Archive for May, 2007

COUNTER LAWSUITS ALLOWED BUT LIMITED IN KY. The case law sets a high burden for a plaintiff to meet.

Tuesday, May 22nd, 2007

This is the leading case in Kentucky regarding the procedure and burdens of maintaining a counter lawsuit against an attorney.  This case places a very tough burden on counter lawsuits, and virtually invites summary judgment by the trial court.  The Jewish Hospital counter suit filed in Louisville this week should be evaluated in light of the rules set out in this case.



This well written decision was authored by the late respected Justice Leibson in 1989.   The majority consisted of  STEPHENS, C.J., and COMBS, GANT, LAMBERT, LEIBSON and VANCE, JJ., concur.
        LEIBSON, J., files a separate concurring opinion in which COMBS, J., joins  Justice Wintersheimer filed a dissent.


777 S.W.2d 891
John M. PREWITT, Appellant,
Paul R. SEXTON and Mary Katherine Ratliff, Appellees.
No. 88-SC-618-DG.
Supreme Court of Kentucky.
Sept. 28, 1989.
Page 892
        John M. Prewitt, Mt. Sterling, pro se.
        William K. Moore, Midway, for appellees.
        LEIBSON, Justice.
        The appellant, John M. Prewitt, is a practicing attorney with offices in Mt. Sterling, Kentucky, who undertook representation on a “pro bono” basis of Donna Willoughby, mother of a nine month old daughter, who told him her baby had been taken, without notice, by a welfare worker accompanied by a peace officer, from the care of a woman tending the baby while the mother was behind the house working in the garden. She asked Attorney Prewitt’s help because she wanted her baby back. The appellees, Paul R. Sexton and Mary Katherine Ratliff, were social workers in the Bath County office of the Department of Social Services, involved in handling this case.
        There were a number of circumstances in the story related to Prewitt by Donna Willoughby that suggested the possibility that the baby had been taken from the mother unlawfully, and was being withheld by “the Bath County welfare people” contrary to law. Attorney Prewitt was advised by the mother she never received any “court papers” from the Sheriff or otherwise, and there was no order signed by a judge to establish a legal basis for the child having been taken and withheld. She had been to a court conference presided over by Judge James Clay of Morehead, sitting in Bath County, but she had been summoned there by a telephone call from the welfare worker.
        In an effort to investigate the legal circumstances under which the child was being withheld, Attorney Prewitt sent first his client, and then he went in person, to the Bath County Circuit/District Clerk’s office in Owingsville to see the file. Both the client and later on the attorney, when they went to the Clerk’s office, were denied access to the file. They were told the file was “confidential”, but they also were told there was nothing in the file signed by Judge Clay. Also, Attorney Prewitt was told that he could not see the file without a written order from Judge Clay, which, if it could be obtained, would necessitate going on from Owingsville to Morehead, the opposite direction from his office in Mt. Sterling.
        Rather than trying to locate and obtain an audience with Judge Clay, Attorney Prewitt tried going over to the Bath County welfare office for information, but there he was told he would have to make an appointment and come back. His research convinced him there were no statutes making
Page 893
these court records confidential from the child’s mother or her attorney. Persuaded by this combination of circumstances–the court records were inaccessible, the Welfare Department frustrated his effort to investigate, both he and his client had been told there was nothing in the record signed by the Judge, and his client had not been served with summons before the baby was taken from her–Attorney Prewitt decided that the correct procedure was to institute habeas corpus proceedings under KRS 419.020 in Bath Circuit Court. Since he thought these circumstances suggested that the welfare workers involved had violated his client’s constitutional rights, he added a claim for damages for violation of the Civil Rights Act, 42 U.S.C.A. § 1983. The named defendants were Ratliff, the case worker in charge of the Willoughby child’s case, and Sexton, the field supervisor in charge of the office.
        The attorney for the Welfare Department responded to the suit with a Motion to Dismiss, and brought to the hearing on the motion the piece of paper that Attorney Prewitt had been looking for when he attempted to investigate in the Circuit/District Clerk’s office in Owingsville, i.e., the “Emergency Custody Order” from the Bath County District Court, Juvenile Division, authorizing the Bath County Sheriff Department to take physical custody of the child and place the child in the temporary custody of the Cabinet for Human Resources. This Order was signed by “John D. Hughes, T.C.” This was a Trial Commissioner whose existence was unknown to Prewitt, with authority to issue such orders in Bath County in the absence of the District Judge. This Order provided the missing essentials. It both established that the child had been taken pursuant to court order and explained how and why Attorney Prewitt and his client were misled when told there were no orders in the file signed by the District Judge.
        When the Emergency Custody Order was produced, Attorney Prewitt dismissed the habeas corpus/civil rights complaint forthwith. He then proceeded, and succeeded, to restore the baby to the custody of his client by Motion in the District Court to Set Aside the Temporary Custody Order. He got what he had sought by the habeas corpus action, which was to have the social workers produce the baby and, if they could not justify why the baby had been taken and was being withheld, deliver the child to the immediate possession of the mother.
        Nevertheless, the social workers retaliated with the present action, filed against both Donna Willoughby, the mother, and John M. Prewitt, her attorney, charging “abuse of process,” “malicious prosecution,” and “intention[ally] inflicting severe mental and emotional distress.” At trial of this action the appellants dropped the claims of abuse of process and intentionally inflicting emotional distress, and the case was submitted under the theory that Willoughby and Prewitt maliciously prosecuted the civil action seeking habeas corpus and damages under the Civil Rights Act.
        The jury verdict exonerated Donna Willoughby, presumably under Instruction No. 14(a) which set up the defense of acting on the advice of counsel, but returned verdicts against Prewitt in favor of both Sexton and Ratliff, awarding each $2,500 in compensatory damages and $10,000 in addition as punitive damages, a total of $25,000.
        The trial court overruled Prewitt’s Motions for a New Trial and for Judgment Notwithstanding the Verdict, and the Court of Appeals affirmed. We have accepted discretionary review, and reverse.
        Strictly speaking, this suit is improperly designated as a claim for “malicious prosecution.” This is old terminology deriving from wrongful prosecution of criminal cases, a separate cause of action as described in Restatement (Second) of Torts, § 653-73 (1977). Properly designated, this tort is the “wrongful use of civil proceedings,” the elements of which are described in the Restatement (Second) of Torts, §§ 674-681B. We have recently clarified and explained the basis for this cause of action in Mapother & Mapother, P.S.C. v. Douglas, Ky., 750 S.W.2d 430, 431 (1988):
Page 894
“[I]n this type of action, the law is set out in Restatement (Second) of Torts, § 674-76 (1977). These sections are found under the general heading of Chapter 30, entitled ‘Wrongful Use of Civil Proceedings.’ We would note in passing that this is a more accurate categorization than ‘malicious prosecution’ as utilized in Hill v. Willmott, [Ky.App., 561 S.W.2d 331 (1978) ], and any reliance upon the dicta in that case where a civil action is involved is misplaced.”
        This suit represents a relatively new type of litigation, often designated generically as “countersuits,” seeking retribution against attorneys on behalf of litigants who believe they have been victimized by a groundless lawsuit. Prewitt claims he was entitled to a directed verdict. The questions are what elements of proof are necessary to establish a countersuit for which a lawyer must respond in damages, and was there sufficient evidence against this appellant to establish such a cause of action.
        Borrowing terminology from older cases discussing the concept of malicious prosecution has confused the issue. We turn, instead, to the discussion of the key elements of Wrongful Use of Civil Proceedings in Chapter 30, Restatement (Second) of Torts, which we approved in Mapother & Mapother, P.S.C. v. Douglas, supra. The elements which have caused difficulty are (1) lack of probable cause, (2) improper purpose, and (3) what type of injury is compensable.
This cause of action requires that in the prior lawsuit the tortfeasor acted “without probable cause, and primarily for a purpose other than that of securing the proper adjudication of the [prior] claim.” Restatement (Second) of Torts § 674.

Recovery is limited to specified harm (Id., § 681), and the judge must decide whether “the harm suffered by the plaintiff is a proper element for the jury to consider in assessing damages.” Id., § 681B(1)(d).
        Understanding begins by appreciating that lack of probable cause and improper purpose are separate and distinct elements, separate both as to their meaning and as to their function, i.e., the role they play in the decision-making process.
        First, as to their meaning. “Probable cause” is a legal concept with origins in the judicial decision as to whether there was probable cause to issue a warrant, and as such its existence is a question for the court to decide. Id., § 681B(1). It covers both a mistake of law and a mistake of fact, and it exists where the person who initiates civil proceedings “reasonably believes in the existence of the facts upon which the claim is based, and … that under those facts the claim may be valid under the applicable law.” Id., § 675.
        The second of these two essential prongs is an improper purpose, which is for the jury to decide after the court has determined that under the law and the facts the prior action was initiated or pursued without probable cause. Id., § 681B(2). What is often loosely labeled proof of “malice” is more specifically defined in the Restatement as bringing the prior lawsuit “primarily for a purpose other than that of securing the proper adjudication of the claim.” Id., § 676. Verbiage borrowed from criminal cases prosecuted where there was no probable cause, to the effect that malice may be inferred from lack of probable cause, is not appropriate to jury instructions in civil cases because probable cause to initiate a civil action does not require “the same degree of certainty as to the relevant facts that is required of a private prosecutor of criminal proceedings.” See Restatement (Second) of Torts § 675, Comment d, p. 459 “Points of Difference Between Criminal and Civil Proceedings.”
        The development of the concept of countersuits as the “remedy for unjustified litigation” is traced in Prosser and Keeton on Torts, 5th ed., § 120 (1984):
“The action of malicious prosecution, which began as a remedy for unjustifiable criminal proceedings, has been undergoing a slow process of extension into the field of the wrongful initiation of civil suits.”
        In Kentucky the law on this subject has pursued an uneven path from its origins in
Page 895
the “doctrine of malicious prosecution,” through its transition to civil proceedings, first against the persons who initiated prior civil proceedings, and then against their lawyers in cases such as Rose v. Davis, 288 Ky. 674, 157 S.W.2d 284 (1941), Hill v. Willmott, Ky.App., 561 S.W.2d 331 (1978), Raine v. Drasin, Ky., 621 S.W.2d 895 (1981), and finally, Mapother & Mapother, P.S.C. v. Douglas, Ky., 750 S.W.2d 430 (1988).
        Traced through its course in Kentucky cases, this concept must be viewed, candidly, as a tort in transition, finding ultimate repose in present form in Mapother & Mapother, P.S.C. v. Douglas, supra. In Raine v. Drasin, supra, our Court referred to the Restatement (Second) of Torts as authority; in Mapother & Mapother, P.S.C. v. Douglas, we adopted it as the law on this subject.
        The Restatement (Second) of Torts, § 681B, summarizes the “Functions of Court and Jury” in an action for Wrongful Use of Civil Proceedings as follows:
“(1) In an action for wrongful civil proceedings, the court determines whether
        (a) a civil proceeding has been initiated;
        (b) the proceeding was terminated in favor of the plaintiff;
        (c) the defendant had probable cause for his action;
        (d) the harm suffered by the plaintiff is a proper element for the jury to consider in assessing damages.”
(2) In an action for wrongful civil proceedings, subject to the control of the court, the jury determines
        (a) the circumstances under which the proceedings were initiated in so far as may be necessary to enable the court to determine whether the defendant had probable cause for initiating them;
        (b) whether the defendant acted primarily for a purpose other than that of securing the proper adjudication of the claim on which the proceeding was based;
        (c) the circumstances under which the proceedings were terminated;
        (d) the amount that the plaintiff is entitled to recover as general and special damages;
        (e) whether punitive damages are to be awarded, and if so, in what amount.”
        Other important baggage for this relatively new tort, the countersuit, brought along from its origins as response to a criminal warrant taken out with lack of probable cause, is thus described in Raine v. Drasin, supra:
“Historically, it [this tort] has not been favored in the law. Lexington Cab Co. v. Terrell, 282 Ky. 70, 137 S.W.2d 721 (1940). Public policy requires that all persons be able to freely resort to the courts for redress of a wrong, and the law should and does protect them when they commence a civil or criminal action in good faith and upon reasonable grounds. It is for this reason that one must strictly comply with the prerequisites of maintaining an action for malicious prosecution. Davis v. Brady, 218 Ky. 384, 291 S.W. 412 (1927).” 621 S.W.2d at 899.
        It is only in circumstances where the trial court has decided that if certain facts exist they establish lack of probable cause, and the existence of such facts is in dispute, that there is a fact question for the jury to decide. 2 J. Palmore, Kentucky Instructions to Juries § 27.01-.03 (1989 ed.), comments on this subject as follows, p. 238:
        ”It is important to recognize that the existence of probable cause, as such, is not a jury question. Whether the facts supported by plaintiff’s evidence amount to probable cause is a legal issue to be determined by the court. The question put to the jury is whether those facts which in the opinion of the trial court would constitute probable cause have been established by the evidence to the satisfaction of the jury.” [Emphasis Original.]
        It is important to note that the factual issues should be so stated that the burden is on the plaintiff to prove lack of probable cause, rather than the converse as stated above in Palmore. Restatement (Second)
Page 896
of Torts § 681A. The person attacking the prior lawsuit as the wrongful use of civil proceedings is the plaintiff with the burden of proof.
        In Raine v. Drasin, supra, the underlying facts in the prior medical negligence action were that a patient sustained a fractured shoulder while in an unconscious state undergoing treatment in a hospital emergency room. The issue was who was responsible for this fractured shoulder. The evidence that was key to establishing lack of probable cause was evidence that before filing suit the attorney “visited the hospital and reviewed its records which clearly showed that the fracture of the shoulder occurred before Drs. Drasin and Fadel were involved.” 621 S.W.2d at 898. The significance of Raine v. Drasin on the subject of lack of probable cause lies in its factual predicate.

Essentially, it held that where the uncontradicted facts showed it was clearly unreasonable for an attorney to believe there was a tenable basis for pursuing a lawsuit, this proved lack of probable cause. Since these facts were not in dispute, the court should have decided that the prior lawsuit was filed by the attorney without probable cause. Given these circumstances, the jury verdict that there was lack of probable cause was not reversible error.
        In the present case we have the opposite situation. There was no evidence to show that Attorney Prewitt failed to make a reasonable effort to investigate the basis of his client’s claim before filing suit. He claimed that the baby had been taken from his client without court order. He was either intentionally or inadvertently misled to believe such was the case. The question of probable cause is related not to whether the facts exist to prove a lawsuit, but whether it was reasonable to believe that the client’s claim is tenable. In the context of probable cause, tenable “depends not on the actual state of the case in point of fact, but upon the honest belief of the person instituting it. It may flow from a belief that turns out to be unfounded as long as it is not unreasonable.” Ammerman v. Newman, 384 A.2d 637, 640 (D.C.1978).
        As otherwise stated Kassan v. Bledsoe, 252 Cal.App.2d 810, 60 Cal.Rptr. 799, 803 (1967):
[T]he term ‘probable cause’ has been defined to be a suspicion founded upon circumstances sufficiently strong to warrant a reasonable person in the belief that the charge is true.
        In the present case the uncontradicted evidence compels the conclusion that the belief held by appellee Prewitt, although it “turn[ed] out to be unfounded,” was “not unreasonable.” Ammerman v. Newman, supra.
        The appellant had been told by his client that no summons had been served on her, which was true, and that, although she had been to a hearing before the judge, there was no court order from the judge depriving his client of custody of her baby. When he attempted to check the court file to confirm this information, he was denied access to the file but told by the Clerk that there was no order signed by the judge in the file. His testimony was that he was unaware that there was a Trial Commissioner, a person not a judge with power to sign such a custody order, which is uncontradicted and not unreasonable in the circumstances. Appellees argue that Prewitt should have gone on to Morehead to see the District Judge to seek written permission to look into the court file even though he had been told there was no order from a judge in the file. Further, appellees argue that Prewitt should have further pursued his efforts to talk to someone in the Welfare Office before filing a habeas corpus proceeding. But this is hindsight rather than foresight. Prewitt was under no legal requirement to go to Morehead to seek a written order for access to a file to which the law permitted him access, to investigate further the possibility of a court order when he had been misled to believe that there was no such order in the file. Contrary to the Court of Appeals’ Opinion, the papers delivered to Prewitt by his client did not contain a copy of a court order, and that was what Prewitt was looking for.
Page 897
        Although proof that an attorney initiated civil proceedings when he was ignorant of the law and failed to research it would be evidence bearing on lack of probable cause, here it must be said that even if mistaken, Prewitt’s views of the law were not arbitrary and unreasonable. If not correct, at the least he had viable arguments to support his position. A view of the law that is arguably correct cannot be the basis upon which to charge lack of probable cause. As with the attorney’s understanding of facts, all that is required to establish probable cause is that the attorney’s view of the law is a tenable position. The question of probable cause underlying the tort of wrongful use of civil proceedings does not turn on whether a court subsequently decides the attorney erred in his view of the law, any more than it turns on whether he was subsequently unable to prove his client’s claims regarding the facts, so long as his views were tenable at the outset.
        The appellees argue the significance of various statements by Prewitt during the course of his defense of this case which they claim proves malice on his part. The statements he made in defending himself in the present proceeding are not evidence of malice in the prior proceedings unless they rise to the level of a judicial admission, which is not the case. In the context of the tort which is the gravaman of this action, wrongful use of civil proceedings, malice in general is not the issue; the issue is whether the prior lawsuit was filed primarily for an improper purpose. As stated in Restatement (Second) of Torts, § 681B(2)(b), the jury must decide:
“[W]hether the defendant acted primarily for a purpose other than that of securing the proper adjudication of the claim on which the proceeding was based[.]”
        While evidence of Prewitt’s attitude deriving from his past associations with the welfare system might have some bearing on whether Prewitt had acted primarily for an improper purpose, as that term is defined in the Restatement (Second) of Torts, his unfavorable opinion of the Welfare Department has no bearing on the threshold question of lack of probable cause, which it was the function of the court to decide.
        In this case the trial court’s post-trial order established that after erroneously submitting the issue of probable cause to the jury, after the case was over, the trial court then made a separate judicial finding that Prewitt lacked probable cause to file the underlying lawsuit. For the reasons previously stated, this decision, whenever it was made, was in error.
        The decision of the Court of Appeals is reversed. The judgment of the trial court is set aside, and the case is dismissed.
        STEPHENS, C.J., and COMBS, GANT, LAMBERT, LEIBSON and VANCE, JJ., concur.
        LEIBSON, J., files a separate concurring opinion in which COMBS, J., joins.
        WINTERSHEIMER, J., dissents by separate opinion.
        LEIBSON, Justice, concurring.
        There is another reason why the appellant, Prewitt, was entitled to a directed verdict. Historically, not every civil action instituted without probable cause was subject upon dismissal to a countersuit. Liability was confined to “exceptional cases in which special injury or grievance is found to exist,” such as “civil actions which are recognized as quasi-criminal in character, or which involve an interference with the person, as in the case of proceedings in lunacy, contempt, bastardy, juvenile delinquency, arrest under civil process, or binding over to keep the peace.” Prosser and Keeton on Torts, 5th ed., p. 890 (1984). Harter v. Lewis Stores, Ky., 240 S.W.2d 86 (1951), cited Raine v. Drasin, Ky., 621 S.W.2d 895 (1981). The concept of what constitutes “special injury” was expanded in Raine v. Drasin, supra, to include damage to the professional reputation of a physician arising out of a complaint charging medical malpractice. The question here is whether the harm alleged
Page 898
by the appellees in the present lawsuit falls within the penumbra of Raine v. Drasin.
        The answer to this question turns on whether the accusation in the allegedly unjustified prior civil proceedings carried with it “defamatory” implication. Restatement (Second) of Torts, § 681. Raine v. Drasin gives this term a broad interpretation as applied to the charge of medical malpractice against physicians, but their professional reputation is, perhaps, uniquely vulnerable. Certainly, not every occupation is such that the charge of negligence on a single occasion, or similar act civilly actionable but not necessarily morally reprehensible, is sufficient for the jury to conclude “reputation … [has] been ‘assailed.’ ” 621 S.W.2d at 900. We should not extend the concept of defamation in Raine v. Drasin to every case where a person has been sued, simply because the suit is based on an act occurring in the course of one’s occupation.
        The courts have fashioned other more appropriate relief against attorneys for the victims of a groundless lawsuit where they cannot prove a cause of action for the wrongful use of civil proceedings because they have not suffered from the kind of harm described in Restatement (Second) of Torts, § 681: specifically, a Rule 11 motion or a motion for appellate relief under our CR 73. Within the terms of these rules, a lawyer who initiates or pursues a groundless lawsuit is not free from penalty, nor is his victim left without appropriate remedy.
        We should not extend the parameters of claims for damage to professional reputation so broadly as to include the allegations of this complaint against these appellees. As explained in Restatement (Second) of Torts, § 681, Comment c, p. 470:
        ”In the ordinary case, however, the civil proceedings are in no way defamatory to the person against whom they are brought unless the matters alleged as their basis are themselves defamatory…. In a word, the test is whether the defendant’s pleadings are such that if not protected by the privilege of a litigant (see § 587) they would be actionable under the rules governing recovery for defamation.”
        The complaint filed by Prewitt on behalf of Willoughby against the appellees did not refer to their occupation and did not damage them in their reputation under “the rules governing recovery for defamation.” Id.
        COMBS, J., joins.
        WINTERSHEIMER, Justice, dissenting.
        I respectfully dissent from the majority opinion because there was sufficient evidence to support the decision of the jury and the opinion of the Court of Appeals is not in error. This case requires only the application of the principles established Raine v. Drasin, Ky., 621 S.W.2d 895 (1981) to the facts.
        This is a particularly fact-oriented situation. It involves the investigation of alleged child abuse, the execution of an emergency custody order and the efforts of the child’s mother to recover the child as well as the conduct of her pro bono attorney. The mother was not served with a copy of the emergency custody order but was subsequently notified to attend a hearing in district court. She did not attend the first hearing or the rescheduled hearing. She did meet with the social workers to develop a treatment plan designed to assist her in regaining custody. On August 13, the mother appeared and informed the district court that she had retained a legal aid attorney. She discharged that attorney soon thereafter and contacted private attorney Prewitt. She gave Prewitt a variety of papers she had received from the Department of Social Services, but she did not have a copy of the custody order. Prewitt testified that he did not read any of the “bureacratic junk” given to him by the mother. He sent the mother to the courthouse to obtain any orders signed by the district judge. She was told the file was confidential and that it contained no orders signed by the judge. Prewitt then went to the courthouse and was also denied access to the file without an order from the district judge. When he asked what was in the file signed by the judge, he was advised
Page 899
“nothing.” He then went to the office of social services and was unable to speak with Ratliff who was out of the office. Prewitt refused to leave his name, wait or schedule an appointment.
        At trial, Attorney Prewitt testified that he did not think it was worth his time to go to Morehead where the district judge was sitting in an attempt to obtain an order allowing access to the record. There is no evidence that he made any further attempts to investigate the situation, but instead, on September 6, prepared and filed a one paragraph petition for a writ of habeas corpus and a complaint seeking damages for violation of the mother’s civil rights. At a hearing on a motion to dismiss, Prewitt was shown a copy of the emergency custody order, and he immediately moved for a voluntary dismissal which was subsequently granted. Thereafter, Sexton and Ratliff sued Prewitt for malicious prosecution. The basic elements to maintain such an action are described in Raine v. Drasin, supra.
        At the time he filed the suit, Prewitt knew that the infant was in the custody of the Cabinet for Human Resources. He also knew that proceedings had been scheduled for a district judge in Bath District Court and that his client had appeared before the district judge and had been told to tell her lawyer to call the county attorney to schedule a hearing on the matter. He had been provided with numerous reports and summaries by the social workers regarding the juvenile proceedings and the emergency custody orders but he did not read the reports. He made no effort to obtain information about the case from the county attorney either by telephone or correspondence and his efforts to obtain information from the social workers was limited to stopping at their offices during lunch time, unannounced, without identifying himself and demanding to see the file. The office receptionist was correct in view of K.R.S. 199.335(9) and K.R.S. 194.060 in refusing to allow Prewitt to examine the records at that time. Raine establishes that an attorney has an obligation to make a reasonable investigation of the facts and law prior to filing suit, and that such failure is material to the question of probable cause in a malicious prosecution action.
        The confidentiality of juvenile records at the time of this action was controlled by the old juvenile code, K.R.S. 208.030 and K.R.S. 208.060(1). The new juvenile code specifically provides that all juvenile court records are confidential. K.R.S. 610.340(1). This question has little significance in this case because neither Sexton nor Ratliff was responsible for the attorney’s failure to obtain the records he requested from the district court clerk.
        The attorney admits that the purpose of bringing the initial suit against the social workers was to “attract their attention and force them to come to us.”
        The fact that counsel was in a “pro bono ” matter is not an excuse for his failure to make a sufficient investigation of the facts and law to establish probable cause prior to filing any suit. The practice of law is a profession and the fact that an attorney accepts a case without the expectation of receiving a fee does not excuse his conduct.
        Clearly the award of damages is very high. But the evidence indicates that the attorney decided it would be cheaper to file the habeas corpus-civil rights action and to wait for the social workers to come to him than to drive to Rowan County, call the county attorney or otherwise get an order from the district judge permitting him to examine the file. The majority may be correct in indicating that there is a more appropriate relief against attorneys for the victims of groundless lawsuit by the use of Civil Rule 11 or a motion for relief under Civil Rule 73. However, the choice of forum and style of action still resides in the plaintiff. Here the plaintiff chose malicious prosecution, and I do not believe this Court can second guess that choice. I would affirm the jury verdict and the decision of the Court of Appeals.



U.S. Supreme Court summarily overruled the 9th. Circuit Court of Appeals in a one sentence opinion and allowed Sheriff’s Deputies to be protected by qualified immunity doctrine.

Tuesday, May 22nd, 2007

The Los Angeles Sheriff’s Department executed a warrant on a house from which the suspects had moved three months prior to the execution of  the search warrant.  The current inhabitants sued the Sheriff’s Department.

 The deputies had however adequate grounds for the issuance of the search warrant based on state records and other information.  The Fed. District Court found that the deputies had qualified immunity from the resulting lawsuit.  The 9th. Circuit reversed the District Court and ordered the civil lawsuit to proceed.  Certiori was granted by the U.S. Supreme Court and in one sentence they overruled the 9th. Circuit and killed the civil lawsuit.


1 Cite as: 550 U. S. ____ (2007) Per Curiam
No. 06–605. Decided May 21, 2007
Deputies of the Los Angeles County Sheriff’s Department obtained a valid warrant to search a house, but they were unaware that the suspects being sought had moved out three months earlier. When the deputies searched the house, they found in a bedroom two residents who were of a different race than the suspects. The deputies ordered these innocent residents, who had been sleeping unclothed, out of bed. The deputies required them to stand for a few minutes before allowing them to dress.
The residents brought suit under Rev. Stat. §1979, 42

U. S. C. §1983, naming the deputies and other parties and accusing them of violating the Fourth Amendment right to be free from unreasonable searches and seizures. The District Court granted summary judgment to all named defendants.

The Court of Appeals for the Ninth Circuit reversed, concluding both that the deputies violated the Fourth Amendment and that they were not entitled to qualified immunity because a reasonable deputy would have stopped the search upon discovering that respondents were of a different race than the suspects and because a reasonable deputy would not have ordered respondents from their bed. We grant the petition for certiorari and reverse the judgment of the Court of Appeals by this summary disposition.

I From September to December 2001, Los Angeles County 2 LOS ANGELES COUNTY v. RETTELE Per Curiam
Sheriff’s Department Deputy Dennis Watters investigated a fraud and identity-theft crime ring. There were four suspects of the investigation. One had registered a 9millimeter Glock handgun. The four suspects were known to be African-Americans.
On December 11, Watters obtained a search warrant for two houses in Lancaster, California, where he believed he could find the suspects. The warrant authorized him to search the homes and three of the suspects for documents and computer files.

In support of the search warrant an affidavit cited various sources showing the suspects resided at respondents’ home. The sources included Department of Motor Vehicles reports, mailing address listings, an outstanding warrant, and an Internet telephone directory. In this Court respondents do not dispute the validity of the warrant or the means by which it was obtained.

What Watters did not know was that one of the houses (the first to be searched) had been sold in September to a Max Rettele. He had purchased the home and moved into it three months earlier with his girlfriend Judy Sadler and Sadler’s 17-year-old son Chase Hall. All three, respondents here, are Caucasians.

On the morning of December 19, Watters briefed six other deputies in preparation for the search of the houses. Watters informed them they would be searching for three African-American suspects, one of whom owned a registered handgun. The possibility a suspect would be armed caused the deputies concern for their own safety. Watters had not obtained special permission for a night search, so he could not execute the warrant until 7 a.m. See Cal. Penal Code Ann. §1533 (West 2000). Around 7:15 Watters and six other deputies knocked on the door and announced their presence. Chase Hall answered. The deputies entered the house after ordering Hall to lie face down on the ground. 3 Cite as: 550 U. S. ____ (2007) Per Curiam
The deputies’ announcement awoke Rettele and Sadler.The deputies entered their bedroom with guns drawn and ordered them to get out of their bed and to show their hands. They protested that they were not wearing clothes. Rettele stood up and attempted to put on a pair of sweatpants, but deputies told him not to move. Sadler also stood up and attempted, without success, to cover herself with a sheet. Rettele and Sadler were held at gunpoint for one to two minutes before Rettele was allowed to retrieve a robe for Sadler. He was then permitted to dress. Rettele and Sadler left the bedroom within three to four minutes to sit on the couch in the living room.

By that time the deputies realized they had made a mistake. They apologized to Rettele and Sadler, thanked them for not becoming upset, and left within five minutes. They proceeded to the other house the warrant authorized them to search, where they found three suspects. Those suspects were arrested and convicted.

Rettele and Sadler, individually and as guardians ad litem for Hall, filed this §1983 suit against Los Angeles County, the Los Angeles County Sheriff’s Department, Deputy Watters, and other members of the sheriff’s department. Respondents alleged petitioners violated their Fourth Amendment rights by obtaining a warrant in reckless fashion and conducting an unreasonable search and detention. The District Court held that the warrant was obtained by proper procedures and the search was reasonable. It concluded in the alternative that any Fourth Amendment rights the deputies violated were not clearly established and that, as a result, the deputies were entitled to qualified immunity.

On appeal respondents did not challenge the validity of the warrant; they did argue that the deputies had conducted the search in an unreasonable manner. A divided panel of the Court of Appeals for the Ninth Circuit reversed in an unpublished opinion. 186 Fed. Appx. 765 4 LOS ANGELES COUNTY v. RETTELE
Per Curiam
(2006). The majority held that “because (1) no African-Americans lived in [respon dents’] home; (2) [respondents], a Caucasian couple,  purchased the residence several months before the  search and the deputies did not conduct an ownership inquiry; (3) the African-American suspects were not  accused of a crime that required an emergency search;  and (4) [respondents] were ordered out of bed naked  and held at gunpoint while the deputies searched their bedroom for the suspects and a gun, we find that  a reasonable jury could conclude that the search and  detention were ‘unnecessarily painful, degrading, or  prolonged,’ and involved ‘an undue invasion of privacy,’ Franklin v. Foxworth, 31 F. 3d 873, 876 (9th
Cir. 1994).? Id., at 766.

Turning to whether respondents’ Fourth Amendment rights were clearly established, the majority held that a reasonable deputy should have known the search and detention were unlawful.

Judge Cowen dissented. In his view the deputies had authority to detain respondents for the duration of the search and were justified in ordering respondents from their bed because weapons could have been concealed under the bedcovers. He also concluded that, assuming a constitutional violation, the law was not clearly established.  

The Court of Appeals denied rehearing and rehearing enbanc.
II Because respondents were of a different race than the suspects the deputies were seeking, the Court of Appeals held that “[a]fter taking one look at [respondents], the deputies should have realized that [respondents] were not the subjects of the search warrant and did not pose a threat to the deputies’ safety.? Ibid. We need not pause long in rejecting this unsound proposition.


The Strike Back Lawsuit filed by Jewish Hospital Appears to Misstate the Law Re: Necessity for Legal Expert.Has the Hospital made a big mistake?

Tuesday, May 22nd, 2007

Jewish Hospital & St. Mary’s Healthcare Inc. has filed a strike back lawsuit against two attorneys who filed suits against the hospital. The Jewish Hospital lawsuit claims that the original plaintiff’s attorneys negligently filed the original suits against Jewish Hospital:

 “…before …they had (a)… medical expert who connected the alleged conditions at Jewish and the health conditions of particular patients,”
Attorneys Joseph White and Michael O’Connell, defendants in the Jewish Hospital countersuit, had alleged that unclean conditions caused infections resulting in illnesses and death.  These reports where reportedly based on claims made by 96 plaintiffs who hired the attorneys to represent them in their claims against Jewish Hospital.

 While Kentucky tort law generally requires that to prove a claim of medical malpractice a plaintiff must submit at trial proof supported by a medical expert. There are a number of important exceptions to that rule.
The Kentucky Court has held:


“The negligence of a physician generally must be established by medical or expert testimony unless the negligence and “injurious results? are so apparent that a layperson with general knowledge would have no difficulty recognizing it.? 
See: Johnson v. Vaughn, 370 S.W.2d 591 (Ky. 1963). See also Perkins v. Hausladen, 828 S.W.2d 652 (Ky. 1992).


The original lawsuit claimed that unclean conditions at the hospital had resulted in the illnesses of the plaintiffs.  Claims of blood, bodily fluids and feces being found in areas in which patients where placed, followed by subsequent infections being reported by those patients, may well present a classic exception to the requirement for an “expert? medical witness. 


In an unpublished case in which the Court of Appeals held that a medical expert was not necessary, it was stated:


“Simply put, the alleged medical negligence is such that expert testimony was simply unnecessary?.  See: Matheny v.Sharpe, 2005-CA-001456


In Lincoln Income Life Ins. Co. v. Mann, 297 Ky. 681, 180 S.W.2d 877 (Ky.App. 05/26/1944) the court noted the layman exception:
“…according to most courts, in the case of common diseases and disabilities familiarity with which is a part of general knowledge, one who has observed the patient during his illness and has seen similar cases may testify as to what disease or ailment he had.’

 And, “It was held that it was competent for layman to testify as to the condition of the applicant up to the time he became disabled, after inhaling the gas, and his condition thereafter, in order to combat the theory of the physicians as to the probable consequences of the pre-existing disease.”
  In reviewing the requirement of a medical expert, we would expect the court to ask itself whether a layman would be able to determine whether being exposed to unsanitary conditions could cause the spread of disease and infections. 

For hundreds of years the general public has understood the connection from being exposed to unsanitary conditions and the contraction of disease.  The Bible mentions many stories of lepers who were banished from the community so that they couldn’t infect others.  So what is so complex about a layman understanding the connection between unsanitary conditions and the contraction of infections and disease from that exposure?

The simple logic is that if patient X did not have an infection or disease before entering the hospital, and after being exposed to unsanitary conditions at the hospital contracted an infection or disease, that the unsanitary conditions may be found by a reasonable jury to  have been the proximate cause of  patient X’s new illness.

The public is regularly bombarded with public health messages about the dangers of being exposed to someone else’s blood, from drinking unclean water, from restaurant workers not washing their hands after using the toilet, from intravenous drug users sharing needles, etc, etc.

Further, we can see no requirement under the law that the expert has to be a physician or a specialist in the particular field in which he is called upon to testify. Nurses are trained in the use of sanitary techniques for handling patients, and nurses have been qualified to testify about issues within their realm of training.

See: Thomas v. Greenview Hospital, Inc., No. 2002-CA-001223-MR (Ky.App. 02/06/2004)

“Even though Nurse Strader was a licensed registered nurse with certification as an emergency room nurse, Greenview notes that she was not certified in geriatrics or wound care, never taught geriatrics or nursing, and never worked in a nursing home. However, Nurse Strader stated that she was director of nurses for a home health care service with many older non-ambulatory clients, treated patients with pressure ulcers in the emergency room, and had been a shift supervisor at a small hospital.
[43]    Further, in evaluating whether the proposed expert is qualified, Kentucky case law indicates that the trial court must determine only whether the expert has adequate, rather than outstanding qualifications. See Lawson, The Kentucky Evidence Law Handbook, § 6.15[4], at 433; Owensboro Mercy Health System v. Payne, Ky. App., 24 S.W.3d 675, 677-78 (1999).

 While an expert witness must have some knowledge of the area, the fact that a medical witness is not a specialist in a particular field goes more to the weight to be given his/her testimony than to its admissibility or the competence of the witness to qualify as an expert. Owensboro Mercy Health System, supra at 677. See also Cree v. Hatcher, 969 F.2d 34, 38-39 n.5 (3rd Cir. 1992); Murphy by Murphy, 957 S.W.2d at 298-99 (mechanical engineer qualified to testify as expert and lack of expertise in area of design and manufacture of escalators goes to weight not admissibility).

 Nurse Strader had some training in wound care and practical experience in recognizing and treating pressure ulcers in geriatric patients. Moreover, she was familiar with nursing procedures. Greenview extensively cross-examined Nurse Strader on her qualifications and the formulation of her opinions. As a result, we believe the trial court did not abuse its discretion in finding Nurse Strader qualified to testify as an expert on the breach of the standard of care by the nursing staff.?

   We note that nurses are generally responsible for the sanitary condition of the patients room in a hospital.  So if the original patients were to have called a nurse or other person who had training in the sanitary rules and regulations of the hospital, then the standard of care and the claimed deviation from that standard of care might well be within the realm of their knowledge and therefore admissible at trial.  We can further see a situation where the rules and regulations for maintaining sanitary conditions in a hospital are certainly written down somewhere in hospital documents, and those documents placed in the record along with witness testimony that those written rules were violated by presence of blood and feces being around the patients, would allow a jury to conclude the required standard of care was violated.


   Jewish Hospital appears to take the position that only doctors can testify about the dangers of unsanitary conditions.  We have not had the experience of ever visiting a hospital and seeing a surgeon with a mop and bucket cleaning up patient rooms.  That activity is left to the nurses and maintenance staff.  It would appear that as far as the standard of care for maintaining sanitary conditions, that the janitor might be more qualified to opine on this issue than a surgeon.

Turner v. Appalachian Regional Healthcare, Inc., No. 2004-CA-000977-MR (Ky.App. 05/27/2005) says:
“…Kentucky case law recognizes two exceptions to the requirement for expert testimony in medical malpractice cases,  (See Perkins v. Hausladen, 828 S.W.2d 652, 655 (Ky. 1992) (the exceptions are
(1)   situations in which a lay person can conclude that such things do not happen if proper skill and care has been used, such as when a foreign object is left in the body, and (2) situations in which the defendant doctor makes admissions of a technical character from which an inference of negligence can be made).
The law does not require that a plaintiff call his own medical expert. The law recognizes that the defendant doctor may make admissions “of a technical character from which the inference of negligence can be made.?
We do not know if the doctors called by Jewish Hospital would have admitted that exposure of a patient to blood, body fluids and feces is a dangerous condition, but we can assume that no juror would have believed him if he had said that such exposure was not dangerous.  On the other hand, we would assume that any medical employee of a hospital would admit that indeed, such exposure to unsanitary conditions is a deviation from the standard of care.

There is no requirement under the law for the plaintiff to have consulted with a medical expert prior to the filing of the lawsuit (however we do think that is the best practice).   In the Courier-Journal article written by Andrew Wolfson, he quoted the Hospital lawyers as alleging that  Attorneys White and O’Connell “before they filed their cases …had no medical expert?.
The Wolfson article goes on to state a refutation:
“In White’s answer, his lawyer, Gary Weiss, claims he filed the suits based in part on a doctor’s opinion that the injuries arose from unclean conditions, including failure of doctors and staff to wash their hands and to wear gowns, gloves and masks where appropriate.?
If indeed White could have produced a doctor to testify that the injuries arose from unclean conditions….then that would appear to provide all the required “expert? testimony to allow the case to get to the jury.

    Strike back lawsuits have been used in a number of environmental lawsuits.  The practice now being extended to the medical profession is not surprising.  But what is surprising is the chagrin expressed by the Hospital’s lawyers when White and O’Connell are fighting back.  

 Wolfson reported: “The hospital’s lawyers said in interviews yesterday they were disappointed that White and O’Connell are trying to re-litigate the underlying cases, which they have already lost.?

 That claim is a real stretch. They are suing White and O’Connell alleging they had no basis for their claims of unsanitary conditions, and are now like the policeman in Casablanca they are “shocked, shocked I tell you… that gambling has been going on? as he collects his nights winnings.   The Hospital attorneys must be delusional if they believe they can maintain a strike back lawsuit and not expect the defendants to defend themselves by reference to the proof of the original claims of unsanitary conditions alleged in their original lawsuits.   If the managers of Jewish Hospital that authorized the strike back lawsuit against the attorneys thought they could sue the attorneys without exposing their own dirty laundry then they were sadly mistaken, or perhaps ill-advised.

   Jewish Hospital by authorizing the strike back lawsuits against White and O’Connell, have provided a forum for discussion of their sanitary practices.  The hospital lawsuit said there was no basis for the original claims…so the defense is mandated to bring up the facts regarding those claims of unsanitary conditions.
The Jewish Hospital won a procedural and technical victory in getting the dismissal of the lawsuits. By no stretch of the imagination has any court in this case made a finding that the unsanitary conditions did not exist.  There has been no jury verdict finding the hospital clear of any negligence.  All they have so far achieved is a dismissal on procedural and technical grounds without any finding on the facts. 

The Jewish Hospital lawyers fought hard and successfully to avoid discussion of the actual facts and claims in this case.  Why they would now file a strike back lawsuit that will require a public discussion of those same facts is unfathomable.

 Perhaps the public interest will in the end be served by this lawsuit by the exposure to the facts regarding the claims of the 96 original plaintiffs about their illnesses which they claim were contracted at the hospital due to unsanitary conditions.  Didn’t Jewish Hospital see this one coming?

 See the Wolfson article at: Lawsuits vs. Jewish Hospital defended                              By Andrew Wo


Monday, May 21st, 2007

Polls open at 6 a.m. in Kentucky this May 22nd, 2007.  Those who predict such things are expecting a turnout of about 17% of the qualified voters.


We recommend that you take a few minutes and do your civic duty.  When we have almost 200,000 soldiers overseas in a war, the least we can do is go to the polls

Criminalization of Homeless Individuals in Cincinnati

Monday, May 21st, 2007

Prepared by: Lynne Ausman Civil Rights Coordinator Greater Cincinnati Coalition for the Homeless 


In the past six or seven months, the political climate in Cincinnati has brought about an increased awareness of criminal justice issues such as crime, a new jail tax, and jail overcrowding. These issues have presented the city and the county with unique challenges. How do corrections officers and jail administration determine who stays in jail and who is released immediately? How does the county fund the construction of a new jail to accommodate the increased number of offenders? How does the county and/or city respond to crime? How does the city or county attempt to prevent crime? These issues prompted the Greater Cincinnati Coalition for the Homeless to research the relationship between the criminal justice system and homeless individuals. This research confirmed our suspicions that although homeless individuals are typically arrested for minor misdemeanors and fourth degree misdemeanors which are typically non-violent, the Hamilton County Jails are still clogged with homeless individuals. In addition, as the temperatures outside rise, so do the number of homeless arrests. 


The following information is based off of public records available between October 1, 2005, and September 30, 2006. A total of 54,495 records were provided. While all information is a matter of public record, confidentiality of the individuals found in the records request is top priority. Individuals were identified as homeless based on the address they provided at the time of arrest. However, due to the large number of people who provided a “homeless address,? only those who provided a homeless address at least fifty percent of the time will be discussed here, unless otherwise noted. 


There were a total of 2,912 records and 840 people identified as homeless. A homeless address is any address that was given at the time of arrest which implies homelessness (e.g. 0 Homeless, or 100 No Home), or is the address of a human services agency whose clients are homeless. These agencies include shelters, soup kitchens, and transitional housing facilities, among others. Also included were the addresses of the Hamilton County Jails and of the Adult Parole Authority. A list of all homeless addresses found is available in the appendix (Chart 1). Almost eighty-three percent of the addresses provided were homeless addresses. The remaining seventeen percent were residential or commercial addresses – which were verified via the Hamilton County Auditor’s website ( 


It is important to note that while the individuals provided these addresses during one or more of their arrests, it does not mean that they actually stayed at or received any services from that agency. The Drop Inn Center determined from their own independent research that 95% of their residents had not been charged with a crime between January 1, 2006, and May 22, 2006. The Drop Inn Center also found that 67% of those arrested with the Drop Inn Center as their address did not stay at the Drop Inn Center. 


Homeless individuals live a very different life from non-homeless individuals. They are often outside – exposed to the elements and high and low temperatures. The number of arrests for both homeless and non-homeless individuals remained fairly constant throughout the year, with only a slight dip during the colder months. However, there were spikes of homeless arrests in April 2006 and again in July 2006, but no spike in arrests for the rest of the population. This is most likely because homeless individuals leave the shelters which protected them from the bitter cold of winter, to live on the river bank or under bridges. Homeless individuals are more visible and the police are more likely to receive complaints during the warmer months. 


Homeless individuals take up a considerable amount of space in the Hamilton County Jails. Between August 28, 2006, and November 2, 2006, the jail roster was analyzed almost daily. During this time, an average of 5.68% of the jail population was homeless. This was determined by cross referencing the public records with the jail roster as it is available on the Hamilton County Sheriff’s Website ( The Hamilton County Jails were over capacity every day the data was collected, however, had homeless individuals not been arrested, the jail would not have been over capacity on all of those days. 


Homeless individuals rarely commit violent crimes. This is evident because minor misdemeanors and misdemeanors comprise about seventy-two percent of crimes charged against individuals with a homeless address. Minor Misdemeanors accounted for 25.38% of charges and 46.88% for misdemeanors of all degrees. Some of the most common charges associated with homeless individuals are: open flask charges, public indecency due to public urination, sitting on the sidewalk, spitting in a public place, dumpster diving (upsetting public and private receptacles), littering charges, loitering charges, solicitation charges (commonly improper solicitation for panhandling), trespassing charges, and disorderly conduct charges. 


These are the big 10 homeless crimes because they are either the most common charges against homeless individuals or no one else is arrested for these crimes except homeless individuals.. Forty-four percent of the charges against homeless individuals are for homeless crimes. These homeless crimes represent some of the quality of life issues faced by homeless individuals daily. If homeless individuals were not homeless, they would not be committing these crimes. Homeless individuals have little choice but to panhandle, loiter, and trespass. It’s the nature of being homeless, no matter where they go, they will be trespassing. Chart 2 provides a list of all of the charges. 


Constantly arresting homeless individuals for quality of life crimes is a huge cost burden for the county to bear. This is especially true when there are other more cost effective, proven successful alternatives available within the community. It costs $65 per bed per day in the jail. The Lewin Group conducted their own study titled “Costs of Serving Homeless Individuals in Nine Cities.? Columbus, Ohio, was one of those cities. In Columbus, Ohio, it costs $70 per bed per day in jail and just over $30 a day for supportive housing. Supportive housing is not transitional and is not emergency shelter, it is permanent and the residents are eligible to continue working with case workers and for various services including substance abuse and mental health treatment. 


Fifty three of the individuals identified as homeless had been arrested five or more times during the year. These fifty three are most likely falling through the cracks in the justice system as well as in the social service system. If Hamilton County had housed each of these individuals to the maximum extent of the law, they easily could have spent over $4.2 million alone. The average cost per person in our focus group is $35,100. The range of cost is between $1,950 and $538,850. The individual who potentially cost the county $538,850 had 42 charges against him – all but nine were misdemeanors and the nine felony counts were non-violent. Another individual could have cost the county over forty thousand dollars in twelve months. He had thirty-eight charges against him, gave a homeless address one hundred percent of the time, and his most severe charges were public indecency and improper solicitation – both fourth degree misdemeanors. His other charges included possession of an open flask and disorderly conduct. 


respond to homelessness. Work needs to occur in the eradication of homelessness though the production of safe, affordable housing and jobs with a living wage to stop the revolving door at the justice center. 

Final Whas/Survey USA poll released day before primary election.

Monday, May 21st, 2007

You may want to compare this poll to the actual results that will be tallied on May 22nd.  Poll results cannot predict the turnout and it is possible that some sections of the state may vote more heavily than others, and this could alter polling results. 

A WHAS 11/Survey USA poll out Monday May 21st, 2007 with virtually no changes in the democratic or republican races for governor.
The poll was taken friday through sunday and included the names of the
full tickets. 635 democrats who said they were likely to vote on tuesday
and 465 republicans who identified themselves as likely voters, were
polled. The only movement since the last Survey USA poll was released
last tuesday was from Billy Harper who moved up 3 points.
44% Fletcher
34% Northup
17% Harper
5% Und.
32% Beshear
23% Lunsford
17% Henry
12% Richards
7% Galbraith
1% Hensley
6% Und.
On the republican side, Fletcher continues to best Northup in every section of Kentucky except Louisville and surrounding counties. In the democratic race, Henry dropped one point (well within the margin of error) but lost traction in the Louisville area. Henry was getting 33% of the Louisville area vote in the previous poll, just 27% in the new poll.


Monday, May 21st, 2007

By LINDA GREENHOUSE  New York Times May 22, 2007
WASHINGTON, May 21 — A Supreme Court decision on Monday gave parents of children with disabilities the right to go to court without a lawyer to challenge their public school district’s individualized plan for their child’s education.
The 7-to-2 decision involved an interpretation of the federal law that gives all children the right to a “free appropriate public education,? regardless of disability. Millions of children receive benefits under the law, the Individuals with Disabilities Education Act. Most federal appeals courts have ruled that when a dispute brings families and school districts into court, the parents cannot proceed without a lawyer.
Many parents, including the couple from Parma, Ohio, who brought this case, either cannot afford a lawyer or cannot find one. Increasingly, school districts have been bringing parents who seek to handle their own cases into court on charges of violating state statutes against the “unauthorized practice of law.?
The Supreme Court’s ruling will therefore change the status quo in many parts of the country, opening federal courthouse doors that were previously closed to parents. The Bush administration supported the parents in this case, Jeff and Sandee Winkelman, who were represented in the Supreme Court without charge by a lawyer from Los Angeles, Jean-Claude André.
The court’s analysis, in a majority opinion by Justice Anthony M. Kennedy, was based on the conclusion that the statute guarantees rights not only to children, but also to their parents. Consequently, Justice Kennedy said, when parents go to court to protest the school district’s proposal for their child, they are representing their own interests, as everyone is entitled to do in any federal court case, and are not acting as the unauthorized lawyers for someone else.
One of the oldest federal laws on the books, derived from the original Judiciary Act of 1789, provides that “in all courts of the United States the parties may plead and conduct their own cases personally or by counsel.?
Whether parents may represent their child in court, as opposed to themselves, is a question “we need not reach,? Justice Kennedy said, in light of the majority’s conclusion that the interests of parents and children in a child’s education are inextricably intertwined. The decision by Congress to recognize parental rights under the statute was “fully in accord with our social and legal traditions,? Justice Kennedy said.
The two dissenters were Justices Antonin Scalia and Clarence Thomas. In an opinion by Justice Scalia, they said the statute permitted parents to represent themselves in certain administrative proceedings, like a hearing on whether they are entitled to reimbursement for private school expenses.
But while the statute gives parents a right to reimbursement under certain circumstances, Justice Scalia argued, the “substantive right? to a “free appropriate public education? belongs not to the parent but to the child, “for it is he who receives the education.?
Justice Scalia continued: “The parents of a disabled child no doubt have an interest in seeing their child receive a proper education. But there is a difference between an interest and a statutory right.?
The case, Winkelman v. Parma City School District, No. 05-983, began with the parents’ dissatisfaction with the school district’s educational plan for the youngest of their five children, Jacob, who has a form of autism. Unable to afford a lawyer, they filed their own lawsuit in Federal District Court in Cleveland. They lost, and while the case was on appeal, the United States Court of Appeals for the Sixth Circuit ruled in another case that parents bringing such suits could not proceed without a lawyer.
The appeals court, based in Cincinnati, ordered the Winkelmans’ case dismissed unless they retained a lawyer within 30 days. Justice John Paul Stevens, who oversees the Sixth Circuit, granted a stay of that order to enable the Supreme Court to decide what to do.
The court asked the Bush administration for the views of the Department of Education, which agreed with the Winkelmans. Solicitor General Paul D. Clement urged the justices to accept the parents’ appeal and overturn the Sixth Circuit’s decision.
The National School Board Association and other school management groups entered the case on the side of the school district. They warned that allowing parents to proceed without lawyers would “increase the already burdensome costs of special-education litigation? because parents lack professional experience and judgment and would be “emotionally invested in the outcome of the case.?
Of the Parma district’s 13,000 students, 2,200, or about 17 percent, are identified as special-education students, a proportion similar to that in many other districts. School districts frequently complain that while they must comply with many federal requirements for special education, there is less and less federal money available.
In another action on Monday, the court dismissed an appeal brought by the State of Missouri in a death penalty case. The case, Roper v. Weaver, No. 06-313, was argued two months ago, with the state maintaining that a federal appeals court improperly granted habeas corpus to a death row inmate, William Weaver.
In an unsigned opinion, over the dissenting votes of Justices Scalia, Thomas and Samuel A. Alito Jr., the court said that on reconsideration and for procedural reasons, fairness to the defendant required dismissal. Justice Scalia, joined by the other two dissenters, denounced the result as “a rare manifestation of judicial clemency unrestrained by law.?

The Disappearing Civil Trial Presents Threat to Constitutional Values.

Monday, May 21st, 2007

Only 1.3% of federal civil cases filed are actually going to trial. 40% drop in State Civil Trials since 1976.

The following article is edited and excerpted from an article in BusinessWeek by Michael Orey.

Around the U.S. plenty of lawsuits are getting filed, but fewer and fewer are going to trial. The civil trial is one of the most iconic American institutions, a time-honored forum where disputes over injuries, divorces, and all manner of business disasters are resolved. Yet rising legal costs, decreasing judicial tolerance for weak lawsuits, and the surging use of alternative dispute resolution (ADR) are combining to make courtroom showdowns exceptional occurrences.

After peaking as 12,018 in l984, the number of civil trials in all federal district courts has dropped precipitously, reaching a new low of 3, 555 in 2006.  That’s almost half the number of federal trials that took place 40 years ago, even thought the number of suits filed during the same period soared from 66, 144 to 259,541. (That means that only 1,3% of federal civil cases filed are actually going to trial.)

University of Wisconsin law professor Marc Galanter has dubbed this trend the “vanishing trial?. It has also played out in state courts.  In 21 states for which data were available, the number of civil jury trials fell 40% from l976 to 2004.

Business attorneys are saying that arbitration is losing its luster among a growing number of clients.  Arbitration is not proving to be “more streamlined or more cost effective? than jury trials in resolving disputes.

One of the side effects of the reduced number of trials, is the drop in the number of precedents – the broad court rulings that tell people and businesses how to behave in changing and legally ambiguous circumstances, “I think it’s a detriment if we lose the development of the common law through cases and appeals that have been the basis of the rule of law in this country since its founding?, says Nathan Heckt, senior justice of the Texas Supreme Court.

Justice Heckt wonders, how younger lawyers will ever develop the skills needed to try cases.

There is evidence that arbitration is falling out of favor with some companies, particularly as a way of resolving disputes with other businesses.   Still “private justice? found in arbitration and mediation, remains popular, partly because it is shielded from the public. In Seattle a cottage industry of retired judges has risen up to resolve not just commercial disputes but also the divorce and child custody battles of the region’s many high-tech millionaires in proceedings that are fast and confidential.

Judges themselves have also become much more aggressive about pruning their dockets, resolving cases through summary judgment, or pressuring parties to mediate or settle. That’s not necessarily bad, but some say its gone to far. There’s a divide in the judiciary, says William G. Young, a federal district judge in Boston. Some judges, he says, see their job as “managing? disputes and avoiding trial. Others including himself, do not shy away from trial and think they play a critical role in American justice.   He has written that “the American jury system is withering away, and that without jury trials, the courts status as the grassroots guardians of constitutional values is threatened as never before.

David Berg, a longtime Houston trial lawyer, sees a future devoid of the courtroom dramas that have long captured the American imagination. In a manual on trial technique that eh published law year, Berg wrote that he feared that “the great war stories of the next generation of trial lawyers would begin “and then, I looked the mediator in the eyes and I said

Gonzales rapped as presidents yes man at cost of Justice Department

Monday, May 21st, 2007

Former aide, Monica Goodling, to testify before Congress this week. She is said to be the direct link to Carl Rove.


WASHINGTON — Attorney General Alberto Gonzales says his long friendship with President Bush makes it easier to say “no” to him on sticky legal issues.
Gonzales’ critics say the attorney is far more likely to say “yes,” and they say that leaves the Justice Department vulnerable to a politically determined White House.
Probably not since Watergate has an attorney general been so closely bound to the White House. Gonzales has pushed counterterrorism programs that courts found unconstitutional and filled the ranks of federal prosecutors with Republican loyalists. In doing so, he has put Bush’s stamp on an a Cabinet department that is supposed to operate largely free of the White House and beyond the reach of politics.
“This intertwining of the political with the running of the Justice Department has gone on in other administrations, both Republican and Democrat,” said Paul Rothstein, a professor at Georgetown Law School. “But I think it’s being carried to a fine art by this president. They leave no stone unturned to politicize where they think the law will permit it. And they push the line very far.”
Gonzales, a friend and adviser to Bush since their days in Texas, calls their close relationship “a good thing.”
“Being able to go and having a very candid conversation and telling the president: ‘Mr. President, this cannot be done. You can’t do this,’ — I think you want that,” Gonzales told reporters this week. “And I think having a personal relationship makes that, quite frankly, much easier always to deliver bad news.”
“Do you recall a time when you (were) in there and said, ‘Mr. President, we can’t do this?”‘ Gonzales was asked.
“Oh, yeah,” the attorney general responded.
“Can you share it with us?” a reporter asked.
“No,” Gonzales said.
Gonzales, facing a no-confidence vote in the Senate, is resisting lawmakers’ demands that he resign. He says he will remain in the job until he no longer has the president’s support.
“It’s important for any public official to have as much confidence as he can garner, and it will ebb and flow,” White House spokesman Tony Fratto said Friday. “But it will not ebb and flow with this president and this attorney general.”
A growing number of critics says Gonzales repeatedly has sought to shape the normally independent department to the White House’s ends.
Among examples they cite of White House meddling at the Justice Department are:
–A dramatic 2004 confrontation between Gonzales, then the White House counsel, and former Attorney General John Ashcroft over whether to reauthorize a secret program to let the government spy on suspected terrorists without court approval.
At the time, Ashcroft was in intensive care and not seeing any visitors. His former deputy, Jim Comey, told the Senate last week that Gonzales and then-presidential chief of staff Andy Card came to Ashcroft’s hospital room to get his approval in what Comey described as an “effort to take advantage of a very sick man.”
Ashcroft refused to sign off on the program. The next day, the White House reauthorized the program without the department’s approval. Ultimately, Bush ordered changes to the program to help the department defend its legality.
Less than a year later, in February 2005, Gonzales took Ashcroft’s place as attorney general. The program was branded unconstitutional by a federal judge and since has been changed to require court approval before surveillance can be conducted.
–Allegations that Monica Goodling, the department’s liaison to the White House and Gonzales’ former counsel, aimed to only hire career prosecutors who were Republicans. Making hiring decisions based on political affiliation is illegal.
Goodling quit last month and is set to testify this week before a House committee investigating whether politics played a part in the firings last year of eight U.S. attorneys.
–Department documents show that shortly after the 2004 elections, Bush political adviser Karl Rove questioned whether all 93 of the nation’s top federal prosecutors should be ordered to resign. He also helped coach Justice aide William Moschella’s planned testimony before the House Judiciary Committee. Rove also was included in e-mail traffic about the firings between the White House and the department.
As presidential appointees, U.S. attorneys serve at the president’s pleasure and the White House is properly involved in discussions about their employment. But Rove used an unofficial e-mail address, registered to the Republican National Committee, to correspond about the firings — raising the specter that politics was behind the ousters.
–The administration changed policy to allow more department officials to be in touch with the White House about some of the government’s most sensitive criminal and civil cases. During President Clinton’s two terms, such discussions were restricted to six people — two at Justice and four at the White House.
In 2002, a year after Bush took office, the number of people was greatly expanded. By Sen. Sheldon Whitehouse’s estimates, 417 White House staff members and 42 Justice Department employees can discuss sensitive cases.
“It creates a partisan atmosphere, and that creates issues of confidence in the administering of justice,” said Whitehouse, a Rhode Island Democrat who previously served as U.S. attorney in the state.
Some Republicans, too, doubt Gonzales can keep the White House’s influence from improperly seeping into his department.
“The problem here is that it appears the attorney general, when he moved from 1600 Pennsylvania Avenue to the Department of Justice, he didn’t realize he’d changed jobs,” said Arnold I. Burns, a deputy attorney general during the Reagan administration.
Burns himself is a reminder that close ties between Justice and the White House have posed problems before. He resigned in 1988 in protest of charges of improper behavior by then-Attorney General Edwin Meese III, a longtime friend of President Reagan. Meese was later cleared but resigned before the end of the term.
Former Attorney General Robert F. Kennedy, too, had obvious close ties to President John F. Kennedy, his brother. But critics say Gonzales’ relationship with Bush rivals that between former Attorney General John Mitchell and his former law partner, President Nixon.
Mitchell left the department in 1972 to run Nixon’s re-election campaign. Mitchell served 19 months in prison after conviction on conspiracy, perjury and obstruction of justice charges for his role in the Watergate break-in of Democratic headquarters.
Reacting to Watergate abuses, Carter administration Attorney General Griffin Bell made changes to help maintain the department’s independence. They include a ban on lawmakers and the White House directly contacting prosecutors about specific investigations.
That ban was violated last year when New Mexico GOP Sen. Pete Domenici and Rep. Heather Wilson, R-N.M., called former U.S. attorney David Iglesias in Albuquerque to ask about the status of public corruption cases. Iglesias later said they wanted to know whether he was going to indict Democrats before the looming election. The incident is cited by Democrats who argue the U.S. attorney firings were politically motivated.
Philip Heymann, a Harvard law professor who worked at the Justice Department under several Democratic presidents, said the White House is using the law “almost exclusively as a form of protection and a form of armor, if you can get the Justice Department to say it’s fine.”
“I think they wanted a loyal attorney general, not somebody who would say ‘no’ when they very badly wanted them to say ‘yes,”‘ Heymann said. “And now they’ve got that.”

Metadone is Leading Cause of Drug Overdue cases in Ky.

Monday, May 21st, 2007

In a release by the Ky. Justice and Public Safety Cabinet methadone is named as leading cause of medication overdoses and is responsible for 198 deaths in last year. 

FRANKFORT, Ky. – Overdose due to methadone is on the rise in Kentucky.  The 2006 Office of the State Medical Examiner’s Annual Report indicates 197 deaths related to the misuse of the prescription drug methadone.  Methadone was the prescription drug that was most frequently detected in the blood of fatal overdose victims.  

The numbers reflect the total cases undergoing autopsies by the Kentucky Medical Examiner’s Office in 2006.  Methadone was detected in 41% of the 484 overdose death cases in Kentucky. 

“Prescription drug overdoses in general, and methadone overdoses in particular, claim a large number of lives each year in the Commonwealth.  These tragic deaths of Kentuckians are unnecessary and preventable,? said Kentucky Chief Medical Examiner Dr. Tracey Corey.  “Regional and local medical societies and health departments may help reduce this tragic loss of life by making patients and physicians aware of the possibility of accidental fatal overdose associated with the use of prescription narcotics, especially when used in concert with other prescription drugs.?  

Figures from the Kentucky All Schedule Prescription Electronic Reporting (KASPER) system, supplied by Dave Sallengs, R.Ph., branch manager of Drug Enforcement and Professional Practices in the Office of the Inspector General of the Cabinet for Health and Family Services, show neither the number of prescriptions filled in Kentucky for methadone, nor the number of dosage units prescribed have changed significantly from 2003 through 2006.  

“Since methadone has a shorter duration in the body than other controlled substance pain relievers the daily dosage is higher,? stated Sallengs.  “This could lead to a perception by patients that they could use increased dosages without concern about overdose.  More patient education by prescribers and pharmacists when methadone is prescribed could help diminish the incidence of these overdoses.? 

“It is important to get the message out and warn the citizens of Kentucky about the misuse of Methadone. I urge all members of law enforcement, hospitals, poison control centers, and emergency medical technicians to continue educating themselves on the effects and symptoms associated with methadone abuse,? said Kentucky Office of Drug Control Policy Executive Director Laurie Dudgeon.  “The seriousness of methadone overdose and its possible consequences cannot be overemphasized.? 

A recent federal government study found that nationwide methadone-related deaths climbed to more than 3,800 in 2004 from about 780 in 1999.  

Facts on methadone 

* Methadone is commonly prescribed for treating patients suffering from chronic pain and medical professionals describe methadone as an effective tool for pain management. 
* Methadone used to treat pain can be prescribed by a medical professional licensed to prescribe controlled substances in Kentucky.
* Prescriptions written for methadone are reported by dispensers to the KASPER system as well as prescriptions filled for methadone by pharmacies.
* In Kentucky, methadone is also used to treat the addiction of narcotics/opiates by clinics licensed to do so.  It is the most used drug for the treatment and maintenance of narcotic addiction. 

ODCP plans to hold seminars to educate the general public as well as health care professionals on methadone usage. 




Sunday, May 20th, 2007

Large U.S. Corporations are said to help thieves prey on the elderly.

By CHARLES DUHIGG   May 20, 2007
The thieves operated from small offices in Toronto and hangar-size rooms in India. Every night, working from lists of names and phone numbers, they called World War II veterans, retired schoolteachers and thousands of other elderly Americans and posed as government and insurance workers updating their files.

Then, the criminals emptied their victims’ bank accounts.

Richard Guthrie, a 92-year-old Army veteran, was one of those victims. He ended up on scam artists’ lists because his name, like millions of others, was sold by large companies to telemarketing criminals, who then turned to major banks to steal his life’s savings.

Mr. Guthrie, who lives in Iowa, had entered a few sweepstakes that caused his name to appear in a database advertised by infoUSA, one of the largest compilers of consumer information. InfoUSA sold his name, and data on scores of other elderly Americans, to known lawbreakers, regulators say.

InfoUSA advertised lists of “Elderly Opportunity Seekers,? 3.3 million older people “looking for ways to make money,? and “Suffering Seniors,? 4.7 million people with cancer or Alzheimer’s disease. “Oldies but Goodies? contained 500,000 gamblers over 55 years old, for 8.5 cents apiece. One list said: “These people are gullible. They want to believe that their luck can change.?

As Mr. Guthrie sat home alone — surrounded by his Purple Heart medal, photos of eight children and mementos of a wife who was buried nine years earlier — the telephone rang day and night. After criminals tricked him into revealing his banking information, they went to Wachovia, the nation’s fourth-largest bank, and raided his account, according to banking records.

“I loved getting those calls,? Mr. Guthrie said in an interview. “Since my wife passed away, I don’t have many people to talk with. I didn’t even know they were stealing from me until everything was gone.?

Telemarketing fraud, once limited to small-time thieves, has become a global criminal enterprise preying upon millions of elderly and other Americans every year, authorities say. Vast databases of names and personal information, sold to thieves by large publicly traded companies, have put almost anyone within reach of fraudulent telemarketers. And major banks have made it possible for criminals to dip into victims’ accounts without their authorization, according to court records.

The banks and companies that sell such services often confront evidence that they are used for fraud, according to thousands of banking documents, court filings and e-mail messages reviewed by The New York Times.

Although some companies, including Wachovia, have made refunds to victims who have complained, neither that bank nor infoUSA stopped working with criminals even after executives were warned that they were aiding continuing crimes, according to government investigators. Instead, those companies collected millions of dollars in fees from scam artists. (Neither company has been formally accused of wrongdoing by the authorities.)

“Only one kind of customer wants to buy lists of seniors interested in lotteries and sweepstakes: criminals,? said Sgt. Yves Leblanc of the Royal Canadian Mounted Police. “If someone advertises a list by saying it contains gullible or elderly people, it’s like putting out a sign saying ‘Thieves welcome here.’ ?

In recent years, despite the creation of a national “do not call? registry, the legitimate telemarketing industry has grown, according to the Direct Marketing Association. Callers pitching insurance plans, subscriptions and precooked meals collected more than $177 billion in 2006, an increase of $4.5 billion since the federal do-not-call restrictions were put in place three years ago.

That growth can be partly attributed to the industry’s renewed focus on the elderly. Older Americans are perfect telemarketing customers, analysts say, because they are often at home, rely on delivery services, and are lonely for the companionship that telephone callers provide. Some researchers estimate that the elderly account for 30 percent of telemarketing sales — another example of how companies and investors are profiting from the growing numbers of Americans in their final years.

While many telemarketing pitches are for legitimate products, the number of scams aimed at older Americans is on the rise, the authorities say. In 2003, the Federal Trade Commission estimated that 11 percent of Americans over age 55 had been victims of consumer fraud. The following year, the Federal Bureau of Investigation shut down one telemarketing ring that stole more than $1 billion, spanned seven countries and resulted in 565 arrests. Since the start of last year, federal agencies have filed lawsuits or injunctions against at least 68 telemarketing companies and individuals accused of stealing more than $622 million.

“Most people have no idea how widespread and sophisticated telemarketing fraud has become,? said James Davis, a Federal Trade Commission lawyer. “It shocks even us.?

Many of the victims are people like Mr. Guthrie, whose name was among the millions that infoUSA sold to companies under investigation for fraud, according to regulators. Scam artists stole more than $100,000 from Mr. Guthrie, his family says. How they took much of it is unclear, because Mr. Guthrie’s memory is faulty and many financial records are incomplete.

What is certain is that a large sum was withdrawn from his account by thieves relying on Wachovia and other banks, according to banking and court records. Though 20 percent of the total amount stolen was recovered, investigators say the rest has gone to schemes too complicated to untangle.

Senior executives at infoUSA were contacted by telephone and e-mail messages at least 30 times. They did not respond.

Wachovia, in a statement, said that it had honored all requests for refunds and that it was cooperating with authorities.

Mr. Guthrie, however, says that thieves should have been prevented from getting access to his funds in the first place.

“I can’t understand why they were allowed inside my account,? said Mr. Guthrie, who lives near Des Moines. “I just chatted with this woman for a few minutes, and the next thing I knew, they took everything I had.?

Sweepstakes a Common Tactic

Investigators suspect that Mr. Guthrie’s name first appeared on a list used by scam artists around 2002, after he filled out a few contest entries that asked about his buying habits and other personal information.

He had lived alone since his wife died. Five of his eight children had moved away from the farm. Mr. Guthrie survived on roughly $800 that he received from Social Security each month. Because painful arthritis kept him home, he spent many mornings organizing the mail, filling out sweepstakes entries and listening to big-band albums as he chatted with telemarketers.

“I really enjoyed those calls,? Mr. Guthrie said. “One gal in particular loved to hear stories about when I was younger.?

Some of those entries and calls, however, were intended solely to create databases of information on millions of elderly Americans. Many sweepstakes were fakes, investigators say, and existed only to ask entrants about shopping habits, religion or other personal details. Databases of such responses can be profitably sold, often via electronic download, through list brokers like Walter Karl Inc., a division of infoUSA.

The list brokering industry has existed for decades, primarily serving legitimate customers like magazine and catalog companies. InfoUSA, one of the nation’s largest list brokers and a publicly held company, matches buyers and sellers of data. The company maintains records on 210 million Americans, according to its Web site. In 2006, it collected more than $430 million from clients like Reader’s Digest, Publishers Clearinghouse and Condé Nast.

But infoUSA has also helped sell lists to companies that were under investigation or had been prosecuted for fraud, according to records collected by the Iowa attorney general. Those records stemmed from a now completed investigation of a suspected telemarketing criminal.

By 2004, Mr. Guthrie’s name was part of a list titled “Astroluck,? which included 19,000 other sweepstakes players, Iowa’s records show. InfoUSA sold the Astroluck list dozens of times, to companies including HMS Direct, which Canadian authorities had sued the previous year for deceptive mailings; Westport Enterprises, the subject of consumer complaints in Kansas, Connecticut and Missouri; and Arlimbow, a European company that Swiss authorities were prosecuting at the time for a lottery scam.

(In 2005, HMS’s director was found not guilty on a technicality. Arlimbow was shut down in 2004. Those companies did not return phone calls. Westport Enterprises said it has resolved all complaints, complies with all laws and engages only in direct-mail solicitations.)

Records also indicate that infoUSA sold thousands of other elderly Americans’ names to Windfall Investments after the F.B.I. had accused the company in 2002 of stealing $600,000 from a California woman.

Between 2001 and 2004, infoUSA also sold lists to World Marketing Service, a company that a judge shut down in 2003 for running a lottery scam; to Atlas Marketing, which a court closed in 2006 for selling $86 million of bogus business opportunities; and to Emerald Marketing Enterprises, a Canadian firm that was investigated multiple times but never charged with wrongdoing.

Bilking the Elderly, With a Corporate Assist

The investigation of Windfall Investments was closed after its owners could not be located. Representatives of Windfall Investments, World Marketing Services, Atlas Marketing and Emerald Marketing Enterprises could not be located or did not return calls.Rules prohibit list brokers from selling to companies engaged in obvious frauds. In 2004, the agency fined three brokers accused of knowingly, or purposely ignoring, that clients were breaking the law. The Direct Marketing Association, which infoUSA belongs to, requires brokers to screen buyers for suspicious activity.

But internal infoUSA e-mail messages indicate that employees did not abide by those standards. In 2003, two infoUSA employees traded e-mail messages discussing the fact that Nevada authorities were seeking Richard Panas, a frequent infoUSA client, in connection with a lottery scam.

“This kind of behavior does not surprise me, but it adds to my concerns about doing business with these people,? an infoUSA executive wrote to colleagues. Yet, over the next 10 months, infoUSA sold Mr. Panas an additional 155,000 names, even after he pleaded guilty to criminal charges in Nevada and was barred from operating in Iowa.

Mr. Panas did not return calls.

“Red flags should have been waving,? said Steve St. Clair, an Iowa assistant attorney general who oversaw the infoUSA investigation. “But the attitude of these list brokers is that it’s not their responsibility if someone else breaks the law.?

Millions of Americans Are Called

Within months of the sale of the Astroluck list, groups of scam artists in Canada, the Caribbean and elsewhere had the names of Mr. Guthrie and millions of other Americans, authorities say. Such countries are popular among con artists because they are outside the jurisdiction of the United States.

The thieves would call and pose as government workers or pharmacy employees. They would contend that the Social Security Administration’s computers had crashed, or prescription records were incomplete. Payments and pills would be delayed, they warned, unless the older Americans provided their banking information.

Many people hung up. But Mr. Guthrie and hundreds of others gave the callers whatever they asked.

“I was afraid if I didn’t give her my bank information, I wouldn’t have money for my heart medicine,? Mr. Guthrie said.

Criminals can use such banking data to create unsigned checks that withdraw funds from victims’ accounts. Such checks, once widely used by gyms and other businesses that collect monthly fees, are allowed under a provision of the banking code. The difficult part is finding a bank willing to accept them.

In the case of Mr. Guthrie, criminals turned to Wachovia.

Between 2003 and 2005, scam artists submitted at least seven unsigned checks to Wachovia that withdrew funds from Mr. Guthrie’s account, according to banking records. Wachovia accepted those checks and forwarded them to Mr. Guthrie’s bank in Iowa, which in turn sent back $1,603 for distribution to the checks’ creators that submitted them.

Within days, however, Mr. Guthrie’s bank, a branch of Wells Fargo, became concerned and told Wachovia that the checks had not been authorized. At Wells Fargo’s request, Wachovia returned the funds. But it failed to investigate whether Wachovia’s accounts were being used by criminals, according to prosecutors who studied the transactions.

In all, Wachovia accepted $142 million of unsigned checks from companies that made unauthorized withdrawals from thousands of accounts, federal prosecutors say. Wachovia collected millions of dollars in fees from those companies, even as it failed to act on warnings, according to records.

In 2006, after account holders at Citizens Bank were victimized by the same thieves that singled out Mr. Guthrie, an executive wrote to Wachovia that “the purpose of this message is to put your bank on notice of this situation and to ask for your assistance in trying to shut down this scam.?

But Wachovia, which declined to comment on that communication, did not shut down the accounts.

Banking rules required Wachovia to periodically screen companies submitting unsigned checks. Yet there is little evidence Wachovia screened most of the firms that profited from the withdrawals.

In a lawsuit filed last year, the United States attorney in Philadelphia said Wachovia received thousands of warnings that it was processing fraudulent checks, but ignored them. That suit, against the company that printed those unsigned checks, Payment Processing Center, or P.P.C., did not name Wachovia as a defendant, though at least one victim has filed a pending lawsuit against the bank.

During 2005, according to the United States attorney’s lawsuit, 59 percent of the unsigned checks that Wachovia accepted from P.P.C. and forwarded to other banks were ultimately refused by other financial institutions. Wachovia was informed each time a check was returned.

“When between 50 and 60 percent of transactions are returned, that tells you at gut level that something’s not right,? said the United States attorney in Philadelphia, Patrick L. Meehan.

Other banks, when confronted with similar evidence, have closed questionable accounts. But Wachovia continued accepting unsigned checks printed by P.P.C. until the government filed suit in 2006.

Wachovia declined to respond to the accusations in the lawsuit, citing the continuing civil litigation.

Although Wachovia is the largest bank that processed transactions that stole from Mr. Guthrie, at least five other banks accepted 31 unsigned checks that withdrew $9,228 from his account. Nearly every time, Mr. Guthrie’s bank told those financial institutions the checks were fraudulent, and his money was refunded. But few investigated further.

The suit against P.P.C. ended in February. A court-appointed receiver will liquidate the firm and make refunds to consumers. P.P.C.’s owners admitted no wrongdoing.

Wachovia was asked in detail about its relationship with P.P.C., the withdrawals from Mr. Guthrie’s account and the accusations in the United States attorney’s lawsuit. The company declined to comment, except to say: “Wachovia works diligently to detect and end fraudulent use of its accounts. During the time P.P.C. was a customer, Wachovia honored all requests for returns related to the P.P.C. accounts, which in turn protected consumers from loss.?

Prosecutors argue that many elderly accountholders never realized Wachovia had processed checks that withdrew from their accounts, and so never requested refunds. Wachovia declined to respond.

The bank’s statement continued: “Wachovia is cooperating fully with authorities on this matter.?

Some Afraid to Seek Help

By 2005, Mr. Guthrie was in dire straits. When tellers at his bank noticed suspicious transactions, they helped him request refunds. But dozens of unauthorized withdrawals slipped through. Sometimes, he went to the grocery store and discovered that he could not buy food because his account was empty. He didn’t know why. And he was afraid to seek help.

“I didn’t want to say anything that would cause my kids to take over my accounts,? he said. Such concerns play into thieves’ plans, investigators say.

“Criminals focus on the elderly because they know authorities will blame the victims or seniors will worry about their kids throwing them into nursing homes,? said C. Steven Baker, a lawyer with the Federal Trade Commission. “Frequently, the victims are too distracted from dementia or Alzheimer’s to figure out something’s wrong.?

Within a few months, Mr. Guthrie’s children noticed that he was skipping meals and was behind on bills. By then, all of his savings — including the proceeds of selling his farm and money set aside to send great-grandchildren to college — was gone.

State regulators have tried to protect victims like Mr. Guthrie. In 2005, attorneys general of 35 states urged the Federal Reserve to end the unsigned check system.

“Such drafts should be eliminated in favor of electronic funds transfers that can serve the same payment function? but are less susceptible to manipulation, they wrote.

But the Federal Reserve disagreed. It changed its rules to place greater responsibility on banks that first accept unsigned checks, but has permitted their continued use.

Today, just as he feared, Mr. Guthrie’s financial freedom is gone. He gets a weekly $50 allowance to buy food and gasoline. His children now own his home, and his grandson controls his bank account. He must ask permission for large or unusual purchases.

And because he can’t buy anything, many telemarketers have stopped calling.

“It’s lonelier now,? he said at his kitchen table, which is crowded with mail. “I really enjoy when those salespeople call. But when I tell them I can’t buy anything now, they hang up. I miss the good chats we used to have.?

Fourteen Counties will have judicial races on the ballot on May 22nd.

Sunday, May 20th, 2007

Ky. Sec. of State Trey Grayson reminds voters of judicial races on ballot.

(Frankfort, KY) Some voters will have more decisions to make for primary election day on May 22, 2007.  A number of counties will see judicial races on their ballot in addition to races for the state’s constitutional officers.  All registered voters within a judicial district are eligible to vote in their respective judicial primaries.

“A large number of Kentucky voters will have judicial races on the ballot when they head to the polls on May 22nd,? stated Secretary Grayson.  “This is particularly important to voters registered as “other? who might not be eligible to vote on any other races on the ballot.  Voters should prepare for this election by determining the races for which they are eligible to cast a ballot and by researching the candidates for those offices.? 

The most prominent judicial race is for that of the 3rd Appellate District, 1st Division for the Kentucky Court of Appeals.  Six candidates are on the ballot for that race.  The top two vote-getters in this race, as with all other judicial races that have primaries, will proceed on to the general election.

The other judicial races are a result of House Bill 382, as enacted by the 2006 General Assembly.  The bill created seven (7) new circuit judgeships and two (2) district judgeships and had an effective date of January 1, 2007 as provided by gubernatorial veto.  The following information details the new positions (positions preceded by an asterisk will have a primary race on May 22, 2007 because more than two candidates have filed for office):

* County of:                  Hopkins            Circuit Judge
                                                                        “Family Court?
                                                                        4th Judicial Circuit
                                                                        2nd Division

            * County of:                  Hardin              Circuit Judge
                                                                        “Family Court?
                                                                        9th Judicial Circuit
                                                                        4th Division

            * Counties of:                Bourbon            Circuit Judge
                                                Scott                 “Family Court?
                                                Woodford         14th Judicial Circuit
                                                                        3rd Division

            * Counties of:                Breathitt           Circuit Judge
                                                Powell              “Family Court?
                                                Wolfe               39th Judicial Circuit
                                                                        2nd Division
            * Counties of:                Allen                Circuit Judge
                                                Simpson            “Family Court?
                                                                        49th Judicial Circuit
                                                                        2nd Division

            Counties of:                   Boone               Circuit Judge
                                                Gallatin             54th Judicial Circuit
                                                                        3rd Division
            Counties of:                   Russell              Circuit Judge
                                                Wayne              “Family Court?
                                                                        57th Judicial Circuit
                                                                        2nd Division


            County of:                     Warren             District Judge
                                                                        8th Judicial District
                                                                        3rd Division

            * Counties of:                Clark                District Judge
                                                Madison            25th Judicial District
                                                                        3rd Division

For a list of candidates, to determine whether you are eligible to vote in partisan primaries, and for other pertinent election information, contact your county clerk or visit:

# # #


Melanie A. Rolley 4 th Judicial Circuit 2nd Family Nonpartisan Pat Day 4 th Judicial Circuit 2nd Family Nonpartisan Susan Wesley McClure 4 th Judicial Circuit 2nd Family Nonpartisan Bob Bishop 9 th Judicial Circuit 4th Family Nonpartisan Dionna Hatfield 9 th Judicial Circuit 4th Family Nonpartisan Matthew Brent Hall 9 th Judicial Circuit 4th Family Nonpartisan Willie Neal 9 th Judicial Circuit 4th Family Nonpartisan Neil E. Duncliffe 14 th Judicial Circuit 3rd Family Nonpartisan Tamra Gormley 14 th Judicial Circuit 3rd Family Nonpartisan William K. Moore 14 th Judicial Circuit 3rd Family Nonpartisan Larry Miller 39 th Judicial Circuit 2nd Family Nonpartisan Monica S. Lacy 39 th Judicial Circuit 2nd Family Nonpartisan Patrick E. O’Neill 39 th Judicial Circuit 2nd Family Nonpartisan Jim M. Alexander 49 th Judicial Circuit 2nd Family Nonpartisan Martha Blair Harrison 49 th Judicial Circuit 2nd Family Nonpartisan Sid Broderson 49 th Judicial Circuit 2nd Family Nonpartisan Gregory W. McDowell 54 th Judicial Circuit 3rd Nonpartisan J.R. Schrand 54 th Judicial Circuit 3rd Nonpartisan Jennifer Upchurch Clark 57 th Judicial Circuit 2nd Family Nonpartisan John Paul “Jay” Jones 57 th Judicial Circuit 2nd Family Nonpartisan  


John B. Brown 8 th Judicial District 3rd Nonpartisan
Osi Onyekwuluje 8 th Judicial District 3rd Nonpartisan
David G. Perdue 25 th Judicial District 3rd Nonpartisan
Earl Ray Neal 25 th Judicial District 3rd Nonpartisan
Elizabeth Elkins Bond 25 th Judicial District 3rd Nonpartisan
John Faris Lackey 25 th Judicial District 3rd Nonpartisan
Jud Patterson 25 th Judicial District 3rd Nonpartisan
Thomas J. Smith III. 25 th Judicial District 3rd Nonpartisan
Wes Browne 25 th Judicial District 3rd Nonpartisan


New state law expands Delawares role in corporate governance

Saturday, May 19th, 2007

By MAUREEN MILFORD, The News Journal  May 19, 2007
Chief Justice Myron T. Steele says the measure advances the role of state business law.
In a move praised by the corporate legal community, state lawmakers have amended the Delaware Constitution to allow the federal Securities and Exchange Commission to bring critical questions of Delaware business law directly to the state Supreme Court.

The action provides another example of Delaware’s careful cultivation of its dominant position in the law that governs the internal workings of American businesses. Legal experts said the amendment has the potential to expand the power of the state Supreme Court in establishing nationally significant rules of corporate governance.

“It reasserts the dominant role of Delaware in corporate law,” said Charles M. Elson, director of the Weinberg Center for Corporate Governance at the University of Delaware.

Recent controversies involving corporate governance include executive compensation, backdating of options and stockholder voting rights.

Thanks to the state’s historic willingness to tweak its constitution, corporation law and courts, Delaware is the preferred legal home to big business. More than half of the country’s publicly traded companies and 61 percent of Fortune 500 companies are incorporated in Delaware. In 2006, more than 70 percent of initial public stock offerings on U.S. exchanges were by companies incorporated here. This activity fuels a thriving legal industry and provides about $750 million in taxes and fees annually.

“Delaware has a tradition of stepping into the breach,” said Lawrence A. Hamermesh, director of the Widener Institute of Delaware Corporate and Business Law. “It’s attentive to play a role where it appropriately can and not play a role where it can’t.”

The constitutional amendment, which took effect this month, will make Delaware law more predictable and consistent, something prized by American business.

Under the amendment, the court can hear and determine questions of law “certified” (or posed) by the SEC, the federal entity that regulates stock trading and enforces securities law.

Before the amendment, the Supreme Court could take questions only from other courts, which included the high courts in other states, a federal district or appellate court and the U.S. Supreme Court.

The amendment is designed to keep the SEC from having to guess at what the Delaware’s highest court would rule on issues of corporate governance. The Delaware Supreme Court is considered the “last word” on matters of corporate law.

An example of the type of question the SEC could ask the court is whether Delaware law would permit shareholders to force a board to include a competing slate of directors in the company’s proxy statement, lawyers said.

“Our motivation is to advance a direct interpretation of Delaware law,” said Chief Justice Myron T. Steele. “It reaffirms that we work with the federal government in corporate governance for the benefit of shareholders and companies.”

Brian G. Cartwright, general counsel of the SEC, was not available for comment Friday. But in a press release issued by the Supreme Court, Cartwright said he was pleased by Delaware’s action.

“In our constitutional system, federal and state law coexist side-by-side, each with its distinctive role. As a result, the administration of the federal securities laws often requires interpretation of state law. I am delighted that the SEC now has this new ability to obtain definitive answers to important questions of Delaware law,” the statement said.

Steele said it remains to be seen how often the SEC will certify questions to the court. But the idea for the amendment emerged out of a brainstorming session between Delaware Supreme Court and Chancery Court judges and the SEC.

John C. Coffee, a professor at Columbia Law School, called it an “immensely creative thing for Delaware to have done.”

Hamermesh said an example of the kinds of questions the SEC could ask the Supreme Court include issues about whether certain bylaws are valid under Delaware law.

But Hamermesh proposed another reason the SEC may be willing to certify questions to the Supreme Court.

“It may be passing the buck. It takes them out of hot water when they have to make decisions about matters that are controversial politically,” Hamermesh said.


Iowa courts adopt do-it-yourself divorces. 33 STATES HAVE WEB SITES TO HELP PEOPLE REPRESENT THEMSELVES

Saturday, May 19th, 2007

By DAVID PITT, Associated Press 


DES MOINES (AP) — Following through on a promise to make the court system more accessible to residents, Iowa Supreme Court Chief Justice Marsha Ternus has implemented procedures for self-help divorces.

Ternus, who became the high court’s chief justice in September, signed an order Wednesday that permits residents without children to initiate and respond to divorce actions without an attorney.

The order became effective immediately.

Ternus said in a statement on Thursday that courts across the nation, including in Iowa, have seen tremendous increases in people representing themselves.

“While people have a right to represent themselves in court, the vast majority who do so are unfamiliar with the laws, unfamiliar with court procedures and unequipped to effectively handle their legal problems,” she said. “Our self-help forms and instructions will help people navigate through Iowa’s divorce laws and court procedures, and help ensure that Iowans who cannot afford professional legal services have access to the courts.”

Sen. Keith Kreiman, D-Bloomfield, a private practice attorney, said he has concerns about do-it-youself divorces.

“I think this is something that has to be watched very closely as it’s being implemented. I would hope that the court would be ready to pull the plug on it if it causes significant problems,” he said.

Kreiman, who is chairman of Senate Judiciary Committee, fears that judges may be asked to litigate between parties with uneven power.

“My concern is about the level of justice people receive and families receive on their own,” he said.

In a 2005 report, the National Center for State Courts, said a survey it conducted indicated 33 states have Web sites to help people represent themselves, 23 states had self-help offices and 19 states had self-help task forces.

“Several courts are adopting protocols for judges to use during hearings involving self-represented litigants, as well as changing court rules to allow court staff to provide assistance to self-represented litigant,” the report said. “Once courts realize that programs to assist self-represented litigants can save the court time, they will embrace these changes.”

Jeff Atkinson, a professor at the DePaul University College of Law and author of the 2006 book, “The American Bar Association Guide to Marriage, Divorce & Families,” said divorces without issues of child custody and dividing property can likely be handled without a lawyer.

“On the whole, there are more benefits than drawbacks. It lets people get on with their lives without undue cost or obligation,” he said.

He said the lawyers are likely not too concerned about being shut out of the legal system anytime soon.

“There is a significant number of cases in which lawyers are necessary because of the amount of cases with complexities of sorting out custody arrangements and determination of support paid from one spouse or another. With those situations parties are likely to need a lawyer,” he said.

Iowa has provided self-help forms for small claims cases for years, Ternus said.

Plans are to continue to roll out self-help procedures in other areas of family law, including child support.

The self-help divorce forms, instructions and legal guides are available on a Web site set up by the court.

The completed forms must be taken in person to a clerk of court office 


Friday, May 18th, 2007

Monday, May 14, 2007 was designated “Wiretap the Internet Day” all over the place. As of that date, all cable modem companies, DSL providers, broadband over powerline, satellite Internet companies and a few universities are now wired with all the new FBI-friendly surveillance equipment. May 14, 2007 was the official deadline for when this project had to be done for all the parties listed above.
This requirement was put in place to comply with the FCC’s expanded version of the Communications Assistance for Law Enforcement Act (CALEA). This Act was first developed in 1994 to help the FBI with the new digital telecom technology. It basically required phone companies to make their phone networks easier to wiretap. It has helped tremendously in shortening the time it takes to start up a wiretap. For instance, the police can now start listening to a wiretap in less than one day’s time.
Now, the CALEA is requiring that this go into effect with the Internet as well. The debates on that started way back in 2002 and although the court votes varied, it was still put into action. It did take five years to get it going, but at least it finally is.
All the computer service companies listed above had to submit an FCC form saying that they were on schedule with the update or explaining why they weren’t. Again, the deadline for that was this past Monday. Now, if you’re just an average computer user, you don’t really have to worry about this, but if you’re an Internet provider, etc., you do have to comply with these regulations. (If that’s the case and you’re behind in getting your form submitted, you can find a lot more information online about what you can do now that the deadline has passed).
I know you may be wondering why this new surveillance is so important and the best answer I can give you is that it will make investigations go along much faster and easier when dealing with computers, etc. It will help the FBI rule out some of the “old fashioned” police work as well.
Like I said, this new development doesn’t really affect you unless you’re an Internet provider, etc. I just wanted to give you the information at hand, so you know you’re in the loop. In case you every wondered, let there be no doubt that the FBI and other security agencies can easily tap your phone calls and internet usage.  Of course the law requires them to follow the rules as listed in the Patriot Act and other legislation.
Gwen Billingsley

Making Law Enforcement a Political Enterprise: Key Examples from the U.S. Attorney Scandal and the So-Called First Freedom Project

Thursday, May 17th, 2007

By MARCI HAMILTON   Thursday, May. 17, 2007

 Now, a fourth head has rolled, in the Bush Administration’s Department of Justice, over the issue of the firings of United States Attorneys. Democrats and some Republicans have called for Attorney General Alberto Gonzales to resign because the firings appear to have been solely politically motivated. But so far, only those working for Gonzales have had to leave office. They include Monica Goodling, who was the White House liaison; Gonzales’s Chief of Staff, Kyle Sampson; William Battle, who informed the U.S. Attorneys they were being replaced; and now Paul McNulty, the Deputy Attorney General.
It says something unfortunate about the Attorney General’s character that he himself has not chosen to resign, because, given what is now known, there is little doubt that at least some of the firings were improper. Moreover, as I will explain, this is hardly the only instance in which this Justice Department has improperly politicized the enforcement of the law.
Why This Scandal May Damage Not Only Gonzales, But Also the Office of U.S. Attorney

The sycophants for the Administration have defended what happened as business as usual. In support of this claim, they make the legalistic argument that Presidents always replace United States Attorneys with their own political choices. To an extent, that is true. However, historically, those replacements have not been the result of the DOJ’s monitoring whether – or how avidly — the U.S. Attorneys were prosecuting Democrats, or engaging in other behavior relevant to the political fortunes of Republican politicians. The Republican Party really has changed character when the values of law and order take such a public backseat to political motive.
The other sad part of this scandal is that it may well reduce the stature of the U.S. Attorney position itself. One of the key reasons the position has been so desirable is that these critical federal prosecutors are usually given significant latitude to do what is right under the law. Obviously, each Administration prioritizes certain federal criminal objectives, but within those broad outlines, U.S. Attorneys have been left to exercise their good judgment. Moreover, they are far from mere political appointees: While they may be chosen out of a particular political pool during any given Administration, they are also selected in no small part for their judgment, intelligence, and integrity. And this is a distinction that does make a difference.
Interfering with U.S. Attorneys’ prosecutorial discretion for political ends demeans the job. If they are political hacks first, and enforcers of federal law second, none of us is served.
Another Example of Improper DOJ Partisanship: Serving Particular Religious Interests
Unfortunately, this is not the only arena where the Attorney General seems to have subjugated the mission of the Department of Justice to political ends. In addition, the Department of Justice has become an aggressive defender of “religious liberty,” though it would appear that its actual definition of such liberty entails its serving religious interests rather than enforcing constitutional rights.
Under the Constitution, and particularly the First Amendment, the government may not discriminate against religion in general, or against any particular religion. Neutral, generally applicable laws, though, may apply to religious entities – a principle the Court clearly reiterated in the 1990 decision in Employment Div v. Smith, which held that the Constitution’s Free Exercise Clause does not require an exception to general state drug and unemployment compensation laws for the use of peyote in religious ceremonies.
Especially after the Smith decision, religious entities have been lobbying to obtain the right to avoid the obligations of the law – and even of laws that, like the laws at issue in Smith, do not remotely have the purpose of discriminating against religion or against particular religions. Those entities have had particular pull with the Bush Department of Justice.

Earlier, in addition to holding personal prayer sessions for staff in his office, Attorney General Ashcroft chose to prosecute Oregon for its assisted-suicide law, even though federal intervention was not needed and violated federalism principles — in a blatant attempt to fulfill his own religious mission. This mission element of the DOJ has not ended. Now, the DOJ under Gonzales coats its religion-friendly program with frequent references to “discrimination.” The key, however, is all in how one defines “discrimination.”
DOJ’s Religion Chair, and the “First Freedom Project”: Is It Necessary?
As I have discussed in a
previous column, the DOJ added a “religion chair” under Attorney General Ashcroft. Eric Treene, formerly of the Becket Fund, was hired to look solely after religious interests.
That initiative has now borne fruit in the DOJ’s new and unfortunately-named “First Freedom Project.” (The unfortunate aspect is that the First Amendment is only first by historical accident; there was absolutely no intent on the part of the Bill of Rights’ Framers to prioritize the freedom of religion ahead, for example, of the freedom from home invasion. It has become commonplace, though, for religious interests to claim superiority of right by virtue of ordinal placement.)
The purpose of this new venture was summarized in DOJ materials as follows:
“A commitment to continued expansion of enforcement of civil rights statutes protecting religious liberty.
Creation of a Department-wide Task Force on Religious Liberty, chaired by the Assistant Attorney General of the Civil Rights Division, to review DOJ policies impacting religious liberty, coordinate religious liberty cases, and improve outreach to stakeholder communities.
Initiation of a series of regional seminars to be held around the country to educate religious, civil rights, and community leaders, attorneys, government officials, and other interested citizens about the laws protecting religious freedom enforced by the Department of Justice and how to file complaints.
Increased outreach to religious organizations, civil rights organizations, and other groups and individuals concerned with religious liberty issues through meetings, speaking engagements, and distribution of informational literature.”
This perhaps sounds nice on its surface, as do all new government programs packaged in government-ese. However, the case has yet to be made that religious discrimination, as that term is defined by the Constitution and the Supreme Court, is the kind of problem in this society that deserves a new federal, Department-wide Task Force, or attention by the Assistant Attorney General of the Civil Rights Division. It is not at all clear that whatever religious discrimination is out there is not being adequately addressed by, for example, state and local governments, the ACLU’s own relatively new project on religious liberty, or Treene’s former employer, the Becket Fund, which is omnipresent on these issues, or the American Center for Law and Justice, also a force defending religious entities.
I am genuinely puzzled regarding the need for “education” on religious liberty in the United States. I would venture to say that most Americans fundamentally understand that the government is not supposed to discriminate against their religion. Also notice the use of the word “expansion” and the third paragraph’s explicit acknowledgment that it is speaking primarily to religious organizations and others “concerned with religious liberty,” not citizens as a whole..
From a larger perspective, it would seem difficult for the DOJ to justify this new initiative, which surely must displace other civil rights initiatives, like those attacking racial, gender, or ethnic discrimination. The Civil Rights division does not have either unlimited resources or personnel, and therefore enforcement is a zero sum game. The Department becoming aggressive for “religious liberty” means it is abandoning other civil rights initiatives. Yet, if we learned nothing else from the Imus scandal, it is that racial issues hardly have been resolved.
Evidence from DOJ’s Own Land-Use Cases Suggests Little Religious Discrimination
In particular, the Department of Justice appears to have shifted resources to focus on local land use issues, because of the Religious Land Use and Institutionalized Persons Act (RLUIPA). RLUIPA, which I’ve discussed in prior columns such as this one, gives religious landowners a strong legal edge in local land-use disputes. It also provides attorneys fees for “prevailing” religious landowners (which translates into attorneys fees even if the result is a settlement), which means lawyers and private organizations like the Becket Fund have cultivated such cases. There seems absolutely no need to bring the DOJ into this arena – if there are masses of religious land use discrimination cases that are not reaching the courts, I cannot imagine where they are. The DOJ operates in this arena as a mechanism for the religious entity to be able to apply more pressure to obtain what it seeks.
In its RLUIPA enforcement, DOJ has found precious few cases where there is, in fact, religious discrimination. It is far more likely that these land-use disputes are exactly that — clashes between neighbors over secular issues such as whether one neighbor’s use of land is clogging traffic and ruining a quiet neighborhood. When neighbors complain that a church should not receive a zoning variance to create a wedding venue, for example, their gripe is certainly not about the church or its teachings; it is about issues such as the prospect of hundreds of rowdy, tipsy guests wandering around on weekend nights or those same guests driving through their neighborhoods.
The DOJ’s recent “Report on Laws Enforcing Religious Freedom – Fiscal Years 2001-06″ makes claims that the DOJ has valiantly stamped out religious discrimination, but supporting footnotes, and citations that would actually allow the reader to check and test these claims, are scarce. The use of the socially charged term “discrimination” does not, of course, in itself prove that discrimination is occurring.
This commitment of federal resources to a problem that has yet to be documented is stunning proof of religious entities’ capacity to obtain whatever they seek in the public square at this point in history. But it is also further, disheartening proof that this Department of Justice’s values are more political than they are sound.
Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns on church/state issues – as well as other topics — can be found on this site. Professor Hamilton’s most recent work is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), which will appear in paperback June 2007.


Thursday, May 17th, 2007

The Bluegrass Poll was released May 17.  It covered the days of May 10-14 in the Democratic Poll and May 10-15 in the Republican Poll.

Mark Nickolas on his sees it this way:

Steve Beshear (D) looks poised to deliver a very strong win on Tuesday as he has clearly (and impressively) broken away from the pack in the past few weeks. Given the trend, it seems that Beshear will end up in the 36% to 43% range. One major dynamic I’m watching for is whether a chunk of Richards supporters will see that Jody isn’t likely to get into a runoff and opt for Beshear to ensure that a “good Democrat” emerges.


The Bluegrass Poll shows that Governor Fletcher is drawing 41% of the potential Republican vote and with a margin of error of 5.2 per cent.  This means that the actual results of the May 22nd. Election could result in a run off election between Fletcher and challenger Ann Northup (25.8%).  This possibility is made more possible by the fact that 17.8 percent of likely Republican voters still hadn’t made up their mind as of May 15th.In the Survey USA Poll released on May 15th., Northup’s support was  34% .
Fletcher’s support was listed at 44% on May 15th.   If Northup picks up five per cent and Fletcher loses 5 per cent then you have a dead heat, and Fletcher would be forced into a runoff.
 The Bluegrass Poll had Paducah businessman Billy Harper trailing with 9.9 percent.  While some have speculated that Harper might decide to be the Kingmaker and withdraw and endorse Northup, that isn’t likely to happen in view of the vast sums he is still spending on television advertising.
 If you put both polls together, it shows a tightening race. Both the margin of  potential polling error, and the large body of undecided voters could make for a surprise next Tuesday.  We recall last falls Congressional election when some polls had Northup up 8% and she ended up losing by about 4%.  A ten point difference in this week’s polling and next week’s election is well within the margin of error.

Mark Nickolas predicts:

Prediction: Northup gets strong Louisville turnout and better GOTV operation and wins without a runoff: Northup 42%, Fletcher 41%, Harper 17%.

In the Democratic polling of the Bluegrass Poll, Steve Beshear was listed at 27.4% while in the Survey USA Poll released on May 15th. he was listed with 32% of the vote after having quickly picked up 10% upon the withdrawal of Jonathan Miller.  .

Bruce Lunsford is listed in second place in the Bluegrass Poll with 21.1 percent.

Former Lt. Gov. Steve Henry (dropping from first place just four weeks ago) is now third with 12.8 percent of the vote and House Speaker Jody Richards is next, with 7.3 percent.Perennial candidate Gatewood Galbraith polled 4.1 percent and Harlan demolition contractor Otis Hensley has 0.5 percent.

The undecided were 22.5 percent of Democratic voters. The margin of error was 4.9 per cent in the Bluegrass Poll.

When the undecided is larger than the per cent of voters for the second place candidate, things may be considered to be volatile.  It is still possible that the Democrats could avoid a runoff election if Beshear gets just 8% more than he is currently credited with in the Survey USA poll. Of all candidates in the polling, Beshear appears to have the best momentum going into Tuesday’s primary election. Northup and Beshear are the only other candidates with positive movement.  


Boyd County to break ground for $19.15 million judicial center May 21

Thursday, May 17th, 2007

May 17, 2007 

Boyd County will hold a public groundbreaking ceremony for the proposed Boyd County Judicial Center on Monday, May 21, at 2 p.m. EDT. The event will take place on the construction site located directly across the street from the existing courthouse at

2801 Louisa St.

in downtown Catlettsburg. 

The Kentucky General Assembly approved the Boyd County project in 2005 and authorized its funding in 2006. The new judicial center has been budgeted at $19.15 million for 65,000 square feet and is expected to be completed in March 2009. Construction will begin soon after the groundbreaking ceremony. 

“I appreciate the legislators who supported improved judicial centers for Boyd and other counties,” said Chief Justice Lambert. “Kentucky citizens generate more than 1 million court cases each year. Our citizens deserve safe, efficient facilities in which to conduct their business before the courts.” 

“Because the new judicial centers often replace older, vastly inadequate facilities, the new buildings greatly increase the efficiency of services and public flow,” said Garlan VanHook, general manager of the Department of Court Facilities for the Administrative Office of the Courts (AOC). “All new judicial centers are equipped with the modern infrastructure to support data, computer, video and networking technology. They also provide the highest level of Kentucky court security through a single-point entry with magnetometers and security personnel.” 

The Louis and Henry Group architectural firm in Louisville, Ky., designed the Boyd County Judicial Center. Codell Construction Co. of Winchester, Ky., is the contractor for the project and Ross, Sinclaire & Associates, which serves Kentucky and six other states, is the the financial agent. 

Boyd County Judge Executive William Stevens will speak at the dedication. Chief Justice of Kentucky Joseph E. Lambert will also be on hand to take part in the ceremony. Other state and local officials expected to attend include judges, attorneys and the Boyd County circuit court clerk. For more information, contact Nickie Smith at 606-739-4134. 

Process for Constructing Judicial Facilities
VanHook said that once funding is authorized, the AOC Department of Court Facilities begins to work with local communities to assemble the Project Development Board (PDB) in each county. This board ensures that county and court officials have input on all aspects of the project, including decisions on the site, architect and contractor. The PDB consists of the county judge executive, a fiscal court representative, the chief circuit judge, the circuit court clerk, the AOC director or designee, and a Kentucky Bar Association designee. The AOC’s general manager of court facilities and legal counsel serve in an advisory capacity. 

VanHook explained that the AOC provides oversight and administration of court facilities in accordance with House Bill 734, which was passed by the 2000 General Assembly. “As a result of this legislation, the AOC created a process that would fairly and objectively determine facility needs,” he said. “Our Facilities Management System has earned the Kentucky Court of Justice a national reputation for being able to identify facilities with the greatest needs for new construction, renovation, expansion and adaptation.” 

As the administrative and fiscal agent for the Kentucky Court of Justice, the AOC oversees construction of court facilities statewide. The AOC also supports the activities of more than 3,500 court system employees, including the elected offices of justices, judges and circuit court clerks. 



Wednesday, May 16th, 2007

> > Bubba Joe ‘s first military assignment was to a military induction center, 
and, because he was a good talker, they assigned him the duty of advising new recruits about the government benefits, especially the GI insurance to which they were entitled.

> >
> > Before long the Captain in charge of the induction center began noticing that Bubba was getting a 99% sign up for the top GI insurance. This was odd, because it would cost these poor inductees nearly $30.00 per month more for  their higher coverage than what the government was already granting. The Captain decided that he would sit in the back of the room and observe Bubba’s sales pitch.

> >
> > Bubba Jo e stood up before his latest group of inductees and stated, “If  you have the normal GI insurance and go to Iraq and are killed, the government pays your beneficiary $6,000. If you take out the supplemental GI insurance, which will cost you an additional $30.00 per month, the government pays your beneficiary $200,000.” “Now,” Bubba concluded, “which bunch do you think they’re gonna send into combat first?”

Latest Gubernatorial Poll – Democratic and Republican Primary election

Wednesday, May 16th, 2007

Democrats – Beshear Lunsford Runoff Likely: In a Democratic Primary for Governor of Kentucky today, 5/15/07,  one week to the 5/22/07 vote, the ticket of Steve Beshear and Dan Mongiardo leap to a first-ever first-place finish,  according to a SurveyUSA poll of likely Kentucky Democratic primary voters, conducted exclusively for WHAS-TV Louisville  and WCPO-TV in Cincinnati. Today, it’s Beshear/Mongiardo 32%, the ticket of Bruce Lunsford and Greg Stumbo in 2nd place at 23%. Neither ticket appears likely to reach the 40% needed to avoid a 6/26/07 runoff. A five-week head-to-head runoff  campaign between Beshear and Lunsford is likely to begin the morning after the 5/15/07 Primary. The ticket of Steve Henry  and Renee True today finishes in 3rd place at 18%. Compared to an identical SurveyUSA tracking poll released two weeks  ago on 5/1/07,  Beshear is up 9 points, from 23% to 32%. Lunsford is down 6 points, from 29% to 23%. Henry is unchanged at 18%. Beshear  has traction among men, in North Central KY and in Western KY. Among men, Beshear is up 9 points from 2 weeks ago,  Lunsford is down 12 points, a swing of 21 points to Beshear. In North Central KY, Beshear is up 13 points, from 3rd place  2 weeks ago to 1st place today. In Western KY, Beshear is up 10 points, Lunsford is down 10 points, a swing of 20 points to  Beshear. In four SurveyUSA tracking polls beginning 03/06/07, Beshear has polled 15% (2nd place), 15% (3rd place), 23%  (2nd place) and 32% today (1st place). Henry leads in greater Louisville. The lead in this contest has changed hands 3 times  in 4 tracking polls. With 6 surviving  andidates, and the lack of a clear frontrunner, a runoff appears inevitable.



Republicans — Fletcher Continues to Lead Northup, but Can He Avoid a Runoff? In a Republican Primary for Governor
of Kentucky today, 5/15/07, one week to the 5/22/07 vote, incumbent Republican Ernie Fletcher and running mate  Robbie Rudolph appear to fend-off a challenge from former U.S. Congresswoman Anne Northup and her running mate Jeff Hoover, and may have just enough support to avoid a runoff, according to a SurveyUSA poll of likely Republican primary voters, conducted exclusively for WHAS-TV Louisville and WCPO-TV in Cincinnati. The ticket of Fletcher-Rudolphgets 44% today. The ticket of Northup-Hoover gets 34% today. In four SurveyUSA tracking polls, Fletcher has never trailed.
His support was 33% on 3/6/07, 40% on 4/3/07, 46% on 5/1/07 and 44% today, 5/15/07. Northup has never led.  

Her support was 31% on both 3/6/07 and 4/3/07, 34% on both 5/1/07 and 5/15/07. Though the contest is fiercely fought,  the polling shows remarkable stability, in stark contrast to the Democratic Primary battle. In no demographic subpopulation
 where Fletcher led two weeks ago does Northup lead today. In no demographic subpopulation where Northup led two weeks  ago does Fletcher lead today. Fletcher leads by 35 points in Eastern KY; Fletcher leads by 24 points in North Central KY;
Fletcher leads by 19 points in Western KY. Fletcher needs strong turnout in these regions to finish with more than 40% of the  vote, which is what’s needed to avoid a head-to-head runoff with Northup. Northup leads by 36 points in Greater Louisville.
She needs exceptionally strong turnout in Louisville to drag Fletcher below 40%, and force a runoff without Billy Harper  in the race. The ticket of Harper-Wilson is at 14% in today’s SurveyUSA poll. To the extent Harper’s support is an anti-Fletcher
 vote, Harper supporters would benefit Northup in a runoff. In the past two weeks, Northup has gained some ground among men.
 On 5/1/07, she trailed Fletcher by 15 among men, today she trails by 8.