Archive for April, 2007


Monday, April 30th, 2007

WASHINGTON (CNN) — The U.S. Supreme Court on Monday gave police officers significant protection from lawsuits by suspects who lead them on car chases. 

The justices ruled 8-1 against Georgia teenager Victor Harris, who was left a quadriplegic after a police vehicle rammed his car off the road in 2001. 

A police officer used “reasonable force” when ramming the teen’s speeding car, the high court ruled. A videotape of the pursuit played a key role in the decision. (Watch the Cadillac flip on its side ) 

“The car chase that [Harris] initiated in this case posed substantial and immediate risk of serious physical injury to others,” Justice Antonin Scalia wrote for the majority. “[Deputy Timothy] Scott’s attempt to terminate the chase by forcing [Harris] off the road was reasonable.” 

The 11th U.S. Circuit Court of Appeals had ruled that Harris’ lawsuit against the deputy could go forward. The justices overturned the lower court ruling, meaning the suit can be dismissed. 

Eight of the nine justices said they had closely viewed the videotape of the six-minute nighttime chase. It was taken from the dashboard of Scott’s car and from the vehicle of another deputy from a neighboring county. 

Similar pursuits have been aired, sometimes live, on many cable and broadcast television stations, and entire programs have been built around such incidents, such as “World’s Wildest Police Chases.” 

Tape fascinates justices 

The tape seemed to fascinate some of the justices. Scalia referred to the videotape repeatedly in his opinion, calling it a “wrinkle” that clearly swayed the bench. 

Departing from the lower court’s conclusions, Scalia wrote, “The videotape tells a different story.” 

He continued, “Far from being the cautious and controlled driver the lower court depicts, what we see on the video more closely resembles a Hollywood-style car chase of the most frightening sort, placing police officers and innocent bystanders alike at greater risk of serious injury.” 

Harris, 19 at the time, was driving on a suspended license, when he refused to pull over for speeding. The police video shows him accelerating at speeds more than 100 mph, leading officers across two counties outside Atlanta. He can be seen crossing the double yellow line on the road to pass about three dozen cars. 

At one point, Harris is shown pulling into a shopping center parking lot, with Scott, a Coweta County deputy, and two colleagues trying to block him. Harris then hits Scott’s vehicle while fleeing. The officer radios his supervisor, requesting permission to use potentially deadly force to stop Harris. 

“Let me have him, my car’s already tore up,” Scott says on the tape. 

Police tactics described 

The supervisor gives permission for the PIT maneuver — precision intervention technique — which involves the police car tapping the pursued vehicle at an angle so that it spins out. “Go ahead and take him out,” the supervisor orders. 

But Scott later said Harris was going too fast and he was worried about other drivers on the road, so the officer rammed the escaping Cadillac directly with his push bumper, causing it to go airborne down an embankment and crash. 

Now 25, Harris resides at an assisted-living facility. He refused an interview to discuss the case, as did Scott. In previous testimony, Harris said he was scared when officers first turned on their sirens and that he did not want his car impounded. 

“[Harris'] version of events is so utterly discredited by the record that no reasonable jury could have believed him,” Scalia said. “The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape.” 

The lone dissenter was Justice John Paul Stevens, who made his views known in a rare oral summary during Monday’s public session. He said the other justices got carried away by the tape. 

“I can only conclude that my colleagues were unduly frightened by two or three images on the tape,” Stevens noted. 

The justice said it was not clear the chase threatened the lives of other citizens since the roads were mostly empty. “The risk inherent in justifying unwarranted police conduct on the basis of unfounded assumptions are unacceptable, particularly when less dramatic measures … could have avoided such a tragic result,” he cautioned. 

Deadly force in car chases 

It was the first time the high court has heard a case involving the use of deadly force in police chases, and federal appeals courts have been split on the issue. Under generally applied Supreme Court precedents, an officer must show a suspect poses a “significant threat of death or serious physical injury to the officer or others” before using deadly force. 

And other federal courts have said officers can be stripped of qualified immunity from lawsuits if every “reasonable” law enforcement official would have known his actions were violating clearly established law. 

Law enforcement groups argued a ruling against Scott would hamstring every police official, who often would have to make split-second decisions about whether to wait until someone gets hurt — including innocent victims or the officer himself — before they could stop escaping motorists. 

Legal analysts said it was not surprising the conservative court under Chief Justice John Roberts was inclined to give officers the kind of discretion they have sought, particularly since 9/11. 

“Nobody is going to suddenly say its OK to use deadly force against a fleeing felon who poses no threat to society,” said Edward Lazarus, a Supreme Court legal analyst. “They’re just going to say, I think, that a speeding car going down a two-lane road at 100 mph is, in and of itself, necessarily a danger.” 

Other developments 

In other cases, the Court: 

• Rejected an appeal from two suspected terrorists imprisoned at the U.S. military base in Guantanamo Bay, Cuba, who continue to challenge their upcoming trials before a U.S. military commission. Salim Hamdan and Omar Khadr sought federal court oversight in the wake of a congressional law limiting their legal appeals outside the military justice system. The decision by the high court not to get involved for now means scheduled trials later this year for Hamdan, Khadr and about 10 other men can move forward. 

• Agreed to decide the fate of a Mexican murderer on death row in Texas in an unusual capital appeal involving federal authority, state sovereignty, and foreign treaties. Jose Medellin, who faces execution for the gang rape and murder of two teenagers. At issue is whether the state must give in to demands by President Bush to allow the prisoner new court hearings and a criminal trial. An international court said Medellin was improperly denied access to his consulate before his original prosecution, a violation of a treaty signed by the U.S. decades ago. 

Oral arguments will be held this fall. 



Monday, April 30th, 2007


The Franklin Circuit Court is reviewing a motion for a declaratory judgment regarding the expiration date of the Senior Status Judges program.  Several judges who are eligible for admission to the program are seeking a ruling that clarifies the correct ending date.
Is it 2007 or 2009?   It appears that this question is raised by what we conclude is an error by the Revisor of Statutes who included the phrase “(Effective until July 1, 2007).� In the title heading of the statute, KRS 21.580.


That phrase in the title heading conflicts with the actual wording of the statute as amended, which states:


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

We believe that the actual wording of the statute overrides the comments of the Revisor of Statutes.

Brandon Ortiz has reported  about the pending declaratory judgment lawsuit in the Herald Leader article.


Read full text of the statute by going to: KRS 21.580 Senior Status Program for Special Judges

By Brandon Ortiz – Herald Leader article

A class-action lawsuit representing every judge in the state is asking a judge to declare that the senior status judge program sunsets in 2009.
Because of conflicting language in the law, there is confusion over when the work program for retired judges expires. The title of the law states it is effective until July 1, but the text says it expires Jan. 31, 2009.
If Franklin Circuit Judge Thomas D. Wingate rules that the program ends this summer, it could lead to a spike in judicial retirements. In exchange for working part-time for five years, senior judges get a sizable boost to their retirement pensions.
A recent Herald-Leader analysis found that average pension enhancement per senior judge is at least $30,000.
The lawsuit was filed by judges Roderick Messer, Steve D. Hurt and Doughlas M. George. They are represented by James E. Keller, a retired Supreme Court justice, and Donald Cetrulo, a former director of the Administrative Office of the Courts. Cetrulo could not be reached for comment.
The lawsuit names as respondents the Board of Trustees of the Kentucky Judicial Form Retirement System and Chief Justice Joseph Lambert.
Louisville lawyer Sheryl Snyder said the board will take a neutral stance. But he said it will ask for clarification so it “knows what its obligations are.”
“The practical question is whether the judges need to retire by June 30, 2007, in order to be eligible for the program, or if the program will allow them to retire between ’07 and ’09 and be eligible for the program,” he said. “That’s the question we’re going to ask the court to resolve, and ask the court to resolve it quickly.”
Through a spokeswoman, Lambert referred questions to Snyder.
The program doubled in size last year to 45 senior judges, not counting seven who had completed their service.
Although the board is officially neutral, retirement system director Donna Stockton-Early said it is operating under the assumption the program will expire in 2009. After the program expires, senior judges will keep their enhanced pensions as long as they complete their service, she said.
“I don’t think you can stop everyone’s benefits,” she said of the senior judges.
A Herald-Leader analysis in February estimated that the program will cost the retirement system at least $1.57 million this year, close to four times more than the $420,000 legislators approved in 2000.

At least 29 judges are eligible for the program, and 24 more will become eligible within two years.
The retirement system commissioned an actuarial analysis showing that the program’s cost is $575,000. That analysis, however, relied on assumptions from 2005, when half as many judges were in the program.

KRS 21.580 Senior Status Program for Special Judges. (Effective until July 1, 2007).

(LawReader comment:  the effective date was added by the Revisor of Statutes, and conflicts with the clear statement of the law as amended in section 2 below.)

(1) As a pilot project to determine the effectiveness of using senior retired judges to
combat backlog and delay in Kentucky courts, there is hereby created a “Senior
Status Program for Special Judges.” The program shall be implemented as follows:
(a) KRS 21.400(1) and any other provision in KRS Chapter 21 to the contrary
notwithstanding, a member who retires at a time when combining his total
years of judicial service credit and his age equals or exceeds the number
seventy-five (75), may elect, within ninety (90) days following retirement, to
participate in the “Senior Status Program for Special Judges,” if he complies
with the provisions of this subsection. In that event, the member shall be
entitled to a service retirement allowance, commencing at the member’s
normal retirement age, payable monthly during his lifetime in an amount equal
to five percent (5%) of his final compensation multiplied by the number of
years of his judicial service, not to exceed twenty (20) years of judicial service
at the five percent (5%) factor, not to exceed one hundred percent (100%) of
final compensation. “Final compensation”, notwithstanding any provision to
the contrary, for all members retiring under any provision of KRS 21.345 to
21.570 or this section, or similar statutes governing the same positions, as
defined in KRS 21.400 shall be based on a period of thirty-six (36) months.
Any nonjudicial time shall be counted as is otherwise provided in KRS
Chapter 21, but in no event shall service retirement allowance exceed one
hundred percent (100%) of final compensation.
1. In the event the retiring judge elects to retire as a “Senior Status Special
Judge” under this subsection, he shall commit to serve, upon
appointment by the Chief Justice of the Commonwealth, as special judge
for one hundred twenty (120) work days per year for a term of five (5)
years without compensation other than the retirement benefits under this
subsection. The Senior Status Special Judge may agree to work more
than one hundred twenty (120) days in any year within the five (5) years
of service; however, the Senior Status Special Judge shall be
compensated as otherwise provided by law, in addition to his retirement
benefits, for any days served in excess of one hundred twenty (120) in
that year. If the Senior Status Special Judge has not served a total of six
hundred (600) days within the five (5) year period outlined in this
subsection, the Chief Justice shall require the Senior Status Special
Judge to serve at no additional compensation to the Senior Status
Special Judge, until the six hundred (600) day period is served by the
Senior Status Special Judge. The Senior Status Special Judge and the
Chief Justice may agree in writing to serve less than the one hundred
twenty (120) days in any one (1) or more of the five (5) years; however,
any of the days not served in a given year shall be served at the end of
the five (5) year period set forth in this subsection.
2. Should any member electing to retire under the Senior Status Program
for Special Judges fail, when ordered by the Chief Justice to serve the
requisite number of days not to exceed one hundred twenty (120) days a
year for the five (5) year period outlined in this subsection, unless
otherwise agreed in writing, he shall no longer be eligible for benefits
computed under this subsection and shall return to the benefits otherwise
provided under this chapter.
3. Subject to Section 110(5)(b) of the Kentucky Constitution, the Chief
Justice shall give due regard, when practical, to the desirability of
appointing Senior Status Special Judges to serve within their judicial
region as defined by the regional administration charter.
(b) The inviolable contract provisions of Kentucky law, KRS 21.480, shall apply
during the period of time that KRS 21.580 is effective; however, no other
provisions of 2000 Ky. Acts ch. 305 shall be considered subject to an
inviolable contract of the Commonwealth.
(c) Nothing contained in this section shall be construed to invalidate provisions in
the current law which require a penalty for retiring before the normal
retirement age.
(2) The Senior Status Program for Special Judges created by this section shall be open to any member who is a judge in office on the June 24, 2003, and who subsequently retires as a Senior Status Special Judge on or before January 31, 2009.

(LawReader comment:  We believe it is clear from Seciton (2) above that 2009 is the ending date for the program.)

Effective: June 24, 2003
History: Amended 2003 Ky. Acts ch. 128, sec. 6, effective June 24, 2003. — Amended
2002 Ky. Acts ch. 258, sec. 1, effective July 15, 2002. — Repealed 2000 Ky. Acts ch.
305, sec. 4, effective July 1, 2007 — Created 2000 Ky. Acts ch. 305, sec. 1, effective
July 14, 2000.
Legislative Research Commission Note (6/24/2003). 2000 Ky. Acts ch. 305, sec. 1,
created KRS 21.580, which established the Senior Status Program for Special Judges.
Section 4 of the same Act repealed KRS 21.580 effective July 1, 2007. Thereafter,
2002 Ky. Acts ch. 258, sec. 1, amended KRS 21.580 to change the retirement date
from June 30, 2007, to January 31, 2009, and 2003 Ky. Acts ch. 128, sec. 6,
amended KRS 21.580 to extend eligibility for the program to judges in office on June
24, 2003. Neither of these Acts specifically addresses the repeal set out in the 2000


Sunday, April 29th, 2007

Arizona Court holds that not all e-mail used by state workers is public information, and court should hold an in camera review to see if privacy claim is valid.

Paul Davenport  Associated Press

PHOENIX – Some of government officials’ e-mails can be withheld from public disclosure because they’re personal but courts shouldn’t allow that without first reviewing the disputed material, the Arizona Supreme Court ruled Wednesday.

Ruling in a case involving a newspaper’s demand for e-mails sent or received by a former county official who since has pleaded guilty to corruption charges, the Supreme Court said judges need to privately review officials’ e-mails that are withheld from public disclosure because of claims that they’re personal in nature.

While some e-mails are public records because they pertain to an official’s duties or conduct in office, others are personal and should be withheld, the Supreme Court said.

However, the mere claim that an e-mail is personal warrants holding an “in camera” private review in which a judge decides whether the claim is valid, Chief Justice Ruth McGregor wrote for the court.

“The party claiming that the disputed documents are not public records bears the burden of establishing its claim,” McGregor wrote. “If the party cannot establish that the documents are not public records, the trial judge can still consider whether privacy, confidentiality, or the best interests of the state outweigh the policy in favor of disclosure.”

The Supreme Court’s unanimous ruling came in a case involving a newspaper’s demand for e-mails sent and received on a Pinal County computer by former County Manager Stanley Griffis.

Griffis awaits sentencing in May after pleading guilty in January to six felony counts, including theft, fraud and tax fraud.

The Supreme Court’s ruling Wednesday ordered a trial judge to hold a review to determine the contents of e-mails which weren’t disclosed to Phoenix Newspapers Inc. under a public records request.

PNI, publisher of The Arizona Republic, had appealed a Court of Appeals ruling that said officials’ personal e-mails were the equivalent of telephone calls and don’t have to be disclosed.

The ruling “established some procedural safeguards for public requesters of information,” said David Bodney, a lawyer for PNI. “The Court of Appeals said these documents should be withheld based on Stanley Griffis’ say-so.

“The Arizona Supreme Court recognized that a public official, particularly a former top public official who has pleaded guilty to public corruption charges, cannot simply pronounce his public e-mails as purely personal without giving a party an opportunity to challenge that classification in court,” Bodney added.

However, Timothy Berg, a lawyer who helped Griffis in the Supreme Court proceeding, said he also was pleased with the ruling.

“We thought the important principle here was that personal e-mail, even if it belongs to a government employee and even if on a government computer, is still personal. It’s not a public record,” Berg said.

The Supreme Court ruling clearly gave lower courts “a roadmap on how courts are to handle these cases in the future,” Berg added. “It was an important public issue that they needed to settle once and for all.”

The Associated Press and several other media organizations filed a friend-of-the-court brief that urged the Supreme Court to overturn the Court of Appeals ruling. That ruling had the effect of allowing a public official “to unilaterally dictate what is and what is not a public record,” the brief said.

The e-mails in dispute dealt with such topics as online shopping and an African vacation.

PNI argued that all of the e-mails had to be disclosed to shed light on all of Griffis’ activities as a public official, but the Court of Appeals said they had no relation to his official duties and weren’t public records.

The Supreme Court ruling said Arizona’s public records defines public records broadly but that mere possession of a document by a public official or production of it with government-owned paper, computer or pen “does not by itself make that document a public record,” McGregor wrote.

“Under that analysis, a grocery list written by a government employee while at work, a communication to schedule a family dinner, or a child’s report card stored in a desk drawer in a government employees office would be subject to disclosure. The public records law was never intended to encompass such documents; the purpose of the law is to open government activity to public scrutiny, not to disclose information about private citizens,” McGregor wrote.

Griffis retired shortly after being placed on leave by the county Board of Supervisors in December 2005 when a sheriff’s investigation indicated that he spent county money on sniper rifles, scopes, ammunition, and equipment that officials said he kept for personal use.    


Friday, April 27th, 2007

by John O’Brien   Legal Newsline

LANSING, Mich. – The state’s statute of limitations expired before a plaintiff’s attorney could correct naming the wrong plaintiff, the Michigan Supreme Court recently said in affirming a motion dismissing the case.

In a 4-3 decision, the Supreme Court became the third court to side with the defendants despite a dissent from Justice Marilyn Kelly calling the basis for the decision “a contrived legal technicality” and the outcome “sad.”

Jason Liss, of Rockind and Liss in Farmington Hills, listed client Buddy Miller II as the plaintiff on an automobile accident lawsuit against four defendants filed in 2002.

However, Miller, who blamed the defendants for his injuries from a 2000 automobile accident, had declared bankruptcy before then, and Liss did not list the trustee of his bankruptcy estate, Wendy Turner Lewis, as the plaintiff. By the time Liss tried to correct his mistake, the statute of limitations had run out. Defendants Chapman Contracting, Sweepmaster, Inc., Ramzy Kizy Jr. and Kevin Paperd moved to have the case dismissed, arguing that the trustee was the proper plaintiff.

Both the trial court and Court of Appeals agreed with the defendants. The trial court would not allow leave to amend the pleadings, stating “Under MCR 2.118(A)(2), leave to amend pleadings should be freely given when justice so requires. Leave to amend should be denied only for particularized reasons, such as undue delay, bad faith or dilatory motive on the movant’s part, repeated failure to cure deficiencies by amendment previously allowed, undue prejudice to the opposing party, or where amendment would be futile.”

On Wednesday, the Supreme Court agreed.

“Moreover, this Court adds that MCR 2.118(D) specifies that an amendment relates back to the date of the original pleading only if it ‘adds a claim or a defense’; it does not specify that an amendment to add a new party also relates back to the date of the original pleading,” the per curiam opinion says.

“Consequently, the Court of Appeals correctly affirmed the judgment of the trial court that the amendment to substitute plaintiff’s bankruptcy trustee as plaintiff after the expiration of the period of limitations would be futile.”

Chief Justice Clifford Taylor and justices Maura Corrigan, Robert Young and Stephen Markman made up the majority.

Justice Elizabeth Weaver dissented, claiming the bankruptcy trustee is not a new party, but she would be “another party.”

Justice Kelly’s dissent, in which Justice Michael Cavanaugh joined, was much more scathing.

“A majority of the Court has affirmed the dismissal of this suit on the basis of a contrived legal technicality. It has misread MCR 2.118,” Kelly wrote. “In extinguishing the valid claim, it has allowed gamesmanship to take precedence over the orderly disposition of an injured party’s cause of action.

“The result is sad.”

Kelly continued, “Thus, the issue that controls the resolution of this case is whether relation back applies to an amendment that substitutes a party plaintiff. A majority of this Court has decided that it does not.

“This is an erroneous decision, one that allows a miscarriage of justice to go uncorrected. As Justice Hugo Black of the United States Supreme Court has observed, the ‘principal function of procedural rules should be to serve as useful guides to help, not hinder, persons who have a legal right to bring their problems before the courts.’”

The majority responded to Kelly’s comments in its opinion.

“Justice Kelly contends that, because MCR 2.118(D) does not specifically forbid an amendment to add a new party to relate back, this Court may rely on the ‘purpose’ and ‘basic policy’ of the relation-back rule and the statute of limitations. This overlooks, however, that the ‘purpose’ and ‘basic policy’ of a court rule, as with other expressions of the law, are normally communicated by their language,” the opinion says.

“In particular, it has been long understood that the expression of specific exceptions to the application of a law, as here, implies that there are no other exceptions.

“Moreover, Justice Kelly’s assertion that this Court is ‘allow[ing] gamesmanship to take precedence over the orderly disposition of an injured party’s cause of action’… simply ignores that defendants in their answer to plaintiff’s complaint provided plaintiff with notice of the defect that the wrong plaintiff had been named 12 days before the period of limitations expired.”


The Kentucky Rule re: Amendments is:


CR 15.01 AMENDMENTS                                                                    
     A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 20 days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be longer, unless the court otherwise orders.
[Adopted eff. 7-1-53]

AMA Guidelines used in kentucky for determining Impairment not based on science or evidence. Not Peer Tested. Will they pass a Daubert Test?

Friday, April 27th, 2007


The Ky. legislature has mandated that the American Medical Association “Guides to the Evaluation of Permanent Impairment� be used to determine the impairment rating caused by injury or occupational disease.  See KRS 342.730.

Other states have ditched the AMA Guidelines and adopted their own guidelines. Critics of the AMA Guidelines claim that the Guidelines are not based on sound medical or scientific grounds. (i.e. Texas, Wisconsin)  (LawReader subscribers can see more about these alternative review standards.)

A number of authorities point out the distinction between “Impairment� and “Disability�.

The Legislature uses the AMA Guidelines as a formula for calculating benefits.  While some standard is convenient to simplify the determination of benefits, it would appear that the AMA authors of the Guidelines never intended them to be used to make an evaluations of  “job impairment�.  They were intended only as a guide for making “medical disability� evaluations as opposed to “job impairment� evaluations.  The AMA says its guidelines should not be used as the only basis for determining comp benefits.


The Legislature could look to the findings of other states to adopt guidelines based more on reality than on a hypothetical system not designed for the use which Kentucky and l9 other states are using the AMA Guidelines.


It would be interested to see the Daubert test standards applied to the AMA Guidelines. 


The claims raised by several authors is that the AMA standards are not based on science, and are not peer tested, as required by Daubert v. Merrell Dow Pharmaceuticals Inc., U.S., 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).


The AMA Guidelines are the Worker’s Comp. Bible for determining disability ratings, but they were not designed for this use.  Critics argue that the Guidelines fail to give credit to the facts of particular cases.  Critics claim that the Guidelines often result in Industry biased results.


These additional resources are found on LawReader under the  following headings which may be accessed by LawReader members.


 WORKER’S COMPENSATION – EVALUATION OF PERMANENT DISABILITY  Wisconsin Guidelines for Permanent Disability, – Pain, Joints, Limps



(For this article we have provided some excerpts which show the nature of the attacks on the AMA Guidelines. LawReader subscribers can access the full topics.)

AMA SAYS: guidelines should not be used as the only basis for determining comp benefits.�
“The AMA guidelines were originally designed solely to evaluate the extent of medical disability. They do not consider the type of job the injured worker has, or the worker’s age, experience or training. All of these need to be considered in deciding a level of compensation.
Indeed, according to a hard-hitting report by Greg Tarpinian of the Labor Research Association, the AMA itself says its guidelines should not be used as the only basis for determining comp benefits.
Most workers’ comp experts in the U.S. say that comp benefits should be based on wage and earning loss, as well as extent of disability. A permanent loss of motion of an index finger will have a far greater effect on a person doing fine assembly of electronic parts than on a stockroom worker. A back injury may more severely impair a truck driver than a bank president. The AMA guidelines don’t consider such differences.�

AMA publishing false and misleading clinical guidelines that were causing needless pain and suffering in patients
The 5th Edition of the AMA Guides to the Evaluation of Permanent Impairment (page 496) state that at least eight of the objective findings listed “must” be present “concurrently” to establish a diagnosis of RSD/CRPS.


The AMA has been blatantly irresponsible and has acted in a reckless manner. The evidence is two-fold:
First, I called Linda Cocchiarella, M.D., Editor of the 5th Edition. I requested published data to support the AMA’s diagnostic criteria and the names of people responsible for the peer review process for AMA’s published diagnostic criteria for RSD/CRPS. Dr. Cocchiarella said she was not aware of published data to support the diagnostic criteria nor was she aware of a peer review process for the diagnostic guidelines. Thus, there is no peer review process to support the AMA’s clinical guides and no one at the AMA stands accountable for the clinical guides.
Second, nowhere in the scientific literature will you find such stringent criteria for the diagnosis of RSD/CRPS.
Any organization, such as the AMA, that publishes clinical practice guidelines without any accountability or peer review process, is simply acting recklessly to endanger the health and lives of innocent people. In addition, the AMA has created the appearance of being in cahoots with the insurance industry. To the delight of insurance companies, the AMA guides are being used by carriers as a basis to state patients do not have RSD/CRPS and as a basis to deny authorization and payment for care.�
AMA- Physician Guidelines for Return to Work After Injury or Illness  
 “while physicians are often asked to “describe a patient’s work abilities or work restrictions, … there is little science available to guide decisions on these questions.”  Report by AMA
  Impairment Rating and Disability Determination  discussion of Impairment vs. Disability, AMA guidelines
“According to the fifth edition of the AMA Guides, disability is defined as “an alteration of an individual’s capacity to meet personal, social, or occupational demands because of an impairment.â€? The WHO defines disability as an activity limitation that creates a difficulty in the performance, accomplishment, or completion of an activity in the manner or within the range consider normal for a human being. Difficulty encompasses all of the ways in which the performance of the activity may be affected.
On the other hand, the SSA defines disability as “the inability to engage in any substantial, gainful activity by reason of any medically determinable physical or mental impairment(s), which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.â€? Workers’ compensation systems usually define disability as a reduction in wage-earning capacity as a result of an injury, illness, or occupational disease that arose out of, or in the course of, employment.
Distinguishing the difference between impairment and disability is imperative. One individual can be impaired significantly and have no disability, while another individual can be quite disabled with only limited impairment. For example, a person with paraplegia who is wheelchair-bound may be working full time quite successfully as an accountant and, therefore, would not meet the SSA’s definition of disabled. On the other hand, a concert pianist might have a relatively minor injury to a digital nerve that severely limits his/her ability to perform basic work activities (playing difficult piano concertos). In some disability systems, a person in this situation might meet the definition of disabled, even though he/she can do other work.
Because of this difference between impairment and disability, physicians are encouraged to rate impairment based upon the level of impact of the condition on performance of activities of daily living (ADL), rather than on performance of work-related tasks. According to the AMA Guides, impairment ratings derived from the AMA Guides are “not intended for use as direct determinants of work disability.�
Interestingly, various professionals and institutions regularly use the AMA Guides for direct measurement of disability. Most states recognize the impairment ratings determined by the AMA Guides as direct measures of disability, despite the stated intent of the authors.�

KRS 342.730 Determination of income benefits for disability — Survivors’ rights –
Termination — Offsets — Notification of return to work.
(1) Except as provided in KRS 342.732, income benefits for disability shall be paid to
the employee as follows: ….

 (b) For permanent partial disability, sixty-six and two-thirds percent (66-2/3%) of
the employee’s average weekly wage but not more than seventy-five percent
(75%) of the state average weekly wage as determined by KRS 342.740,
multiplied by the permanent impairment rating caused by the injury or occupational disease as determined by “Guides to the Evaluation of Permanent Impairment,” American Medical Association, latest edition available, times the factor set forth in the table that follows:


AMA Impairment Factor
0 to 5% 0.65
6 to 10% 0.85
11 to 15% 1.00
16 to 20% 1.00
21 to 25% 1.15
26 to 30% 1.35
31 to 35% 1.50
36% and above 1.70



1. Williams v. FEI Installation, No. 2005-CA-000653-WC (KY 12/22/2005) (KY, 2005)   Since the 1996 amendments, KRS 342.730 has required a recipient of permanent income benefits to have an AMA impairment rating. Although the 2000 amendments to KRS 342.730(1)(b) changed the methods by which a partial disability award is calculated, the statute retained the use of an AMA impairment as the basis for calculating a partial disability award.


Additional Ky. Authorities which mention AMA Guidelines:
Jones v. Brasch-Barry General Contractors, 189 S.W.3d 149 (Ky. App., 2006)           March 10, 2006

We agree with Jones that the AMA Guides do not abrogate a physician’s right to assess independently an individual’s impairment rating. We also agree that if the physicians in a case genuinely express medically sound, but differing, opinions as to the severity of a claimant’s injury, the ALJ has the discretion to choose which physician’s opinion to believe. But an ALJ cannot choose to give credence to an opinion of a physician assigning an impairment rating that is not based upon the AMA Guides…



Louisville Remodeling and Painting v. Muller (Ky. App., 2003)         June 13, 2003

On appeal to this Court, appellant argues that the Board erred because the amendment to KRS 342.730, which added KRS 342.730(1)(c)(3), came after the Supreme Court decision in Ira A. Watson Department Store v. Hamilton, Ky., 34 S.W.3d 48 (2000), and that the amendment effectively modified Watson so that age and education can only be considered by the ALJ as enhancements to the 13% AMA Guidelines’ impairment rating, and not as part of a second step to consider “other…  

Doctors using the Guidelines often disagree:

Wells v. Morris, 698 S.W.2d 321 (Ky. App., 1985)    October 25, 1985

The issue on appeal was based by the claimant upon the fact that three doctors had testified that he was indeed suffering from functional impairment according to the AMA guidelines of 1977. Two of the doctors had opined that claimant’s impairment was 30% to the body as a whole, while the third doctor had assessed only 10% functional impairment under the guidelines.
daubert and medical opinions:
 Rockwell International Corporation v. Wilhite, No. 1997-CA-000188-MR (Ky.App. 01/14/2000)

 In General Electric Co. v. Joiner, the United States Supreme Court said that there is nothing in Daubert or the Federal Rules of Evidence that requires a trial court “to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert.

A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.”

In this case, the trial court permitted Snyder to opine that any quantity of PCB contamination, no matter how slight, renders property worthless; and this is true, according to Snyder, in the absence of proof of any harm to the property, to the people who occupy it, to their crops or to their farm animals. The admission of this testimony was an abuse of discretion.


Friday, April 27th, 2007

Hedge funds are frequently mentioned in the news.  This definition will help explain the nature of the creature. 

hedge fund is a private investment fund charging a performance fee and typically open to only a limited number of investors. Hedge funds are largely open to accredited investors only. They have grown in the public securities and private investment markets.
Hedge funds are not currently subject to any direct regulation by the SEC, the NASD, or other federal regulating commissions, unlike mutual funds, pension funds, and insurance companies. Some funds that trade commodity futures contracts are considered to be commodity pools, regulated by the Commodity Futures Trading Commission and National Futures Association.
The term is not tightly defined, but is used to distinguish such funds from retail investment funds, such as mutual funds that are available to the general public. Retail funds tend to be highly regulated, limited to holding a specific range of financial assets such as bonds, equities or money market instruments. Retail funds tend to have a restricted ability to borrow, leverage or hedge their investments, though they may have the ability to hedge via derivative contracts.
Hedge funds are limited only by the terms of the contracts governing the particular fund. Hedge funds may be either long or short assets and may enter into futures, swaps and other derivative contracts. In this way, hedge funds can follow more complex investment strategies.
The funds, often organized as limited partnerships, typically invest on behalf of high-net-worth individuals and institutions. Their primary objective is often to preserve investors’ capital by taking positions whose returns are not closely correlated to those of the broader financial markets.
Because of the substantial risks involved in unregulated, complex, and leveraged investments, hedge funds are normally open only to professional, institutional or otherwise accredited investors. This restriction is often implemented through limits on participating investors or minimum investment amounts.
Definition provided by



Thursday, April 26th, 2007

This thought provoking article by Washington Attorney Barry Boos raises important questions.

 Victims’ power troubling
WASHINGTON – Since 1981, the Justice Department’s Office for Victims of Crime has dedicated a week in April to recognizing crime victims’ rights. The week – this year’s observance began Sunday – is usually marked by rallies, candlelight vigils and other activities intended to promote victims’ rights and to honor crime victims and those who work on their behalf.
Victims deserve the recognition, and they deserve sympathy and compensation for their losses. But I am increasingly concerned about what I believe they do not deserve, which is the right to serve as de facto prosecutors, a practice that is quietly insinuating itself into the legal system.
Our desire to increase victims’ rights is closely related to our national obsession with being “tough on crime.” While this mantra makes for good political rhetoric, it often leads to illogical and irrational criminal justice policies. Being “tough on crime” has led to harsh mandatory minimum sentences in federal drug cases that have disproportionately punished minorities. It has resulted in first-time offenders serving life sentences even though their crimes involved no weapon and resulted in no physical injuries; in 6-year-olds being arrested for tantrums at school; and, worst of all, in innocent people on death row.
Courts have become more cognizant of the rights of victims. In 1996, restitution became mandatory for a variety of federal crimes. In 2002, Congress provided the victims of violent crimes and sexual abuse the right to speak at a defendant’s sentencing, even though courts already had such latitude. And last year, the issue reached the Supreme Court in a murder case in which the victim’s supporters had attended the trial wearing buttons that displayed a picture of the victim (the court avoided addressing whether such conduct is prejudicial).
The latest manifestation of our “tough on crime” policy comes in the proposed amendments to the Federal Rules of Criminal Procedure, which will implement the 2004 Crime Victims’ Rights Act. One U.S. district judge ruled that the statute renders victims “independent participant(s) in the proceedings” and “commands that victims should be treated equally with the defendant, defense counsel, and the prosecutor.”
Under the act, victims have the right to be heard in court on questions of bond, plea agreements and sentencing, and they can confer with prosecutors about a case. If victims are unhappy with how a prosecutor or trial court has treated them, they can seek relief in the U.S. Court of Appeals, and the court must rule on their application within 72 hours (an unprecedented remedy).
Thus, under the act, victims at a minimum become a member of the prosecution team and, indeed, have significant leverage over the professional prosecutors. The president and many in Congress support an amendment for crime victims’ rights that would incorporate several of these points into the Constitution.
While we may support the notion that victims’ rights should be at least as strong as those of defendants, within the context of the criminal justice system these rights are mutually exclusive. Any rights provided to the victim must come at the expense of the rights provided to a defendant. Indeed, providing the victim with a role in the prosecution assumes a crime has been committed, despite the bedrock constitutional proposition that the accused is presumed innocent.
When we turn victims into members of the prosecution team, we distort a process, so carefully constructed more than 200 years ago, that eschewed vigilante justice or prosecution for personal ends in favor of prosecution by the sovereign with significant rights afforded to the accused. We expect prosecutors to decide whom to prosecute and what types of sentences to seek based on myriad considerations, including, but far from limited to, the interests of victims. Where victims play a controlling role in the prosecution, the consideration of those factors focuses not on what is best for society but rather on what victims need or want as “justice.”
I sympathize with individuals victimized by criminals. I understand their anger, outrage and desire for vengeance. Securing assistance and compensation for victims is an unquestionable priority, and we need to promote healing to the greatest extent possible.
But the criminal justice system cannot focus on the victim; rather, it must follow its rich tradition of protecting society as a whole, ensuring that justice is achieved in accordance with the Constitution.
Barry Boss, a criminal defense lawyer in Washington, is a former assistant federal public defender and former co-chairman of the U.S. Sentencing Commission’s Practitioners’ Advisory Group.


Thursday, April 26th, 2007

Want to pre-try your case and see what an “impartial� jury thinks of it.  Want to improve your trial and litigation schools without causing any harm to your client?   One way to do this is to log on to a web site called i-courthouse.   

Users can “file cases� and litigate them as a party, or serve as a juror on other users cases.   This is an interesting concept that may well provide good training to lawyers who have not had a lot of experience in preparing and trying cases to a jury.
If you think you have a million dollar case, you can see what a “jury� thinks of it before you turn down an offer of settlement. 
The address of the site is:
The site says about itself:
“iCourthouse is the internet’s courthouse. The system of the courthouse, and how cases are presented and verdicts are arrived at,resemble procedures found at traditional courthouses.
Here at iCourthouse, justice moves swiftly and surely. Justice here is more egalitarian, more democratic, and, actually, rather enjoyable. serves the community of internet users in many of the ways that a brick-and-mortar courthouse serves its community. It is an online courthouse where you can present your disputes for trial before a jury of your peers, any time, for any reason.
If you have a dispute, and would like to deal with it civilly, legally and quickly, bring it to iCourthouse is always in session. “
As an icourthouse member you can:
See evidence and arguments filed in cases;
Pick cases to serve on as a juror;
Ask questions and cross-examine parties;
See questions asked by other jurors;
Give verdicts with comments;
File cases.


Chief Justice Lambert Receives Honorary Degree from EKU

Thursday, April 26th, 2007

Jessica Spencer – EKU

The gavel wasn’t slammed. There wasn’t a jury. And the audience wasn’t asked to rise.

But Kentucky Supreme Court Chief Justice Joseph Lambert was in the house Tuesday.

Law Day was held at Eastern in the Business and Technology Center and Lambert was on hand to offer some insight into Kentucky’s law system.

“The future of Kentucky is brighter today, I believe, because of Chief Justice Lambert’s legacy of service and compassion for the future,” President Joanne Glasser said as she introduced Lambert, the Supreme Court Justice and Eastern Kentucky native.

Lambert began explaining the four-level court system in Kentucky; the top being the Supreme Court, followed by the Court of Appeals, then the Circuit Courts and, lastly, the District Courts.

He also explained his position as Supreme Court Justice and the duties that come with the position.

Some of those duties include presiding over cases that are appealed. Lambert said as many as 700 to 800 requests for appeals may be received in a year’s time, but only 10 or 15 percent of those appeals are granted.

Lambert went on to explain the role of state and federal courts. He said while it may be a shocking statistic, 97 percent of all cases decided by courts are settled in state courts, meaning that only 3 percent are resolved in federal courts.

“Federal courts’ role is limited to what the Congress of the United States has told them they could do,” Lambert said. And Lambert spoke of the role of the courts in society.

“The role of the court is to decide a controversy between the state and an individual or two individuals in a criminal act,” Lambert said.

But Lambert began his life role not too far from Eastern’s campus.Lambert was raised in Mt. Vernon.

After completing his bachelor’s in economics and business administration at Georgetown College, Lambert received his law degree from the University Of Louisville School of Law in 1974. He then returned to his hometown, where he practiced law for 12 years.

In 1987, Lambert was elected to the Kentucky Supreme Court, where he still serves. But chief justice is not the only position Lambert holds. He is also chairman of the board of directors for the Rockcastle Hospital, as well as a board member for the Center of World Development in Somerset.

Lambert has also received several awards for his many achievements. The Kentucky Bar Association elected Lambert as Outstanding Judge of Kentucky in 2000 and, in 2001, he received the Kentucky Public Advocate Award.

Eastern even gave Lambert an honorary doctoral degree.

And Lambert left Eastern with one command: to keep focused on the slogan of the day, “empowering youth and assuring democracy.”


Tuesday, April 24th, 2007

FRANKFORT, Ky. (April 24, 2007) – The Kentucky Cabinet for Health and Family Services (CHFS) is making several changes to the state’s child protection services practices to improve the equity of the process for families and ensure the best outcomes for children in state foster care. 

CHFS Secretary Mark D. Birdwhistell announced the changes, which do not require legislative action, at today’s meeting of the blue ribbon panel on adoption. Birdwhistell chairs the 13-member group, which has been meeting since last August to review the process and current practices that lead to the termination of parental rights and adoption of children in the state’s child welfare system.

“Many of these changes come directly from issues raised by parents and other advocates who testified at prior meetings of the Blue Ribbon Panel,� Birdwhistell said. “We’ve identified these opportunities for improvement with the expectation that they will mean more equitable results for birth parents,� Birdwhistell said.

The changes include:

• CHFS is strengthening its standards of practice related to relative placements to more clearly instruct and guide social service workers on when and how to promptly identify potential relative placements, especially birth fathers and paternal relatives.
• CHFS’ Office of Legal Services is collaborating with the Department for Community Based Services (DCBS) to provide additional legal training to front-line staff.
• CHFS and the Administrative Office of the Courts (AOC) will develop a checklist of requirements in a juvenile case to assist judges to ensure due process for children and their birth parents.

“We want to take every opportunity to make sure parents understand their rights and responsibilities during determinations of child custody,� Birdwhistell said. “Chief Justice Joseph Lambert and the AOC are playing an important role in making sure that happens.�

Lambert attended today’s meeting and announced that the AOC and its partners will be hosting the first Kentucky Summit on Children on Aug. 27-30 in Louisville.

“I can think of no issue more important than the well-being of Kentucky’s children,� said Lambert. “To that end, I have asked the Administrative Office of the Courts to bring together as many partners as possible to discuss how to improve the delivery of services to families and children. After the summit, we will host nine regional meetings to acquire local input. This careful process will help us determine the best course of action to take in implementing administrative procedures and other changes.�

Several of the blue ribbon panel’s recommendations were proposed to the 2007 General Assembly as part of the Blue Ribbon Panel’s Family Protection Act, legislation sponsored by panel member Sen. Julie Denton, R-Louisville. The bill called for court appointment of a guardian ad litem (GAL) or an attorney before a temporary removal hearing and an increase fee limits for GALs and court-appointed counsel. Another panel member, Rep. Tom Burch, D-Louisville, filed House Bill 199, which addressed a training requirement for judges. Neither bill passed.

Birdwhistell said the panel continues to meet and gather new ideas on the adoption and foster care process.

– 30 –



Tuesday, April 24th, 2007

By LINDA GREENHOUSE  April 24, 2007 Washington Post

WASHINGTON, April 23 — Most people sitting in the passenger seat of a car that has been stopped by a police officer do not feel free to open the door and leave. Neither do most members of the Supreme Court, or so the justices’ comments indicated during an argument Monday on the constitutional rights of passengers in that familiar but uncomfortable situation.
The question of whether a “reasonable� passenger would feel free to leave was significant because that perception is a principal part of the court’s test for whether a “seizure� has taken place within the meaning of the Fourth Amendment, which prohibits unreasonable searches and seizures.
If a reasonable person would not feel constrained, then he or she has not been “seized� and has no basis for complaining that the police have violated the Fourth Amendment. The converse is also true: a person who reasonably feels detained by the police is entitled to challenge the validity of the police action and perhaps to keep illegally seized evidence out of court.
The surprisingly vexing question of the rights of passengers was brought to the Supreme Court by a California man who was a passenger in a car that a police officer stopped, ostensibly to investigate a possibly expired registration. The stop was later found to be improper because, earlier in the day, when the car was parked, the same officer had checked and learned that it was properly registered.
The officer recognized the passenger, Bruce E. Brendlin, as a former convict who was wanted for violating his parole. The officer arrested Mr. Brendlin and, searching both him and the car, found methamphetamine supplies.
Mr. Brendlin eventually pleaded guilty to a narcotics charge but appealed on the ground that the evidence should be suppressed. The California Supreme Court ruled that because only the driver, and not Mr. Brendlin, had been seized by the stop, Mr. Brendlin had no basis for challenging anything that flowed from it.
Elizabeth M. Campbell, Mr. Brendlin’s lawyer, told the justices that when a police officer makes a traffic stop, “he seizes not only the driver of the car but also the car and every person and everything in that car.�
There might be an exception, she acknowledged in answer to a question from Justice Samuel A. Alito Jr., who asked whether a passenger would be seized if the officer, “before even approaching the car, got on the loudspeaker and said: ‘Driver remain in the car. Passenger, you’re free to go.’ �
That hypothetical passenger would not be seized, Ms. Campbell said. But typically, she said, “a forward motion stopped by government means, intentionally applied, is a seizure.� Mr. Brendlin was entitled to challenge the search and to have the incriminating evidence excluded, she said.
The court was looking for a general rule to govern the typical passenger case; future cases will turn not on the facts of a particular case but whether there was a seizure as a matter of Fourth Amendment law. Most state courts have ruled that passengers in a typical traffic stop are seized.
Deputy Attorney General Clifford E. Zall of California argued that the driver, but not the passenger, is seized because it is the driver who submits to the officer’s authority by stopping the car. When Mr. Zall referred to “the pervasiveness and commonplace nature of a routine traffic stop,� Justice David H. Souter interrupted him in an incredulous tone. “Have you ever been subject to a traffic stop?� Justice Souter asked.
“Tell the truth now,� Justice Antonin Scalia interjected.
“Yes, yes I have,� Mr. Zall replied.
“O.K.,� Justice Souter said. “The heart rate went up. The blood pressure went up.�
A majority of the justices indicated their belief that the passenger as well as the driver was seized.
Such a conclusion may not be of much help, however, to Mr. Brendlin in his appeal, Brendlin v. California. No. 06-8120, because of an atypical aspect of his case. Many of the justices appeared to think that his arrest as a parole violator, on an existing warrant, was valid, and provided independent justification for the search. Mr. Brendlin could therefore lose his battle while winning the war for others.


Monday, April 23rd, 2007

By Pete Yost   ASSOCIATED PRESS   April 23, 2007
WASHINGTON – The Supreme Court agreed Monday to review a case that could undercut the federal money-laundering law, an enforcement weapon the government considers vital in going after outlaw gamblers and drug traffickers.
The Justice Department wants the court to overturn a standard set by a federal appeals court that complicates the task of prosecutors in securing money-laundering convictions.
The law makes it a crime to conceal proceeds from illegal activity or to use them to promote the activity. The 7th U.S. Circuit Court of Appeals in Chicago says that in order to convict, the proceeds must be profits rather than gross receipts.
How, the government asked in court papers, is it supposed to find hard evidence of profits when criminals rarely keep accounting records, much less accurate ones?
“I dealt with these issues head on as a federal prosecutor, and IRS and FBI agents will tell you that proving the money was earned illegally is very difficult under many circumstances,� said St. Louis attorney Scott Golde, who now specializes in white-collar criminal defense.
“Taking it a step farther and then attempting to specifically identify the net income will often be impossible,� Golde said after the Supreme Court agreed to take the case.
Efrain Santos and Benedicto Diaz successfully challenged their money-laundering convictions involving a gambling ring, arguing that the payments Santos made to couriers were gross proceeds rather than profits. According to prosecutors, Santos operated an illegal lottery, known as a bolita, in northwest Indiana from the 1970s through the 1990s. Diaz, according to the government, was a collector who delivered the gamblers’ wagers to Santos.
The 7th U.S. Circuit Court of Appeals in Chicago is removing “a large class of routinely prosecuted money-laundering cases from the reach of the statute,â€? the Justice Department’s solicitor general said in a brief asking the justices to take the case.
The appeals court ruling “enmeshes the courts in intractable disputes over the accounting principles that should govern illegal enterprises,� the government said.
“Sorting out an illicit business’s net income … can complicate the government’s task,â€? acknowledged the federal appeals court, which suggested Congress was the place to go to straighten out the problem. The decision on Santos and Diaz was based on a 2002 ruling by the same appeals court. In that case, defendants reimbursed retail outlets for payments to winning customers in a video poker and slot machine operation.
In the 2002 case, the appeals court suggested the money-laundering law had been stretched too far.
Prosecutors are saying that “every drug dealer commits money laundering by using the receipts from sales to purchase more stock in trade, that a bank robber commits money laundering by using part of the loot from one heist to rent a getaway car for the next,� the appeals court said in the 2002 case. “An embezzler who spent part of the take on food and rent, in order to stay alive to cook the books again, would be a money launderer too.
“Yet none of these transactions entails financial transactions to hide or invest profits in order to evade detection, the normal understanding of money laundering,� the appeals court said.
Golde, the former federal prosecutor, said that “money laundering means more than just attempting to hide the money. The bank robber or drug dealer can be convicted of money laundering even when they don’t try to hide the money. That is the way Congress wanted it.â€?
The case is U.S. v. Santos and Diaz, 06-1005.


Only LawReader posts all Appeallate Decisions within 24 hours. You will wait days or weeks for other services.

Monday, April 23rd, 2007

Every Friday LawReader publishes a synopsis of all Court of Appeals decisions issued that week, with Keywords and links to the full text of each decision.  Once a month the Supreme Court issues their decisions which are likewise posted on LawReader.  Users may access the full synopsis and full text.


Non-members may subscribe online for only $34.95 a month.  This service alone is worth the LawReader membership fee.  No other service publishes Ky. Appellate decisions faster than LawReader.


Court of Appeals Decisions ordered to be Published – Issued April 20, 2007

2 TO BE PUBLISHED: RESPONDENT SUPERIOR –AUTHORIZED INSURANCE CARRIER–FORESEEABILITY: the respondent superior doctrine has no application when an employee engages on a “personal and private tripâ€? which has “no connection with his masters’ business.â€?–
KRS 190.033 requires only that the insurance carrier be “authorized to transact business within the Commonwealth of Kentucky.â€? Man-O-War presented sufficient evidence to demonstrate that Legion Indemnity was authorized in Kentucky,—
We simply cannot perceive how giving someone concert tickets meets the necessary “foreseeability testâ€? required in Kentucky to create causation for a subsequent automobile accident.—

6 TO BE PUBLISHED: domestic violence order: KRS 403.735(2) specifically states that a court may issue mutual protective orders only if a separate petition is filed by the respondent. That did not occur in this case, and the district court erred by entering a sua sponte mutual protection order against Kimberly  —–we further note that the court also entered the order without providing Kimberly with a hearing

14 TO BE PUBLISHED: contempt of court –due process-double jeopardy:
Before any hearing could be held however, Judge Hickman entered a written order entitled “Finding of Summary Imposition of Contempt,â€? holding Schroering guilty of contempt and setting a sentencing date before Judge Overstreet—
Contempt has been defined in Kentucky as “the willful disobedience of-or open disrespect for-the rules or orders of a court.â€?—
The finding of contempt was based on Schroering’s actions occurring in the presence of the court. This type of contempt may be punished summarily by the court—
the court apparently believed either, that it initially had made no determination of contempt or, subsequently, that it had made no determination of sanction. In either case, due process principles apply.—
once the court continued the matter for further proceedings, Schroering’s due process rights were violated when she was not allowed to be heard.—
In reality, delaying the sentence transforms this case into a nonsummary proceeding. Thus, it is our conclusion that Schroering’s rights against double jeopardy did attach to this proceeding

1 TO BE PUBLISHED:KBA DISCIPLINE: Jeffrey C. McKenzie – suspended – probation revoked
2 TO BE PUBLISHED:KBA DISCIPLINE: West Virginia Reciprocity suspension – J. Thomas Hardin
5 TO BE PUBLISHED:  PROSECUTORIAL MISCONDUCT: The effect of the prosecutor’s questions asserting what Bell had said to her placed the prosecutor in the position of making a factual representation . From the tenor of her leading questions to Bell, there is no doubt that she put the very words Bell refused to say in his mouth — This placed the credibility of the prosecutor before the jury,–
The foregoing authorities leave no doubt that assertions of fact from counsel as to the content of prior conversations with witnesses have the effect of making a witness of the lawyer and allowing his or her credibility to be substituted for that of the witness.—
As the error implicated federal constitutional rights, a necessary conclusion is that it was “harmless beyond a reasonable doubt. “—
By means of the prosecutor’s assertions, statements attributed to Appellant were placed before the jury without any witness saying that Appellant made such a statement. This goes to the heart of fundamental fairness and due process of law
6 TO BE PUBLISHED:  double jeopardy – directed verdict- impeachment on collateral matter – rape shield law: The fact that each of them may also have participated throughout the acts in no way negates the voyeuristic aspect of watching when not actively engaged . The plain language of KRS 531 .300(5) defines performance as not only a play, motion picture, photograph or dance, but also “any other visual representation” exhibited before an “audience .” Clearly, common sense dictates that there can be an audience of one ; in this case there was often more than one.–
The convictions for Use of a Minor in a Sexual Performance, as discussed above, were for when the Appellants were passive observers, and the Rape and Sodomy convictions were for when they were active participants. There was no double jeopardy violation .—
Under the facts of this case, “an audience may consist of one person, such as the accused herein —
Given that her virginity status is not. relevant to prove her claims of abuse by the Appellants, this would  be impeachment on a collateral matter, which is allowed while the witness is still on the stand, although not by extrinsic evidence
7 TO BE PUBLISHED:   entrapment-conspiracy-testimony on conclusions of law: A person who conspires to commit more than one (1) crime, all of which are the object of the same agreement or continuous conspiratorial relationship, is guilty of only one (1) conspiracy.”—
We now hold, expressly, that a defendant need not testify in order to avail himself of the defense of entrapment. If the evidence presented is sufficient to support an entrapment instruction, it is of no consequence that such evidence is introduced during the Commonwealth’s case-in-chief, through direct or cross-examination—
evidence that a defendant was predisposed to commit the criminal act may be shown where the accused has engaged in a course of similar crimes, where the defendant was merely afforded an opportunity to commit a preconceived plan, or where willingness to commit the crime is apparent by ready compliance.”—
“[A] witness generally cannot testify to conclusions of law.
12 TO BE PUBLISHED:  theft by failure to make required disposition: the offense of Theft by Failure to Make Required Disposition of Property (KRS 514 .070) covers a situation in which the victim gives money to the defendant with the agreement that the defendant will purchase merchandise from a third party source and give it to the victim, and then the defendant fails to purchase the item or return the money. We hold that it does. (certification of the law)
where a defendant was being tried along with two co-defendants, and counsel for one of the co-defendants objected to the admission of certain evidence, but- defendant did not object to the introduction of such evidence, the defendant failed to preserve the issue of admissibility of the evidence for appellate review) .–
, the actual infliction of physical injury to Rogers by a dangerous instrument was not required to convict Appellant of complicity to robbery in the first degree ;—
RCr 6.16 permits a court to amend an indictment at any time before verdict, if no additional or different offense is charged and if the substantial rights of the defendant are not prejudiced—
“The fact that the evidence would support a guilty verdict on [an uncharged, but not lesser-included] offense does not entitle a defendant to an instruction on that offense.”—
An instruction on a separate, uncharged, but [not lesser-included] crime – in other words, an alternative theory of the crime — is required only when a guilty verdict as to the alternative crime would amount to a defense to the charged crime, i.e., when being guilty of both crimes is mutually exclusive—
the prosecutor here did not try to cajole or coerce the jury to return a verdict of guilty by arguing it would meet with public favor to do so.–
A motion to withdraw a plea of guilty under RCr 8.10 is generally addressed to the sound discretion of the court; however, where it is alleged that the plea was entered involuntarily the defendant is entitled to a hearing on the motion—
Her erroneous belief that she would serve less time came from other inmates, not from assurances by the Commonwealth or counsel, and thus represented a voluntary choice by her to disregard what she was told by her attorney and in court, and not to clarify any
confusion with her experienced counsel.—


Monday, April 23rd, 2007

Important Judicial Ethics Opinions issued since 2005, with link to prior opinions.

Advertising and Communications allowed by Senior Status Judges as Mediators
Judicial candidate can accept unsolicited contributions from political parties

Use of current or past nonpartisan public officials in judicial campaigns

Contact by Judicial candidate with potential donor
When may candidates for judicial office begin campaigning?
May a Senior Status Judge engaged in a business permit others to call him Judge?
May a Judge solicit lawyers to participate in pro bono service projects?
What political speech is allowed by judicial candidates?

District Judge Martin Sheehan Rules that Sex Offender Residency Rules Do Not Apply Retroactively

Sunday, April 22nd, 2007

A U.S. Supreme Court ruling in 2003, appears to support in principle Judge Sheehan’s legal conclusion regarding ex post facto application of a law where the statute of limitations had tolled. The law Sheehan considered had a statute of limitations of one year.  An Eight Circuit Court of Appeals ruling in 2005 specifically dealing with sex offender residency laws, held them to be legal.Kenton County District Judge Martin Sheehan has ruled that the states’ new sex offender law should not apply to criminals convicted before the new registrations took effect.

Eleven Kenton County residents challenged the application of the law that prevents them from living within 1,000 feet of a playground, school or day care facility.
 Sheehan was critical of state lawmakers in his ruling on Friday.   He wrote: “If the offender is still permitted to visit and linger in such areas for protracted periods, so long as he does not sleep there, what actual protection have we provided our children?�  In truth, residency restrictions appear to be little more than a political placebo, offering false comfort to pacify the public’s fear of sex offenders.
 Rulings by District Judges are not binding on other courts..
 The law which became effective July 12, 2006 states:
 KRS 17.545 Registrant prohibited from residing in certain areas — Violations — Exception.
(1) No registrant, as defined in KRS 17.500, shall reside within one thousand (1,000) feet of a high school, middle school, elementary school, preschool, publicly owned playground, or licensed day care facility. The measurement shall be taken in a straight line from the nearest property line of the school to the nearest property line of the registrant’s place of residence.
(2) For purposes of this section:
(a) The registrant shall have the duty to ascertain whether any property listed in
subsection (1) of this section is within one thousand (1,000) feet of the
registrant’s residence; and
(b) If a new facility opens, the registrant shall be presumed to know and, within
ninety (90) days, shall comply with this section.
(3) Any person who violates subsection (1) of this section shall be guilty of:
(a) A Class A misdemeanor for a first offense; and
(b) A Class D felony for the second and each subsequent offense.
(4) Any registrant residing within one thousand (1,000) feet of a high school, middle school, elementary school, preschool, publicly owned playground, or licensed day care facility on July 12, 2006, shall move and comply with this section within ninety
(90) days of July 12, 2006, and thereafter, shall be subject to the penalties set forth
under subsection (3) of this section.
(5) This section shall not apply to a youthful offender probated or paroled during his or her minority or while enrolled in an elementary or secondary education program.
Effective: July 12, 2006
History: Repealed, reenacted, and amended 2006 Ky. Acts ch. 182, sec. 3, effective
July 12, 2006. — Amended 2004 Ky. Acts ch. 160, sec. 9, effective July 13, 2004. –
Created 2000 Ky. Acts ch. 401, sec. 29, effective April 11, 2000.
Formerly codified as KRS 17.495.
The U.S. Supreme Court in 2003 held a sex offender  law to be an“Ex Post Facto� law in violation of the Constitution. See below:

The Eight Circuit Court of Appeals upheld a similar but more specific law in Iowa.

539 U.S. ___ (2003)
No. 01-1757.
Supreme Court of United States.
Argued March 31, 2003.
Decided June 26, 2003.
        In 1993, California enacted a new criminal statute of limitations permitting prosecution for sex-related child abuse where the prior limitations period has expired if, inter alia, the prosecution is begun within one year of a victim’s report to police. A subsequently added provision makes clear that this law revives causes of action barred by prior limitations statutes. In 1998, petitioner Stogner was indicted for sex-related child abuse committed between 1955 and 1973. At the time those crimes were allegedly committed, the limitations period was three years. Stogner moved to dismiss the complaint on the ground that the Ex Post Facto Clause forbids revival of a previously time-barred prosecution. The trial court agreed, but the California Court of Appeal reversed. The trial court denied Stogner’s subsequent dismissal motion, in which he argued that his prosecution violated the Ex Post Facto and Due Process Clauses. The Court of Appeal affirmed.
        Held: A law enacted after expiration of a previously applicable limitations period violates the Ex Post Facto Clause when it is applied to revive a previously time-barred prosecution. California’s law extends the time in which prosecution is allowed, authorizes prosecutions that the passage of time has previously barred, and was enacted after prior limitations periods for Stogner’s alleged offenses had expired. Such features produce the kind of retroactivity that the Constitution forbids. First, the law threatens the kinds of harm that the Clause seeks to avoid, for the Clause protects liberty by preventing governments from enacting statutes with “manifestly unjust and oppressive” retroactive effects. Calder v. Bull, 3 Dall. 386, 391. Second, the law falls literally within the categorical descriptions of ex post facto laws that Justice Chase set forth more than 200 years ago in Calder v.
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Bull, which this Court has recognized as an authoritative account of the Clause’s scope, Collins v. Youngblood, 497 U. S. 37, 46. It falls within the second category, which Justice Chase understood to include a new law that inflicts punishments where the party was not, by law, liable to any punishment. Third, numerous legislators, courts, and commentators have long believed it well settled that the Clause forbids resurrection of a time-barred prosecution. The Reconstruction Congress of 1867 rejected a bill that would have revived time-barred treason prosecutions against Jefferson Davis and others, passing instead a law extending unexpired limitations periods. Roughly contemporaneous State Supreme Courts echoed the view that laws reviving time-barred prosecutions are ex post facto. Even courts that have upheld extensions of unexpired statutes of limitations have consistently distinguished situations where the periods have expired, often using language that suggests a presumption that reviving time-barred criminal cases is not allowed. This Court has not previously spoken decisively on this matter. Neither its recognition that the Fifth Amendment’s privilege against self-incrimination does not apply after the relevant limitations period has expired, Brown v. Walker, 161 U. S. 591, 597-598, nor its holding that a Civil War statute retroactively tolling limitations periods during the war was valid as an exercise of Congress’ war powers, Stewart v. Kahn, 11 Wall. 493, 503-504, dictates the outcome here. Instead, that outcome is determined by the nature of the harms that the law creates, the fact that the law falls within Justice Chase’s second category, and a long line of authority. Pp. 3-26.
        93 Cal. App. 4th 1229,

The Eight Circuit Court of Appeals upheld a similar law in Iowa.

Doe v. Miller, 405 F.3d 700 (8th Cir., 2005)


 In 2002, in an effort to protect children in Iowa from the risk that convicted sex offenders may reoffend in locations close to their residences, the Iowa General Assembly passed, and the Governor of Iowa signed, a bill that prohibits a person convicted of certain sex offenses involving minors from residing within 2000 feet of a school or a registered child care facility. The district court declared the statute unconstitutional on several grounds and enjoined the Attorney General of Iowa and the ninety-nine county attorneys in Iowa from enforcing the prohibition.

        Because we conclude that the Constitution of the United States does not prevent the State of Iowa from regulating the residency

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of sex offenders in this manner in order to protect the health and safety of the citizens of Iowa, we reverse the judgment of the district court. We hold unanimously that the residency restriction is not unconstitutional on its face. A majority of the panel further concludes that the statute does not amount to unconstitutional ex post facto punishment of persons who committed offenses prior to July 1, 2002, because the appellees have not established by the “clearest proof,” as required by Supreme Court precedent, that the punitive effect of the statute overrides the General Assembly’s legitimate intent to enact a nonpunitive, civil regulatory measure that protects health and safety.


Excerpts from case:

The Does also assert that § 692A.2A infringes upon a fundamental constitutional right to intra state travel. The Supreme Court has not decided whether there is a fundamental right to intrastate travel, Memorial Hosp. v. Maricopa County, 415 U.S. 250, 255-56, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974), although it observed long ago that under the Articles of Confederation, state citizens “possessed the fundamental right, inherent in citizens of all free governments, peacefully to dwell within the limits of their respective states, to move at will from place to place therein, and to have free ingress thereto and egress therefrom.” United States v. Wheeler, 254 U.S. 281, 293, 41 S.Ct. 133, 65 L.Ed. 270 (1920). During the same era, the Court also commented that “the right of locomotion, the right to remove from one place to another according to inclination, is an attribute of personal liberty … secured by the 14th Amendment,” Williams v. Fears, 179 U.S. 270, 274, 21 S.Ct. 128, 45 L.Ed. 186 (1900), but as the Third Circuit observed, “[i]t is unclear whether the travel aspect of cases like Fears can be severed from the general spirit of Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905), now thoroughly discredited, that was so prominent in the substantive due process analysis of that period.” Lutz v. City of York, 899 F.2d 255, 266 (3d Cir.1990).
        Some of our sister circuits have recognized a fundamental right to intrastate
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travel in the context of a “drug exclusion zone” that banned persons from an area of a city for a period of time, Johnson v. City of Cincinnati, 310 F.3d 484, 496-98 (6th Cir.2002), an ordinance that outlawed “cruising” and thus limited the ability of persons to drive on certain major public roads, Lutz, 899 F.2d at 268, and a law that created a durational residency requirement as a condition of eligibility for public housing. King v. New Rochelle Mun. Hous. Auth., 442 F.2d 646, 647-48 (2d Cir.1971). The Second Circuit, for example, reasoned that it would be “meaningless to describe the right to travel between states as a fundamental precept of personal liberty and not to acknowledge a correlative constitutional right to travel within a state.” Id. at 648; see also Johnson, 310 F.3d at 497 n. 4; Lutz, 899 F.2d at 261. Other decisions have held that there is no fundamental right to intrastate travel in the context of a bona fide residency requirement imposed as a condition of municipal employment. Andre v. Bd. of Trs. of Maywood, 561 F.2d 48, 52-53 (7th Cir.1977); Wardwell v. Bd. of Educ., 529 F.2d 625, 627 (6th Cir.1976); Wright v. City of Jackson, 506 F.2d 900, 901-02 (5th Cir.1975); Doe v. City of Lafayette, 377 F.3d 757, 770-71 (7th Cir.2004) (en banc) (holding that city’s ban of sex offender from all public parks did not implicate fundamental right to intrastate travel, where offender was “not limited in moving from place to place within his locality to socialize with friends and family, to participate in gainful employment or to go to the market to buy food and clothing”); Hutchins v. District of Columbia, 188 F.3d 531, 538-39 (D.C.Cir.1999) (en banc) (holding that there is no fundamental right for juveniles to be in a public place without adult supervision during curfew hours).
        We find it unnecessary in this case to decide whether there is a fundamental right to intrastate travel under the Constitution, because assuming such a right is recognized, it would not require strict scrutiny of § 692A.2A. The district court and the Does cite the Sixth Circuit’s decision in Johnson for the proposition that there is a fundamental right to intrastate travel. Accepting that view for purposes of analysis, we believe that any fundamental right to intrastate travel would likely be “correlative” to the right to interstate travel discussed in Saenz, see Johnson, 310 F.3d at 497 n. 4, or would consist of a “right to travel locally through public spaces and roadways.” Id. at 498. Therefore, the Iowa statute would not implicate a right to intrastate travel for the same reasons that it does not implicate the right to interstate travel. The Iowa residency restriction does not prevent a sex offender from entering or leaving any part of the State, including areas within 2000 feet of a school or child care facility, and it does not erect any actual barrier to intrastate movement. In this sense, the Iowa law is comparable to the municipal residency requirements that have been held to implicate no fundamental right to intrastate travel in Andre, Wardwell and Wright, and less restrictive on freedom of movement than the ban on access to public parks upheld under rational basis review in Doe v. City of Lafayette. By contrast, the decisions finding infringement of a fundamental right to intrastate travel have involved laws that trigger concerns not present here — interference with free ingress to and egress from certain parts of a State (Johnson and Lutz) or treatment of new residents of a locality less favorably than existing residents (King).
        The Does also urge that we recognize a fundamental right “to live where you want.” This ambitious articulation of a proposed unenumerated right calls to mind the Supreme Court’s caution that we should proceed with restraint in the area
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of substantive due process, because “[b]y extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action.” Washington v. Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). Some thirty years ago, our court said “we cannot agree that the right to choose one’s place of residence is necessarily a fundamental right,” Prostrollo v. Univ. of S.D., 507 F.2d 775, 781 (8th Cir.1974), and we see no basis to conclude that the contention has gained strength in the intervening years. The Supreme Court recently has restated its reluctance to “expand the concept of substantive due process because guideposts for responsible decisionmaking in this uncharted area are scarce and open-ended,” Glucksberg, 521 U.S. at 720, 117 S.Ct. 2258 (quoting Collins, 503 U.S. at 125, 112 S.Ct. 1061), and the Does have not developed any argument that the right to “live where you want” is “deeply rooted in this Nation’s history and tradition,” id. at 721, 117 S.Ct. 2258 (quoting Moore, 431 U.S. at 503, 97 S.Ct. 1932 (plurality opinion)) or “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if [it] were sacrificed.” Id. (quoting Palko v. Connecticut, 302 U.S. 319, 325, 326, 58 S.Ct. 149, 82 L.Ed. 288 (1937)). We are thus not persuaded that the Constitution establishes a right to “live where you want” that requires strict scrutiny of a State’s residency restrictions.
        Because § 692A.2A does not implicate a constitutional liberty interest that has been elevated to the status of “fundamental right,” we review the statute to determine whether it meets the standard of “rationally advancing some legitimate governmental purpose.” Flores, 507 U.S. at 306, 113 S.Ct. 1439. The Does acknowledge that the statute was designed to promote the safety of children, and they concede that this is a legitimate state interest. They also allow that perhaps “certain identifiable sex offenders should not live right across the street from a school or perhaps anywhere else where there are children.” (Appellees’ Br. at 51). The Does contend, however, that the statute is irrational because there is no scientific study that supports the legislature’s conclusion that excluding sex offenders from residing within 2000 feet of a school or child care facility is likely to enhance the safety of children.
        We reject this contention because we think it understates the authority of a state legislature to make judgments about the best means to protect the health and welfare of its citizens in an area where precise statistical data is unavailable and human behavior is necessarily unpredictable. Although the Does introduced one report from the Minnesota Department of Corrections finding “no evidence in Minnesota that residential proximity of sex offenders to schools or parks affects reoffense,” this solitary case study — which involved only thirteen reoffenders released from prison between 1997 and 1999 — does not make irrational the decision of the Iowa General Assembly and the Governor of Iowa to reach a different predictive judgment for Iowa. As the district court observed, twelve other States have enacted some form of residency restriction applicable to sex offenders.4 There can be
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no doubt of a legislature’s rationality in believing that “[s]ex offenders are a serious threat in this Nation,” and that “[w]hen convicted sex offenders reenter society, they are much more likely than any other type of offender to be re-arrested for a new rape or sexual assault.” Conn. Dep’t of Pub. Safety, 538 U.S. at 4, 123 S.Ct. 1160 (alterations in original) (quoting McKune v. Lile, 536 U.S. 24, 32-33, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002) (plurality opinion)). The only question remaining is whether, in view of a rationally perceived risk, the chosen residency restriction rationally advances the State’s interest in protecting children.
        We think the decision whether to set a limit on proximity of “across the street” (as appellees suggest), or 500 feet or 3000 feet (as the Iowa Senate considered and rejected, see S. Journal 79, 2d Sess., at 521 (Iowa 2002)), or 2000 feet (as the Iowa General Assembly and the Governor eventually adopted) is the sort of task for which the elected policymaking officials of a State, and not the federal courts, are properly suited. The legislature is institutionally equipped to weigh the benefits and burdens of various distances, and to reconsider its initial decision in light of experience and data accumulated over time. The State of Alabama, for example, originally adopted a residency restriction of 1000 feet, but later increased the distance to 2000 feet, Ala.Code § 15-20-26(a); see also 2000 Ala. Acts 728, § 1; 1999 Ala. Acts 572, § 3, while the Minnesota legislature apparently followed the recommendation of the State’s Department of Corrections that no blanket proximity restriction should be adopted. (Appellee’s App. at 338). Where individuals in a group, such as convicted sex offenders, have “distinguishing
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characteristics relevant to interests the State has authority to implement, the courts have been very reluctant, as they should be in our federal system and with our respect for the separation of powers, to closely scrutinize legislative choices as to whether, how, and to what extent those interests should be pursued.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441-42, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985).
        The record does not support a conclusion that the Iowa General Assembly and the Governor acted based merely on negative attitudes toward, fear of, or a bare desire to harm a politically unpopular group. Cf. Cleburne, 473 U.S. at 448, 105 S.Ct. 3249; 413 U.S. 528, 534, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973)’> Dep’t of Agric. v. Moreno, 413 U.S. 528, 534, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973). Sex offenders have a high rate of recidivism, and the parties presented expert testimony that reducing opportunity and temptation is important to minimizing the risk of reoffense. Even experts in the field could not predict with confidence whether a particular sex offender will reoffend, whether an offender convicted of an offense against a teenager will be among those who “cross over” to offend against a younger child, or the degree to which regular proximity to a place where children are located enhances the risk of reoffense against children. One expert in the district court opined that it is just “common sense” that limiting the frequency of contact between sex offenders and areas where children are located is likely to reduce the risk of an offense. (Appellant’s App. at 165). The policymakers of Iowa are entitled to employ such “common sense,” and we are not persuaded that the means selected to pursue the State’s legitimate interest are without rational basis.
        The Does next argue that the residency restriction, “in combination with” the sex offender registration requirements of § 692A.2, unconstitutionally compels sex offenders to incriminate themselves in violation of the Fifth and Fourteenth Amendments. The district court concluded that a sex offender who establishes residence in a prohibited area must either register his current address, thereby “explicitly admit[ting] the facts necessary to prove the criminal act,” or “refuse to register and be similarly prosecuted.” 298 F.Supp.2d at 879. The court then held that § 692A.2A “unconstitutionally requires sex offenders to provide incriminating evidence against themselves,” and enjoined enforcement of the residency restriction on this basis as well.
        We disagree that the Self-Incrimination Clause of the Fifth Amendment renders the residency restriction of § 692A.2A unconstitutional. Our reason is straightforward: the residency restriction does not compel a sex offender to be a witness against himself or a witness of any kind. The statute regulates only where the sex offender may reside; it does not require him to provide any information that might be used against him in a criminal case. A separate section of the Iowa Code, § 692A.2, requires a sex offender to register his address with the county sheriff. The Does have not challenged the constitutionality of the registration requirement, or sought an injunction against its enforcement, and whatever constitutional problem may be posed by the registration provision does not justify invalidating the residency restriction.
        None of the authorities cited by the Does supports invalidation of a substantive rule of law because a reporting or registration requirement allegedly compels a person in violation of that substantive rule to incriminate himself. The Supreme Court held in Marchetti v. United States, 390
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U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968), and Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968), that a gambler was privileged under the Fifth Amendment not to register his occupation as one in the business of accepting wagers, not to pay the required occupational tax, and not to pay a wagering excise tax, because these submissions would create a real and appreciable hazard of self-incrimination for the gambler. The Court never suggested, however, that the Self-Incrimination Clause prevented the government from criminalizing wagering or gambling. Similarly, Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), the Court’s holding that a plea of self-incrimination was a complete defense in a prosecution for non-compliance with provisions requiring payment of a tax on marijuana imported into the United States did not imply that state laws prohibiting the possession of marijuana were somehow unconstitutional. Id. at 29, 89 S.Ct. 1532. And Albertson v. Subversive Activities Control Board, 382 U.S. 70, 86 S.Ct. 194, 15 L.Ed.2d 165 (1965), where the Court held unconstitutional under the Fifth Amendment a requirement that members of the Communist Party file a registration statement with the Attorney General, it was never intimated that the registration requirement rendered unconstitutional Section 4(a) of the Subversive Activities Control Act, under which Albertson might have been prosecuted as a result of the registration.
        Even had the Does challenged the sex offender registration statute, moreover, we believe that a self-incrimination challenge to the registration requirements would not be ripe for decision. Unlike Albertson, where the petitioners had asserted the privilege against self-incrimination on multiple occasions, the Attorney General of the United States had rejected their claims, and specific orders requiring the petitioners to register had been issued, 382 U.S. at 75, 86 S.Ct. 194, the process with respect to enforcement of the Iowa sex offender registration statute in conjunction with the residency restriction is far less developed. The record does not show whether any of the plaintiffs has registered with the county sheriff an address that is prohibited by § 692A.2A, whether any of the county attorneys or the Attorney General would seek to use registration information to further a criminal prosecution for violation of the residency restriction (rather than merely as a regulatory mechanism to bring sex offenders into compliance with the statute),5 or whether the prosecuting authorities would recognize a refusal to register as a valid assertion of the privilege against self-incrimination (and thus decline to prosecute a sex offender for failing to register a prohibited residence).
        We think that under these circumstances, a self-incrimination challenge to the registration statute would be premature. See Communist Party v. Subversive Activities Control Bd., 367 U.S. 1, 106-10, 81 S.Ct. 1357, 6 L.Ed.2d 625 (1961); cf Selective Serv. Sys. v. Minn. Pub. Interest Research Group, 468 U.S. 841, 858, 104 S.Ct. 3348, 82 L.Ed.2d 632 (1984). If and when there is a prosecution for violation of the residency restriction in which the prosecution makes use of a sex offender’s registration, a prosecution for failure to register a prohibited address, or some other basis such as in Albertson to say that the
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dispute is ripe, then the self-incrimination issue will be joined. It would then be appropriate to consider such questions as whether the registration requirement as applied falls under the rule of cases such as Marchetti and Albertson, where the Fifth Amendment was held to prohibit incriminating registration or reporting requirements directed at persons “inherently suspect of criminal activities,” Albertson, 382 U.S. at 79, 86 S.Ct. 194, or whether the public need for information about convicted sex offenders and the noncriminal regulatory purpose for securing the information might permit enforcement of the requirement consistent with the Fifth Amendment. Cf. Baltimore City 493 U.S. 549, 557-59, 110 S.Ct. 900, 107 L.Ed.2d 992 (1990)’>Dep’t of Soc. Servs. v. Bouknight, 493 U.S. 549, 557-59, 110 S.Ct. 900, 107 L.Ed.2d 992 (1990); California v. Byers, 402 U.S. 424, 431-34, 91 S.Ct. 1535, 29 L.Ed.2d 9 (1971) (plurality opinion); id. at 457-58, 91 S.Ct. 1535 (Harlan, J., concurring in the judgment). At this point, we conclude that the Does’ self-incrimination claim is both misdirected and premature.
        A final, and narrower, challenge advanced by the Does is that § 692A.2A is an unconstitutional ex post facto law because it imposes retroactive punishment on those who committed a sex offense prior to July 1, 2002. The Ex Post Facto Clause of Article I, Section 10 of the Constitution prohibits the States from enacting laws that increase punishment for criminal acts after they have been committed. Calder v. Bull, 3 U.S. 386, 390, 3 Dall. 386, 1 L.Ed. 648 (1798) (Chase, J., seriatim). In determining whether a state statute violates the Ex Post Facto Clause by imposing such punishment, we apply the framework outlined Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), where the Supreme Court considered an ex post facto challenge to an Alaska statute requiring sex offenders to register. Under that framework, we must first “ascertain whether the legislature meant the statute to establish `civil’ proceedings.” Id. (internal quotation omitted). If the legislature intended criminal punishment, then the legislative intent controls the inquiry and the law is necessarily punitive. Id. If, however, the legislature intended its law to be civil and nonpunitive, then we must determine whether the law is nonetheless “so punitive either in purpose or effect as to negate” the State’s nonpunitive intent. Id. (internal quotations and citations omitted). “[O]nly the clearest proof” will transform what the legislature has denominated a civil regulatory measure into a criminal penalty. Id.
        The district court found that in passing the residency restriction of § 692A.2A, the Iowa General Assembly intended to create “a civil, non-punitive statutory scheme to protect the public.” 298 F.Supp.2d at 868. The Does do not dispute this conclusion on appeal, and we agree that the legislature’s intent was not punitive. Although Iowa Code § 692A.2A does not contain any clear statement of purpose, the residency restriction is codified as part of Chapter 692A, together with a registration system that the Supreme Court of Iowa has declared to have a purpose of “protect[ing] society” and to be a nonpunitive, regulatory law. In Interest of S.M.M., 558 N.W.2d 405, 408 (Iowa 1997); State v. Pickens, 558 N.W.2d 396, 400 (Iowa 1997). “[W]here a legislative restriction is an incident of the State’s power to protect the health and safety of its citizens, it will be considered as evidencing an intent to exercise that regulatory power, and not a purpose to add to the punishment.” Smith v. Doe, 538 U.S. at 93-94, 123 S.Ct. 1140 (quoting Flemming v. Nestor, 363 U.S. 603, 616, 80 S.Ct. 1367,
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4 L.Ed.2d 1435 (1960)) (internal marks omitted). We believe the available evidence leads most naturally to the inference that the restrictions in § 692A.2A are intended, like the restrictions elsewhere in the same chapter, to protect the health and safety of Iowa citizens. Therefore, we conclude that the purpose of the Iowa General Assembly in passing this law was regulatory and non-punitive.
        We must next consider whether the Does have established that the law was nonetheless so punitive in effect as to negate the legislature’s intent to create a civil, non-punitive regulatory scheme. In this inquiry, we refer to what the Supreme Court described in Smith v. Doe as “useful guideposts” for determining whether a law has a punitive effect. In analyzing the effect of the Alaska sex offender registration law, the Court in Smith pointed to five factors drawn from Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), as particularly relevant: whether the law has been regarded in our history and traditions as punishment, whether it promotes the traditional aims of punishment, whether it imposes an affirmative disability or restraint, whether it has a rational connection to a nonpunitive purpose, and whether it is excessive with respect to that purpose. Smith v. Doe, 538 U.S. at 97, 123 S.Ct. 1140. These factors are “neither exhaustive nor dispositive,” id. (quotation omitted), and while we consider them as an aid to our analysis, we bear in mind that the ultimate question always remains whether the punitive effects of the law are so severe as to constitute the “clearest proof” that a statute intended by the legislature to be nonpunitive and regulatory should nonetheless be deemed to impose ex post facto punishment.
        Turning first to any historical tradition regarding residency restrictions, the Does argue that § 692A.2A is the effective equivalent of banishment, which has been regarded historically as a punishment. See Smith v. Doe, 538 U.S. at 98, 123 S.Ct. 1140. Banishment has been defined as “`punishment inflicted on criminals by compelling them to quit a city, place, or country for a specified period of time, or for life,’” United States v. Ju Toy, 198 U.S. 253, 269-70, 25 S.Ct. 644, 49 L.Ed. 1040 (1905) (Brewer, J., dissenting) (quoting Black’s Law Dictionary), or “expulsion from a country.” Black’s Law Dictionary 154, 614 (8th ed.2004). The Supreme Court most recently explained that banished offenders historically could not “return to their original community,” and that the banishment of an offender “expelled him from the community.” Smith v. Doe, 538 U.S. at 98, 123 S.Ct. 1140; Fong Yue Ting v. United States, 149 U.S. 698, 730, 13 S.Ct. 1016, 37 L.Ed. 905 (1893) (holding that order of deportation is “not a banishment, in the sense in which that word is often applied to the expulsion of a citizen from his country by way of punishment”).
        While banishment of course involves an extreme form of residency restriction, we ultimately do not accept the analogy between the traditional means of punishment and the Iowa statute. Unlike banishment, § 692A.2A restricts only where offenders may reside. It does not “expel” the offenders from their communities or prohibit them from accessing areas near schools or child care facilities for employment, to conduct commercial transactions, or for any purpose other than establishing a residence. With respect to many offenders, the statute does not even require a change of residence: the Iowa General Assembly included a grandfather provision that permits sex offenders to maintain a residence that was established prior to July 1, 2002, even if that residence is within 2000 feet of a school or child care facility. Iowa Code
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§ 692A.2A(4)(c). The district court, moreover, found that residency restrictions for sex offenders “are relatively new and somewhat unique,” 298 F.Supp.2d at 849 n. 4, and as with sex offender registration laws, which also were of “fairly recent origin,” Smith v. Doe, 538 U.S. at 97, 123 S.Ct. 1140 (internal quotation omitted), this novelty “suggests that the statute was not meant as a punitive measure, or, at least, that it did not involve a traditional means of punishing.” Id. We thus conclude that this law is unlike banishment in important respects, and we do not believe it is of a type that is traditionally punitive.
        The second factor that we consider is whether the law promotes the traditional aims of punishment — deterrence and retribution. Smith v. Doe, 538 U.S. at 102, 123 S.Ct. 1140. The district court found that the law was both deterrent and retributive, and thus weighed this factor in favor of its finding that the law was punitive. We agree with the district court that the law could have a deterrent effect, but we do not agree that the deterrent effect provides a strong inference that the restriction is punishment. The primary purpose of the law is not to alter the offender’s incentive structure by demonstrating the negative consequences that will flow from committing a sex offense. The Iowa statute is designed to reduce the likelihood of reoffense by limiting the offender’s temptation and reducing the opportunity to commit a new crime. We observe, moreover, that the Supreme Court has cautioned that this factor not be over-emphasized, for it can “prove[] too much,” as “[a]ny number of governmental programs might deter crime without imposing punishment.” Id.
        The statute’s “retributive” effect is similarly difficult to evaluate. For example, while the Ninth Circuit found punishment where the length of sex offender reporting requirements corresponded to the degree of wrongdoing rather than the extent of the risk imposed, Doe I v. Otte, 259 F.3d 979, 990 (9th Cir.2001), rev’d sub nom. Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), the Supreme Court disagreed, and instead emphasized that the reporting requirements were “reasonably related to the danger of recidivism” in a way that was “consistent with the regulatory objective.” Smith v. Doe, 538 U.S. at 102, 123 S.Ct. 1140. While any restraint or requirement imposed on those who commit crimes is at least potentially retributive in effect, we believe that § 692A.2A, like the registration requirement in Smith v. Doe, is consistent with the legislature’s regulatory objective of protecting the health and safety of children.
        The next factor we consider is whether the law “imposes an affirmative disability or restraint.” Imprisonment is the “paradigmatic” affirmative disability or restraint, Smith v. Doe, 538 U.S. at 100, 123 S.Ct. 1140, but other restraints, such as probation or occupational debarment, also can impose some restriction on a person’s activities. Id. at 100-01, 123 S.Ct. 1140. While restrictive laws are not necessarily punitive, they are more likely to be so; by contrast, “[i]f the disability or restraint is minor and indirect, its effects are unlikely to be punitive.” Id. at 100, 123 S.Ct. 1140. For example, sex offender registration laws, requiring only periodic reporting and updating of personal information, do not have a punitive restraining effect. Id. at 102, 123 S.Ct. 1140. At the same time, civil commitment of the mentally ill, though extremely restrictive and disabling to those who are committed, does not necessarily impose punishment because it bears a reasonable relationship to a “legitimate nonpunitive objective,” namely protecting the public from mentally unstable
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individuals. Hendricks, 521 U.S. at 363, 117 S.Ct. 2072.
        Iowa Code § 692A.2A is more disabling than the sex offender registration law at issue in Smith v. Doe, which had not “led to substantial occupational or housing disadvantages for former sex offenders that would not have otherwise occurred through the use of routine background checks by employers and landlords.” 538 U.S. at 100, 123 S.Ct. 1140. Although the Does did not present much evidence about housing within restricted areas that would have been available to them absent the statute, they did show that some sex offenders would have lived with spouses or parents who owned property in the restricted zones, and some sex offenders were living in residences within restricted areas that were permitted under the statute’s “grandfather” provision. The residency restriction is certainly less disabling, however, than the civil commitment scheme at issue in Hendricks, which permitted complete confinement of affected persons. In both Smith and Hendricks, the Court considered the degree of the restraint involved in light of the legislature’s countervailing nonpunitive purpose, and the Court in Hendricks emphasized that the imposition of an affirmative restraint “does not inexorably lead to the conclusion that the government has imposed punishment.” 521 U.S. at 363, 117 S.Ct. 2072 (internal quotation omitted). Likewise here, while we agree with the Does that § 692A.2A does impose an element of affirmative disability or restraint, we believe this factor ultimately points us to the importance of the next inquiry: whether the law is rationally connected to a nonpunitive purpose, and whether it is excessive in relation to that purpose.
        This final factor — whether the regulatory scheme has a “rational connection to a nonpunitive purpose” — is the “most significant factor” in the ex post facto analysis. Smith v. Doe, 538 U.S. at 102, 123 S.Ct. 1140. The requirement of a “rational connection” is not demanding: A “statute is not deemed punitive simply because it lacks a close or perfect fit with the nonpunitive aims it seeks to advance.” Id. at 103, 123 S.Ct. 1140. The district court found “no doubt” that § 692A.2A has a purpose other than punishing sex offenders, 298 F.Supp.2d at 870, and we agree. In light of the high risk of recidivism posed by sex offenders, Smith v. Doe, 538 U.S. at 103, 123 S.Ct. 1140, the legislature reasonably could conclude that § 692A.2A would protect society by minimizing the risk of repeated sex offenses against minors.
        The district court nonetheless concluded that the statute is excessive in relation to this purpose, because the law applies “regardless of whether a particular offender is a danger to the public.” 298 F.Supp.2d at 871. The absence of a particularized risk assessment, however, does not necessarily convert a regulatory law into a punitive measure, for “[t]he Ex Post Facto Clause does not preclude a State from making reasonable categorical judgments that conviction of specified crimes should entail particular regulatory consequences.” Smith v. Doe, 538 U.S. at 103, 123 S.Ct. 1140. The Supreme Court over the years has held that restrictions on several classes of offenders are nonpunitive, despite the absence of particularized determinations, including laws prohibiting the practice of medicine by convicted felons, Hawker v. New York, 170 U.S. 189, 197, 18 S.Ct. 573, 42 L.Ed. 1002 (1898), laws prohibiting convicted felons from serving as officers or agents of a union, De Veau v. Braisted, 363 U.S. 144, 160, 80 S.Ct. 1146, 4 L.Ed.2d 1109 (1960) (plurality opinion); id. at 160-61, 80 S.Ct. 1146 (opinion of Brennan, J.), and of course laws
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requiring the registration of sex offenders. Smith v. Doe, 538 U.S. at 106, 123 S.Ct. 1140.
        In this case, we conclude that a categorical rule is consistent with the legislature’s regulatory purpose and not “excessive” within the meaning of the Supreme Court’s decisions. While the Does argue that the legislature must tailor restrictions to the individual circumstances of different sex offenders, we view this position as inconsistent with the Supreme Court’s direction that the “excessiveness” prong of the ex post facto analysis does not require a “close or perfect fit” between the legislature’s nonpunitive purpose and the corresponding regulation. The evidence presented at trial suggested that convicted sex offenders as a class were more likely to commit sex offenses against minors than the general population. Dr. McEchron indicated that “there are never any guarantees that [sex offenders] won’t reoffend,” (Appellant’s App. at 162), and Mr. Allison testified that “any sex offender is always going to be of some concern forever.” (T. Tr. at 279).
        More specifically, in Allison’s view, even an offender who committed a crime involving an older victim, such as statutory rape, would be of concern around a day care or elementary school, although the concern may be reduced, (T. Tr. at 278), and Dr. Rosell testified that while he believed that a sex offender who committed an offense with a 14 or 15-year-old victim was likely to stay in that age range, there also was no way to predict whether a sex offender would “cross over” in selecting victims from adults to children or males to females. (Appellee’s App. at 149, 184). Dr. Rosell was less than definitive about the degree to which sex offenders’ future behavior was predictable and avoidable; while he personally did not believe residential proximity made “that big of a difference,” he agreed that “what works in criminal justice is imprecise at best,” and testified that “[t]here is always a risk” of reoffense. (Appellee’s App. at 193, 195, 190). In view of the higher-than-average risk of reoffense posed by convicted sex offenders, and the imprecision involved in predicting what measures will best prevent recidivism, we do not believe the Does have established that Iowa’s decision to restrict all such offenders from residing near schools and child care facilities constitutes punishment despite the legislature’s regulatory purpose.
        The Does also urge that the law is excessive in relation to its regulatory purpose because there is no scientific evidence that a 2000-foot residency restriction is effective at preventing sex offender recidivism. “The excessiveness inquiry of our ex post facto jurisprudence is not an exercise in determining whether the legislature has made the best choice possible to address the problem it seeks to remedy,” but rather an inquiry into “whether the regulatory means chosen are reasonable in light of the nonpunitive objective.” Smith v. Doe, 538 U.S. at 105, 123 S.Ct. 1140. In this case, there was expert testimony that reducing the frequency of contact between sex offenders and children is likely to reduce temptation and opportunity, which in turn is important to reducing the risk of reoffense. None of the witnesses was able to articulate a precise distance that optimally balanced the benefit of reducing risk to children with the burden of the residency restrictions on sex offenders, and the Does’ expert acknowledged that “[t]here is nothing in the literature that has addressed proximity.” (Appellee’s App. 198; accord id. at 41, 47-48 (testimony of Dr. McEchron)). As even Dr. Rosell admitted, we just “don’t know” that the Iowa Legislature “isn’t ahead of the curve.” (Id. at 198).
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        We believe the legislature’s decision to select a 2000-foot restriction, as opposed to the other distances that were considered and rejected, is reasonably related to its regulatory purpose. Given the challenge in determining precisely what distance is best suited to minimize risk to children without unnecessarily restricting sex offenders, and the difficult policy judgments inherent in that choice, we conclude that the Does have not established the “clearest proof” that Iowa’s choice is excessive in relation to its legitimate regulatory purpose, such that a statute designed to be nonpunitive and regulatory should be considered retroactive criminal punishment.6
* * * * * *

        The judgment of the district court is reversed, and the case is remanded with directions to enter judgment in favor of the defendants.


Sunday, April 22nd, 2007



BATAVIA – A Kentucky criminal charge alleging that Amy Baker tampered with evidence by helping toss the remains of Marcus Fiesel into the Ohio River raises questions about whether her constitutional rights are being violated, legal experts say. 

But she might not be able to avoid prosecution just because she had an immunity deal in Ohio. 

Kentucky prosecutors might be able to convict Baker of the charge, which is punishable by up to five years in prison, if David Carroll Jr., convicted of killing the boy, testifies against her – and a jury believes him. 

Clermont County prosecutors are furious that Mason County Attorney John Estill filed the charge Friday against Baker, who was the key witness in the murder cases against Carroll and his wife, Liz. 

Estill had told Clermont County Prosecutor Don White that Baker wouldn’t be charged, said Daniel “Woody” Breyer, the assistant prosecutor who tried the cases and negotiated the immunity deal. 

“I’m appalled,” Breyer said. “He told Don White and myself (two months ago) he had no interest in this – it wasn’t worth fooling with.” 

Baker’s testimony about the 3-year-old foster son of the Carrolls probably can’t be used against her in Kentucky without violating her Fifth Amendment right to not incriminate herself, Breyer said. 

“That statement (Baker’s testimony) was made only because certain promises were made to her,” Breyer said. “If those promises are not kept, I’m not sure that’s a voluntary statement.” 

Kenneth Katkin, a professor at the Chase College of Law at Northern Kentucky University, agreed with Breyer. 

“I’ve never heard of a case like this,” Katkin said. 

It might be unprecedented in the modern era – since U.S. Supreme Court rulings in 1959 and 1964 – for a prosecutor to interfere with such an immunity agreement, Katkin said. Estill might be bound to honor the Ohio agreement with Baker based on constitutional considerations, Katkin said. 

One argument could be that prosecuting her in Kentucky based on her Ohio testimony might be considered entrapment by estoppel – meaning she was misled by government officials in violation of her Fifth Amendment right to not be deprived of liberty without due process, Katkin said. 

If courts don’t agree with that, and “if David Carroll is going to come forward against Amy Baker … she could be prosecuted based on his testimony,” Katkin said. 


An Estill spokeswoman declined to comment Saturday. 

In February, he said he didn’t plan to charge Baker. 

“The one thing I want to be clear with (Clermont County) about is we are not going to interfere with Mr. White’s prosecution of that murder case over there by playing some kind of interstate one-upmanship,” Estill told The Enquirer back then. “The last thing I want to do is complicate his job.” But that’s what has happened, Breyer said. 

“Here’s the other thing I find incredibly offensive: What (Estill) has done,” Breyer said, “is make a deal with the murderer who actually threw the body off the bridge so that he could get the person who cooperated with the state of Ohio to solve the case.” 

Breyer said Estill didn’t return four telephone calls made by the Clermont prosecutor. But David Carroll’s lawyer, Cathy Adams, told him of the deal, Breyer said. 

“The deal is (Carroll) will come down there, he’ll plead guilty to the same charges (as Baker) – make it look like, ‘Oh, I’m holding him responsible, too’ – and then (Estill) will guarantee (Carroll) that he will do concurrent time” with his prison sentence in Ohio. 

Adams did not return an Enquirer phone call seeking comment. 

Baker called Breyer on Friday to say she had heard about the charge, he said. 

“She was in tears,” Breyer said. “She’s distraught.” 

Baker went to the prosecutor’s office in Batavia, where Breyer arranged for her to surrender to the Clermont County sheriff’s office. 

After being taken to the Clermont County Jail, she appeared before Municipal Court Judge James Shriver, who set bail at $50,000. 

Baker, who Breyer said can’t afford the bail, is to appear before Shriver on Monday afternoon for an extradition hearing. 

The court-appointed defense attorney who helped negotiate her immunity deal, Norm Aubin, said Baker plans to fight extradition. 

It might take 30 to 90 days for the office of Gov. Ted Strickland to approve or deny Kentucky’s request for extradition, Breyer said. 

It’s unclear what all this might mean for a Juvenile Court hearing May 7, in which Baker planned to try to regain custody of her three children. They were taken by Clermont County Children’s Protective Services on Aug. 29, the day after the Carrolls were arrested, because Baker was left homeless and didn’t have a job to support them. 

She now has a job and lives in an apartment in Batavia Township. 


While Carroll can’t be forced to incriminate himself by testifying in a Mason County court, “he’s been guaranteed he won’t suffer any punishment,” Breyer said. “…You think he’s not (perturbed at Baker) for ratting him out? He wants to get even with her.” 

Carroll will be eligible for parole in 16 years. His wife, who also was convicted in February in the August death of Marcus, will be eligible for parole in 54 years. 

Baker, who was the live-in girlfriend of the Union Township couple, testified in Liz Carroll’s murder trial that she accompanied David Carroll when the boy’s body was burned in Brown County. 

The foster dad threw the remains off the William Harsha Bridge to Maysville, Baker testified. 

The charge against Baker could jeopardize future prosecutions in Ohio because people involved in crimes might not testify in exchange for immunity, Breyer said. 

“How is anybody going to believe anything we tell them?” Breyer said. 


Second Liens And Intercreditor Agreements.Are Those Bankruptcy Voting Provisions Really Enforceable?

Saturday, April 21st, 2007

19 April 2007  Article by Bob Eisenbach
Originally Posted in Cooley Godward Kronish LLP’s In The (Red) Business Bankruptcy Blog, January 18, 2007
In this post I look at the second lien phenomenon and then discuss an interesting new case addressing whether a fairly common intercreditor agreement provision — giving a senior lender the right to vote a second lien lender’s claim in bankruptcy — will actually be enforced.
Senior Debt And Mezzanine Financing
. When a company borrows from a bank, it typically grants the bank a first priority, blanket security interest in all of its assets to secure this senior debt. In the past, when a company needed additional capital, whether to grow the business or to fund an acquisition, it often turned to unsecured “mezzanine” financing, so named to reflect its middle position between senior debt and equity. This type of unsecured debt typically is subject to complete payment subordination in favor of the senior lender and is considerably more expensive than bank debt.
The Second Lien Market. One of the biggest financing trends in recent years has been the move away from unsecured mezzanine credit to debt secured by a second priority security interest on all of the company’s assets. Much of this “second lien” debt is coming from hedge funds and other private equity funds, although more traditional lenders have also become active in the market. According to, the second lien market has grown dramatically over the past several years, from $570 million in 2002 to more than $16 billion in 2005. Some reports suggest it approached $30 billion in 2006.
Why the attraction to second lien financing? The main reasons are price, terms, and availability. Healthy companies generally find the pricing on second lien credit to be lower than unsecured mezzanine debt (although a bit more expensive than on senior debt) and often comes with few covenants. For distressed companies, if they can obtain additional credit at all, many times it’s as part of a restructuring in which a new lender requires a second lien to protect it from an increased risk of default.
Subordination and Intercreditor Agreements. Most second liens are blanket security interests and cover the same collateral against which the senior lender has a first lien. Traditionally, senior lenders include provisions in their loan documents prohibiting borrowers from granting security interests or liens to any other lender without the consent of the senior lender. When a lender proposes to make a second lien (also known as a “junior” or “tranche B” loan), it must negotiate not only with the borrower but also with the senior or “tranche A” lender. As the size of the second lien market suggests, senior lenders have been willing to consent to second lien loans, often to help the borrower make an acquisition or to bring in additional liquidity.

  • The negotiations between the first and second lien lenders usually address their respective rights to the collateral and various provisions regarding repayment of their loans. Sometimes the second lien debt will be subordinated to repayment of the senior debt, as with traditional mezzanine financing, but more often only the security interest in the common collateral will be subordinated to that of the senior lender.
  • The senior lender generally insists that the junior lender be a “silent second” and waive rights to object to actions taken by the senior lender in a default or bankruptcy. The junior lender instead wants to have the ability to protect its own interests. The end result often comes out somewhere in between, but restrictions on the second lien lender are common.
  • The arrangements between the senior and second lien lenders are documented in a separate agreement, usually called an intercreditor agreement or a subordination agreement.

Key Intercreditor Agreement Provisions. If everything goes well and the borrower repays its loans on time, the provisions of the intercreditor agreement won’t be all that important. However, if the borrower defaults on the loans, or files for bankruptcy, the terms of the agreement can become critical.

  • With bankruptcy in mind, key provisions negotiated in intercreditor agreements often include waivers or consents by the second lien lender relating to debtor in possession (DIP) financing, use of cash collateral, rights to adequate protection, conduct of a Section 363 sale of the debtor’s assets (i.e., the lenders’ collateral), and the extent to which the senior lender will have the right to vote the second lien lender’s claim on any Chapter 11 bankruptcy plan of reorganization.
  • Section 510(a) of the Bankruptcy Code provides that a “subordination agreement is enforceable in a case under this title to the same extent that such agreement is enforceable under applicable nonbankruptcy law.” Bankruptcy courts routinely enforce payment subordination provisions in which the junior lender agrees not to receive any payments (or to turn over any that it does receive) until the senior lender is paid in full.

Bankruptcy Voting Provisions. Bankruptcy voting provisions, however, have not always been enforced. Most notably, the court in In re 203 North LaSalle Street Partnership, 246 B.R. 325 (Bankr. N.D. Ill. 2000), held that Section 1126(a) of the Bankruptcy Code, which provides that the “holder of a claim or interest allowed under section 502 of this title may accept or reject a plan,” means that only the actual holder of the claim may vote and that an agreement giving that right to the senior lender is not enforceable. Other courts have been more willing to enforce voting provisions in subordination agreements. Still, the issue has not come up very often. Voting provisions have been the subject of reported decisions in only a handful of cases over the past 25 years.
The Aerosol Packaging Decision. That dearth of authority makes the decision in In re Aerosol Packaging, LLC, issued by a bankruptcy court in Atlanta in late December 2006, of keen interest. (Thanks go to Scott Riddle of the Georgia Bankruptcy Law Blog for first posting on the decision.) In that case, Wachovia Bank was the senior lender under a subordination agreement entered into with Blue Ridge Investors, II, L.P., a second lien lender to the debtor, Aerosol Packaging. In its Chapter 11 bankruptcy, the debtor filed a plan of reorganization acceptable to Wachovia. When votes were solicited, both Wachovia and Blue Ridge submitted competing ballots voting Blue Ridge’s claim, with Wachovia’s ballot accepting the plan’s primary treatment of Blue Ridge’s claim and Blue Ridge’s ballot rejecting that proposed treatment.

  • Blue Ridge then filed a motion seeking a determination of its voting rights and allowance of its ballot instead of the one Wachovia submitted. (For reference, the subordination agreement attached as an exhibit to that motion designates Blue Ridge as the “Subordinated Creditor” and Wachovia, as successor to SouthTrust Bank, as the “Lender.”)
  • Wachovia opposed the motion, relying on a section in the subordination agreement that made it, as the Lender, “irrevocably authorized and empowered (in its own name or in the name of the Subordinated Creditor)” to “take such other action (including without limitation voting the Subordinated Debt. . . ” as it “deemed necessary or advisable.” Wachovia also argued that the In re 203 North LaSalle Street Partnership case, relied on by Blue Ridge, was wrongly decided and that the bankruptcy rules allowed agents to vote another party’s claim.

In siding with Wachovia, the bankruptcy court held that Wachovia was the agent of Blue Ridge, that under the subordination agreement Blue Ridge assigned its right to vote to Wachovia, and that Section 1126(a) of the Bankruptcy Code does not prohibit the enforcement of such provisions. The court therefore accepted Wachovia’s ballot and rejected the one submitted by Blue Ridge. The court also pointed out that Blue Ridge is not without a remedy: it “may free itself from the ongoing effect of the Subordination Agreement by paying the Wachovia claim in full in cash.” Blue Ridge has appealed the decision, so a higher court may have a chance to rule on the issue.
Uncertainty Remains. As only one bankruptcy court ruling, the Aerosol Packaging decision does not settle the issue of whether bankruptcy voting provisions will be enforced. Still, it’s interesting that the court considered and rejected the reasoning of the In re 203 North LaSalle Street Partnership decision. Given that this subordination agreement involved both lien and payment subordination, it’s unclear whether the voting provision would have been enforced if the lenders’ agreement had involved only lien and not payment subordination, which is the more typical second lien arrangement. The answer to that question will have to wait for the next case.
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Specific Questions relating to this article should be addressed directly to the author.



Friday, April 20th, 2007

 State Atty.-Gen. Greg Stumbo, who is running for Lieutenant Governor with Democratic gubernatorial candidate Bruce Lunsford, has appointed a special prosecutor to investigate a complaint by one of former Lt. Gov. Steve Henry’s ex-supporters relating to election finance irregularities.  Henry, Lunsford, and five other Democrats are running in the May 22 primary.  Twelfth Judicial District Commonwealth’s Atty. Jim Crawford has drawn the assignment, according to an Apr. 14 story in The Herald-Leader by The Associated Press’ Joe Biesk, to review charges made by Louisvillian Leslie Holland against Henry that have been filed with the Kentucky Registry of Election Finance.  Crawford, who lives in Carrollton, serves a district encompassing Carroll, Owen, and Grant counties.This article was written in 2003, but it still reflects why Crawford was the candidate for the  appointment for this investigation. He can be expected to speedy.

Commonwealth’s Attorney Jim Crawford runs a well-oiled machine, lawyers and police say.
  By ANDREW WOLFSON  The Courier-Journal Sunday, October 19, 2003
WILLIAMSTOWN, Ky. — Caught red-handed cooking methamphetamine in a Grant County mobile home, 48-year-old Freddie Ray Kenney didn’t waste time.
Just two weeks after he was indicted in July 2002 on a charge of manufacturing the powerfully addictive stimulant, he pleaded guilty. The next month he began serving a 20-year sentence at the Kentucky State Penitentiary.
“We interviewed Freddie and he said there was just no use fighting it,” said Police Capt. Roger Humphrey, an agent of the Northern Kentucky Drug Strike Force.
Said Kenney from prison: “They wasn’t going to budge on me at all.”
Welcome to the 15th Judicial Circuit — Grant, Owen and Carroll counties — where justice is served on the fast track and defendants are placed on a conveyor belt that often leads to prison.
Unlike many other counties in Kentucky, where cases linger for years, are lost in the system or are dismissed for prosecutorial inaction, most felonies in these three counties are prosecuted in four months or less, and even murders are resolved within a year.
“The docket moves very, very fast,” former public defender Jonathan Wells said.
Police detectives, defense lawyers, court clerks — and defendants like Kenney — credit what they say is a well-oiled assembly line and its tough-as-nails foreman — Commonwealth’s Attorney Jim Crawford.
“Jim Crawford moves cases about as quick as any commonwealth’s attorney I’ve ever seen,” said Florence lawyer Jack Gatlin, a former Grant County public defender who was Kenney’s lawyer.
Crawford says delay is his enemy and moving cases quickly is the cornerstone of his philosophy.
“Witnesses disappear and victims get burned out” if cases drag on, Crawford said. “The quicker you punish somebody who has done a wrong, the better chance you have of changing that person,” said Crawford, who has been in office for 14 years.
Justice is not only swift in the 15th Judicial Circuit, but it is also severe, said defense lawyers, police and prosecutors who work there.
A Courier-Journal sampling of 120 Carroll County felony cases from 1995 to 2001 showed that 72 percent of the guilty pleas were to the original charge, not a lesser one.
“He just doesn’t cut deals,” Covington criminal defense lawyer Linda Smith said of Crawford. “He doesn’t take crap cases to the grand jury, so the ones that do go through stand on all fours.”
GLARING CONTRAST Bullitt County‘s not far, – but it was far behind
The southwestern edge of the mostly rural circuit is only about 60 miles from Bullitt County, but in the speed with which its court system dispatches cases, it might as well be on another planet.
In Bullitt County last year, The Courier-Journal found that in hundreds of cases involving charges of murder, rape, drug trafficking and other felonies, people escaped prosecution over two decades because cases had been misplaced, mismanaged and otherwise delayed. The newspaper found 230 cases that were at least 3 years old.
In the Carroll, Grant and Owen circuit, there were only three that old.
In Bullitt County, felony cases lingered from as long ago as 1983; in Carroll and Grant counties, the oldest cases were opened just last year. In counties such as Franklin and Bullitt, the newspaper found, cases fell off the calendar once a defendant was arraigned, sometimes never to be called back to court. But in the Carroll, Grant and Owen circuit, felony defendants always have a next date with Circuit Judge Steve Bates, whether they want one or not.
Carroll and Grant move cases faster than any other counties in Kentucky — nearly nine times as fast as the slowest county. Despite the speed with which defendants are processed, the commonwealth gets tough results in the circuit:
More than twice as many people prosecuted in Carroll, Grant and Owen are in Kentucky prisons as from Franklin County, even though fewer people live in the three counties combined. As of Sept. 1, according to state Corrections Department figures, 282 inmates were incarcerated from Carroll, Grant and Owen, which have a combined population of 43,086, compared with 133 from Franklin, which has 47,687 residents.
It wasn’t always such. Appointed in 1989 when his predecessor suffered a heart attack four days after the tragic Carroll County church-bus crash on Interstate 71, Crawford inherited a backlog of 400 cases.
“I got caught up and decided to stay caught up,” he said.
Crawford’s staff works closely with police to weed out weak cases that might bog the system down later. “We don’t take a case to the grand jury unless it is thoroughly investigated and ready to go,” he said.
At annual seminars, police in the three counties are trained on what to expect from Crawford and his assistant commonwealth’s attorney and on what prosecutors will expect from them.
“You don’t take him half-investigated garbage,” Grant County Chief Deputy Sheriff Chuck Dills said. “I have seen him go off on officers who don’t have their case together.”
Said defense lawyer Steve Howe of Williamstown: “You can hear him in the back room chewing a police officer’s rear end if it’s a poor case or if the officer is presenting it only to appease the victim.”
Law-enforcement officers like Carrollton Police Chief Mike Wilhoit said Crawford is so demanding that police make sure cases are ready for trial the day of indictment.
“We don’t indict hoping for a conviction,” Wilhoit said. “We know we can prove it.”
Crawford, who is a part-time prosecutor and also has a private practice in civil law, uses his entire government staff to make sure cases are ready — and worthy — before they are presented.
Secretary Mimi Sherrell (known as “The Dictionary” for her seeming ability to recall from memory every case the office has ever prosecuted during her tenure) and victims advocate Wayne Heightchew, a retired Kentucky State Police detective, review every case and call police to tie up loose ends.
Defense lawyers say weak cases and charges are sent back to district court or dismissed. Retired public defender Michael Williams said Crawford does not inflate charges to start with, and as a result “he can take the charge in the indictment and say to the defendant, `Take it or leave it.’”
Lawyers and police say he is willing to stand up to anybody — and often does — to keep cases moving and to weed out those that don’t belong in circuit court, where felonies are prosecuted.
Crawford, who is serving his third term after being re-elected twice with no opposition, said: “Some of my colleagues don’t know how to say `No.’ It is tough to sit down with a family and tell them a crime has not been committed when their child or husband has been killed.”
“Everybody wants to keep their docket moving,” he said. “But it takes a certain discipline to accomplish that.”
CONVEYOR BELT ‘Goal is to keep stuff moving’
Once a case comes into the system, an ironclad process takes over.
Defendants are told in advance when their cases will be presented to the grand jury, allowing them to be arraigned the day they are indicted. A pretrial hearing — usually within two weeks — is scheduled at that time. At the pretrial hearing, a report date — a cutoff date for plea negotiations — and a trial date are scheduled.
Former Carroll County public defender Jonathan Wells said, “It is hard on such a timeline to properly investigate cases, to line up expert witnesses, to get your ducks in a row.”
“Once we get a case in the system, we’ve got it where we can track it,” Crawford said.
And track cases they do.
Once a year, Crawford sends his assistant, Jason Hiltz, to all three counties to check their court clerks’ file drawers to see if there is any case just sitting there, not moving. “The goal is to keep stuff moving and not to lose anything,” Hiltz said.
Clerks in the three counties also play a role. Every six months, for example, Carroll Chief Deputy Clerk Susan Caldon scours printouts provided by the state Administrative Office of Courts, looking for criminal cases with no future court date to make sure one is assigned.
Crawford said that is the key: “You’ve always gotta have another date.”
Trials are usually scheduled within two months of arraignment. Evidence-suppression and competency hearings are held at routine motion hours, rather than on separate days, compressing the docket and speeding it along. Continuances are granted sparingly and only for good cause by Judge Bates, who lawyers say is fair but keen on keeping current.
The culture of quickness is so strong that last March, when Louisville defense lawyer Charles Ricketts had to twice request continuances in a robbery case after overlooking personal conflicts — including “entertaining relatives from Great Britain” — he found himself apologizing profusely, blaming a glitch in his handheld computer.
Defense lawyers say the system succeeds also because Crawford’s office forks over evidence reports and photographs fully and quickly. Confessions and witness statements are provided within two weeks, sometimes on the day of indictment.
That allows defense counsel to quickly evaluate their case.
“The beauty of the system is that he doesn’t mess around with discovery,” the process through which one side obtains evidence from the other, Smith said. “He gets it to you. And you don’t have much of an excuse for not sticking to the timeline.”
Said Gatlin, who represented Kenney in the methamphetamine case: “You know exactly what you’re facing” — and so does the client.
The result is that defendants often quickly plead guilty, or if they don’t, their cases can proceed to trial without delay, lawyers say.
The report date — the do-or-die cutoff for negotiating a plea agreement or electing to go to trial — also encourages swifter settlements and saves time, by forcing both sides to evaluate their hand and averts last-minute pleas on the morning of trial, lawyers say.
The 15th Circuit is one of only a few that has such a cutoff, said Jefferson Circuit Judge James Shake, the new president of the Kentucky Circuit Judges Association. But in that circuit, defense lawyers, police, prosecutors and court officials all seem to champion it.
“The report date is a plus because it brings everything to a head — both sides know what the evidence is and whether it is worth it to go to trial,” said Wells, the former public defender in Carroll County.
And when cases are settled well before the trial date, clerks can avoid calling in a jury pool for a case that won’t be tried, which is “a waste of time and taxpayers’ money,” Caldon said.
If no deal is struck by the report date, said Wilhoit, the Carrollton police chief, “that’s when we start lining up witnesses and making sure they’re in town for trial.”
The result, he said, is fewer delays when the trial date arrives.
TRICKS OF THE TRADE Preparation makes trials speedy – or unnecessary
In Carroll, Grant and Owen counties, even the trials have a twist designed to encourage efficiency.
Unlike other circuits, Bates schedules jury trials at 8:30 a.m., rather than 9 or 9:30. The early start allows “one-day trials to be tried in one day” and not run over into the next, Crawford said.
Little things such as starting court early add up to delivering justice quickly, Crawford said.
“Victims want punishment for criminals, but they want to get it over with,” he said.
“Waiting one or two years to get a conviction, to make a defendant get a job or a GED or drug counseling [all of which are frequent conditions of probation], is not really helping them either,” Crawford said. Defendants released on bond tend to get in trouble again while they’re awaiting trial — “and then you have two cases against them.”
Crawford’s office tries few cases — he said they take too much time and manpower. “Thirty trials a year would kill us,” he said. Defense lawyers and detectives say it also helps that in the rare cases that go to trial, juries in the three counties are conservative, and usually are murder on defendants, especially those who steal or sell drugs.
Defense lawyers — and defendants — remember the case of a Louisville man who was caught stealing cartons of cigarettes in 1999 from a Carroll County tobacco outlet and took his chances at trial. He got a 20-year sentence for theft and for being a persistent felon. He died in prison.
“The folklore is that juries are even harsher than Crawford — and it is true,” said Smith, whose client Jeremy Dale Allender accepted a sentence last year of life without parole for 25 years for murder rather than risk a death sentence at trial.
But to keep defense lawyers and their clients honest, Crawford said, it is important to try murder cases from time to time and get good results. “The defense bar watches those,” he said.
Last year Crawford won a jury verdict of life without parole against Russell “Rusty” Hill, a 39-year-old truck driver convicted of the fatal shooting of an Owen County neighbor whom he suspected was having an affair with his wife.
“You have to have serious cojones to go to trial in these counties,” said Gatlin, the former public defender. Kenney, who pleaded guilty to the methamphetamine charge two weeks after indictment, said he did so in part because he knew Crawford’s reputation — and he knew that a jury would likely hammer him harder.
Charged with manufacturing meth while armed with a gun — he had a loaded shotgun when arrested — Kennedy could have gotten up to life in prison. He pleaded guilty to an amended charge and took the maximum sentence of 20 years that went with it.
“My lawyer kind of just told me that was the best deal he could do,” Kenney said.
IS IT FAIR? Some are leery of speed; others welcome it
Corrections Department records show that criminals from Carroll, Grant and Owen counties are locked behind bars in state prisons at nearly twice the rate for the state at large.
To Wells, who resigned in June to go into private practice after a year as public defender representing indigent people charged with felonies in Carroll County, the pace of justice is too swift to let public defenders do right by clients.
“It is hard on such a timeline to properly investigate cases, to line up expert witnesses, to get your ducks in a row,” Wells said. “It can be overwhelming.”
But other defense lawyers say that the system, although fast, is fair, and that Bates will grant more time for any case in which more investigation is needed.
Gatlin said he was given additional time to prepare for an assault case in which his client was acquitted at trial of assaulting a jail officer.
Gatlin said the swift system allows innocent defendants to avoid spending a year or two in jail awaiting trial and allows those who are convicted to move more quickly into state prisons, where there are more educational, recreational and vocational programs than in county jails.
“Defendants don’t like being in the county jail system and not knowing what is going to happen to them,” Gatlin said.
Victims and their families — like Debbie Sherrod, whose son, Joey Woods, 21, was shot to death by Allender in January 2002 — also get to move on more quickly with their lives.
She said she appreciated how Crawford’s office “got the ball rolling” — with Allender convicted and sentenced only eight months after he was indicted.
“I have heard of cases like this going on for two or three years,” she said. “They handled it real well.”


Friday, April 20th, 2007

Madisonville’s Pat Day accepts appointment 

FRANKFORT, Ky. – Governor Ernie Fletcher has appointed Pat A. Day, of Madisonville, as family court judge for the 4th Judicial Circuit, which consists of Hopkins County. The appointment is effective immediately. 

“Pat Day has served Hopkins County as a family lawyer for more than two decades, and her dedication and devotion to the judicial system will be tremendous assets as she assumes this new role,� said Governor Fletcher. 

Day is a self-employed attorney concentrating in family law.  She received a bachelor’s degree in business education from Murray State University and a juris doctor from the Louis D. Brandeis School of Law at the University of Louisville.  Day has served as president of the Hopkins County Bar Association, chairman of Discover Downtown and Leadership Greater Madisonville and vice chairman of the Madisonville Hopkins County Chamber of Commerce.  She is married to Kenneth D. Bivins. 

“For 26 years, I have served the people of Hopkins County. I have a great love for them. As I go on the bench, I will always keep their interest foremost and will do the very best job I can for them,� said Day. 

The judgeship was created by the 2006 General Assembly in an effort to reduce caseload backlog.  Day will serve until the seat is filled by general election this November. 

Democratic Candidate Steve Henry sued for Medical Malpractice

Friday, April 20th, 2007

By Ryan Alessi, Herald-Leader

A 22-year-old woman is alleging in a lawsuit that she had to receive a new hip after surgeons, including Democratic candidate for governor Steve Henry, damaged the bone during an operation and failed to check X-rays later that would have revealed their mistake.

Amie Fuchs, of Finchville in Shelby County, filed a medical malpractice lawsuit against Henry, an orthopedic surgeon, and two other surgeons, the University of Louisville Medical School Practice Association and University Orthopaedic Associates Inc. in Jefferson Circuit Court. 

“Defendant Stephen Henry, M.D., was negligent in his care and treatment of (Fuchs) by acts of omission and/or commission,” the suit says. Fuchs is seeking compensatory and punitive damages, but doesn’t specify amounts. 

Henry contends the surgery was conducted using a motion-picture X-ray device, and that any damage to Fuchs’ hip occurred after the operation, said Richard Schiller, Henry’s attorney. 

The lawsuit, which has not previously been made public, was filed in August 2005 but won’t be heard in court until June 2008, said Fuchs’ attorney Maury Kommor. 

Kommor said the issue stems from an Aug. 2, 2004, procedure in which Henry and two other surgeons operated on both of Fuchs’ legs to remove metal pins and hardware put in after a car accident April 28, 2002, broke both her legs. 

During the surgery, Fuchs’ left femoral neck, which is below the hip joint, was broken. 

“The post-operative X-rays were taken after the surgery but never reviewed by the doctors,” Kommor said. “She stayed overnight in excruciating pain.” The next day, when Henry’s colleague, Dr. Justin Ogden, checked in on Fuchs, she told him of the pain in her left leg. He checked her X-rays and scheduled another surgery for Aug. 4, Kommor said. 

By the time they operated, the blood supply had been cut off to the bone for so long that part of it died, the suit says. “That’s why they take the X-rays — to catch things like this,” Kommor said. 

Fuchs had to have her hip replaced 15 months later, Kommor said. 

Schiller, Henry’s attorney, said the surgeons would have caught any kind of damage during the operation. “The thought is that it happened sometime after that,” especially because the bone would have been fragile after Henry and the other surgeons removed a metal rod from it, Schiller said. 

“You have an eggshell hip,” Schiller said. “It’s a known complication.”