Archive for May, 2007

PSC DECIDES TO SPLIT TELEPHONE AREA CODE 270 – Eastern portion of 270 district to retain current numbers. Change begins in April 2008.

Thursday, May 31st, 2007

Thursday, May 31, 2007

“A transition period during which either the new area code or area code 270 may be used in the affected area will begin by April 1, 2008.  Mandatory use of the new area code will take effect on October 1, 2008.�

     The Kentucky Public Service Commission (PSC) has decided to accommodate the rising demand for new telephone numbers in western Kentucky by splitting area code 270, with the eastern portion retaining the current area code.

      In an order issued today, the PSC said that the western portion of area code 270, which includes the cities of Henderson, Hopkinsville, Madisonville, Murray and Paducah, will be assigned a new area code.

Cities remaining in area code 270 include Bowling Green, Columbia, Glasgow, Elizabethtown and Owensboro.

      The decision on where to retain area code 270 was made “on the basis of greatest population density and areas of fastest growth,� the PSC said.

      Mandatory use of the new area code will take effect on October 1, 2008. A transition period during which either the new area code or area code 270 may be used in the affected area will begin by April 1, 2008.

      The new area code number will be determined by the North American Numbering Plan Administrator (NANPA), which is responsible for allocating phone numbers to telecommunication providers.

      Before reaching its decision, the PSC actively sought public input. Public meetings were held last October and November in Hopkinsville, Paducah, Henderson, Bowling Green, Elizabethtown and Owensboro, the six most populous cities in area code 270.
 “Most of the comments we received, and there were relatively few, were in favor of splitting the area code,� PSC Chairman Mark David Goss said.  “That has been the practice in the past in Kentucky and we felt it was appropriate in this case as well.�

     The other option the PSC considered was to “overlay� a new area code on the area code 270 territory. An overlaid area code would require 10-digit dialing for local calls, but no changes to existing phone numbers.

      In deciding where to draw the line splitting area code 270, the PSC considered local calling areas, telephone company service boundaries and other technical issues, as well as public input. The boundary selected was preferred by both the telecommunications industry and members of the public who commented on the issue.
      NANPA notified the PSC in August 2006 that area code 270 was likely to run out of available phone numbers later this year. NANPA subsequently revised the exhaustion date to the fourth quarter of 2008.

      The need for new numbers is being driven by rapid growth in the area and the proliferation of cellular phones and other wireless devices that each require a new phone number.

      In an effort to further extend the life of area code 270, the PSC last year asked the Federal Communications Commission (FCC) to institute a procedure that would have required telecommunication providers to make available thousands of unused numbers held by them. The FCC has not yet acted on the PSC’s request.

      Because the process of establishing a new area code takes between 15 and 18 months, the PSC had to act now if the new area code was to be fully functional by the fourth quarter of next year.

      In today’s order, the PSC noted that new area codes in Kentucky have always been created by splitting existing area codes. Area code 270, which covers the western half of Kentucky, was created from a portion of area code 502 in April 1999 and area code 859 was carved out of area code 606 a year later.

      But the practice of splitting area codes may become less feasible in the future due to complications introduced as the geographic areas become ever smaller, the PSC said. Therefore, the option of creating overlays “may become a more attractive solution,� the PSC said.

      The PSC said it “understands the difficulties, inconvenience and expense associated with changing an area code and will make every effort to ensure that the transition is efficient.�  The PSC ordered all telecommunications providers in the area to submit, within 60 days, their plans for educating their customers about the split and the consequent dialing changes.

      Although an area code can, in theory, include as many as 10 million potential phone numbers, there actually are far fewer numbers available for use. Certain sequences of numbers are not used.

      Remaining numbers are allocated to telecommunication companies in groups of 10,000 known as NXX codes, or groups of 1,000 known as NXX-X blocks. A company may not use all of the numbers in a code or block.

      Area code number exhaustion occurs when there are no number blocks remaining to be assigned.

      Documents in the area code 270 case can be found on the PSC Web site, which is The case number is 2006-00357.
      The PSC is an independent agency attached for administrative purposes to the Department of Public Protection in the Environmental and Public Protection Cabinet. It regulates more than 1,500 gas, water, sewer, electric and telecommunication utilities operating in the Commonwealth of Kentucky and has approximately 110 employees.



Thursday, May 31st, 2007

From: Northern Kentucky Bar Assoc. Director
We are currently accepting articles for publication in this and future issues. Please submit your article electronically (to and limit it to two pages maximum.
The NKBA does reserve the right to edit for content as we see fit.  We look forward to your submissions and thank you in advance for your participation.
 Brandie Ingalls                                                                                                                      Interim Director
Northern Kentucky Bar Association

529 Centre View Boulevard
Crestview Hills, KY 41017
Phone: 859-781-4116
Fax: 859-781-1277


Thursday, May 31st, 2007

 May 31, 2007  by Ed Brayton on
For those who still think that Clarence Thomas is either A) an embarrassment to the Supreme Court or B) nothing more than a sockpuppet who blindly parrots Scalia’s opinions, I think it’s worth reading his dissenting opinion in the Raich case.
Not only did he write a brilliant opinion in the case, and not only was he on the opposite side from Scalia, but he quite conspicuously cited Scalia’s previous opinions in commerce clause cases to demonstrate that Scalia’s joining of the majority opinion was incoherent and hypocritical. He also writes quite bluntly about the proper originalist interpretation of the commerce clause, which Scalia, allegedly the leading originalist on the Federal bench, was explicitly abandoning in that case. I’ll reprint that dissent below the fold.
Justice Thomas, dissenting.
Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–and the Federal Government is no longer one of limited and enumerated powers.
Respondents’ local cultivation and consumption of marijuana is not “Commerce … among the several States.” U. S. Const., Art. I, §8, cl. 3. By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution’s limits on federal power. The majority supports this conclusion by invoking, without explanation, the Necessary and Proper Clause. Regulating respondents’ conduct, however, is not “necessary and proper for carrying into Execution” Congress’ restrictions on the interstate drug trade. Art. I, §8, cl. 18. Thus, neither the Commerce Clause nor the Necessary and Proper Clause grants Congress the power to regulate respondents’ conduct.
As I explained at length in United States v. Lopez, 514 U. S. 549 (1995), the Commerce Clause empowers Congress to regulate the buying and selling of goods and services trafficked across state lines. Id., at 586-589 (concurring opinion). The Clause’s text, structure, and history all indicate that, at the time of the founding, the term ” ‘commerce’ consisted of selling, buying, and bartering, as well as transporting for these purposes.” Id., at 585 (Thomas, J., concurring). Commerce, or trade, stood in contrast to productive activities like manufacturing and agriculture. Id., at 586-587 (Thomas, J., concurring). Throughout founding-era dictionaries, Madison’s notes from the Constitutional Convention, The Federalist Papers, and the ratification debates, the term “commerce” is consistently used to mean trade or exchange–not all economic or gainful activity that has some attenuated connection to trade or exchange. Ibid. (Thomas, J., concurring); Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101, 112-125 (2001). The term “commerce” commonly meant trade or exchange (and shipping for these purposes) not simply to those involved in the drafting and ratification processes, but also to the general public. Barnett, New Evidence of the Original Meaning of the Commerce Clause, 55 Ark. L. Rev. 847, 857-862 (2003).
Even the majority does not argue that respondents’ conduct is itself “Commerce among the several States.” Art. I, §8, cl. 3. Ante, at 19. Monson and Raich neither buy nor sell the marijuana that they consume. They cultivate their cannabis entirely in the State of California–it never crosses state lines, much less as part of a commercial transaction. Certainly no evidence from the founding suggests that “commerce” included the mere possession of a good or some purely personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.
On this traditional understanding of “commerce,” the Controlled Substances Act (CSA), 21 U. S. C. §801 et seq., regulates a great deal of marijuana trafficking that is interstate and commercial in character. The CSA does not, however, criminalize only the interstate buying and selling of marijuana. Instead, it bans the entire market–intrastate or interstate, noncommercial or commercial–for marijuana. Respondents are correct that the CSA exceeds Congress’ commerce power as applied to their conduct, which is purely intrastate and noncommercial.
More difficult, however, is whether the CSA is a valid exercise of Congress’ power to enact laws that are “necessary and proper for carrying into Execution” its power to regulate interstate commerce. Art. I, §8, cl. 18. The Necessary and Proper Clause is not a warrant to Congress to enact any law that bears some conceivable connection to the exercise of an enumerated power.1 Nor is it, however, a command to Congress to enact only laws that are absolutely indispensable to the exercise of an enumerated power.2
In McCulloch v. Maryland, 4 Wheat. 316 (1819), this Court, speaking through Chief Justice Marshall, set forth a test for determining when an Act of Congress is permissible under the Necessary and Proper Clause:
“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” Id., at 421.
To act under the Necessary and Proper Clause, then, Congress must select a means that is “appropriate” and “plainly adapted” to executing an enumerated power; the means cannot be otherwise “prohibited” by the Constitution; and the means cannot be inconsistent with “the letter and spirit of the [C]onstitution.” Ibid.; D. Currie, The Constitution in the Supreme Court: The First Hundred Years 1789-1888, pp. 163-164 (1985). The CSA, as applied to respondents’ conduct, is not a valid exercise of Congress’ power under the Necessary and Proper Clause.
Congress has exercised its power over interstate commerce to criminalize trafficking in marijuana across state lines. The Government contends that banning Monson and Raich’s intrastate drug activity is “necessary and proper for carrying into Execution” its regulation of interstate drug trafficking. Art. I, §8, cl. 18. See 21 U. S. C. §801(6). However, in order to be “necessary,” the intrastate ban must be more than “a reasonable means [of] effectuat[ing] the regulation of interstate commerce.” Brief for Petitioners 14; see ante, at 19 (majority opinion) (employing rational-basis review). It must be “plainly adapted” to regulating interstate marijuana trafficking–in other words, there must be an “obvious, simple, and direct relation” between the intrastate ban and the regulation of interstate commerce. Sabri v. United States, 541 U. S. 600, 613 (2004) (Thomas, J., concurring in judgment); see also United States v. Dewitt, 9 Wall. 41, 44 (1870) (finding ban on intrastate sale of lighting oils not “appropriate and plainly adapted means for carrying into execution” Congress’ taxing power).
On its face, a ban on the intrastate cultivation, possession and distribution of marijuana may be plainly adapted to stopping the interstate flow of marijuana. Unregulated local growers and users could swell both the supply and the demand sides of the interstate marijuana market, making the market more difficult to regulate. Ante, at 9-10, 19 (majority opinion). But respondents do not challenge the CSA on its face. Instead, they challenge it as applied to their conduct. The question is thus whether the intrastate ban is “necessary and proper” as applied to medical marijuana users like respondents.3
Respondents are not regulable simply because they belong to a large class (local growers and users of marijuana) that Congress might need to reach, if they also belong to a distinct and separable subclass (local growers and users of state-authorized, medical marijuana) that does not undermine the CSA’s interstate ban. Ante, at 6-7 (O’Connor, J., dissenting). The Court of Appeals found that respondents’ “limited use is distinct from the broader illicit drug market,” because “th[eir] medicinal marijuana … is not intended for, nor does it enter, the stream of commerce.” Raich v. Ashcroft, 352 F. 3d 1222, 1228 (CA9 2003). If that is generally true of individuals who grow and use marijuana for medical purposes under state law, then even assuming Congress has “obvious” and “plain” reasons why regulating intrastate cultivation and possession is necessary to regulating the interstate drug trade, none of those reasons applies to medical marijuana patients like Monson and Raich.
California‘s Compassionate Use Act sets respondents’ conduct apart from other intrastate producers and users of marijuana. The Act channels marijuana use to “seriously ill Californians,” Cal. Health & Safety Code Ann. §11362.5(b)(1)(A) (West Supp. 2005), and prohibits “the diversion of marijuana for nonmedical purposes,” §11362.5(b)(2).4 California strictly controls the cultivation and possession of marijuana for medical purposes. To be eligible for its program, California requires that a patient have an illness that cannabis can relieve, such as cancer, AIDS, or arthritis, §11362.5(b)(1)(A), and that he obtain a physician’s recommendation or approval, §11362.5(d). Qualified patients must provide personal and medical information to obtain medical identification cards, and there is a statewide registry of cardholders. §§11362.715-.76. Moreover, the Medical Board of California has issued guidelines for physicians’ cannabis recommendations, and it sanctions physicians who do not comply with the guidelines. See, e.g., People v. Spark, 121 Cal. App. 4th 259, 263, 16 Cal. Rptr. 3d 840, 843 (2004).
This class of intrastate users is therefore distinguishable from others. We normally presume that States enforce their own laws, Riley v. National Federation of Blind of N. C., Inc., 487 U. S. 781, 795 (1988), and there is no reason to depart from that presumption here: Nothing suggests that California’s controls are ineffective. The scant evidence that exists suggests that few people–the vast majority of whom are aged 40 or older–register to use medical marijuana. General Accounting Office, Marijuana: Early Experiences with Four States’ Laws That Allow Use for Medical Purposes 22-23 (Rep. No. 03-189, Nov. 2002), (all Internet materials as visited on June 3, 2005, and available in Clerk of Court’s case file). In part because of the low incidence of medical marijuana use, many law enforcement officials report that the introduction of medical marijuana laws has not affected their law enforcement efforts. Id., at 32.
These controls belie the Government’s assertion that placing medical marijuana outside the CSA’s reach “would prevent effective enforcement of the interstate ban on drug trafficking.” Brief for Petitioners 33. Enforcement of the CSA can continue as it did prior to the Compassionate Use Act. Only now, a qualified patient could avoid arrest or prosecution by presenting his identification card to law enforcement officers. In the event that a qualified patient is arrested for possession or his cannabis is seized, he could seek to prove as an affirmative defense that, in conformity with state law, he possessed or cultivated small quantities of marijuana intrastate solely for personal medical use. People v. Mower, 28 Cal. 4th 457, 469-470, 49 P. 3d 1067, 1073-1075 (2002); People v. Trippet, 56 Cal. App. 4th 1532, 1549 (1997). Moreover, under the CSA, certain drugs that present a high risk of abuse and addiction but that nevertheless have an accepted medical use–drugs like morphine and amphetamines–are available by prescription. 21 U. S. C. §§812(b)(2)(A)-(B); 21 CFR §1308.12 (2004). No one argues that permitting use of these drugs under medical supervision has undermined the CSA’s restrictions.
But even assuming that States’ controls allow some seepage of medical marijuana into the illicit drug market, there is a multibillion-dollar interstate market for marijuana. Executive Office of the President, Office of Nat. Drug Control Policy, Marijuana Fact Sheet 5 (Feb. 2004), It is difficult to see how this vast market could be affected by diverted medical cannabis, let alone in a way that makes regulating intrastate medical marijuana obviously essential to controlling the interstate drug market.
To be sure, Congress declared that state policy would disrupt federal law enforcement. It believed the across-the-board ban essential to policing interstate drug trafficking. 21 U. S. C. §801(6). But as Justice O’Connor points out, Congress presented no evidence in support of its conclusions, which are not so much findings of fact as assertions of power. Ante, at 13-14 (dissenting opinion). Congress cannot define the scope of its own power merely by declaring the necessity of its enactments.
In sum, neither in enacting the CSA nor in defending its application to respondents has the Government offered any obvious reason why banning medical marijuana use is necessary to stem the tide of interstate drug trafficking. Congress’ goal of curtailing the interstate drug trade would not plainly be thwarted if it could not apply the CSA to patients like Monson and Raich. That is, unless Congress’ aim is really to exercise police power of the sort reserved to the States in order to eliminate even the intrastate possession and use of marijuana.
Even assuming the CSA’s ban on locally cultivated and consumed marijuana is “necessary,” that does not mean it is also “proper.” The means selected by Congress to regulate interstate commerce cannot be “prohibited” by, or inconsistent with the “letter and spirit” of, the Constitution. McCulloch, 4 Wheat., at 421.
In Lopez, I argued that allowing Congress to regulate intrastate, noncommercial activity under the Commerce Clause would confer on Congress a general “police power” over the Nation. 514 U. S., at 584, 600 (concurring opinion). This is no less the case if Congress ties its power to the Necessary and Proper Clause rather than the Commerce Clause. When agents from the Drug Enforcement Administration raided Monson’s home, they seized six cannabis plants. If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress’ Article I powers–as expanded by the Necessary and Proper Clause–have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to “appropria[te] state police powers under the guise of regulating commerce.” United States v. Morrison, 529 U. S. 598, 627 (2000) (Thomas, J., concurring).
Even if Congress may regulate purely intrastate activity when essential to exercising some enumerated power, see Dewitt, 9 Wall., at 44; but see Barnett, The Original Meaning of the Necessary and Proper Clause, 6 U. Pa. J. Const. L. 183, 186 (2003) (detailing statements by Founders that the Necessary and Proper Clause was not intended to expand the scope of Congress’ enumerated powers), Congress may not use its incidental authority to subvert basic principles of federalism and dual sovereignty. Printz v. United States, 521 U. S. 898, 923-924 (1997); Alden v. Maine, 527 U. S. 706, 732-733 (1999); Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 585 (1985) (O’Connor, J., dissenting); The Federalist No. 33, pp. 204-205 (J. Cooke ed. 1961) (A. Hamilton) (hereinafter The Federalist).
Here, Congress has encroached on States’ traditional police powers to define the criminal law and to protect the health, safety, and welfare of their citizens.5 Brecht v. Abrahamson, 507 U. S. 619, 635 (1993); Hillsborough County v. Automated Medical Laboratories, Inc., 471 U. S. 707, 719 (1985). Further, the Government’s rationale–that it may regulate the production or possession of any commodity for which there is an interstate market–threatens to remove the remaining vestiges of States’ traditional police powers. See Brief for Petitioners 21-22; cf. Ehrlich, The Increasing Federalization of Crime, 32 Ariz. St. L. J. 825, 826, 841 (2000) (describing both the relative recency of a large percentage of federal crimes and the lack of a relationship between some of these crimes and interstate commerce). This would convert the Necessary and Proper Clause into precisely what Chief Justice Marshall did not envision, a “pretext … for the accomplishment of objects not intrusted to the government.” McCulloch, supra, at 423.
The majority advances three reasons why the CSA is a legitimate exercise of Congress’ authority under the Commerce Clause: First, respondents’ conduct, taken in the aggregate, may substantially affect interstate commerce, ante, at 19; second, regulation of respondents’ conduct is essential to regulating the interstate marijuana market, ante, at 21-22; and, third, regulation of respondents’ conduct is incidental to regulating the interstate marijuana market, ante, at 19-20. Justice O’Connor explains why the majority’s reasons cannot be reconciled with our recent Commerce Clause jurisprudence. The majority’s justifications, however, suffer from even more fundamental flaws.
The majority holds that Congress may regulate intrastate cultivation and possession of medical marijuana under the Commerce Clause, because such conduct arguably has a substantial effect on interstate commerce. The majority’s decision is further proof that the “substantial effects” test is a “rootless and malleable standard” at odds with the constitutional design. Morrison, supra, at 627 (Thomas, J., concurring).
The majority’s treatment of the substantial effects test is rootless, because it is not tethered to either the Commerce Clause or the Necessary and Proper Clause. Under the Commerce Clause, Congress may regulate interstate commerce, not activities that substantially affect interstate commerce–any more than Congress may regulate activities that do not fall within, but that affect, the subjects of its other Article I powers. Lopez, supra, at 589 (Thomas, J., concurring). Whatever additional latitude the Necessary and Proper Clause affords, supra, at 9-10, the question is whether Congress’ legislation is essential to the regulation of interstate commerce itself–not whether the legislation extends only to economic activities that substantially affect interstate commerce. Supra, at 4; ante, at 5 (Scalia, J., concurring in judgment).
The majority’s treatment of the substantial effects test is malleable, because the majority expands the relevant conduct. By defining the class at a high level of generality (as the intrastate manufacture and possession of marijuana), the majority overlooks that individuals authorized by state law to manufacture and possess medical marijuana exert no demonstrable effect on the interstate drug market. Supra, at 7-8. The majority ignores that whether a particular activity substantially affects interstate commerce–and thus comes within Congress’ reach on the majority’s approach–can turn on a number of objective factors, like state action or features of the regulated activity itself. Ante, at 6-7 (O’Connor, J., dissenting). For instance, here, if California and other States are effectively regulating medical marijuana users, then these users have little effect on the interstate drug trade.6
The substantial effects test is easily manipulated for another reason. This Court has never held that Congress can regulate noneconomic activity that substantially affects interstate commerce. Morrison, 529 U. S., at 613 (“[T]hus far in our Nation’s history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature” (emphasis added)); Lopez, supra, at 560. To evade even that modest restriction on federal power, the majority defines economic activity in the broadest possible terms as the ” ‘the production, distribution, and consumption of commodities.’ “7 Ante, at 23 (quoting Webster’s Third New International Dictionary 720 (1966) (hereinafter Webster’s 3d). This carves out a vast swath of activities that are subject to federal regulation. See ante, at 8-9 (O’Connor, J., dissenting). If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison’s assurance to the people of New York that the “powers delegated” to the Federal Government are “few and defined,” while those of the States are “numerous and indefinite.” The Federalist No. 45, at 313 (J. Madison).
Moreover, even a Court interested more in the modern than the original understanding of the Constitution ought to resolve cases based on the meaning of words that are actually in the document. Congress is authorized to regulate “Commerce,” and respondents’ conduct does not qualify under any definition of that term.8 The majority’s opinion only illustrates the steady drift away from the text of the Commerce Clause. There is an inexorable expansion from ” ‘commerce,’ ” ante, at 1, to “commercial” and “economic” activity, ante, at 20, and finally to all “production, distribution, and consumption” of goods or services for which there is an “established … interstate market,” ante, at 23. Federal power expands, but never contracts, with each new locution. The majority is not interpreting the Commerce Clause, but rewriting it.
The majority’s rewriting of the Commerce Clause seems to be rooted in the belief that, unless the Commerce Clause covers the entire web of human activity, Congress will be left powerless to regulate the national economy effectively. Ante, at 15-16; Lopez, 514 U. S., at 573-574 (Kennedy, J., concurring). The interconnectedness of economic activity is not a modern phenomenon unfamiliar to the Framers. Id., at 590-593 (Thomas, J., concurring); Letter from J. Madison to S. Roane (Sept. 2, 1819), in 3 The Founders’ Constitution 259-260 (P. Kurland & R. Lerner eds. 1987). Moreover, the Framers understood what the majority does not appear to fully appreciate: There is a danger to concentrating too much, as well as too little, power in the Federal Government. This Court has carefully avoided stripping Congress of its ability to regulate interstate commerce, but it has casually allowed the Federal Government to strip States of their ability to regulate intrastate commerce–not to mention a host of local activities, like mere drug possession, that are not commercial.
One searches the Court’s opinion in vain for any hint of what aspect of American life is reserved to the States. Yet this Court knows that ” ‘[t]he Constitution created a Federal Government of limited powers.’ ” New York v. United States, 505 U. S. 144, 155 (1992) (quoting Gregory v. Ashcroft, 501 U. S. 452, 457 (1991)). That is why today’s decision will add no measure of stability to our Commerce Clause jurisprudence: This Court is willing neither to enforce limits on federal power, nor to declare the Tenth Amendment a dead letter. If stability is possible, it is only by discarding the stand-alone substantial effects test and revisiting our definition of “Commerce among the several States.” Congress may regulate interstate commerce–not things that affect it, even when summed together, unless truly “necessary and proper” to regulating interstate commerce.
The majority also inconsistently contends that regulating respondents’ conduct is both incidental and essential to a comprehensive legislative scheme. Ante, at 19-20, 21-22. I have already explained why the CSA’s ban on local activity is not essential. Supra, at 7-8. However, the majority further claims that, because the CSA covers a great deal of interstate commerce, it “is of no moment” if it also “ensnares some purely intrastate activity.” Ante, at 19. So long as Congress casts its net broadly over an interstate market, according to the majority, it is free to regulate interstate and intrastate activity alike. This cannot be justified under either the Commerce Clause or the Necessary and Proper Clause. If the activity is purely intrastate, then it may not be regulated under the Commerce Clause. And if the regulation of the intrastate activity is purely incidental, then it may not be regulated under the Necessary and Proper Clause.
Nevertheless, the majority terms this the “pivotal” distinction between the present case and Lopez and Morrison. Ante, at 20. In Lopez and Morrison, the parties asserted facial challenges, claiming “that a particular statute or provision fell outside Congress’ commerce power in its entirety.” Ante, at 20. Here, by contrast, respondents claim only that the CSA falls outside Congress’ commerce power as applied to their individual conduct. According to the majority, while courts may set aside whole statutes or provisions, they may not “excise individual applications of a concededly valid statutory scheme.” Ante, at 20-21; see also Perez v. United States, 402 U. S. 146, 154 (1971); Maryland v. Wirtz, 392 U. S. 183, 192-193 (1968).
It is true that if respondents’ conduct is part of a “class of activities … and that class is within the reach of federal power,” Perez, supra, at 154 (emphases deleted), then respondents may not point to the de minimis effect of their own personal conduct on the interstate drug market, Wirtz, supra, at 196, n. 27. Ante, at 6 (O’Connor, J., dissenting). But that begs the question at issue: whether respondents’ “class of activities” is “within the reach of federal power,” which depends in turn on whether the class is defined at a low or a high level of generality. Supra, at 5. If medical marijuana patients like Monson and Raich largely stand outside the interstate drug market, then courts must excise them from the CSA’s coverage. Congress expressly provided that if “a provision [of the CSA] is held invalid in one of more of its applications, the provision shall remain in effect in all its valid applications that are severable.” 21 U. S. C. §901 (emphasis added); see also United States v. Booker, 543 U. S. ___, ___ (2005) (slip op., at 9, and n. 9) (Thomas, J., dissenting in part).
Even in the absence of an express severability provision, it is implausible that this Court could set aside entire portions of the United States Code as outside Congress’ power in Lopez and Morrison, but it cannot engage in the more restrained practice of invalidating particular applications of the CSA that are beyond Congress’ power. This Court has regularly entertained as-applied challenges under constitutional provisions, see United States v. Raines, 362 U. S. 17, 20-21 (1960), including the Commerce Clause, see Katzenbach v. McClung, 379 U. S. 294, 295 (1964); Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 249 (1964); Wickard v. Filburn, 317 U. S. 111, 113-114 (1942). There is no reason why, when Congress exceeds the scope of its commerce power, courts may not invalidate Congress’ overreaching on a case-by-case basis. The CSA undoubtedly regulates a great deal of interstate commerce, but that is no license to regulate conduct that is neither interstate nor commercial, however minor or incidental.
If the majority is correct that Lopez and Morrison are distinct because they were facial challenges to “particular statute[s] or provision[s],” ante, at 20, then congressional power turns on the manner in which Congress packages legislation. Under the majority’s reasoning, Congress could not enact–either as a single-subject statute or as a separate provision in the CSA–a prohibition on the intrastate possession or cultivation of marijuana. Nor could it enact an intrastate ban simply to supplement existing drug regulations. However, that same prohibition is perfectly constitutional when integrated into a piece of legislation that reaches other regulable conduct. Lopez, 514 U. S., at 600-601 (Thomas, J., concurring).
Finally, the majority’s view–that because some of the CSA’s applications are constitutional, they must all be constitutional–undermines its reliance on the substantial effects test. The intrastate conduct swept within a general regulatory scheme may or may not have a substantial effect on the relevant interstate market. “[O]ne always can draw the circle broadly enough to cover an activity that, when taken in isolation, would not have substantial effects on commerce.” Id., at 600 (Thomas, J., concurring). The breadth of legislation that Congress enacts says nothing about whether the intrastate activity substantially affects interstate commerce, let alone whether it is necessary to the scheme. Because medical marijuana users in California and elsewhere are not placing substantial amounts of cannabis into the stream of interstate commerce, Congress may not regulate them under the substantial effects test, no matter how broadly it drafts the CSA.
The majority prevents States like California from devising drug policies that they have concluded provide much-needed respite to the seriously ill. It does so without any serious inquiry into the necessity for federal regulation or the propriety of “displac[ing] state regulation in areas of traditional state concern,” id., at 583 (Kennedy, J., concurring). The majority’s rush to embrace federal power “is especially unfortunate given the importance of showing respect for the sovereign States that comprise our Federal Union.” United States v. Oakland Cannabis Buyers’ Cooperative, 532 U. S. 483, 502 (2001) (Stevens, J., concurring in judgment). Our federalist system, properly understood, allows California and a growing number of other States to decide for themselves how to safeguard the health and welfare of their citizens. I would affirm the judgment of the Court of Appeals. I respectfully dissent.
Ed Brayton is a freelance writer and businessman. He is the co-founder of Michigan Citizens for Science and The Panda’s Thumb and has written for such publications as The Bard, Ske

Study Finds Disparities in Judging of Asylum Cases

Thursday, May 31st, 2007

By JULIA PRESTON  New York Times  May 31, 2007
Asylum seekers in the United States face broad disparities in the nation’s 54 immigration courts, with the outcome of cases influenced by things like the location of the court and the sex and professional background of judges, a new study has found.
The study, by three law professors, analyzes 140,000 decisions by immigration judges, including those cases from the 15 countries that have produced the most asylum seekers in recent years, among them China, Haiti, Colombia, Albania and Russia. The professors compared for the first time the results of immigration court cases over more than four years, finding vast differences in the handling of claims with generally comparable factual circumstances.

In one of the starker examples cited, Colombians had an 88 percent chance of winning asylum from one judge in the Miami immigration court and a 5 percent chance from another judge in the same court.

“It is very disturbing that these decisions can mean life or death, and they seem to a large extent to be the result of a clerk’s random assignment of a case to a particular judge,� said an author of the study, Philip G. Schrag, a professor at Georgetown University Law Center.

The study offers an unusually detailed window into the overburdened and often erratic immigration courts. Though the immigration bill now being considered does not propose major revisions in asylum laws, those courts serve as the judicial backbone of the immigration system that would take on an immense new workload if the bill becomes law.

The legislation would offer a road to legal status to an estimated 12 million illegal immigrants, eliminate backlogs of legal immigration cases and step up enforcement, among other measures. Experts predict countless legal snags that would land before the immigration judges.

Officials at the Executive Office for Immigration Review of the Department of Justice, which oversees the immigration courts, declined to allow interviews about the study with David L. Neal, the chief immigration judge, citing a policy that immigration judges do not speak with the news media about their rulings.

The study found that someone who has fled China in fear of persecution and asks for asylum in immigration court in Orlando, Fla., has an excellent — 76 percent — chance of success, while the same refugee would have a 7 percent chance in Atlanta. Similarly, a Haitian seeking refuge from political violence is almost twice as likely to succeed in New York as in Miami.

Immigration lawyers acknowledge that the judges have difficult work, with huge dockets of cases that must be decided speedily on the basis of scant or subjective information. Often the asylum seeker is the only witness to crucial events.

But because immigration law is federal, the study’s authors argued, some uniformity could be expected in judges’ asylum rulings across the country, particularly in cases of people fleeing a country, like China or Colombia, where the conditions of political oppression or civil violence are publicly known.

“It’s such a high-volume system where the participants have so little time to test cases and make decisions, you become much more subject to the general viewpoint of the judge,� said Bo Cooper, a lawyer at Paul, Hastings, Janofsky & Walker who is a former general counsel of the Immigration and Naturalization Service. That has created a risk, Mr. Cooper said, that “the system will not be good enough at providing refuge to those in need or identifying the claims of those who are not in need.�

The wide discretion exercised by immigration judges can be disheartening to lawyers and disastrous for immigrants facing threats to their lives if they are forced to return home, immigration lawyers said.

“Oftentimes, it’s just the luck of the draw,� said Cheryl Little, a lawyer and executive director of the Florida Immigrant Advocacy Center, a legal assistance group in Miami that represents many asylum seekers. “It’s heartbreaking,� Ms. Little said. “How do you explain to people asking for refuge that even in the United States of America we can’t assure them they will receive due process and justice?�

While immigration officers at Citizenship and Immigration Services, the federal agency, can grant asylum, the majority of asylum cases are decided by the immigration judges. Under the immigration system, refugees are foreigners coming from abroad who win residency in the United States for protection from religious persecution or political threats. Asylum is granted to foreigners who apply for refuge when they are already in the United States.

The study is based on data on judges’ decisions from January 2000 through August 2004. It will be posted today on the Web site of the Social Science Research Network,, and published in November in the Stanford Law Review.

In addition to Professor Schrag, the authors are Andrew I. Schoenholtz, also a professor at Georgetown University Law Center, and Jaya Ramji-Nogales, a professor at Beasley School of Law at Temple University.



Wednesday, May 30th, 2007

Review of The Jewish Hospital  Defamation Lawsuit against Medical Malpractice Attorneys.  

   Some in the Jefferson County legal community have described the lawsuit filed by Jewish Hospital against two Louisville attorneys as a frontal assault on the legal profession.  Some have opined that this countersuit is intended to send a message to MedMal lawyers to back off the medical community.

Having obtained dismissals of the 96 complaints, Jewish Hospital has now filed a countersuit also known as a SLAPP suit (Strategic Lawsuits Against Public Participation).  This appears to be a call for the courts to implement the “Loser Pays� Doctrine in America.

   Under the “Loser Pays� Doctrine, the successful defendant in a civil lawsuit is awarded their attorney fees, costs and sometimes damages. That doctrine is used in England and other places, but has yet to gain a foothold in the United States. 

   We have reviewed the 41 page complaint filed in behalf of Jewish Hospital against Louisville attorneys Joseph L. White and Michael J. O’Connell.  The attorney for Jewish Hospital is Alice Barns Herrington of Woodward, Hobson & Fulton.  After the lawsuits were originally filed by White, Michael O’Connell entered the lawsuit as co-counsel. 

   Joseph White in 2004 filed lawsuits in behalf of 96 clients who claimed that they had contracted illnesses due to the unsanitary conditions at Jewish Hospital.  In statements to the press, Harrington alleged that White had failed to obtain a medical expert prior to the filing of his clients suits.   In a prior article on this subject, LawReader has pointed out that Kentucky case law does not require an attorney to consult with a medical expert prior to the filing of a medical malpractice claim.  (Although we noted it was the better practice.)   There is no statute or rule of procedure that requires consultation with a medical expert prior to the filing of a medical malpractice claim.

 The rule holds that if the question is a complex medical issue normally outside the understanding of jurors, then the party advancing such medical theory must present a qualified expert in order to get admission of the medical opinion before the jury. The case law in Kentucky has numerous examples of medical malpractice cases that were allowed to go to the jury without a medical expert being required.

                    No Medical Experts Relied on by Attorney White?  Upon review of the Jewish Hospital complaint prepared by Ms. Harrington and Jennifer Kincaid Adams, it appears that they admit in the body of the complaint that in fact White had secured the advice of medical experts.

On Page 10, line 56 of the Jewish Hospital complaint it is stated:
56. On October 11, 2005, White filed expert witness disclosures that he authored on behalf of the Plaintiff’s in the Miles lawsuit. The disclosures identified Rodney Luck M.D. (“Dr. Luck�) , an infectious disease physician; George Nichols, M.D. (Dr. Nichols�), a pathologist and former medical examiner; Donna Adkins, R.N. (“Ms. ; Adkins�), a registered nurse� and John Hyde, Ph. D. (“Dr. Hyde�), a hospital administrator.These same witnesses are stated in the Jewish Hospital complaint to have been listed by White in a number of the other cases.

The complaint details the theory of Ms. Harrington that justifies her claim that “White never obtained an opinion from any expert witness…�  

 First she qualifies the claim that White did not support his case with an expert by limiting the statement (which was not reported in her interview with the Courier-Journal) by adding the phrase “…regarding the significance of the infection data, and did not challenge the conclusion that the Hospital’s infection rate was below the national average.�

In fact the record reveals that these medical witnesses called by White were in fact deposed.

While their comments at the deposition may have failed to impress the trial judges, in fact they were called.  Anyone who has ever hired an expert will surely have war stories of how an expert was good in the initial interview, and then fell apart at the deposition. This is quite a different scenario from NOT HAVING CALLED AN EXPERT AT ALL.  We have not found a case in the authorities, where a failed expert justified a legal malpractice claim.

We would note that saying that “NO MEDICAL EXPERT� was relied on by White is one thing, but then saying that she only meant that he did not call an expert in  “infectious diseases� is quite a departure from her comments published in the Courier-Journal article. It should be noted that White had consulted with Dr. Luck who is identified in the Jewish Hospital complaint filed by Ms. Harrington as an expert in “infectious diseases�.  Dr. Luck was secured by White as an expert witness, but later Dr. Luck withdrew citing his busy schedule, but he stated in his letter of withdrawal, that he did not back down from his medical conclusions. 

We are not privy to what his medical conclusions were, but we cannot imagine White having secured Dr. Luck as an infectious disease expert if he had not opined that there was a causation link between the illnesses of the original plaintiff and the conditions in the hospital. 

  Ms. Harrington repeatedly in her complaint refers to the claim that “the Hospital’s infection rate was below the national average�. She repeatedly presents this statement as an absolute defense to medical malpractice by the Hospital.  She concludes that “Had White submitted the Hospital’s data to a qualified expert, he would have learned that his allegations were not true.�  On the face of that statement in the complaint, we fail to agree with her reasoning.  Overall statistics do not disprove an individual case of negligence.

We would suggest that under this theory proposed by Ms. Harrington, that if a hospital had amputated a patient’s left leg instead of the diseased right leg, that this would not be actionable if the Hospital’s statistics reported less incidents of such an act than other hospitals. (???)   The law for hundreds of years has dictated that any act of negligence is actionable, but Harrington propounds a theory that as long as your statistics are pretty good, that you can amputate with a blindfold on the surgeon and the decision on which leg to amputate can be made by tossing a coin.

                           Pursuing a Settlement is an Abuse of Process?

Ms. Harrington, states in the complaint at Page 25, Line 158:
“158. Defendants employed the Bartley, Miles, McCutcheon, and Weber lawsuits in particular and the MRSA litigation in general, for the improper purpose of forcing JHSMH to offer a monetary settlement in the face of false and adverse publicity.�
“159. Defendants’ conduct amounts to abuse of process.�Ms. Harrington was kind enough in her complaint to settle all issues of fact with her repeated observation (See page 10, Line 55) where she concludes that all claims of unsanitary conditions were “false� by reasoning:

“Had white submitted the Hospital’s data to a qualified expert, he would have learned that his allegations were untrue.�

Again, she concludes that the hospital’s statistics as compared to other hospitals infection rates were low, and therefore she reasons, White’s claims of unsanitary conditions were “false�.  Ergo, We don’t need a jury in such cases, we just need to rely on “statistics� and White and O’Connell must ignore the fact that White received “600 telephone calls� regarding complaints from former patients about the cleanliness of the Hospital.  

Further, Ms. Harrington fails to mention the fact that a former employee of Jewish Hospital, a Mr. Glen Bray gave a deposition on July 6, 2004. Mr. Bray was employed to disinfect the hospital rooms.  He expressed concerns about several types of infections the rooms had been exposed to, and the fact that he wasn’t given the time to correctly clean some rooms. We will provide some excerpts from his deposition:

Page 5 Question 10- How long have you worked for Jewish Hospital?
Answer 11- Eight and a half years approximately.
Page 6-Question 20-What did you do at Jewish Hospital?
Answer 21- I was a building service supervisor in the environmental services area.
Page 8  Answer 12 line 19—A lot of times we weren’t able to do our job.
Question 21 – Why?
Answer 22 – Because the census would be so high at the hospital that they needed the room, and they couldn’t keep the room down in the amount of time I needed to clean the room because the chemicals needed to do its job.
Page 9- Question 23- did you express your concern to anyone in management that you were not being given enough time to do the cleaning work that you were—your duties called on you to do—called on you to do and were not being given the time to allow the disinfectants to do their work?Page 10-Answer 4- Yes, I did.
Page 12 –Line 5-Question- To your knowledge were patients ever placed in rooms without the room being cleaned?
Line 7- Oh, yes.
Line 8- Question -Few or many times?
Line 13 –Answer- A lot.Bray detailed examples of bodily fluids contaminating patient rooms at Jewish Hospital.  The original lawsuits were filed by White in January of 2004.  The Bray deposition was taken in July of 2004.

                                          Throwing the Kitchen Sink

    Ms. Harrington in the Jewish Hospital complaint says that the lawsuits were based on “false� claims so egregious that White and O’Connell should be subjected to the Jewish Hospital’s lawsuit alleging multiple claims of Abuse of Process, Slander Per Se, False Light, Invasion of Privacy, Interference with Prospective Business Advantage, Wrongful Use of Civil Proceedings, and should be subject to damages including Punitive Damages, Attorney Fees and Court Costs.  

   It should be noted that there is no direct claim of legal malpractice among these claims in the Jewish Hospital complaint. These multiple legal theories are an aggregation of every legal theory but the kitchen sink.  We hope she has consulted with an expert before filing these claims, as her new standard for the filing of lawsuits might just boomerang. Under her theory, if she fails in any of these claims, then she should be subject to a countersuit by White and O’Connell.

                  The claim of Jewish Hospital appears to be based on two theories.

1.      An attorney should not file a medical malpractice lawsuit without an expert medical witness supporting the claim. While that is a good thing to do, it is not a requirement under Ky. Law.

This raises a number of possible defenses that Jewish Hospital must overcome.

“Kentucky has adopted an exception that allows medical malpractice claims to proceed without expert testimony where the negligence is so apparent that a layperson with general knowledge would have no difficulty recognizing it.� See Jarboe v. Harting, Ky., 397 S.W.2d 775, 778 (1965); Harmon v. Rust, Ky., 420 S.W.2d 563, 564 (1967); Maggard v. McKelvey, Ky. App., 627 S.W.2d 44, 49 (1981).

While White may have had medical experts in hand, he also was entitled to consider that it was possible that an expert wasn’t necessary if he believed that jurors would be allowed to make a finding that ‘if a patient without an infection is placed in a room full of infection, that the new patient may contract the infection.’  White and O’Connell had four medical witnesses.  The trial courts disallowed the testimony of three of these witnesses and one withdrew before giving testimony. The test that must be imposed by the court is not what the attorneys result was, but whether the attorneys were reasonable in their belief at the time of the filing of the lawsuits and whether or not that violated the practice followed by other lawyers..

Further White and O’Connell had the deposition of Mr. Glen Bray, the person in charge of cleaning up infections found in patient rooms, and who testified that he was ordered to turn over unclean and infected rooms to patients.  They had 600 telephone calls reporting illnesses contracted by patients of Jewish Hospital.

It is common knowledge that infections can spread from an infected person to a non-infected person.  While two of the trial judges, after the lawsuits were filed, disallowed the testimony of the plaintiff’s medical “experts�, at the time of the filing, the court must ask ‘was White acting negligently or “falsely� by believing his experts would be able to qualify?’

Was it a fraudulent act that White may have believed the initial medical opinions of the experts he consulted with?

We know of no legal authority that makes a lawyer responsible for negligence when his expert fails to deliver in a manner later found by the trial court to be insufficient for admission into evidence.

We have found no case ruling that requires a medical expert witness being in hand prior to the filing of a medical malpractice lawsuit. (We do not know when the four experts White secured were secured by White.)2. The lawsuits were never supported by any facts and all allegations were “false� in all material respects, and were instituted only for “the improper purpose of forcing JHSMH to offer a monetary settlement in the face of false and adverse publicity.�

Jewish Hospital must show that White knew the claims in his original complaint were false.  The only support offered in the 41 page complaint is that the hospital’s statistics as compared to other hospitals was pretty good.  The reasoning presented is that since White didn’t immediately accept this reasoning as the gospel truth, that this is proof of his fraudulent intent. 

We have never heard of the legal theory that made the seeking of a settlement an improper purpose. We have read nothing in the newspaper that appears to be Slander Per Se, but that is a matter of law for the trial court to decide.  White said the hospital rooms were not clean, and that the patients claimed they contracted their illnesses by reason of the lack of hygiene.  It would appear that if White received “600 telephone calls� from people reporting problems at the hospital, and only accepted 96 cases from that group, that some degree of discretion and professional judgment was exercised.

We have never heard of a legal theory that made it actionable for an attorney to submit to an interview by the press. (Ms. Arrington, herself has been interviewed at least once and is now, after the Courier-Journal story by Andy Wolfson, seeking a gag order preventing White and O’Connell from speaking to the press.) 

 The comments made by White in his original lawsuit and in court are privileged.  The comments made to the press may not be privileged, but then again they just may be. One of the defenses to a slander claim is the concept that fair comment on a matter of public interest is protected speech. See New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

It will be interesting to see if Jewish Hospital can bear the heavy burden of proof they have created for themselves.

     The bottom line is that Jewish Hospital after successfully extricating themselves from 96 lawsuits, has shown their intent to make an object lesson for anyone suing them.  They did not consider the sage advice in these matters that goes…� The publicity that results from a defamation lawsuit can create a greater audience for the false statements than they previously enjoyed.�   Jewish Hospital is not satisfied with dismissal of the 96 lawsuits, they now seek to crush the opposition. They now attempt to silence all the people who have made claims of unsanitary conditions at their facility, and discourage public discussion of an issue of great concern to the public.

After the original publication of this article, the Courier-Journal published the following editorial and news article.  Note that they say only 84 suits have been dismissed.

Courier Journal Article   May 31, 2007

Hospital drops request for gag order in lawsuit (see article)

 Jewish Hospital no longer wants a judge to bar lawyers from discussing its suit against two lawyers who unsuccessfully sued the hospital over allegedly unsanitary conditions.

Courier Journal Editorial   May 31, 2007

“People have some legitimate expectation of privacy. Companies — especially those dealing in life and death services for the public — don’t. “
 Gagging on the gag order
 Jewish Hospital did the right thing by withdrawing its request for a gag order, which would have prevented lawyers on both sides from publicly discussing the hospital’s suit against attorneys Joe White and Mike O’Connell.
 Gag orders are presumptively suspect. The system of justice in this country is supposed to operate in the open.
 This was a particularly bad case in which, instead, to invoke secrecy. It arose in reaction to suits filed by Mr. White and Mr. O’Connell alleging unsanitary conditions in Jewish Hospital facilities that could have led to serious consequences for patients.
Clearly, the public has a huge stake in any such dispute, involving one of the region’s primary health care providers. And it’s extremely unlikely that a judge would have agreed to subordinate the public’s need to know about such matters to a hospital company’s desire for secrecy.
 People have some legitimate expectation of privacy. Companies — especially those dealing in life and death services for the public — don’t.
 What’s hard to figure is why Jewish would have gone to court in the first place, attacking Mr. White and Mr. O’Connell, since those two attorneys’ numerous suits against the health care combine already had come to naught. It was inevitable that such an action would present numerous opportunities for repeating all the scary allegations that the hospital so earnestly wanted to defeat and silence.
 As for requesting the gag, so-called “protective orders” rarely are approved, and when they are it’s usually to prevent publicity that would taint a jury pool and prevent a fair trial. There was no justification for fearing that kind of extreme media coverage in this instance.
 Gary Weiss, who represents one of the two lawyers, offered a more persuasive explanation: The gag was sought to spare the hospital from ridicule and bad publicity. Which it’s getting anyway.



Tuesday, May 29th, 2007

The Supreme Court has created a 180 day “statue� of limitations to acts of intentional discrimination.  The Court imposed limits on claims and and limited claims to the 180 days immediately preceding  the formal making of a complaint to the Equal Employment Opportunity Commission. See Text of the Decision (pdf)  


“Held: Because the later effects of past discrimination do not restart the clock for filing an EEOC charge, Ledbetter’s claim is untimely.Pp. 4–24.
(a) An individual wishing to bring a Title VII lawsuit must first filean EEOC charge within, as relevant here, 180 days “after the alleged unlawful employment practice occurred.� 42 U. S. C. §2000e–2(a)(1).�
The high court’s majority rejected the position taken by other federal appeals courts and by the commission that the “paycheck accrual rule� should be followed, meaning that each pay period that fails to correct past discrimination should be regarded as a new incident of discrimination.

Justice Ruth Bader Ginsburg read part of her dissent aloud (an unmistakable sign of anger), and the tone of her opinion showed how bitterly she differed with the majority.

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined. GINSBURG, J., filed a dissenting opinion, in which STEVENS, SOUTER, and BREYER, JJ., joined.
Justice Ginsburg concluded in her 20 page dissent:
“The Court’s approbation of these consequences is totally at odds with the robust protection against workplace discrimination Congress intended Title VII to secure. See, e.g., Teamsters v. United States, 431 U. S., at 348 (“The primary purpose of Title VII was to assure equality of employment opportunities and to eliminate . . . discriminatory practices and devices . . . .�(internal quotation marks omitted)); Albemarle Paper Co.
v. Moody, 422 U. S. 405, 418 (1975) (“It is . . . the purpose of Title VII to make persons whole for injuries suffered on account of unlawful employment discrimination.�).�

The complete article:

By DAVID STOUT  New York Times May 29, 2007
WASHINGTON, May 29 — The Supreme Court ruled today, in a case of considerable interest to companies and workers alike, that employers are protected from lawsuits over pay discrimination linked to gender or race when the claims are based on decisions made or acts committed by the employer years ago.

Skip to next paragraph Voting 5 to 4 after apparently heated deliberations, the justices found in favor of the Goodyear Tire and Rubber Company and against Lilly M. Ledbetter, who worked for 19 years at the company’s plant in Gadsden, Ala., and was paid substantially less than men doing work at the same level.

The majority found against Ms. Ledbetter, saying she could not show that there had been intentional discrimination in the 180-day period before she complained to the Equal Employment Opportunity Commission in March 1998, shortly after she retired from the company following an unwanted transfer.

Goodyear’s argument that federal law protected the company from claims concerning discrimination that occurred before Sept. 26, 1997 — or 180 days before Ms. Ledbetter filed her complaint — was upheld.

Today’s ruling affirmed a decision by the United States Court of Appeals for the 11th Circuit, in Atlanta, which overturned a Federal District Court jury’s award to Ms. Ledbetter. The jury had awarded her more than $3 million in back pay and compensatory and punitive damages, but the judge lowered the amount to $360,000 because of limits imposed by Title VII of the Civil Rights Act of 1964.

The high court’s majority rejected the position taken by other federal appeals courts and by the commission that the “paycheck accrual rule� should be followed, meaning that each pay period that fails to correct past discrimination should be regarded as a new incident of discrimination.

Justice Samuel A. Alito Jr., writing for the majority, said that “current effects alone cannot breathe life into prior, uncharged discrimination.�

“Ledbetter should have filed an E.E.O.C. charge within 180 days after each allegedly discriminatory pay decision was made and communicated to her,� Justice Alito wrote. “She did not do so, and the paychecks that were issued to her during the 180 days prior to the filing of her E.E.O.C. charge do not provide a basis for overcoming that prior failure.�

Alluding to an earlier Supreme Court ruling, Justice Alito conceded that the 180-day deadline is “short by any measure.� But he went on, “This short deadline reflects Congress’s strong preference for the prompt resolution of employment discrimination allegations through voluntary conciliation and cooperation.� Joining Justice Alito were Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Anthony M. Kennedy.

The Bush administration had entered the case on Goodyear’s behalf. The case, Ledbetter v. Goodyear Tire and Rubber Company, No. 05-1074, was argued on Nov. 27.

Neal D. Mollen, an employment-law attorney in Washington who filed a brief backing Goodyear on behalf of the United States Chamber of Commerce, told Bloomberg News that today’s ruling has “great importance for employers.�

Michael Harper, a Boston University law professor who is an expert on labor and employment law, called the decision “definitely wrong from the point of view of policy� but “fully defensible� in view of the prior cases cited by the majority.“Congress had an opportunity to get this issue correct when it amended the statute in 1991, and some legislative history suggests the drafters of the 1991 amendments thought that they did so,� Mr. Harper said. “But they drafted the relevant amendment in a way that obscured that intent, and allowed the majority to issue this decision. To me, the case presents another lesson in the cost of poor legislative drafting.�

Justice Ruth Bader Ginsburg read part of her dissent aloud (an unmistakable sign of anger), and the tone of her opinion showed how bitterly she differed with the majority. She asserted that the effects of pay discrimination can be relatively small at first, then become far more serious as subsequent raises are based on the original low pay, and that instances of pay inequities ought to be treated differently from other acts of discrimination. For one thing, she said, pay discrimination is often not uncovered until long after the fact.

The majority’s holding, she said, “is totally at odds with the robust protection against workplace discrimination Congress intended Title VII to secure.� She said the majority “does not comprehend, or is indifferent to, the insidious way in which women can be victims of pay discrimination.�

“This is not the first time the Court has ordered a cramped interpretation of Title VII, incompatible with the statute’s broad remedial purpose,� she wrote. Her dissent was joined by Justices John Paul Stevens, David H. Souter and Stephen G. Breyer.

“Once again, the ball is in Congress’s court,� Justice Ginsburg wrote, expressing the hope that the lawmakers “may act to correct this parsimonious reading of Title VII.�


U.S. Court sets Precedent to Limit Attorney Fees in Civil Rights Cases.

Monday, May 28th, 2007

Feeding Lawyers’ Souls, but Not Their Wallets


By ADAM LIPTAK   Published: May 28, 2007


Last month, the federal appeals court in New York gave the civil rights bar a collective heart attack.


 Decision of the United States Court of Appeals for the Second Circuit, in New York, reducing fee award in Arbor Hill Concerned Citizens Neighborhood Association v. County of Albany. (April 24, 2007)

Petition for Rehearing (May 21, 2007)

Supporting brief filed by 29 public interest organizations. (May 22, 2007)

Supporting brief filed by two bar associations. (May 24, 2007)


It ruled that there are cases in which lawyers may be paid not in dollars but in what it called “non-monetary returns.� Those include, the court said, “experience, reputation or achievement of the attorneys’ own interests and agendas.�


That standard is new, and it has teeth. The lawyers involved had won a significant voting rights case, and they sought $445,000. They got $133,000.


In a flurry of legal filings last week, the lawyers, supported by two bar associations and 29 public interest organizations — including the Urban Justice Center, Public Citizen, the Natural Resources Defense Council and several affiliates of the American Civil Liberties Union — begged the court to reconsider.


“It really is a dangerous decision,� said David Udell, a lawyer with the Brennan Center for Justice at New York University, which represents the public interest groups. “What the court does is say that legal work is less valuable when the lawyers’ hearts are in it.�

The case itself was a challenge to the way Albany County in New York reapportioned its voting districts after the 2000 census. It was filed by two organizations representing minorities, including the local branch of the N.A.A.C.P., and three individuals.

In cases brought under the federal Voting Rights Act, the winning side is allowed to recover its legal fees from the losers. That is an exception to the conventional American practice of making each side bear its own legal fees, but it is not particularly unusual. Quite a few laws have similar fee-shifting provisions.


It is hard to be particularly sympathetic to the lawyers in the case, including several from Gibson, Dunn & Crutcher, a fancy corporate firm. They claimed, for instance, that an appeal involving a single, simple issue required almost 300 hours of work by eight lawyers and a $107,000 bill, to be paid by the taxpayers of Albany County.

That kind of money is in line with what big law firms charge their corporate clients. On the other hand, the request was preposterous.


A different panel of the appeals court, the United States Court of Appeals for the Second Circuit, was incredulous when it first saw the fee application in 2004.


“It is difficult to believe that a large amount of time was needed to prepare the brief’s description of the facts and procedural history; and the entire argument section of the brief on this single-issue appeal occupied barely six pages,� the appeals court said in an unsigned opinion. It sent the case back to the lower court with the strong suggestion that it slash the fee application.


It did — but for the usual reasons. Too many lawyers had billed too many hours at jaw-dropping hourly rates, two lower court judges found. The appeal, they said, was worth not $107,000 but $20,000.


So far so good. And in affirming those reductions last month, a three-judge panel of the court properly sought to bring some clarity and order to the question of how to treat fee applications, an area of the law that is without question a mess.

One of the judges on the panel was Sandra Day O’Connor, who has been sitting on quite a few appeals since her retirement from the Supreme Court last year. The solution she and the two other judges arrived at was at once eminently sensible and entirely impractical.


The court asked what a hypothetical, thrifty client would have paid a lawyer to litigate the case — that is, it asked what the market price in an arm’s-length transaction would have been. “Not incidentally,� Judge John M. Walker Jr. wrote for the panel, “a reasonable, paying client might consider whether a lawyer is willing to offer his services in whole or in part pro bono� — free — “or to promote the lawyer’s own reputational or societal goals.�


But there is a reason that client was hypothetical. The fee-shifting laws distort the marketplace in a way that makes it impossible to know what lawyers and clients would otherwise have done.


In an e-mail message, Mitchell A. Karlan, the Gibson, Dunn partner who argued the appeal, said he had taken the case without expecting to be paid — if he lost.

“My agreement with the plaintiffs,� Mr. Karlan continued, “was that I would apply for a fee on their behalf if I won, and that any fee the court awarded I and the other lawyers would keep.�


That is, for better or worse, how real-life pro bono works, and it is the system Congress had in mind in enacting fee-shifting statutes to encourage the private enforcement of civil rights laws.


Gibson, Dunn, which occasionally represents The New York Times Company, does not need the money. The average Gibson, Dunn partner makes $1.75 million a year, according to The American Lawyer.


But the new standard announced last month also applies to small firms and to advocacy groups, and it asks judges to inquire into lawyers’ motives in taking cases to decide how much their work was worth.


Lawyers who can prove they were in it only for the money will get paid in dollars. Others may have to make do with psychic income.


Online: Court documents and an archive of Adam Liptak’s articles and columns:

VIDEOS CAN BRING JUSTICE TO COURTS. Jury believes video of DUI driving over testimony of officer

Sunday, May 27th, 2007

ISSAC J. BAILEY,    May 27, 2007
The car was swerving terribly on the highway for miles, the S.C. State Trooper told us during a DUI case on which I was a jury member.
Then the prosecutor popped in the videotape from the trooper’s dashboard camera. The car drifted once to the left, its tires barely hitting the yellow line. We voted for acquittal. Without the videotape, I’m certain we would have voted guilty because we had no reason to disbelieve the trooper’s version of events.
I don’t believe he was being deceitful – he was professional – just that his memory and the videotape recorded different things.
A few years later I sat through the Vartasha McCollough-White trial. She was accused of killing her own daughter.
The circumstantial evidence was abundant, but there was no direct proof of McCollough-White’s guilt. There was compelling testimony from a detective who interrogated McCollough-White late at night without a lawyer. He asked if she killed her daughter. He said she nodded yes.
McCollough-White’s lawyer said the movement the detective took to be a confession was nothing more than a nervous rock. In his closing argument, the prosecutor opened with the strongest line of the trial.
To paraphrase the prosecutor: ‘”Did you kill your daughter, Vartasha,’ the detective asked. And she said yes,” he argued.
Had the interrogation been videotaped, the prosecutor could proved that McCollough-White had confessed. Instead, you had the word of a decorated law enforcement official versus that of a woman accused of killing her own child.
While the jury may have convicted based on other evidence, a videotape would have been an unbiased witness. A quarter of wrongful convictions involve false confessions.
I’ve spoken with court officials, including a judge, who said it makes sense to mandate the videotaping of murder interrogations.
About 20 states are considering joining those who mandate videotaping, according to the Innocence Project. South Carolina should join them as well.
That’s another reason I’ve been calling S.C. Attorney General Henry McMaster for the past month. If our state’s top prosecutor asked for more safeguards, his voice would carry more weight than most others.
He got back to me last week. His office said there was a mix-up and that’s why he hadn’t answered my questions. I’m hoping he’ll answer soon and help implement those safeguards.
ONLINE | For past columns and to read Bailey’s blog, go to



Sunday, May 27th, 2007

Article by LawReader CEO Gwen Billingsley

Here are three scenarios commonly used by thieves to get your credit card information while distracting you.  Be advised and be careful.

To report a stolen credit card or to cancel your card go to the LawReader page which provides the credit card reporting numbers you will need to call and limit your liability: CREDIT CARD, Visa Traveler’s Checks, REPORT STOLEN, NUMBERS TO CALL

This is a new one.
People sure stay busy trying to cheat us, don’t they?
A friend went to the local gym and placed his belongings in the locker.

After the workout and a shower, he came out, saw the locker open, and thought to himself, “Funny, I thought I locked the locker.  Hmm.” He dressed and just flipped the wallet to make sure all was in order.

Everything looked okay – all cards were in place.

A few weeks later his credit card bill came – a whooping bill of $14,000!

He called the credit card company and started yelling at them, saying that he did not make the transactions.
Customer care personnel verified that there was no Mistake in the system and asked if his card had been stolen. “No,” he said, but then tok out his wallet, pulled out the credit card, and yep – you guessed it – a switch had been made. An expired similar credit card from the same bank was in the wallet.
The thief broke into his locker at the gym and switched cards.

Verdict:  The credit card issuer said since he did not report the card missing earlier, he would have to pay the amount owed to them.

How much did he have to pay for items he did not buy?

$9,000! Why were there no calls made to verify the amount swiped?  Small amounts rarely trigger a “warning bell” with some credit card companies.

It just so happens that all the small amounts added up to one big one!


A man at a local restaurant paid for his meal with his credit card.

The bill for the meal came, he signed it, and the waitress folded the receipt and passed the credit card along. Usually, he would just take it and place it in his wallet or pocket. Funny enough, though, he actually took a look at the card and, lo and behold, it was the expired card of another person. He called the waitress and she looked perplexed.

She took it back, apologized, and hurried back to the counter under the watchful eye of the man.

All the waitress did while walking to the counter was wave the wrong expired card to the counter cashier, and the counter cashier immediately looked down and took out the real card.

No exchange of words — nothing! She took it and came back to the man with an apol o g y.

Verdict: Make sure the credit cars in your wallet are yours. Check the name on the card every time you sign for something and/or the card is taken away for even a short period of time.

Many people just take back the credit card without even looking at it, “assuming” that it has to be theirs.

Yesterday I went into a pizza restaurant to pick up an order that I had called in.

I paid by using my Visa Check Card which, of course, is linked directly to my checking account.

The young man behind the counter took my card, swiped it, then laid it on the counter as he waited for the approval, which is pretty standard procedure. While he waited, he picked up his cell phone and started dialing.

I noticed the phone because it is the same model I have, but nothing seemed out of the ordinary.

Then I heard a click that sounded like my phone sounds when I take a picture..

He then gave me back my card but kept the phone in his hand as if he was still pressing buttons.

Meanwhile, I’m thinking: I wonder what he is taking a picture of, oblivious to what was really going on.

It then dawned on me: the only thing there was my credit card, so now I’m paying close attention to what he is doing.

He set his phone on the counter, leaving it open. About five seconds later, I heard the chime that tells you that the picture has bee saved.

Now I’m standing there struggling with the fact that this boy just took a picture of my credit card.

Yes, he played it off well, because had we not had the same kind of phone, I probably would never have known what happened.

Needless to say, I immediately canceled that card as I was walking out of the pizza parlor.

All I am saying is, be aware of your surroundings at all times

Whenever you are using your credit card take caution and don’t be careless. Notice who is standing near you and what they are doing when you use your card.

Be aware of phones, because many have a camera phone these days.

When you are in a restaurant and the waiter/waitress brings your card and receipt for you to sign, make sure you scratch the number off.

Some restaurants are using only the last four digits, but a lot of them are still putting the whole thing on there.

I have already been a victim of credit card fraud and, believe me, it is not fun. The truth is that they can get you even when you are careful, but don’t make it easy for them. 


Ct. of Appeals hands down important case re: Expungement of criminal records.

Sunday, May 27th, 2007

   On Friday May 25th. the Court of Appeals handed down an important decision relating to  expungement.  The basic decision held that there can be no expungement in situations where a charge is dismissed with without prejudice.   Since the charge is dismissed without prejudice that means it can be refilled by the Commonwealth.  The legislature, the Court noted, did not include dismissals “without prejudice� in the category of charges that could be expunged. 


That being said, the decision goes on to discuss a procedure that may be of use to some of you clients.  That procedure is permitted by KRS 17.142  which permits application for the segregation of records when all charges have been dismissed, without the requirement of a dismissal with prejudice.  This procedure will not apply to court records, but it may be effective for other types of records retained by the police.

The decision also provides an interesting insight into expungement policies in Federal Court cases. Most federal courts hold that a court can use its inherent powers to expunge a record in instances of extraordinary circumstances, such as illegal prosecutions, arrests
under unconstitutional statutes, or where necessary to vindicate constitutional or statutory rights.  Kentucky case law is scarce when dealing with inherent powers to expunge records. But in a proper case you might want to consider an application for expungement based on the Federal theory.


For full text of case click case number 2005-CA-000829



 The Legislature intentionally put the words with prejudice¡± in the statute. Reading the statute to also include instances where a case was dismissed without prejudice would disregard the plain language of the statute. [A] court may not insert language to arrive at a meaning different

Case law says that a court can expunge judicial and executive records in instances that do not have statutory authority

 Allowing the police broad discretion in retaining arrest records enables them to utilize more efficiently their facilities for combating crime

expungement is ordinarily reserved for remedying the denial of an individual’s constitutional rights. 

KRS 17.142 permits application for the segregation of records when all charges have been dismissed, without the requirement of a dismissal with prejudice.


STUMBO, JUDGE: This appeal comes from a Fayette Circuit Court decision granting Darwin Holloway’s petition for the expungement of all records concerning a 1996 case.

In May of 1996, Holloway was charged with various felony and misdemeanor theft crimes. The case was submitted to the Grand Jury, but a No True Bill was returned and
the charges dismissed. In March of 2005, Holloway filed a Petition for Expungement pursuant to KRS 431.078, which states in pertinent part:

The Commonwealth’s response to the petition noted that KRS 431.078 applies only to convictions for misdemeanors or violations. The Commonwealth also
pointed out that KRS 431.076, which also concerns expungements, applied only to instances in which the accused was either acquitted of the charges or the charges were dismissed with prejudice

Thus, the Commonwealth argued, neither statute was a vehicle for relief for Holloway since a charge that results in a No True Bill finding by the Grand Jury is not
dismissed with prejudice and can be refiled by the Commonwealth. RCr 5.22(3).

The trial court found this to be a situation that seemed to slip between the cracks of KRS 431.078 and KRS 431.076. Neither statute directly deals with the
situation where a grand jury declines to take action on a felony charge

The Legislature intentionally put the words with prejudice in the statute. Reading the statute to also include instances where a case was dismissed without prejudice would disregard the plain language of the statute. [A] court may not insert language to arrive at a meaning different from that created by the stated language in a statute. Peter Garrett Gunsmith, Inc. v. City of Dayton, 98 S.W.3d 517, 520 (Ky. App.

As for the Commonwealth’s other two arguments, case law says that a court can expunge judicial and executive records in instances that do not have statutory authority.

 In U.S. v. Doe, 556 F.2d 391, 393 (6th Cir. Ohio 1977), the court states that it is within the inherent equitable powers of a [court] to order the expungement of a
record in an appropriate case. Kentucky case law is scarce when dealing with inherent powers to expunge records. The issue, however, has been heavily litigated in federal courts.

Most federal courts hold that a court can use its inherent powers to expunge a record in instances of extraordinary circumstances, such as illegal prosecutions, arrests
under unconstitutional statutes, or where necessary to vindicate constitutional or statutory rights. U.S. v. Gillock, 771 F.Supp. 904, 908 (W.D.Tenn. 1991).

The courts¡¯ power to expunge matters from records is one of ¡®exceedingly narrow scope¡¯ to be reserved for extreme cases and is not to be used routinely.

The mere fact that an individual is not convicted on the charges on which he was arrested does not entitle him to expungement of the arrest record. Rather, expungement is ordinarily reserved for remedying the denial of an individual¡¯s constitutional rights.  Coles v. Levine, 561 F.Supp. 146, 153 (D. Md.1983) (citations omitted).

In the case at bar, there were no constitutional infractions alleged that required a remedy; nor were there extraordinary circumstances found to take into account.

. Allowing the police broad discretion in retaining arrest records enables them to utilize more efficiently their facilities for combating crime.

There is a string of cases from the United States
Court of Appeals for the Seventh Circuit that use a balancing test to determine whether or
not a court can expunge records. In Diamond v. U.S., 649 F.2d 496 (7th Cir. 1981), that court approved a case-by-case approach in which  the court must weigh the reasons advanced for and against expunging arrest records.

 If the dangers of unwarranted adverse consequences to the individual outweigh the public interest in maintenance of the records, then expunction is appropriate. Id. at 499 (citation omitted); see also U.S. v. Bohr, 406 F.Supp. 1218 (D.C. Wisc. 1976); U.S. v. Janik, 10 F.3d 470 (7th Cir. 1993).

In this case, however, there have been no factual findings that Holloway¡¯s reasons for receiving an expungement outweigh the need of the Commonwealth to retain those records.

We note that Holloway does have another remedy that is provided by statutory authority.

KRS 17.142 permits application for the segregation of records when  all charges have been dismissed, without the requirement of a dismissal with prejudice.

This statute would allow Holloway to have the records held by any public agency segregated and removed from the public record.

 This statute does not however apply to judicial records. Commonwealth v. Shouse, 183 S.W.3d 204 (Ky.App. 2006). While this remedy does not rise to the level of an expungement, it does provide for some relief.

The order of the Fayette Circuit Court is reversed.


Gregory D. Stumbo
Attorney General of Kentucky
Bryan D. Morrow
Assistant Attorney General
Frankfort, Kentucky

Governor Fletcher Appoints Brent Hall as Family Court Judge for Hardin County

Saturday, May 26th, 2007

FRANKFORT, Ky. – Governor Ernie Fletcher has appointed Matthew Brent Hall, of Elizabethtown, as family court judge for the 9th Judicial Circuit, Division 4, which consists of Hardin County.
Hall currently serves as a contract administrative law judge for the Kentucky Parole Board.  He has served as assistant commonwealth’s attorney for the 9th Circuit and assistant Hardin County attorney.  He received a bachelor’s degree in political science from Baylor University and a juris doctor degree from the Louis D. Brandeis School of Law at the University of Louisville.  Hall is a member of the Elizabethtown Lions Club, the Elizabethtown Youth Soccer Association, Gates Youth Softball League, Hardin Teen Court and the Hardin County Historical Document Committee.  He is a volunteer for Men on Mission, a Baptist ministry, and is married to Tammy Lynn Hall.
“I am very pleased that the Governor has chosen me to serve the people of Hardin County,� said Hall.  “I am very humbled by the public’s support in the recent primary election and I look forward to serving as family court judge.�
The judgeship was created by the 2006 General Assembly in an effort to reduce caseload backlog.  Hall will serve until the seat is filled by general election in November.


Friday, May 25th, 2007


The top federal prosecutor for Eastern Kentucky has been nominated to fill a vacancy on the federal bench.
President Bush yesterday nominated U.S. Attorney Amul Thapar to fill the vacancy in the U.S. District Court for the Eastern District of Kentucky when Chief U.S. District Judge Joseph Hood retires in October.

Before his current post, Thapar was an assistant U.S. attorney in the Southern District of Ohio, where he focused on financial crimes, including mortgage fraud. Thapar, of Edgewood, also worked as an assistant U.S. attorney for the District of Columbia. He has worked in private practice in Cincinnati and Washington, D.C. Thapar is a graduate of Boston College and the University of California.
The nomination was announced by Sen. Mitch McConnell, R-Kentucky, yesterday.

This nomination must be approved by the U.S. Senate.  Now that the Democrats control the Senate it remains to be seen if he can obtain approval. Thapur recently publically offered his support of Attorney General Gonzales.  Members of both parties have called for the resignation of Gonzales over his involvement in the firing of eight U.S. Attorneys and other issues relating to his operation of the Justice Department.

Another issue which might resonate with the Democratic majority in the Senate is the failure of Thapar to pursue the Merit System scandal in Frankfort.  Thapar was sent the records of the Gov. Ernie Fletcher investigation by the Franklin County Grand Jury over six months ago.  When he was appointed during the height of the investigation of Gov. Fletcher, Thapur said that “no official was above the law�. 

The Justice Dept. actively prosecuted an aide to the Democratic Mayor of Chicago for similar civil service violations in 2006.  The charges prosecuted in Illinois resulted in a prison sentence for the Mayors aide. 

In Kentucky, the Justice Department has given no indication of any potential action against Fletcher or others who were indicted in state court.  Fletcher pardoned all of the persons indicated in the scandal.  The law allows prosecution in Federal Court for civil service violations which involve offices that receive Federal funds, and this would include most of the offices involved in the scandal described by Gov. Fletcher as a prosecution for “Noodling� of fish.


Friday, May 25th, 2007

A lobbyist is prohibited by Kentucky law from making a direct campaign contribution to a member of the legislature, see KRS 6.767.  However, he may serve as a fundraiser for a legislator due to the definition of “fundraising� adopted by the legislature in KRS 6.811 and KRS 121.015(11).

One is not defined as a “fundraiser� unless the candidate is seeking an office whose jurisdiction contains more than 200,000 population.

 The average state senate jurisdiction in Kentucky contains a population of 105,263.  (4,000,000 divided by 38 senators = 105,263). (House Districts have an average population of 40,000.) Therefore this definition would apply only to fundraising for statewide races, congressional district races, and Court of Appeals and Supreme Court races.


While  a lobbyist may not make a direct contribution, he would appear to be acting legally in serving as a fundraiser for legislative candidates.  



KRS 6.767 Prohibition against acceptance of campaign contributions from legislative agents — Penalty.
A member of the General Assembly, candidate for the General Assembly, or his campaign committee shall not accept a campaign contribution from a legislative agent…..Violation of this provision is ethical misconduct.

KRS 6.811 Prohibitions against certain conduct by legislative agents and their
employers — Penalties.

 (5) A legislative agent shall not serve as a campaign treasurer, or as a fundraiser as set forth in KRS 121.170(2) for a candidate or legislator.

(6) A legislative agent shall not make a campaign contribution to a legislator, a candidate, or his campaign committee.

 (11) If any legislative agent or employer violates any provision in subsections (4) to (8) of this section, he shall for the first violation be guilty of ethical misconduct. For the second and each subsequent violation, he shall be guilty of a Class D felony.
Effective: September 16, 1993
History: Created 1993 (1st Extra. Sess.) Ky. Acts ch. 4, sec. 26, effective September
16, 1993.


KRS 121.015 Definitions for chapter. As used in this chapter:

 (11) “Fundraiser” means an individual who directly solicits and secures contributions on behalf of a candidate or slate of candidates for a statewide-elected state office or an
office in a jurisdiction with a population in excess of two hundred thousand
(200,000) residents;
KRS 121.170 Registration of committees and fundraisers — Information required –
Permanent committee by member of General Assembly prohibited.
 (2) Any person who acts as a fundraiser by directly soliciting contributions for an
election campaign of a candidate or slate of candidates for statewide-elected state
office or an office in a jurisdiction containing in excess of two hundred thousand
(200,000) residents shall register with the registry when he raises in excess of three
thousand dollars ($3,000) in any one (1) election for the campaign committee by
filing official notice giving his name, address, occupation, employer or, if he is selfemployed, the name under which he is doing business, and all candidates or slates
of candidates for whom he is soliciting on forms prescribed by the registry. A
registered fundraiser shall comply with the campaign finance reporting
requirements of KRS 121.180(3), (4), and (5).


In an article published in the Courier Journal, Senate President David Williams has launched an effort to raise $2,000,000 for Senate Republican campaigns in the 2008 election cycle, by having the lobbyists “inform their clients� about the opportunity to donate to the “Republican Party of Kentucky Senate Trust� or the “Senate Republican Caucus Committee the State Republican Party committee�.


So while the lobbyist is prohibited from making a direct contribution to a legislator, he may inform his client on how to get around this prohibition without any real problem.


This procedure does not appear to violate any law.

See Loftus Article in Courier Journal:
Lobbyists urged to raise cash for GOP
Senate leader says meeting was legal
By Tom Loftus  The Courier-Journal  May 25, 2007
FRANKFORT, Ky. — Senate President David Williams met with about 40 lobbyists in Louisville on Wednesday to ask them to help raise up to $50,000 each for Senate Republican campaigns next year.
Williams served as host of a luncheon at Louisville’s Muhammad Ali Center, where he made his pitch to the lobbyists and about 40 other past supporters of his caucus.
Senate Republicans have scheduled a fundraising dinner for July 19 in Louisville.
At Wednesday’s luncheon, the lobbyists and others were invited to sign a “commitment form” pledging to raise or give one of four amounts — $5,000, $10,000, $25,000 or $50,000 — to the Republican Party of Kentucky Senate Trust or the Senate Republican Caucus Committee.
Williams, R-Burkesville, said in an interview yesterday that he followed all state ethics laws in organizing the lunch, as well as the July 19 fundraiser.
“I have always had our people try to follow the letter of the law and all of the ethics opinions, and we believe we’re doing that,” he said.
He said he asked lobbyists only to inform their clients of the opportunity to give and not to actually solicit contributions.
Williams declined to release a list of names of those who attended the meeting or were invited in a May 15 letter.
Lobbyists are barred by law from giving to a legislator’s campaign or to the Senate Republican Caucus Committee, which as its name suggests is controlled by GOP members of the Senate.
But they may give to the Senate Trust, which is controlled by the state party.
And their clients can give to either committee.
Senate Republicans currently hold a 21-16 edge over Democrats, with one independent. Half of the Senate’s 38 seats are up in the 2008 election; nine are held by Republicans, 10 by Democrats.
Sen. Tim Shaughnessy, D-Louisville, said Williams’ fundraising effort might be unprecedented in that he convened a group including so many lobbyists to organize a fundraiser and that the maximum amount to be raised was $50,000.
“I’ve always found David Williams to be an honorable person and expect he followed the law here,” Shaughnessy said. “But this is the kind of thing the average person would say may be within the letter of the law, but it’s just not right.”
Richard Beliles, chairman of Common Cause of Kentucky, said it was “inappropriate and the numbers are egregious. It’s a continuing step in a process that allows special corporate interests to purchase the government from control of the average citizen.”
Anthony Wilhoit, executive director of the Kentucky Legislative Ethics Commission, said he was aware of Wednesday’s meeting. But he declined to comment on the propriety of it.
“I don’t know all the facts,” he said. “And when any situation like this is raised, it could become subject of commission proceedings.”
Two major lobbyists with long lists of corporate clients — John Cooper of Georgetown and Bob Babbage of Lexington — confirmed that they attended the meeting but declined to comment.
Cooper represents the Kentucky bankers and medical associations, among others. Babbage’s clients include Motorola and GlaxoSmithKline, a pharmaceutical company.
Lobbyist Bob Heleringer, a Louisville Republican and former state House member, said he attended the meeting and found nothing improper or unusual.
“The only thing unusual thing was that they invited me,” he said. “I only have two clients.”
He said he will tell his clients about the fundraiser.
State law bars a registered lobbyist from making a contribution to the campaign of a candidate for the General Assembly. It also prohibits lobbyists from contributing to entities such as the Senate Republican Caucus Committee, which are controlled by legislators.
But the law does allow lobbyists to contribute to entities such as the Republican Party of Kentucky Senate Trust because such funds are controlled by officials of the party — not legislators.
Williams estimated that 80 people attended the meeting and that about half were lobbyists.
He said lobbyists were a major part of the group because he wanted to explain the law and make clear that they were not allowed to give to the caucus committee.
Asked if the difference is a technicality because contributions to either group are intended to fund Republican candidates for the Senate next year, Williams said: “We follow the law. I’ve had lawyers look at the thing. I’ve read the ethics opinions myself.”
Asked why he handed out forms requesting those present to commit to raising certain amounts, Williams said, “We’re trying to establish a structure for the fundraiser and to determine what sort of goals we have that we want to meet so we can keep track of where we are.”
Among the nonlobbyists at the luncheon, he said, were Transportation Secretary Bill Nighbert, Lexington highway contractor Leonard Lawson, Senate Republican Leader Dan Kelly of Springfield and Sen. Kenneth Winters, R-Murray.
Reporter Tom Loftus can be reached at (502) 875-5136.


Thursday, May 24th, 2007

Franklin Circuit Judge Thomas Wingate, ruling in a class action filed in behalf of all sitting Kentucky Judges, has found that the legislature has set a end date for the Senior Judge’s Program for Jan. 31, 2009, and not July of 2007 as some feared.


The suit was filed to clarify the meaning of the statute in which the Revisor of Statutes had left in the heading the date of 2007, but in the body of the statute correctly reported the intent of the legislature who amended .

KRS 21.580 creates this issue because there is a statement in the heading of the statute which is contained in parenthesis which states (Effective until July 1, 2007).

Judges who elect to serve as Senior Status Judges for 600 days after their retirement receive enhanced retirement benefits.  If the court had ruled that the 2007 date was applicable, then a large but unknown number of judges would likely have retired early to benefit from the program.

The court’s ruling gives judges close to retirement age, an additional l8 months in office

Governor Ernie Fletcher Appoints David Perdue as District Judge for Clark and Madison counties

Thursday, May 24th, 2007

FRANKFORT, Ky. – Governor Ernie Fletcher has appointed David G. Perdue, of Winchester, as district judge for the 25th Judicial District, Division 3, which consists of Clark and Madison counties. 

Perdue is a practicing attorney and a trial commissioner for Clark County.  He received a bachelor’s degree in police administration from Eastern Kentucky University and a juris doctor degree from the University of Kentucky.  Perdue has served as president, vice-president and secretary/treasurer of the Clark County Bar Association, and as a trustee for the Clark County Law Library.  He serves on the Clark County YMCA Board of Directors and is married to Patricia F. Perdue. 

“I appreciate Governor Fletcher providing me with this opportunity and I’m grateful to the voters for showing their confidence in me this past Tuesday,� said Perdue.  “I look forward to serving the folks in Clark and Madison counties as their district judge.� 

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


Attn. Gen. Stumbo seeks dismissal of Frost, Brown & Todd from gas gouging lawsuit, due to Conflict of Interest.

Thursday, May 24th, 2007

Attorney General Greg Stumbo today filed additional pleadings in federal court supporting the 89 million dollar gas price gouging suit filed against Marathon Petroleum Company and Speedway SuperAmerica by the Commonwealth of Kentucky two weeks ago. 

The filing comes as Marathon’s lawyers fight a motion to disqualify them from the case. In the motion, Stumbo notes that Frost, Brown, Todd, LLC has a contract through June 30, 2008 with the Office of the Governor under which they are permitted to represent Governor Fletcher in a variety of matters. Despite that contract, the motion alleges that Frost, Brown, Todd, LLC, on behalf of Marathon now improperly challenges the power of their own client, Governor Fletcher, to issue Executive Orders in times of emergency. In response, Marathon dropped the Governor as a named defendant in the gas price gouging lawsuit, but Stumbo says that did not cure the conflict because the lawsuit continues to challenge the Governor’s authority. 

Governor Fletcher issued a Declaration of Emergency immediately following the devastating impact of Hurricane Katrina in 2005. Stumbo warns that Marathon’s attack on the Governor’s authority will “impact every arm of the Commonwealth of Kentucky called into action under the Declaration of Emergency.� Several state agencies were authorized to act under the Declaration, including: 

  1. The Division of Emergency Management within the Department of Military Affairs, which was ordered to execute Kentucky’s Emergency Operations Plan; 
  2. The Adjutant General, who was authorized to issue active duty orders to mobilize members of the National Guard; 
  3. The Finance and Administration Cabinet, which was directed to fund the costs of the emergency operations; and 
  4. The Kentucky Community Crisis Response Board, which was directed to activate trained counselors to provide crisis response services. 

Stumbo points out that Marathon’s federal suit is still a “direct challenge to the Governor’s powers to declare an emergency and trigger the anti-price gouging provisions of Kentucky state law,� and renews his request that Marathon’s lawyers be disqualified from any further involvement in the action, in light of their ongoing representation of Governor Fletcher in other matters. 




30th. Anniversary of Beverly Hills Supper Club fire. Building are safer today.

Thursday, May 24th, 2007

         May 28 marks the 30th anniversary of a horrific fire that swept through the Beverly Hills Supper Club in Southgate, Ky. By the time the last embers were extinguished, 165 people were killed and 200 injured in one of the nation’s worst fire disasters.
            Kentuckians are far safer today because of building code and fire safety measures adopted and enforced as a result of the Beverly Hills fire.
The tragedy unfolded when nearly 3,000 people jammed into the popular northern Kentucky nightspot on Saturday, May 28, 1977. More than 1,000 patrons filled the club’s main showroom, the Cabaret Room, eagerly anticipating a performance by singer John Davidson.
            Shortly before 9 p.m., fire broke out in a small area called the Zebra Room.  At first, staff and patrons did not realize it was a fire, but when they eventually saw flames they attempted to extinguish it while others made calls to the Southgate Fire Department.
Within moments, the Zebra Room went up in flames as all its combustible materials ignited in a phenomenon known as “flashover.� Thick smoke rolled down a hallway toward the over-crowded Cabaret Room. A few minutes later, a busboy, Walter Bailey, interrupted the two comedians on stage and informed the audience that a fire had broken out, asked them to evacuate and pointed to the exit doors. Some patrons believed he was part of the comedy act and stayed at their seats. Others began heading for the exits. Before long, thick, black smoke filled the Cabaret Room, the lights went out and panic ensued.
        Patrons rushed frantically in the dark trying to find the exits.  Dozens of people crammed the exits, only to find the doorways were too narrow, the doors opened inward and they were blocked shut by the surging crowds.
Outside, emergency crews from throughout the region were responding to the scene. In all, 33 fire departments comprising 522 firefighters rushed to the burning nightclub. Over the next two to three hours, the frustrated firefighters tried to get to the victims inside. The roof of the Cabaret Room collapsed around midnight and by dawn, rescue workers had pulled 134 bodies from the burning remains of the Cabaret Room.
            Then-Governor Julian Carroll ordered a massive investigation of the tragedy. The results of the investigation were disclosed in a news conference on Sept. 16, 1977, which was attended by news media from around the world.
            The investigation found many building code and fire safety violations.  As the club’s owners made additions to the building, they did them in a piecemeal way, which did not follow building codes, and the owners had no knowledge of the need to have code-compliant wiring or non-flammable materials used in the construction and decorations.  In addition, it was found that the building’s architect was not licensed to practice in Kentucky.
Improperly installed and faulty aluminum electrical wiring is believed to have started the fire. The club lacked smoke detectors, so its staff was slow to discover the fire and by then it was too late. As the blaze spread, overcrowding and poorly designed fire safety doors led to dozens of guests being trapped as toxic smoke filled the building.
            “Wide-ranging reforms followed the Beverly Hills Supper Club fire,� said Van Cook, executive director of the Office of Housing, Buildings and Construction (OHBC). “The state adopted strict construction and fire safety codes including a requirement that any building undergoing major renovation must be inspected and brought up to existing code requirements.�
            A unified OHBC, including the State Fire Marshal’s staff, was created. OHBC oversees inspections of 190,000 buildings in the state; every structure except single-family dwellings must comply with code.
            “Kentucky now has a reputation as one of the top states in the country in our construction and fire safety code enforcement,� Cook said.
            OHBC is an agency of the Department of Public Protection in the Environmental and Public Protection Cabinet.



Wednesday, May 23rd, 2007

By LawReader Food Critic Stan Billingsley


   Judge Mike Collins recently hosted a group of attorneys and spouses at Vito’s on Restaurant in Fort Thomas, Kentucky.  It was an evening I will not likely forget.


Vito and Mary Ciepul operate the restaurant which is hidden at the rear of a commercial store front.     


    All the waitpersons are dressed in black, and between turning in your order for a large plate of pasta they takes turns jumping on stage and belting out a chorus from Carmen, or perhaps a ballad by Billy Joel.


Vito himself, (I believe he said he has a Polish background and works some great Polish dishes into the menu) blew the audience away with “If I Were A Rich Man� from Fiddler on the Roof.


One of the waiters was Matt Ryan who moonlights as a sharp Public Defender in the Boone Circuit Court.  Matt, who obviously is just marking time until Broadway calls, proved himself surprisingly adept at Billy Joel songs.  I had never seen this side of Matt before, and am looking forward to hearing him sing in the future.  If I had known of his great talent, I would have encouraged him to sing his closing arguments!!


So if you are ever in the Ft. Thomas area you should give yourself a treat. The food was as good as anything in New York, and the entertainment may have been better.


The address for Vito’s is  654 Highland Ave, Ste 29 , Fort Thomas, KY.  You should phone ahead for reservations because this hot spot is no longer a secret.  Phone – (859) 442-9444.

LawReader compares the election polls to the actual results. See which poll came closest.

Wednesday, May 23rd, 2007

Have you ever wondered just how accurate the political polls are?   LawReader has charted the WHAS/USA poll, and the BLUEGRASS poll, against the actual results of the election.  We must note that the two polls also included undecided and of course in the actual results there are no undecided voters.


                                      Republican primary
WHAS/Survey USA May 21
44% Fletcher 34% Northup 17% Harper
41% Fletcher 25.8% Northup 9.9%  Harper


Fletcher and Northup each did better than the two polls, and Harper did better than one and worse on one poll.


                                            DEMOCRATIC PRIMARY
40.9% BESHEAR 21.4% LUNSFORD 17.5% HENRY 13%
WHAS/Survey USA May 21 32%
17% Henry 12% Richards 7% Galbraith 1% Hensley
21.1% Lunsford 12.8% Henry 7.3%
4.1 Galbraith .05% Hensley


Beshear did better than both polls.

Lunsford did better than one poll and worse than one poll.

Henry did better than both polls.

Richards did better than both polls.

Galbraith did better than one poll and worse than one poll.

Hensly did better than both polls.


The most accurate poll was the WHAS/Survey USA poll.  Only in the Harper race was the Bluegrass Poll more accurate than the WHAS/Survey poll, and only by 1/10th. of a perce


Wednesday, May 23rd, 2007

There are three “rats of the week� on the home page of, a Web site devoted to exposing the identities of witnesses cooperating with the government. The site posts their names and mug shots, along with court documents detailing what they have agreed to do in exchange for lenient sentences.

Last week, for instance, the site featured a Florida man who agreed in September to plead guilty to cocaine possession but not gun charges in exchange for his commitment to work “in an undercover role to contact and negotiate with sources of controlled substances.� The site says it has identified 4,300 informers and 400 undercover agents, many of them from documents obtained from court files available on the Internet.

“The reality is this,� said a spokesman for the site, who identified himself as Anthony Capone. “Everybody has a choice in life about what they want to do for a living. Nobody likes a tattletale.�

Federal prosecutors are furious, and the Justice Department has begun urging the federal courts to make fundamental changes in public access to electronic court files by removing all plea agreements from them — whether involving cooperating witnesses or not.

“We are witnessing the rise of a new cottage industry engaged in republishing court filings about cooperators on Web sites such as for the clear purpose of witness intimidation, retaliation and harassment,� a Justice Department official wrote in a December letter to the Judicial Conference of the United States, the administrative and policy-making body of the federal court system.

“The posting of sensitive witness information,� the letter continued, “poses a grave risk of harm to cooperating witnesses and defendants.�

In one case described in the letter, a witness in Philadelphia was moved and the F.B.I. was asked to investigate after material from was mailed to his neighbors and posted on utility poles and cars in the area.

The federal court in Miami has provisionally adopted the department’s recommendation to remove plea agreements from electronic files, and other courts are considering it and experimenting with alternative approaches.

Judge John R. Tunheim, a federal judge in Minneapolis and the chairman of a Judicial Conference committee studying the issue, acknowledged the gravity of the safety threat posed by the Web sites but said it would be better addressed through case-by-case actions.

“We are getting a pretty significant push from the Justice Department to take plea agreements off the electronic file entirely,� Judge Tunheim said. “But it is important to have our files accessible. I really do not want to see a situation in which plea agreements are routinely sealed or kept out of the electronic record.�

Judge Tunheim said his committee was working on recommendations for a nationwide approach to the issue. He said he favored putting the details of a witness’s cooperation into a separate document and sealing only that document, or withholding it from the court file entirely.

For those who want to read the details on cooperating witnesses, charges between $7.99 for a week and $89.99 for life. The latter option comes with a free “Stop Snitching� T-shirt.

The site was started by Sean Bucci in 2004, after he was indicted in federal court in Boston on marijuana charges based on information from an informant. The site was initially modest and free, the seeming product of a drug defendant’s fit of pique.

Over time, it attracted thousands of postings, many backed by court documents.

Mr. Bucci was convicted in February and will be sentenced next month. Stylianus Sinnis, a lawyer for Mr. Bucci, who is incarcerated, would not say whether Mr. Bucci was still affiliated with the site.

Contacted by e-mail, Mr. Capone called a reporter at an arranged time. He would not provide his phone number but insisted that his name was authentic. He said Mr. Bucci was no longer associated with the site.

The site itself says it is “designed to assist attorneys and criminal defendants with few resources.�

Defense lawyers are, in fact, hungry for any information about the nature of the case against their clients. “The more information out there, the easier it is for the truth to come out at trial,� said David O. Markus, a criminal defense lawyer in Miami.

Lawyers and their investigators can, of course, check court files and gather other material featured on the site themselves. But the site makes it easier, cheaper and quicker to find information about informants who may be involved in several cases in several jurisdictions, the site’s spokesman said.

Eliminating electronic access to plea agreements and related documents would represent a real hardship, Mr. Markus said.

“It doesn’t advance any of the stated safety goals, and it just serves as a roadblock to the public’s constitutional right to access to their court,� Mr. Markus said. “If there is an issue in a particular case, then let’s address it, but to sweep everything under the rug isn’t right.�

The site says that it “does not promote or condone violence or illegal activity against informants or law enforcement officers.�

Frank O. Bowman, a former federal prosecutor who teaches law at the University of Missouri, disputed that. “It’s reprehensible and very dangerous,� Professor Bowman said of the site. “People are going to die as a result of this.�

Defendants who choose to go to trial will, of course, eventually learn the identities of the witnesses who testify against them. But the site also discloses the identities of people engaged in undercover operations and those whose information is merely used to build a case. The widespread dissemination of informants’ identities, moreover, may subject them to retribution from friends and associates of the defendant.

Still, Professor Bowman, an authority on federal sentencing law, said he would hate to see the routine sealing of plea agreements. “It certainly is terribly important for the public ultimately to know who’s flipped,� he said.

Professor Bowman added that he was studying the deals prosecutors made in the aftermath of the collapse of Enron, the energy company. “To do that effectively,� he said, “I really need to know who flipped and the nature of their plea agreements.�

Judge William J. Zloch, the chief judge of the Federal District Court in Miami, said the move to bar electronic access to plea agreements there was supported by prosecutors and some defense lawyers. “It’s available to the public,� he said of the documents. “It’s just that you have to go the courthouse.�

Judge Zloch added that his court would discuss whether to make the change permanent in the coming months.

The existence of the site raises a First Amendment issue for its founder, Mr. Bucci. After his conviction, he filed a motion last month seeking a new trial, saying the government’s true purpose in prosecuting him was to shut down the site because “he dared to assert his First Amendment right� to post the information.

In a response filed Thursday, prosecutors conceded that “various levels of government have long expressed concern that the Web site endangers the lives of informants and undercover agents, and compromises investigations.� But they denied that the government’s dismay about the site influenced their decision to prosecute Mr. Bucci.

Most legal experts agreed that is protected by the First Amendment. In 2004, a federal judge in Alabama refused to block a similar site created by a criminal defendant, Leon Carmichael Sr., who has since been convicted of drug trafficking and money laundering.

“While the Web site certainly imposes discomfort on some individuals,� Judge Myron H. Thompson wrote, “it is not a serious threat sufficient to warrant a prior restraint on Carmichael’s speech or an imposition on his constitutional right to investigate his case.�

But Judge Thompson’s ruling was not categorical. “A few differences in Carmichael’s site could have changed the court’s calculus,� he wrote. And some law professors said that sites like might be subject to prosecution for obstruction of justice or aiding and abetting crimes.

In its December letter, from Michael A. Battle, then the director of the Executive Office for United States Attorneys, the Justice Department urged courts to put a statement on their Internet sites “warning against the republishing or the other use of official court records for illicit purposes such as witness intimidation.� Judge Tunheim said his Judicial Conference committee was awaiting legal advice on that possibility.

For now at least, the Justice Department and the federal judiciary appear to be focused on keeping information from the sites rather than trying to stop the sites from publishing what they learn.

Government secrecy, said Eugene Volokh, a law professor at the University of California, Los Angeles, “ends up being part of the price you pay for having broad speech protection.�