any contradictory prohibitions in the criminal rules.

LAWREADER LAUNCHS THE COURTROOM COMMANDER.

Thursday, February 8th, 2007

LawReader Senior Editor Stan Billingsley announced that the link to a new LawReader feature is titled JUDGES HOME PAGE, but he calls it the Courtroom Commander ©.

Billingsley said: LawReader has assembled on this one page almost every tool that a judge needs for the conduct of trials and hearings.  The forms the judge will need for many procedures are provided, along with definitions and authorities for the type of issues that judges face.

Whenever an attorney appearing before the Judge raises an issue and cites an authority, the judge can call it up from the bench and see for himself if the lawyers interpretation is consistent with the citation.  The judge can resolve issues on the spot, thereby allowing him to control his docket.  This practice has been courtroom tested by real judges and believe me, it really makes the judge look good.  No matter what issue the attorney raises, the judge using the CourtRoom Commander ©. can usually find an answer before the attorney completes his oral argument.

When a judge (or in fact anyone) accesses LawReader in a courtroom, this collection of materials truly makes them the CourtRoom Commander ©. 
Topics and How To tutorials are provided on such subjects as probation, sentencing, oaths of office, marriage ceremonies, required burdens of proof for different types of cases, jury instructions, etc.  If the judge is faced with a need to rule on topics from accrual dates of actions, admonitions, evidence, contempt of court, attorney fees, confrontation all the way through to wrongful death.   Hundreds of authorities and current rulings are accessible from this page.

The legal profession is noted for its practice of reinventing the wheel with every case and continually having to repeat research with every case.  LawReader saves rulings and decisions in its data base, so users can quickly see how the courts have previously ruled on similar issues.  This allows anyone doing legal research to start out ahead of the game.

Research that once took hours or days, can now be done almost instantly by subscribers to LawReader.com. The Courtroom Commander © allows the user to start out at one page, and quickly search the alphabetical listing of topics or they can use six search engines that are dedicated to specific data bases.  These dedicated search engines assure that the hits returned to the user are highly relevant.

LawReader subscribers can check out the CourtRoom Commander©.  at JUDGES HOME PAGE.  Non members may sign up to www.LawReader.com on line for only $34.95 a month.

FELONY EXPUNGEMENT BILL ADVANCES, READ FULL TEXT

Thursday, February 8th, 2007
 Current law provides a procedure for expungement of some misdemeanor records. That may change if H.B. 16 advances.

H.B. 16 would erase some non-violent felony offenses from a convict’s criminal record passed the House Judiciary Committee Wednesday, despite some Republican opposition.  A similar bill has been advanced in previous sessions of the General Assembly.
House Bill 16, sponsored by Rep. Rob Wilkey, D-Scottsville, would allow an individual to expunge Class D felonies – which include theft over $300, welfare fraud and drug possession – from their record. Crimes against children, violent crimes and sex crimes could not be expunged.
Supporters say it is necessary to give convicts a second chance at life. Employers often refuse to hire ex-cons, they note.   Read the full text of H.B. 16
 

 

HB 16/LM (BR 35) – R. Wilkey, A. Simpson
HB16 would:
    
1) Create a new section of KRS Chapter 533 to allow persons convicted of one Class D felony or a series of Class D felonies arising out of a single event to petition to have their records expunged;
2) amend KRS 431.078, relating to misdemeanor expungements, to change the application fee from $25 to $50 dollars and to begin the five-year waiting period from the date of adjudication of the offense;
3) amend KRS 527.040 to exempt individuals who have had their records expunged from the statute on a felon in possession of a firearm;
4) create a new section of KRS Chapter 533 require the Administrative Office of the Courts to keep a confidential index of expungement orders for utilization in the preparation of pre-sentence investigations.
     Action taken so far:

     Oct 4-To: Interim Joint Committee on Judiciary
     Jan 2-introduced in House
     Jan 3-to Judiciary (H)
     Feb 6-posting waived
     Feb 7-reported favorably, 1st reading, to Calendar
The bill will next travel to the floor for approval in the House and then to the Senate where it may face a difficult time.

                   Read the full text of H.B. 16

AN ACT relating to criminal record expungement.

Be it enacted by the General Assembly of the Commonwealth of Kentucky:


SECTION 1.   A NEW SECTION OF KRS CHAPTER 533 IS CREATED TO READ AS FOLLOWS:

(1)     Any person who has been convicted of a Class D felony or a series of Class D felonies arising from a single incident may petition the court in which he or she was convicted for expungement of his or her felony record. The person shall be informed of the right at the time of adjudication.

(2)     The petition shall be filed no sooner than ten (10) years after the time of adjudication. The petition shall specify the name and address of any identified victim of the crime, if any, or, if the victim of the crime is deceased or otherwise unavailable, the name and address of a member of the victim’s family. Inability to locate the victim shall not delay the proceedings in the case or preclude the holding of a hearing or the issuance of an order of expungement.

(3)     Upon the filing of a petition, the court shall set a date for a hearing and shall mail a copy of the petition to the Commonwealth’s attorney and to each victim or family member identified in the petition together with a notice stating:

(a)     That a petition for expungement has been filed;

(b)     That the person named in the petition has been identified as a victim of the offense or as a family member of a victim of the offense;

(c)     That the person has the right to consult with and be interviewed by the Commonwealth’s attorney on the question of whether the request for expungement should be granted, and that the Commonwealth’s attorney may communicate the person’s opinion on the expungement petition to the court; and

(d)     The date, time, and place that the court has set the petition for a hearing.

(4)     When considering an application for felony expungement, the Commonwealth’s attorney shall:

(a)     Have a criminal record check made to ascertain whether the person is eligible for felony expungement;

(b)     Interview and consult with any victim of the crime or a member of the victim’s family if an interview or consultation is requested by that person; and

(c)     Conduct any other investigation the Commonwealth’s attorney determines may be necessary with regard to the petitioner and the circumstances of the crime so as to enable him or her to make an informed decision whether to recommend felony expungement.

(5)     The result of any interview and recommendations of the victim of the crime or the victim’s family member under subsection (4) of this section may be presented to the court when it considers an application for felony expungement.

(6)     The Commonwealth’s attorney shall make a recommendation upon each application for felony expungement to the court. If the Commonwealth’s attorney recommends against granting the petition for felony expungement, he or she shall set forth, with specificity and in detail, the reasons for opposing the petition. A recommendation against granting the petition for felony expungement shall be filed with the court and shall be a public record.

(7)     If the application for felony expungement is approved by the court, the approval shall be in open court and open to the public and the Commonwealth’s attorney shall take reasonable steps to notify the victim and the victim’s family of the time, date, and location of the hearing.

(8)     The court shall order all records in the custody of the court and any records in the custody of any other agency sealed, if, at the hearing, the court finds that:

(a)     The offense was not a sex offense, an offense committed against a minor, or a felony offense in KRS Chapter 209, 507, or 508;

(b)     The person had no previous felony conviction;

(c)     The person has not, since the time of the conviction in question, been convicted of a felony or misdemeanor;

(d)     The person is not currently charged with a felony or a misdemeanor;

(e)     The person has successfully completed any sentence of incarceration, probation, or conditional discharge;

(f)      The person has paid all restitution ordered by a court; and

(g)     The offense was an offense against the Commonwealth of Kentucky.

(9)     (a)     Except as provided in Section 4 of this Act, upon entry of an order to seal the records, and payment to the circuit clerk’s office of two hundred eighty dollars ($280), all proceedings in the case shall be deemed never to have occurred; all index references shall be deleted; the person and the court may properly reply that no record exists with respect to the petitioner; and the petitioner shall not have to disclose facts relating to the record on an application for employment, credit, or any other type of application. The fee collected pursuant to this subsection shall be deposited into a trust and agency account for deputy clerks.

(b)     The circuit clerk shall remit or retain the following portions of the fee collected pursuant to this section:

1.      Seventy-five dollars ($75) of the fee shall be retained by the clerk for use in processing the application and expunging the records;

2.      One hundred twenty-five dollars ($125) of the fee shall be forwarded to the Department of Kentucky State Police for use in processing the application and in expunging the records; and

3.      Eighty dollars ($80) of the fee shall be forwarded to the Department of Corrections for use in processing the application and in expunging the records.

(10)   Copies of the order of expungement shall be sent to each agency or official holding records of the proceedings in question.

(11)   Except as provided in Section 4 of this Act, inspection of records included in the order of expungement may thereafter be permitted by the court only upon petition by the person who is the subject of the records and only to those persons named in the petition.

(12)   This section shall be deemed to be retroactive.

Section 2.   KRS 431.078 is amended to read as follows:

(1)     Any person who has been convicted of a misdemeanor or a violation, or a series of misdemeanors or violations arising from a single incident, may petition the court in which he was convicted for expungement of his misdemeanor or violation record. The person shall be informed of the right at the time of adjudication.

(2)     The petition shall be filed no sooner than five (5) years after the time of adjudication[completion of the person's sentence or five (5) years after the successful completion of the person's probation, whichever occurs later].

(3)     Upon the filing of a petition, the court shall set a date for a hearing and shall notify the county attorney; the victim of the crime, if there was an identified victim; and any other person whom the person filing the petition has reason to believe may have relevant information related to the expungement of the record. Inability to locate the victim shall not delay the proceedings in the case or preclude the holding of a hearing or the issuance of an order of expungement.

(4)     The court shall order sealed all records in the custody of the court and any records in the custody of any other agency or official, including law enforcement records, if at the hearing the court finds that:

(a)     The offense was not a sex offense or an offense committed against a child;

(b)     The person had no previous felony conviction;

(c)     The person had not been convicted of any other misdemeanor or violation offense in the five (5) years prior to the conviction sought to be expunged;

(d)     The person had not since the time of the conviction sought to be expunged been convicted of a felony, a misdemeanor, or a violation;

(e)     No proceeding concerning a felony, misdemeanor, or violation is pending or being instituted against him; and

(f)     The offense was an offense against the Commonwealth of Kentucky.

(5)     Upon the entry of an order to seal the records, and payment to the circuit clerk of fifty[twenty-five] dollars ($50)[($25)], the proceedings in the case shall be deemed never to have occurred; all index references shall be deleted; the persons and the court may properly reply that no record exists with respect to the persons upon any inquiry in the matter; and the person whose record is expunged shall not have to disclose the fact of the record or any matter relating thereto on an application for employment, credit, or other type of application. The fee collected pursuant to this subsection shall be deposited into a trust and agency account for deputy clerks.

(6)     Copies of the order shall be sent to each agency or official named therein.

(7)     Inspection of the records included in the order may thereafter be permitted by the court only upon petition by the person who is the subject of the records and only to those persons named in the petition.

(8)     This section shall be deemed to be retroactive, and any person who has been convicted of a misdemeanor prior to July 14, 1992, may petition the court in which he was convicted, or if he was convicted prior to the inception of the District Court to the District Court in the county where he now resides, for expungement of the record of one (1) misdemeanor offense or violation or a series of misdemeanor offenses or violations arising from a single incident, provided that the offense was not one specified in subsection (4) and that the offense was not the precursor offense of a felony offense for which he was subsequently convicted. This section shall apply only to offenses against the Commonwealth of Kentucky.

Section 3.   KRS 527.040 is amended to read as follows:

(1)     A person is guilty of possession of a firearm by a convicted felon when he possesses, manufactures, or transports a firearm when he has been convicted of a felony, as defined by the laws of the jurisdiction in which he was convicted, in any state or federal court and has not:

(a)     Been granted a full pardon by the Governor or by the President of the United States;

(b)     Been granted relief by the United States Secretary of the Treasury pursuant to the Federal Gun Control Act of 1968, as amended; or

(c)     Had his record expunged by any court of the Commonwealth of Kentucky.

(2)     Possession of a firearm by a convicted felon is a Class D felony unless the firearm possessed is a handgun in which case it is a Class C felony.

(3)     The provisions of this section shall apply to any youthful offender convicted of a felony offense under the laws of this Commonwealth. The exceptions contained in KRS 527.100 prohibiting possession of a handgun by a minor shall not apply to this section.

(4)     The provisions of this section with respect to handguns, shall apply only to persons convicted after January 1, 1975, and with respect to other firearms, to persons convicted after July 15, 1994.

SECTION 4.   A NEW SECTION OF KRS CHAPTER 533 IS CREATED TO READ AS FOLLOWS:

The Administrative Office of the Courts shall retain an index of expungement orders entered under Section 1 of this Act. The index shall only be accessible to persons preparing a presentence investigation under KRS 532.050. If the index indicates that the defendant for whom the presentence investigation is being prepared has had a prior felony expunged under Section 1 of this Act, the person preparing the report may, notwithstanding the provisions of Section 1 of this Act, both access the expunged record and include information from the expunged record in the presentence investigation report.
Rep. Derrick Graham, D-Frankfort, said forgiveness is a central value in a Judeo-Christian society. He called the bill “a family values issue.?
“I know in my youth that I did a lot of things that I am not really proud of,? as have other legislators, Graham said. “But as we grew and became older we learned from our mistakes. He who is without sin cast the first stone.?
Rep. Kevin D. Bratcher, R-Louisville, replied that the bill would allow somebody to lie that they’ve never been convicted of a crime on an employment application.
“That would not be something a Christian would do,? he said.
The Kentucky Press Association, of which the Herald-Leader is a member, testified in opposition to the bill. Some journalists have contended that the bill intrudes on the public’s right to know.
Other critics say it creates a danger to the public and to employers who run background checks on job candidates.
The bill passed 12-3, with Bratcher, Rep. Stan Lee, R-Lexington, and Joseph Fischer, R-Fort Thomas, voting against it. It will now move to the full House for consideration.
- Brandon Ortiz
 

JEFFERSON FAMILY JUDGE CALLS FOR DONATIONS OF WINTER COATS AND BABY BLANKETS

Thursday, February 8th, 2007

Kentucky Jefferson Circuit Court Family Division Judge Patricia Walker FitzGerald’s request for donations of winter coats was publicized in David Hawpe’s column in the Courier-Journal today.
In this frigid weather, the Jefferson Family Courts have women coming to the courthouse for domestic violence protective orders and bringing children who are not dressed for the cold. Little kids are coming in without appropriate shoes, coats, hats or gloves. Often the victims have to leave their homes quickly, with no time to collect any clothing or other necessities.
The court staff try to keep a supply of coats there so that they don’t have to send the kids back out the way they came in, but our supplies are depleted.
If you live in the Louisville area and have any extras, or know of folks who might, please consider donating your discarded children’s winter outer garments.
In response to an email asking where to deliver donations, Judge FitzGerald wrote “Clothing can be taken to the family court clerks’ office. Would you add baby blankets to your list? I left them off and we need them desperately.”
 

ENQUIRER PROTESTS GRANT COUNTY COURTS HANDLING OF BUS DRIVER CASE

Wednesday, February 7th, 2007

 

NOTE:  This case involves allegations that the driver of a Grant County School Bus, which was involved in a wreck injuring several students, may have been impaired.
 In an article on the Enquired web site, the following news story was published. 
********
Court officials have thrown a blanket over the case of Angelynna Young, the Grant County school bus driver accused of drug possession after a Jan. 17 accident in which her bus careened off the road into a pole, injuring 17 of the children on board.
Young has not been charged in connection with the accident. The drugs she is accused of possessing were found in a search of her home after the wreck.
Monday morning the case was quietly sent to the grand jury and she was assigned a new lawyer, five hours before it was scheduled on the docket, and long before the press was in the courthouse to cover the proceedings.
Grant District Judge Elizabeth Chandler-Lester and Circuit Judge Stephen Bates have sealed the files in the case so tightly that Young’s name even has been removed from Kentucky’s online court schedule.
The Enquirer has filed a challenge to the sealing of the records. In an impromptu press conference Monday afternoon, Grant County Attorney Ed Lorenz said it was just a coincidence that the hearing had been shifted without notice. Lawyers for the county and Young were in the courthouse early, and simply decided to deal with the matter, Lorenz said.
That doesn’t cut it. This is a case of high public interest. One of the injured children remains hospitalized. Feelings about the incident run high in the community.
County and commonwealth officials have an obligation to ensure Young’s case is handled in a fair and untainted manner. That doesn’t mean it can be handled beyond the public view.