Archive for August, 2007

Hillary leads Ky. State Fair Presidential Straw Poll Results

Tuesday, August 28th, 2007

Sen. McConnell has suggested that Hillary would be a burden for Steve Beshear in this falls Governors race…but she now leads the Ky. State Fair straw poll.   Maybe McConnell is losing his touch at political prognostication.

August 28, 2007
(Louisville, KY)  Kentucky looks to still be a competitive state in the upcoming presidential race if results from the first-ever Office of the Secretary of State State Fair “Straw Poll? are any indication.  1,976 voters cast ballots during the state fair at the Office of the Secretary of State’s booth.  New York Senator Hilary Clinton was the overall winner with 349 votes, nearly twice as many as her closest Democratic competitor.  On the Republican side, former Massachusetts Governor Mitt Romney earned a victory with former New York Mayor Rudy Giuliani, former Arkansas Governor Mike Huckabee, and former Tennessee Senator Fred Thompson trailing close behind.  Romney had 242 votes.  In actual general elections, Kentucky has picked the winning president since 1964; only Missouri’s current streak of picking the winner since 1960 is longer.
            “Our office is extremely excited by the turnout for this ‘straw poll’ in its first year of existence,? remarked Secretary of State Trey Grayson.  “Kentucky has always had a tradition of being a bellwether state, and it will be interesting to see whether these early signs of support are indicators of similar favor across the country.?

 

The final results are as follows:
                                    Total Votes      Percentage of Total Vote          Percentage of Vote within Party

 

Republicans:
Mitt Romney-               242                  12.2%                                      21.2%
Rudy Giuliani-   216                  10.9%                                      18.9%
Mike Huckabee-          208                  10.5%                                      18.2%
Fred Thompson-          196                  9.9%                                        17.2%
John McCain-              108                  5.5%                                        9.5%
Ron Paul-                     78                    3.9%                                        6.8%
Sam Brownback-         51                    2.6%                                        4.5%
Duncan Hunter-            34                    1.7%                                        3.0%
Tom Tancredo-            8                      0.4%                                        0.7%
 

 

Democrats:
Hilary Clinton-  349                 17.7%                                      41.8%
Barack Obama-           195                  9.9%                                        23.4%
John Edwards-             183                  9.3%                                        21.9%
Bill Richardson-            31                    1.6%                                        3.7%
Chris Dodd-                 25                    1.3%                                        3.0%
Joe Biden-                    21                    1.1%                                        2.5%
Dennis Kucinich-          17                    0.9%                                        2.0%
Mike Gravel-                14                    0.7%                                        1.7%

           
Although the most votes for a single candidate went to Clinton, a Democrat, 1,141 votes (57.7%) were cast for Republican candidates while 835 votes (42.35%) were cast for Democrats.  Voters were allowed to vote on one of five voting systems currently in use by one of Kentucky’s counties.  They were allowed to vote for any candidate regardless of political affiliation.  However, the political affiliation of each candidate was noted on the ballot.
In addition to the straw poll, the office of the Secretary of State conducted a voter registration drive where hundreds of new voters were signed up to participate in the 2007 election cycle which features races for Kentucky’s statewide constitutional officers, most notably for Governor.
The voter registration efforts and ‘straw poll’ were part of a greater initiative directed by Secretary Grayson, the Civic Literacy Initiative of Kentucky (CLIK), which is a multi-year effort to increase the civic literacy and engagement of Kentucky’s citizens.  The effort has been recognized as one of the top in the nation for its efforts.
 

ATTORNEY GENERAL GONZALES SUBMITS LETTER OF RESIGNATION TO PRES. BUSH

Monday, August 27th, 2007

The New York Times has reported a news flash early Monday morning  that Attorney General Alberto Gonzales has submitted his letter of resignation to President Bush . One report said that Bush would accept the resignation  after a lunch meeting today in Crawford, Texas..

By Howard Schneider   Washington Post Monday, August 27, 2007; 9:24 AM
Embattled Attorney General Alberto R. Gonzales has resigned from his post, according to an administration official, ending a controversial cabinet tenure that included clashes with Congress over the firing of nine U.S. attorneys and the nature of efforts to spy on U.S. citizens.
The official said Gonzales submitted a letter on Friday saying he had decided to step down, but the announcement was withheld until he met with President Bush at the president’s Crawford ranch. His resignation will be announced at a press conference scheduled at 10:30.
Gonzales’ decision was first reported by the New York Times on its Web site.
Gonzales’ resignation marks the loss of another Bush loyalist at a time when his support in public opinion polls has been lagging. Though Bush had voiced continued support for Gonzales, a longtime ally from Texas, the attorney general’s support in Congress had withered after a series of run-ins that prompted some lawmakers to allege he had committed perjury.
His testimony on issues like a federal wiretap program required follow-up explanations and was contradicted by documents or the statements of other federal officials. At hearings on the U.S. attorney firings, Gonzales frequently said he could not remember details about key events — frustrating members of Congress who felt he was trying to minimize his role in politically motivated dismissals.
The departure leaves Bush with a key cabinet opening nearing the end of his second term. As controversy around Gonzales mounted, so has speculation about possible replacements. Among the names mentioned by lawmakers and their aides in recent weeks: Homeland Security secretary Michael Chertoff; former deputy attorney general James Comey and former deputy attorney Larry Thompson.
 

 

Chief Justice Lambert announces Summit on Children

Monday, August 27th, 2007

The following editorial was published by the Louisville Courier Journal on Aug. 27, 2007 

Coming, to a place near you: kid talk 

The waning days of August will find more than 500 professionals convening in Louisville to discuss one of the most pressing issues facing Kentucky today: how Kentucky courts can improve services to our children. 

From Aug. 27-29, the first Kentucky Summit on Children — the largest-ever gathering of its kind in Kentucky — will bring together judges, attorneys, legislators, guardians ad litem, child welfare officials, court system personnel, and foster parents and children to shine a light on decision-making for children in the child welfare system and before our courts. 

The numbers are extraordinary. Each year in the United States, 3,000,000 reports of abuse or neglect are made to child protective services, with 900,000 of those becoming substantiated cases. There are 520,000 children in the foster care system nationwide, and in Kentucky approximately 6,300 children are in the custody of the Cabinet for Health and Family Services because of dependency, neglect or abuse. 

In addition, children from minority groups are twice as likely to be in the child welfare system, and they experience both longer stays in out-of-home care and more frequent moves within the system. Also, last year alone, habitual truancy cases were the number one status offense for juveniles in Kentucky, with more than 6,500 truancy cases processed in our court system. 

The Summit on Children will feature national and local speakers who will address critical topics such as overcoming barriers to justice for children; best practices for ensuring safety, permanency and well-being for children; understanding the parameters of the courts; at-risk juveniles and the juvenile justice system; combating truancy, and developing regional action plans. 

I challenge concerned citizens to join in confronting these issues and improving care for Kentucky’s children. 

After the Summit is over, regional meetings will be held throughout Kentucky to provide the opportunity for follow-up in local communities. These sessions will be open to the public. Take the time to find out where one will be held near you. Then be there. 

I directed the Administrative Office of the Courts to convene the Kentucky Summit on Children as the result of a challenge issued by Chief Judge Judith S. Kaye of New York, who hosted a national Summit on Children in New York City in March. She encouraged chief justices and child welfare experts to discuss how court systems across our nation can be made accountable in providing services to families and children. 

“You will have an opportunity to jump-start those partnerships in meetings of your state delegations here — to identify initiatives to take back home and implement, to forge collaborations across systems and across states, to define your measures of success and map out how to reach them,” Chief Judge Kaye said in her opening remarks. 

“We seek justice for children in the broadest sense,” she added, “not just by processing or adjudicating their cases, but by assisting them in solving their problems so that they leave our courthouses and our child welfare systems far better off than when they entered. We call this ‘problem-solving justice’ and justice, as you know, is a joint enterprise.” 

The need to continually improve Kentucky courts and our child welfare system is a joint enterprise indeed, and I appreciate the support of our state and national partners in hosting this important event. We have received support from the American Bar Association, the Cabinet for Health and Family Services, the Center for School Safety, the Citizen Foster Care Review Boards, the Department of Education, the Department of Juvenile Justice, the Division of Mental Health and Substance Abuse, the Juvenile Justice Advisory Board, the Kentucky Alliance for Drug Endangered Children, the Kentucky Bar Association and Kentucky Bar Foundation, Kentucky Child Now!, the Louisville Bar Association, the National Council of Juvenile and Family Court Judges, the Office of Juvenile Justice and Delinquency Prevention, Operation UNITE and Prevent Child Abuse Kentucky. I especially want to thank the Kentucky Adoption Blue Ribbon Panel for bringing important child welfare issues to the forefront. 

To these partners, I express my sincere gratitude. To Kentucky’s citizens, I issue a challenge: Get involved on behalf of our kids. 

The Kentucky Summit on Children will shine a light on vulnerable, hurting children behind the cold statistics. We intend to identify the strengths and weaknesses of our current system and continue our endeavor to provide a bright and promising future to the children who need us most. 

JOSEPH LAMBERT 

Chief Justice of Kentucky 

Frankfort, Ky. 40601 

 

The Bridge is new blog in Louisville

Monday, August 27th, 2007

 

We have just been informed of a new blog from Louisville. The Bridge Connecting You to the Politics and Events of Greater Louisville and Kentucky
We have visited the site and it offers links to government agencies and officers, and features topics about Ky. Politics.   The blog appears to represent a moderate democratic viewpoint.  However we hear a lot of Republicans agree with some of their points especially about Sen. McConnell.  In any event this is a excellent source of viewpoints from Louisville.

 

THE FOLLOWING TOPICS WERE POSTED THIS WEEK:
 
HIGHLIGHTS OF THE KY ENERGY INDEPENDENCE ACT, Courtesy of Frank Leidermann, Contributing Editor
 
RECORD OF THE VOTING ON THE KY ENERGY BILL (from the KFTC and KentuckyVotes.org)
 
CLIMATE CONTROL: BALANCE COAL’S DEMANDS AGAINST PUBLIC’S INTERESTS FROM TOM FITZGERALD (FROM AN AUGUST 25, 2007 ARTICLE IN THE KENTUCKY POST
 
OPENING SALVOS IN THE KY GUB RACE
 
 
VIEW THE DEMOCRATIC PRESIDENTIAL CANDIDATES’ ANSWERING QUESTIONS TO THE DES MOINES REGISTER ON HEALTH CARE(sorry for the quality of these YouTube tapes, which are courtesy of tonydaysog
 
 
MCCONNELL’S RECORD FOR 2007: OBSTRUCTING PROGRESS AND BLAMING DEMOCRATS
 
LT COL HORNE RESPONDS TO MCCONNELL’S USE OF THE FILIBUSTER TO OBSTRUCT PROGRESS
 
WILL MCCONNELL OBSTRUCT PROGRESS ON THE MATHEW SHEPHERD ACT?
 
 
WILL REPUBLICANS USE IN O8 A FLIMSY WORDED ATTACK ON AFFIRMATIVE ACTION TO DIVIDE AND CONQUOR? (info courtesy of George E. Lee)
 
 
YARMUTH’S VOTING RECORD FOR HIS FIRST SIX MONTHS IN OFFICE: VOTING MOSTLY WITH OTHER DEMOCRATS (source the Washington Post)
 
YARMUTH SAYS NO TO OTHER DEMOCRATS WHEN A BILL IS POORLY WRITTEN
 
THE CASE FOR IMPEACHING DICK CHENEY
 
PROJECT FOR EXCELLENCE IN JOURNALISM REPORT: IRAQ WAR COVERAGE SKIMPY
 
 
IRAQ SUMMER TOWN HALL RALLY
 
AN IMPORTANT AMERICAN 2000 MEETING: THE REOGRNIZATION OF THE KY DEMOCRATIC PARTY
WOMEN FOR BESHEAR from Virginia Woodward
 
 
THE 2007 BI-ANNUAL MEMBERSHIP RECEPTION OF THE WOMEN’S NETWORK OF ADVOCATES FOR DEMOCRATIC PRINCIPLES from Virginia Woodward
 
 
 DOWNTOWN LOUISVILLE: LET’S EXAMINE THE OPTIONS
 

Justice William McAnulty loses battle to cancer.

Saturday, August 25th, 2007

August 24, 2007 

Former Kentucky Supreme Court Justice William E. McAnulty Jr., the first African-American to serve on the state’s highest court, died Thursday night at his home in Louisville. He was 59. 

He announced in July that he’d been diagnosed with lung cancer that had spread to his brain. 

Gov. Ernie Fletcher yesterday ordered flags at all state office buildings lowered to half-staff in the former justice’s honor. The state House and Senate passed resolutions and observed moments of silence in honor of Mr. McAnulty. 

“He distinguished himself throughout a long and exemplary career as a trial and appellate judge. During his recent illness, he continued to inspire all who knew him with his great courage and dignity,” Fletcher said. 

Mr. McAnulty “did his work with dignity, grace and superb ability,” Supreme Court Chief Justice Joseph E. Lambert said in a statement. “He had many friends throughout Kentucky and was a favorite among judges and court personnel.” 

Louisville lawyer Sheryl Snyder said Mr. McAnulty was a historic figure whose legacy is not just the opinions he wrote that affected the law, but what he taught others. 

“A whole generation of lawyers are better lawyers because they appeared in Bill McAnulty’s courtroom,” Snyder said. 

In addition to his sister, Mr. McAnulty is survived by his wife, Kristi W. McAnulty; his father and step-mother, William E. McAnulty Sr. and Augusta McAnulty of Indianapolis; four children, Patrick McAnulty, Katheryn McAnulty, Shannon McAnulty and William McAnulty III; and another sister, Patricia McAnulty of New York City. 

A memorial service will be at 1:30 p.m. Monday at Highland Presbyterian Church in Louisville. Visitation will be from 4 to 7 p.m. Sunday at the church. A reception and more visitation will be at the church Monday after the service. Another memorial service will be in the capitol rotunda in Frankfort in early September. A.D. Porter & Sons Funeral Home in Louisville is handling arrangements

DRUG DOG EVIDENCE NOT BASED ON SCIENCE –DAUBERT DOES NOT APPLY – FOUNDATION OF DOGS RELIABILITY MUST BE SHOWN BY OBJECTIVE TEST STANDARDS

Friday, August 24th, 2007

 Yesterday the Kentucky Supreme Court, in DEBRULER V.  COMMONWEALTH  recognized that canine scent tracking is not sufficiently grounded in science to permit a scientific Daubert evaluation. The Court held that certain foundational requirements can nonetheless be met in order to ensure reliability. 

Tests including evidence of the canine’s scent tracking record, the qualifications of its handler, its training and history, provide far more insight into the general reliability of the testimony than a Daubert analysis.

 

If the court finds that the foundational requirements are adequate to insure the reliability of the particular dog and its handler, than such evidence can be admitted into evidence.

 

One of the factors cited as an example of proper foundational requirements was a periodic evaluation of the drug dog (or bomb dog, etc) by an independent recognized canine drug certification program.
 

This ruling recognizes that drug handlers should not be self-certified and independent review of the actual effectiveness of the dog is important. 

 

This ruling issued Aug. 23, 2007 is consistent with a ruling made in the Boone Circuit Court three years ago.  In that ruling Senior Status Judge Stan Billingsley applied the “Shaw Rule?* which called for an evaluation of drug dogs reliability based on an independent certification of the dogs reliability.

 

Experts in other cases have noted that drug dogs can lose the ability to accurately function as “canine experts? due to old age and other factors.  Further these experts say that a handler by his manipulation of his voice or other signs can control and suggest to the dog where to sniff and when to register a “hit?.  Only by having annual independent certification of dogs are their “hits? likely to be reliable.

 

Some experts have said that a drug dog can smell drug residue from drugs that have been removed from the suspected scene up to six months prior to the smell test by the dog.  If a drug dog hits on a motel room, it is possible that he is smelling drugs that haven’t been in that room for months. 

 

Other testimony given in the Boone County case by a national drug dog expert indicated that some officers train their dogs in finding drugs which have been masked by “Bounce Laundry Sheets? or coffee grounds.  The dog can become very adept at this.  However the officer must then detrain the dog to only sniff for drugs…or in the future they will give a hit everytime they smell the masking agent such as coffee or Bounce Sheets.  So probable cause hits would be because the suspect had some coffee in his apartment and not because he had drugs.

 

* Law Clerk Jan Shaw assisting Judge Billingsley in researching the Boone County decision provided the legal authorities to suggest that drug dog reliability should be reviewed for reliability by independent and recognized testing organizations on a periodic basis. Hence the “Shaw Rule? was created.

 

 

 

For full text of case click case number   2005-SC-000989-MR.pdf

 
JERRY LYNN DEBRULER   V.  COMMONWEALTH OF  KENTUCKY   PUBLISHED  August 23, 2007 

 

 

                                     LawReader Keywords, and Synopsis

 

The analysis set forth in Daubert applies to scientific expert testimony, which “implies a grounding in the methods and procedures of science

 

the practice of using trained dogs to track a human scent lacks the hallmark of scientific knowledge identified by the Supreme Court, i .e., “a grounding in the methods and procedures of science.” Id .

 

We therefore conclude that testimony concerning the use of canine scent tracking in a particular case does not involve scientific knowledge.

 

While a Daubert hearing is not necessary to admit canine scent tracking testimony, certain foundational requirements must nonetheless be met in order to ensure reliability .

 

foundational evidence of the canine’s scent tracking record ; the qualifications of its handler, its training and history provide far more insight into the general reliability of the testimony than a Daubert analysis .

 

 In an effort to allow only the most reliable bloodhound evidence and to avoid misleading of the jury, the Court enumerated very specific and detailed foundational requirements for the admittance of such testimony:

 

Kentucky Revised Statutes (KRS) 29A .310(3) permits a jury to view the place where the charged offense was committed when deemed necessary by the trial court. The decision lies within the sound discretion of the lower court.

 

AFFIRMING

 

Appellant challenges the introduction of the canine scent tracking evidence on the grounds that the trial court improperly denied his request for a hearing pursuant to

Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U .S . 579, 113 S .Ct. 2786, 125 L.Ed .2d 469 (1993). Essentially, Appellant argues that canine scent tracking evidence is “scientific testimony,” the admissibility of which is governed by the test set forth in Daubert. We disagree

 

 

The analysis set forth in Daubert applies to scientific expert testimony, which “implies a grounding in the methods and procedures of science .” 509 U.S . at 590, 113 S .Ct. at 2795 . It is designed to keep out unreliable or “pseudoscientific” expert scientifictestimony that would confuse or mislead the jury, or that cannot legitimately be

challenged in a courtroom. Thus, when a party seeks to introduce expert testimony, an initial determination is whether the expert is proposing to testify to scientific knowledge which “entails a preliminary assessment of whether the reasoning or methodology

underlying the testimony is scientifically valid .” 509 U .S. at 592-93, 113 S.Ct. at 2796.

 

Bearing in mind the purpose of Daubert, we turn to the issue of whether testimony from a trained dog-handler concerning the use of canine scent tracking is scientific expert testimony.

 

Here, Officers Howard and Morgan did not testify as to any scientific technique, theory or methodology. Nor did either officer testify as to the scientific explanation of a dog’s ability to track a scent. Rather, their testimony was limited to their personal observations of the dogs’ actions, and their interpretation of these actions based on experience and training .

 

The testimony concerned the results of an investigative technique, not a scientific procedure. In short, the practice of using trained dogs to track a human scent lacks the hallmark of scientific knowledge identified by the Supreme Court, i .e., “a grounding in the methods and procedures of science.” Id .

 

We therefore conclude that testimony concerning the use of canine scent tracking in a particular case does not involve scientific knowledge.

 

…we are not persuaded that the Daubert analysis would accurately assess the reliability of canine scent tracking testimony. Contrary to Appellant’s assertions, the factors identified in Daubert provide little guidance as to the reliability of non-scientific, experience-based knowledge such as canine scent tracking .

 

More specifically, canine scent tracking is not a technique amenable to peer review or scientific standards and testing. Rather, it concerns the behaviors of the dog and the meanings of those behaviors, a knowledge acquired through experience and training .

 

The Pedigo Court first took judicial notice of the use of canines in scent-tracking:

“It is a matter of common knowledge, of which courts are authorized to take notice, that dogs of some varieties (as the bloodhound, foxhound, pointer, and setter) are remarkable for the acuteness of their sense of smell and for their power of discrimination between the track they are first laid on and others which may cross it.”  Pedigo v. Commonwealth, 103 Ky. 41, 44 S .W. 143 (1898) .

 

. However, while acknowledging the validity of bloodhound evidence, the Court still considered the overly persuasive effect bloodhound evidence might have on a jury: “The very name by which the animal is called has a direct tendency to enhance the impressiveness of the performance .” Id . at 145-46 . In an effort to allow only the most reliable bloodhound evidence and to avoid misleading of the jury, the Court enumerated very specific and detailed foundational requirements for the admittance of such testimony:

 

Kentucky courts have strictly imposed the foundational requirements set forth

above since the Pedigo case. See Smith v. Commonwealth , 563 S .W.2d 494, 496 (Ky. App. 1978) (“With respect to bloodhounds, this Court has long imposed the requirement that an exacting foundation be laid before the evidence is admissible.”) . See also Blair v. Commonwealth , 181 Ky. 218, 204 S .W. 67, 68 (1918) (“The Pedigo rule may now be said to be thoroughly established in this jurisdiction .”); Brummett v. Commonwealth, 263 Ky. 460, 92 S .W.2d 787 (1936); Daugherty v. Commonwealth , 293 Ky. 147, 168 S.W.2d 564 (1943).

 

For this reason, foundational evidence of the canine’s scent tracking record ; the qualifications of its handler, its training and history provide far more insight into the general reliability of the testimony than a Daubert analysis .

 

(we) …conclude that testimony concerning canine scent tracking is not subject to the reliability analysis of Daubert. See also State v. White , 642 S.E .2d 607, 617 (S.C. Ct. App. 2007)

 

While a Daubert hearing is not necessary to admit canine scent tracking testimony, certain foundational requirements must nonetheless be met in order to ensure reliability .

 

Our predecessor Court set forth the foundational requirements for However, while acknowledging the validity of bloodhound evidence, the Court still considered the overly persuasive effect bloodhound evidence might have on a jury:

 

“The very name by which the animal is called has a direct tendency to enhance the impressiveness of the performance .” Id . at 145-46 .

 

 In an effort to allow only the most reliable bloodhound evidence and to avoid misleading of the jury, the Court enumerated very specific and detailed foundational requirements for the admittance of such testimony: Id at 145.

 

[I]n order to make such testimony competent, even when it is shown that the dog is of pure blood, and of a stock characterized by acuteness of scent and power of discrimination, it must also be established that the dog in question is possessed of these qualities, and has been trained or tested in their exercise in the tracking of human beings, and that these facts must appear from the testimony of some person who has personal knowledge thereof. We think it must also appear that the dog so trained and tested was laid on the trail, whether visible or not, concerning which testimony has been admitted, at a point where the circumstances tend clearly to show that the guilty party had been, or upon a track which such circumstances indicated to have been made by him.

 

As to the dogs’ training and qualifications, Officers Howard and Morgan provided evidence that the dogs had been trained at an Indiana dog-training facility . According to Officer Howard’s testimony about Denise, she had been certified in tracking by the Owensboro Police Department and is recertified every year following thirty-two hours of additional training .

 

Furthermore, she completes practice runs every week. Officer Morgan testified that Bady has been certified by the United States Police Canine Association and competes twice a year to maintain this certification. Like Bady, she completes practice runs on a weekly basis

 

Accordingly, the trial court did not err in allowing canine scent tracking testimony from Officers Morgan and Howard

 

Documents concerning the dogs’ training cannot be classified as the results or reports of a physical or mental evaluation, or of a scientific test or experiment.

 

Moreover, we cannot accept  any assertion that defense counsel was ambushed, unduly surprised, or otherwise prejudiced by the admission of the dogs’ training certificates. By virtue of other documents furnished through discovery, defense counsel was well aware that the Commonwealth would be presenting evidence of dog tracking, but failed to request the desired documents prior to trial.

 

Accordingly, the trial court did not err in refusing to grant a continuance or to exclude the testimony, where no violation of the agreed discovery order occurred.

 

Ill. Conclusion

For the foregoing reasons, the judgment of the Daviess Circuit Court is affirmed .

 

All sitting . Lambert, CJ, Cunningham, Minton, Noble, Schroder, Scott, JJ ., concur. -

 

COUNSEL FOR APPELLANT:

Emily Holt Rhorer

Department of Public Advocacy

100 Fair Oaks Lane

Suite 302

Frankfort, KY 40601

 

COUNSEL FOR APPELLEE:

Gregory D . Stumbo

Attorney General of Kentucky

Courtney J. Hightower

Assistant Attorney General

Office of the Attorney General

Criminal Appellate Division

1024 Capital Center Drive

Frankfort, KY 40601-8204

 

Judge Lisabeth Abramson and Judge Shake to seek nomination and election to Supreme Court (No, the other Judge Shake.)

Thursday, August 23rd, 2007

Update Aug. 25, 2007.  The Judicial Nominating Commission will likely meet sometime the first week of Sept.  As of today there are five applicants to fill the vacancy.  We invite applicants to forward their candidate info. to LawReader. 

LawReader Senior Editor Stan Billingsley    Aug. 23, 2007
  Two outstanding Judges will seek to fill the vacancy on Ky. Supreme Court created by the retirement of Justice William McAnulty.
 LawReader has confirmed that Court of Appeals Judge Lisabeth Hughes Abramson and Jefferson Circuit Judge James Shake will both seek the nomination for the vacancy on the Kentucky Supreme Court created by the retirement of  Justice Willliam McAnulty who is battling lung cancer.  Justice McAnulty recently announced his retirement so that he could devote his energies to fighting his illness.
  In a close race last year Justice McAnulty defeated Judge Ann O’Malley Shake in the Jefferson County Supreme Court race.  Many in the legal community speculated that Judge Ann Shake would be seeking the nomination for the vacancy, but LawReader has confirmed that instead her husband James Shake will be seeking the position.
 Judge Ann Shake has taken Senior Status and is enjoying her work as a trial judge.  She also has joined Retired Judges Mediation and Arbitration Service, Inc. and is actively mediating cases in her spare time.  We are told that she is quite “comfortable? with her current situation. (Disclosure:  the author is working with the same mediation service.)
 Both Judge Jim Shake and Judge Lisabeth Abramson have told LawReader that they would seek the nomination and would in any event be a candidate to seek the balance of the current eight year term.  The Judicial Nominating Commission will nominate three names to Governor Fletcher and he will appoint the new Justice from among those three names.
 The person appointed by Gov. Fletcher will serve until the general election in 2008.
  The Judicial Nominating Commission is expected to meet shortly after the first of September, and then the Governor has 60 days in which to select his appointment.
 Court of Appeals Judge Lisabeth Abramson may be considered the favorite to receive the appointment from Governor Fletcher since he previously appointed her to the Court of Appeals to fill a vacancy created by the retirement of  Judge William L. Knopf.  Judge Abramson has received two prior Judicial appointments from Democratic Governors.
 Another factor that may favor Judge Abramson is that she served on the lucky 3rd. Division of the Jefferson Circuit Court.  Both Justice Johnstone and Justice McAnulty also served in that Division before ascending to the Ky. Supreme Court.
 Judge Abramson said that she was saddened by the illness and retirement of Justice McAnulty.  She shares the thoughts of the entire legal community that his absence will be a great loss to the Supreme Court.
A native of Princeton, Judge Abramson is a graduate of University of Louisville, where she received her bachelor’s degree with highest honors, her juris doctorate magna cum laude and was named the Outstanding Graduate of her Law School class. Previously, she served as a judge on the Kentucky Court of Appeals from 1997 to 1998.
Judge Abramson currently serves as president of the University of Louisville’s Brandeis School of Law Alumni Council, and is a member of the American, Kentucky and Louisville Bar Associations. She also serves as a trustee for the Kentucky Judicial Form Retirement System Board, a lecturer for the Kentucky Circuit Judges Judicial College, and a member of the Kentucky Circuit Court Judges Association Education Committee. Judge Abramson is a member of the Leadership Louisville Class of 2007.
Judge Abramson and her husband, Professor Leslie W. Abramson, have three sons
Judge James Shake also brings an impressive pedigree to this race.  He was twice selected as the Chief Circuit Judge of Jefferson County, has served as President of the Circuit Judges Association, and has consistently received the highest rating of all judges in the Louisville Bar Association Judicial Evaluation polls. His last rating of 99%, was the highest given to any Jefferson County Judge.
  Judge Shake before becoming a Circuit Judge, served both as a Public Defender and as a Prosecutor in Jefferson County.  He has been on the Circuit bench for l5 years.  Before becoming a judge he served 6 years on the Kentucky Personnel Board.
 Judge Shake made an impressive first race for the Circuit bench, and has subsequently proven to be such a popular Judge, that he has been unchallenged in races for reelection.
 Regardless of who wins the appointment and the subsequent race in 2008, at least among these two candidates the public will be well served. 
 LawReader hears on the street in Louisville that there is a third potential candidate seeking this position, but we have not been able to confirm a name. 
 

US Attorney General Gonzales to wield new death penalty authority

Thursday, August 23rd, 2007
By Kate Randall   22 August 2007

The US Justice Department is finalizing regulations that would give Attorney General Alberto Gonzales new authority in capital cases to shorten the time death row inmates have to appeal their convictions in federal court.

The new provisions, added to last year’s reauthorization of the “anti-terror? USA Patriot Act, grant the attorney general the power to decide whether individual states are providing adequate legal counsel to capital defendants. Federal judges now hold that authority. The rules will be written into law after the September 23 deadline for “public comment? has passed.

In essence, the attorney general will be given the sole authority to “fast track? death penalty procedures, severely restricting the time condemned inmates have to appeal their convictions after their cases have been settled in state courts. Wrongfully convicted condemned inmates—and those who have received inadequate legal representation—face the prospect of being sent to their deaths with outstanding issues as to their innocence.

Kathryn Kase, a Houston lawyer and co-chair of the death penalty committee for the National Association of Criminal Defense Lawyers, commented to the Los Angeles Times, “This is the Bush administration throwing down the gauntlet and saying, ‘We are going to speed up executions.’?

The new rules constitute a flagrant violation of constitutional protections of due process, particularly the right of habeas corpus to seek relief from unlawful detention. They place life-and-death decisions affecting condemned death penalty defendants in the hands of the government’s top prosecutor.

Elisabeth Semel, director of the Death Penalty Clinic at the University of California law school in Berkeley, told BBC News, “It’s like giving control of the hen house to the fox, because it’s the attorney general in the state going to the attorney general of the US and getting permission to do something that kills the chicken.?

The credentials of this particular attorney general, moreover, are a significant matter, when one takes a measure of his history in regard to capital punishment and democratic rights.

As general counsel to George W. Bush when he was Texas governor, Gonzales drafted execution memos in 57 cases. These memos, sent to the governor on the morning before a scheduled execution, would summarize complex issues in each case in several paragraphs, leaving a box at the bottom for the governor to decide on granting clemency by checking next to the word “grant? or “deny.?

Bush almost without exception ticked the “deny? box. By the time Bush left the Texas governor’s office and headed for the White House—and Gonzales had moved on to become the state’s attorney general and serve on its Supreme Court—Bush had sent 152 people to their deaths, more than any other governor in US history. These condemned individuals included the mentally retarded, those convicted of crimes committed as juveniles, foreign nationals denied consular rights, and two women.

Following his close partnership with Bush in Texas, Gonzales served as White House counsel from 2001 to 2005. In that post, he crafted a now infamous memo to the president legitimizing torture in the “war on terror.? He was appointed attorney general in February 2005, and is currently under scrutiny for his role in the US attorney firings, and for his visit to former attorney general John Ashcroft’s hospital bedside to pressure him on implementing domestic spying operations.

Equally as sinister as the office and individual now being entrusted with making critical decisions on the death penalty is the substance of the new Justice Department procedures. These provisions were tucked away into the Patriot Act reauthorization bill signed into law by President Bush on March 9, 2006.

The measures deal with rules set down in the federal Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), enacted under the Democratic Clinton administration, which set up a system in which states could streamline death penalty appeals in federal court. The time allowed for a defendant to appeal in federal court after their case was resolved in state court was trimmed to a year, or to six months if states could prove that defendants had received adequate legal representation.

Beginning in the late 1990s, California and several other states sought authorization for the faster-paced, six-month limit, but were denied this designation in the federal court system, which was authorized under AEDPA to make the ruling. In fact, no state has ever been approved by the federal appeals court as meeting the requirements of providing adequate defense for death penalty defendants.

With the new regulations, the Bush administration is attempting to fashion an end-run around what they perceive to be obstacles to speeding up the machinery by which condemned prisoners are sent to their deaths. The attorney general from each state will now simply apply to the Justice Department to be included in the program. Upon approval by Gonzales that they are providing adequate counsel, any capital defendant in that state will be put on the legal “fast track? to execution.

In addition to the six-month limit on appeals, the new rules would also impose strict guidelines on federal judges in deciding these inmates’ petitions. Federal district judges would be required to rule in 450 days; appeals courts judges would have only 120 days.

Representative Dan Lungren (Republican, California) and Senator Jon Kyl (Republican, Arizona) campaigned for the new regulations to be inserted into the Patriot Act reauthorization bill last year. Death penalty proponents have been particularly frustrated with decisions by the 9th Circuit Court, based in San Francisco, which consistently has ruled against providing states with the “fast-track? designation, and has blocked many executions.

That power will now be given to the attorney general. Only the United States Court of Appeals for the Federal Circuit in Washington, whose 12 judges are appointed by the president, has the authority to overrule Gonzales. This provision was obviously designed as a purely cosmetic check on the attorney general’s decision-making powers.

Opponents of the new regulations have also criticized the standards by which states will be approved for the expedited appeals process in the federal court system. In order to qualify, states would only be required to demonstrate that they have a “mechanism? for supplying lawyers to death row inmates. They would not have to show that the lawyers representing capital defendants were competent, or that they received adequate funding from the state.

In Arizona and California, for example, there are state-sponsored programs that support defense counsel in capital cases, but there are too few attorneys for the defendants who need representation. Lawyers representing death row inmates in these states also say that they receive insufficient funding from the state to mount adequate defenses for their clients.

Numerous studies have shown that capital defendants—who are overwhelmingly working class and poor—receive substandard and in many cases abysmal legal representation. A study released in 2000 examining every capital conviction and appeal between 1973 and 1995—nearly 5,500 judicial decisions—showed that courts found reversible error in nearly seven out of ten capital cases during this period. The study—“A Broken System: Error Rates in Capital Cases,? by James S. Liebman and Jeffrey Fagan—showed that factors leading to overturning capital sentences were not mere technicalities, but serious legal errors.

The most common reasons for overturning death sentences were: egregiously incompetent legal representation; prosecutorial misconduct, often including suppression of evidence of innocence; and faulty instructions to jurors.

The study also found that 7 percent of those whose convictions were overturned were also found to be not guilty of the capital crime. The average amount of time taken for these cases to make their way through the appeals process was nine years. Under the new regulations, the portion of time allowed for appeal in the federal courts would be severely restricted, with the effect that defendants might not be able to present DNA and other evidence to prove their innocence or demonstrate that their legal rights had been violated.

Death penalty supporters object to the amount of time spent on death penalty appeals. While in the early 1980s, the average time between sentencing and execution was four years, it now averages 11 years. They want to speed this process up, which would inevitably result in the execution of those who are innocent of the capital crime, and/or whose legal and constitutional rights have been violated during prosecutions.

Ninety-eight people were sent to their deaths in 1999, the highest number since the US Supreme Court reinstated the death penalty in 1976. That figure has steadily declined, with 53 executed in 2006, and 33 executed so far this year. The drop has been fueled in part by declining public support for the death penalty.

According to the Death Penalty Information Center (DPIC), since 1973, 124 people in 25 states have been released from death row with evidence of their innocence, including 22 in Florida and 18 in Illinois. The latest case documented by DPIC is that of Curtis Edward McCarty, the 201st person in the US exonerated through DNA evidence, and the 15th of those who has served time on death row. His case puts a human face on the appeals process disparaged by the Bush Justice Department as inefficient and frivolous.

Curtis McCarty spent 21 years in prison for a crime he did not commit, and was sentenced to die three different times for the 1982 rape and murder in Oklahoma of teenager Pamela Kaye Willis. DNA evidence in recent years has shown that another person raped the victim.

On May 11, 2007, District Court Judge Twyla Mason Grey ordered that the charges against McCarty be dismissed, ruling that the case against him was tainted by the questionable testimony on semen and hair evidence by former police chemist Joyce Gilchrist.

Judge Grey said that Gilchrist had acted in “bad faith? and “most likely did destroy or intentionally lose? hair evidence that was crucial to McCarty’s conviction. Joyce Gilchrist was the lead forensic analyst in 23 cases that ended in death sentences. Eleven of these defendants have been executed.

District Attorney Robert H. Macy prosecuted McCarty at both of his trials. In his 21 years as Oklahoma County DA, Macy sent 73 people to death row—more than any other prosecutor in the nation. Twenty of these individuals have been executed. He has stated publicly that executing an innocent person is a sacrifice worth making to maintain capital punishment in the US.

Since the US Supreme Court reinstated capital punishment in 1976, 1,090 people have been executed in the United States. Eleven of these have been woman; 22 were executed for crimes committed when they were juveniles. Thirty-eight of the 50 US states, as well as the federal government, still sanction the death penalty, a barbaric practice that has been outlawed by the vast majority of industrialized countries, including all of Western Europe.

The move by the Bush administration to grant the attorney general these new, thoroughly undemocratic powers in relation to the death penalty exposes a regime increasingly at odds with civilized, humanitarian norms.

You can call her Dr. now! Court of Appeals Chief Judge Sara Combs receives Doctor of Laws degree

Thursday, August 23rd, 2007

Union College presented Kentucky Court of Appeals Chief Judge Sara Walter Combs with an honorary doctor of laws degree May 5 in Barbourville. Judge Combs, who was on hand to deliver the commencement address to the 128th graduating class, was recognized by Union College for her “distinguished judicial record and pioneer legacy as the first woman on the Kentucky Supreme Court.”

The honorary degree also noted Judge Combs’ distinguished legal career, which includes the 1985 landmark case that led to sweeping reforms through passage of the Kentucky Education Reform Act in 1990. 

Union College also honored Judge Combs and her late husband, former Kentucky Gov. Bert T. Combs, by announcing the establishment of the Sara W. and Bert T. Combs Leadership Grant. The grant honors their devotion to Kentucky, love of education and civic leadership. It will benefit students who show promise as future civic leaders in Kentucky. 

Judge Combs also addressed the 2007 graduating class of the University of Louisville Brandeis School of Law on May 12. She earned her law degree from U of L in 1979, where she ranked second in her class and was later honored with a Distinguished Alumni Award. She also earned an undergraduate degree in French from U of L, where she graduated as valedictorian in 1970. She completed a master’s degree in French from U of L as well and was recognized as a Woodrow Wilson Designate. Judge Combs was also valedictorian at Sacred Heart Academy in Louisville. 

Judge Combs not only made history as the first woman on the Supreme Court of Kentucky, but also as the first woman from Eastern Kentucky to serve as chief judge of the Kentucky Court of Appeals. Judge Combs was first appointed to the Court of Appeals in 1994 to fill a vacancy. She was elected to the court in 1995 and re-elected in 2000. 

Judge Combs has taught at the high school and university levels in addition to gaining broad experience in the practice of law. She began her legal career as an associate with Wyatt, Tarrant & Combs in Louisville before serving as corporate counsel to an advertising company. She also practiced law with her late husband, Gov. Combs, established a solo practice in Stanton, and became a regional affiliate with the Louisville law firm of Mapother & Mapother. 

She is involved with numerous professional, educational and civic organizations. She is a member of the Kentucky Bar Association, the Louisville Bar Association and the University Press of Kentucky. She also serves on the boards of Pikeville College, Lees College and the Kentucky Mountain Laurel Festival. She previously served for seven years on the Kentucky Appalachian Commission. 

Fourteen judges, two elected from each of the seven appellate districts, serve for eight-year terms on the Kentucky Court of Appeals. With a few exceptions, most cases appealed from Circuit Court go to the Court of Appeals. The case is reviewed, not retried, at the appeals level, with attorneys presenting the legal issues to the court for a decision. When the Court of Appeals publishes its rulings on cases, those rulings become the governing case law for all similar cases in the trial courts of Kentucky 

 

Governor Fletcher Announces Agreement for Mental Health Facility to Replace Lexington based Eastern State Hospital

Wednesday, August 22nd, 2007

Patients deserve “most modern setting we can provide,? Governor says

FRANKFORT, Ky. – Governor Ernie Fletcher today announced that the Cabinet for Health and Family Services (CHFS) and the Bluegrass Regional Mental Health-Mental Retardation Board have reached a $1 million agreement to cover planning and design for the new mental health facility that will replace aged Eastern State Hospital.

“This agreement will bring us substantially closer to realizing the goal of constructing a new, state-of-the-art Eastern State Hospital that will better serve Kentuckians,? said Governor Fletcher, speaking at a news conference on the grounds of the current facility in Lexington. “Our citizens with mental illness deserve the best treatment available, in the most modern setting we can provide. The state’s partnership with the Bluegrass Regional Mental Health-Mental Retardation Board ensures that this vision will become a reality.?

Bluegrass CEO Joe Toy applauded the agreement. “The Bluegrass Regional Mental Health-Mental Retardation Board and all of our staff believe this important agreement will impact the lives of those we serve in many positive ways for years to come,? Toy said.

The agreement covers fiscal year 2008 and provides for the state and Bluegrass to work together on acquiring a site, planning and designing a new hospital and establishing a timeline for the project. Legal, legislative and funding issues related to replacing Eastern State Hospital also will be studied during this year.

Eastern State Hospital has existed in some form at its current location on South Fourth Street in Lexington since 1824. The facility has three primary treatment buildings – one built in the 1800s and two in the 1950s. It serves an average of 150 patients per day and has about 400 round-the-clock staff. 

 

 

U.S. Supreme Court Holds Fed. Labor Standands Act Inapplicable To Certain Domestic Service Workers

Tuesday, August 21st, 2007

Article by Proskauer Rose LLP’s Labor & Employment Practice Group   
21 August 2007
On June 11, 2007, the U.S. Supreme Court upheld the U.S. Department of Labor’s (DOL) regulation exempting in-home healthcare aides and companion services workers employed by third-party agencies from federal minimum wage and overtime pay requirements. In its unanimous ruling, the high court resolved a long-running dispute as to whether the 1974 amendments to the Fair Labor Standards Act (FLSA), which extended FLSA coverage generally to employees in domestic service, simultaneously intended to exclude from coverage companions and in-home aides caring for the elderly and infirm, when they are employed by third-party home health care agencies. Long Island Care at Home, Ltd. v. Coke, No. 06-593, 2007 U.S. LEXIS 7717 (U.S. June 11, 2007).
Evelyn Coke was employed by Long Island Care at Home, Ltd. to provide home care for elderly and infirm individuals. She sued the company, claiming that she was entitled to minimum wage and overtime pay under the Fair Labor Standards Act and under New York State law. In what was admittedly a “test case” to challenge the validity of the DOL regulations, she argued to the Supreme Court that the regulation improperly expanded the exemption for domestic workers to include individuals employed by an agency rather than only those employed directly by the individual or family for whom the aide or companion is working. Reversing decisions of the U.S. Court of Appeals for the Second Circuit, which had struck down the DOL regulation, the U.S. Supreme Court reasoned that the Labor Department’s regulation was a legitimate exercise of its authority to fill a gap left open by the statute as to the scope and definition of “domestic service employment” and “companionship services” and, therefore, was entitled to judicial deference.
As Justice Stephen Breyer put it in his opinion for the Court: “an agency’s interpretation of its own regulation is ‘controlling’ unless ‘plainly erroneous or inconsistent with’ the regulations being interpreted.” 2007 U.S. LEXIS at *25.
The Statute And Regulations
In 1974, Congress amended the Fair Labor Standards Act extending coverage to many employees in “domestic service.” At the same time, Congress excluded from coverage “any employee employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves (as such terms are defined and delimited by regulations of the Secretary [of Labor]).” 29 U.S.C. § 213(a)(15). Soon after the enactment of the amendments, the DOL issued two regulations with seemingly inconsistent provisions. First, in 29 C.F.R. § 552.3, the DOL defined the term “domestic services employment” to mean services performed by an employee in the home “of the person by whom he or she is employed.” Second, in another section of the regulations, 29 C.F.R. § 552.109(a), under the heading “Interpretations,” the DOL declared that individuals providing “companionship services” who are employed by an employer or agency other than the family or household using their services are also exempt from the FLSA. The apparent inconsistency of these regulatory provisions gave rise to countless lawsuits.
The Road To The Supreme Court
In 2003, a federal District Court in New York dismissed Coke’s suit, holding that the specific provision in the regulations excluding workers employed by third-party agencies was not arbitrary, capricious or manifestly contrary to the FLSA. Coke v. Long Island Care at Home, Ltd., 267 F. Supp. 2d 332, 341 (E.D.N.Y. 2003). The case was then heard by the Second Circuit twice; both times the Court ruled that domestic workers hired by a third-party employer to provide home health care and companionship services were covered by the FLSA’s minimum wage and overtime pay requirements, refusing to enforce the specific DOL regulation excluding them from coverage.
The Second Circuit held that Section 552.109(a) of the regulations was not entitled to judicial deference and was invalid. Coke v. Long Island Care at Home, Ltd., 376 F.3d 118, 121 (2d Cir. 2004). Under the U.S. Supreme Court’s 1984 decision in Chevron, U.S.A., Inc. v. Nat. Resources Defense Council, 467 U.S. 837 (1984), a court is required to defer to an administrative agency’s regulations that are not arbitrary, capricious, or contrary to the statute when the agency is acting in a “legislative” capacity, but such deference is not required when the agency is merely offering its own “interpretation” of the law. The Second Circuit reasoned that § 552.109(a) was an “interpretive” regulation to which a lesser standard of deference was warranted because the DOL included this regulation under “Subpart B – Interpretations” and not under “Subpart A – Regulations.” Hence, the Department was not exercising its delegated power from Congress when enacting this regulation. Id. at 131. In this case, the Second Circuit noted, the regulation as enacted deserved no deference from the courts because the version of § 552.109(a) submitted for public comments provided that employees of third parties were covered and not exempt, whereas the ultimate version of § 552.109(a) that the DOL adopted provided the exact opposite – that those providing companionship services who were employed by third-party agencies were excluded from FLSA coverage. Id. at 132. Finally, the Court reasoned, the regulation exempting domestic service employees employed by third-party employers from FLSA-coverage was inconsistent with the underlying statute, and, therefore, not valid because Congress intended to expand FLSA coverage with the 1974 amendments. Since some of the third-party agencies had been covered by the FLSA before the 1974 amendments, a regulation that stripped away this coverage was, in the court’s view, contrary to Congress’s intent and, therefore, invalid.
In January 2006, the Supreme Court vacated the Second Circuit’s decision and sent the case back to the appellate court to reconsider in light of a DOL Advisory Memorandum clarifying the agency’s position on the enforceability of § 552.109(a). On remand, the Second Circuit adhered to its original position, again finding § 552.109(a) unenforceable. Coke v. Long Island Care at Home, Ltd., 462 F.3d 48 (2d Cir. 2006). The Supreme Court decided to review the case again.
The Supreme Court’s Decision
The question before the Supreme Court was whether the courts should defer to the DOL’s reading of the statute. Disagreeing with the Second Circuit, a unanimous Supreme Court upheld the regulation. Initially, Justice Breyer’s Opinion focused on the power of an administrative agency to fill any “gaps” in the statute explicitly or implicitly left open by Congress, and determined that the scope and definition of “domestic service employment” and “companionship services” were just such gaps in the FLSA that the DOL had the authority to fill in by regulation. 2007 U.S. LEXIS at *13-14. The Court then rejected each of Coke’s arguments for invalidating the regulation: that the regulation fell outside of Congress’ delegation; that it was inconsistent with another legally governing regulation; that it was an “interpretive” regulation that did not warrant judicial deference; and that it was improperly promulgated.
Coke argued that the purpose of the 1974 amendments was to expand FLSA coverage and since domestic workers who were employed by some third-party agencies were already covered by the statute even prior to the amendments, Congress could not have intended to authorize a contraction of the coverage of “domestic service employment” through administrative regulations. Id. at *17. Rejecting this reasoning, Justice Breyer said that the DOL was expressly granted authority to determine the details of the broad statutory terms “domestic service employment” and “companionship services,” and, in this regard, the extent to which third-party employers might be exempt from coverage. Id. at *18-19.
Next, Justice Breyer rejected the argument that the provision in the “General Regulation” section of the regulations (29 C.F.R. § 552.3) defining “domestic service employment” as work performed in the home of the person who employs the individual necessarily precludes the agency from concluding that those employed by third-party employers are exempt from FLSA requirements. For one thing, Justice Breyer noted, such an expansive reading of the General Regulation would exclude from coverage other categories of employees, such as butlers and chauffeurs, if they were employed by third-party employers, which result would itself be contrary to the 1974 amendments. Id. at *21-22. Reasoning further, the Court explained, upholding Ms. Coke’s position would compel application of FLSA’s minimum wage and overtime provisions any time a family member of an elderly or infirm person hired the companion but did not live in the same residence as the individual receiving care. The Court concluded this was not what Congress intended. Id. at *22 23. Applying the rule that the “specific governs the general,” Justice Breyer held that the portion of the regulations (§ 552.109(a)) that specifically addresses third-party employment controlled over the more general definition of “domestic service employment” as services performed by an employee in the employer’s home. Id. at *23.
The argument that the DOL regulation (§ 552.109(a)) was entitled to less deference because it was included in a section of the regulations labeled “Interpretations” was equally unpersuasive to the Court. Despite its location in the “Interpretations” part, the regulation was implemented after a public notice-and-comment procedure, which is required for “legislative” regulations but is not necessary for “interpretive rules,” which strongly suggested to the Court the DOL’s intent to treat “the third-party regulation like the others, i.e., as a legally binding exercise of its rulemaking authority.” Id. at *28. Ultimately, the Court concluded, “[w]here an agency rule sets forth important individual rights and duties, where the agency focuses fully and directly upon the issue, where the agency uses full notice-and-comment procedures to promulgate a rule, where the resulting rule falls within the statutory grant of authority, and where the rule itself is reasonable, then a court ordinarily assumes that Congress intended it to defer to the agency’s determination.” Id. at *29 (citation omitted).
Justice Breyer dismissed Ms. Coke’s argument that the notice-and-comment procedure for this regulation was inadequate because the regulation as initially proposed would have classified the companions as covered employees, whereas the final regulation excluded companions employed by third parties from FLSA coverage. The Court explained that the purpose of the notice-and-comment period is to ensure that there is fair notice that a regulation is under consideration. According to the Supreme Court, since the proposed regulation demonstrated that the DOL was considering the scope of the third-party employer exemption, it was not improper for the final regulation to be different from the initial proposal. Id. at *31-32.
Impact On Employers
Agencies in the business of providing companionship services to the ill and infirm can now breathe a sigh of relief after the Supreme Court’s decision. Had the Supreme Court affirmed the Second Circuit’s decision invalidating the regulations, it would have resulted in a financial crisis for many of these agencies, and to states and cities that depend on them, because the cost of paying overtime for home care aides and companions could run into many millions of dollars, for which the agencies, states and cities had not budgeted.
Employers, however, must still be cognizant of state laws, some of which provide more generous requirements than the FLSA. The FLSA does not preempt state laws, so the victory in Coke does not absolve third-party employers of in-home health care aides and companionship service workers from compliance with any distinct state law minimum wage and overtime obligations.
 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
 

Grant Co. Commonwealth Attn. Jim Crawford to appear on ABC Primetime Tuesday Evening

Tuesday, August 21st, 2007

Jim Crawford the Commonwealth Attorney for the l5th. Judicial District consisting of Carroll, Owen and Grant Counties, will appear on ABC networks 20/20 Primetime  Tuesday night.
An ABC film crew came to Carrollton two weeks ago to film the segment on Crawford.  He was interviewed about the Grant County bus wreck, where the bus driver was prosecuted for driving under the influence of drugs.  One student on the bus suffered severe head injuries.
The bus wreck has resulted in a lawsuit being filed by Nationally known attorney Stan Chesley against the bus manufacturer for not having installed seat belts on the bus.

PRESS LORD MURDOCK SHOULD CALL OFF HIS IDIOTS ON THE WALL ST. JOURNAL EDITORIAL BOARD. HIS ATTACK ON TRIAL LAWYERS, JUDGE WEHR, AND THE KY. BAR ASSOCIATION ARE OFF THE MARK

Monday, August 20th, 2007

 Robert Murdock, the Australian publisher who obtained American citizenship so he could buy up tv stations and newspapers recently bought the The Wall St. Journal. He is known for his far out right wing political philosophy which he has imposed on most of the publications he owns. (While he styles himself a conservative, he doesn’t believe that this should prevent him for printing nude pictures of chesty women in many of his newspapers in New York, Miami and London.)

 He also owns that paragon of impartiality and fairness called Fox News Network.  The Editorial board of the Wall Street Journal has long been a shill for the most conservative elements of the big business community.   Now they have been given free rein by Murdoch to attack the legal profession.

In an article published Aug. 20th, the right wing editorial staff of the Wall St. Journal, used the Ky. Fen Phen case to advance their long held opposition to trial lawyers.

We will not reprint the version of the article published by the Wall St. Journal, because it is full of nonsense and close to being libelous and we just won’t  carry their trash for them.

Now if someone writes about the Fen Phen case and wants to blast the three attorneys who are alleged to have bilked their clients, then go right ahead.  I don’t know of anyone who has defended such acts if they occured.  There are some people and some judges who still believe that before a person loses a case, they ought to have their day in court.  The Wall Street Journal sees no need for such legal niceties.

We present a few of the ridiculous statements in the article that shows the slanted way they have characterized this story and turned the acts of three lawyers into a general attack against the trial lawyers of America.

WALL ST. JOURNAL: “When the scandal comes to light, the bar association looks the other way and another state judge fails to force the men to return the money.? “Complaints were made to the state bar association soon after the 2001 settlement, yet six years and a criminal indictment later the organization hasn’t held a full hearing on permanent disbarment.?

FACT:  The bar association rather quickly suspended the law licenses of all three attorneys.  They will be automatically suspended if they are convicted of a felony. We do not know the status of the underlying investigation but the bar is apparently waiting until the civil and criminal case or over.  Their rapid temporary suspensions has sent a strong and loud message to all lawyers.  They can’t justifiably be accused of “foot dragging?.

WALL ST. JOURNAL:  “..it’s better viewed as a case study in how hard it is to hold trial lawyers accountable for their low crimes and misdemeanors.  ? …the circus that has followed has become a black eye for Kentucky’s legal establishment.?
 FACT:  It is not hard at all to hold trial lawyer’s accountable.  The Bar Association in this state and many others disbar and suspend lawyers every month.   We would ask how many crooked stock brokers are suspended in a month?  How many crooked corporate officials are prevented from working in business for the rest of their life? 


WALL ST. JOURNAL: “Meanwhile, Lexington attorney Angela Ford filed a civil lawsuit asking that 414 of the fen-phen plaintiffs get their money back. After a prolonged proceeding in which the defense was accorded great deference, state judge William Wehr found that Ms. Ford’s clients were owed as much as $62 million.  ?? Yet he has so far refused to require a return of the money.?

FACT:  This isn’t the first time that the press trail leads back to Angela Ford.  She is subject to a gag order which she has ignored many times to speak to the national press.  Did she speak to the Wall St. Journal for this attack on the bar?  She seems to be their hero in all this???
Judge Wehr long ago froze some $20 million dollars in assets.  Extensive depositions have been taken by Ms. Ford and her own actions can easily be considered part of the reasons for the delay.  She didn’t even file a lis pendens when she filed her claim.  We don’t believe the entire profession should bear responsibility for the actions of the three lawyers. 

He hasn’t seized the rest of the money because there is no civil judgment that gives him the power to seize their assets. He has advanced in that direction, but until the civil plaintiff’s present enough evidence for a summary judgment, he can’t just issue an order seizing all their funds. 

The Journal’s attack on Judge Wehr, who because he is a judge can’t respond back, is way out of line.  Judge Wehr has been as diligent as a bull dog in pursuing this case, while fulfilling his job to see that the defendants are granted a fair trial.  What good is it to even have a trial if it is full of errors that will require it to all be retried?   Judge Wehr has been virtually requested by the plaintiffs to order an immediate “lynching? of everyone who even knew the parties involved, but Wehr has walked a straight line.

Criticize who you want to, but lay off of Judge Wehr…he is one of the good guys in this terrible scandal. Lumping him in with the problems in this case, is just unfair and a low blow which you might expect from a tabloid or gutter press rag.  You would think that the Wall St. Journal has heard something about the rule of law somewhere in their long history.

WALL ST. JOURNAL: “Judge Bertelsman has been assailed, with law professors publicly complaining that it was inappropriate to impugn the whole profession, or to jail the poor millionaire attorneys.?

FACT:  The Courier-Journal interviewed several respected legal ethics professors (from out of state) who opined that it was improper for Judge Bertlesman to jail the three attorneys simply because they asked for a continuance.  Even Judge Bertlesman recognized that his comments might have been off the mark, as he later reset the matter for a review hearing.  Unfortunately, the defendants had filed an appeal to the 6th. Circuit, and Bertlesman has lost jurisdiction of this issue pending a ruling by the 6th. Circuit.

WALL ST. JOURNAL: “We’d say Judge Bertelsman has been the only one clear-eyed enough to realize that the foot-dragging and wink-winking that has characterized the treatment of these attorneys has already.?
 

FACT:  We know of no foot-dragging or wink-winking going on here.  The U.S. attorney obtained indictements only a few months ago, and the trial is set for Jan…..we have no idea who they suggest  were “wink-winking?….it sure wasn’t Judge Wehr.

WALL ST. JOURNAL: “The trial bar has too often become a law unto itself,…?

FACT:  This is just another attempt by the TORT REFORM advocates on the Wall St. Editorial staff to attack all trial lawyers in general.  This implies the “trial bar? has tried to cover up for the three Lexington lawyers, and applauds their actions.  That is sheer fantasy.  We suggest the big business press clean up their own problems on Wall St. before they clutter their partisan little minds with an effort to try to eliminate due process of law in the U.S.

New laws take away the right of U.S. citizens to travel.

Monday, August 20th, 2007

-The freedom to travel has joined habeas corpus and freedom from unwarranted searches on America’s endangered rights list. Over the last 10 years, a combination of federal legislation, court decisions and new federal regulations have greatly reduced the rights of U.S. citizens to travel internationally and domestically-

By Ezekiel Jones   Online Journal   Aug 20, 2007

By Ezekiel Jones   Online Journal   Aug 20, 2007As old as the Magna Carta
The right to go where one wishes is among the most fundamental and ancient of freedoms in the Anglo-Saxon legal tradition. Article 42 of the Magna Carta provided:
“It shall be lawful to any person, for the future, to go out of our kingdom, and to return, safely and securely, by land or by water, saving his allegiance to us, unless it be in time of war, for some short space, for the common good of the kingdom: excepting prisoners and outlaws, according to the laws of the land, and of the people of the nation at war against us, and Merchants who shall be treated as it is said above.”
Despite its long tradition, the right to travel has been under attack at other times in American history. During the Red-baiting ’50s, Congress enacted a law requiring that American citizens possess passports in order to leave or enter the country and delegated the authority to the secretary of state to determine the criteria for issuing passports. Shortly thereafter, Secretary of State John Foster Dulles denied a passport to Rockwell Kent on grounds that he was a Communist. Kent challenged the refusal in court, and the case eventually reached the U. S. Supreme Court. Justice William O. Douglas wrote the opinion for the majority that ordered the State Department to issue the passport:
“The right to travel is a part of the ‘liberty’ of which the citizen cannot be deprived without due process of law under the Fifth Amendment. So much is conceded by the Solicitor General. In Anglo-Saxon law that right was emerging at least as early as the Magna Carta. Three Human Rights in the Constitution of 1787 shows how deeply engrained in our history this freedom of movement is. Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country, may be necessary for a livelihood. It may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values. ‘Our nation,’ wrote Chafee, ‘has thrived on the principle that, outside areas of plainly harmful conduct, every American is left to shape his own life as he thinks best, do what he pleases, go where he pleases.’ (citations omitted)
Whatever happened to love it or leave it?
Unfortunately, William O. Douglas is no longer on the Supreme Court.
American jurisprudence has always recognized two, somewhat distinguishable, aspects of the right to travel. The Kent case dealt with a citizen’s freedom to leave the U. S. and return. Since 9/11, that right has been severely restricted. Prior to January 1, 2007, the U.S. had reciprocal agreements with Mexico, Canada and several Caribbean nations that allowed U.S. citizens to come and go from these countries with nothing more than a picture ID, like a driver’s license, or a birth certificate, citizenship papers or a permanent residency card.
This year, however, Homeland Security issued new regulations requiring Americans to show a passport in order to return by air from these countries. The result was a huge rush for passport applications that swamped the State Department and forced many to cancel their vacations when their new passports did not arrive in the usual six weeks’ processing time.
Next year, these requirements will apply to all travel outside the United States, whether by plane, boat or land.
A right has become a privilege
The U. S. government has also breached the ancient Magna Carta principal that all citizens are free to travel abroad unless they have been convicted of a crime. Under “welfare reform” passed by the Republican Congress and signed by Bill Clinton (newspeak name–Personal Responsibility and Work Opportunity Reconciliation Act), the State Department’s Passport Denial Program began to refuse passports to American citizens based upon a report that they owed back child support.
Have the federal courts shown up again to slap down the State Department and protect the right to travel? Hardly. Eudene Eunique, a non-custodial parent who had been denied a passport because she allegedly owed $20,000 in back child support, challenged the law and the case reached the Ninth Circuit Court of Appeals. The three-judge panel ruled in favor of the State Department. Writing for the majority in the 2-1 decision, Judge Fernandez distinguished the Kent case by claiming that Eunique might be violating federal law if she left the U.S. to evade child support payments. There was no allegation that her purpose was to effect such an evasion nor any hearing on the issue of her motivation. Suffice it to say that the court’s ruling, Justice Douglas’ opinion in Kent were shown scant respect.
Dissenting Judge Kleinfeld was frank about it: “In this case, unlike those in which the Supreme Court has upheld restrictions on travel, the government has not offered a foreign policy or national security justification for the restriction, the government has not narrowly tailored the restriction to its purpose, and the apparent purpose of the restriction is to penalize past misconduct rather than to restrict travel as such. Thus the travel ban in this case is unconstitutional under controlling Supreme Court precedent. That Court can revise its approach if it so decides, but we can’t.”
The initial trigger was set at $5,000, but it was recently reduced to $2,500, and the State Department recently issued a press release bragging about how much cash they had collected from passport applicants.
While it may be hard to feel much sympathy for deadbeat parents, the Magna Carta principle that citizens have the right to travel internationally unless they stand accused or convicted of a crime has been abrogated. What’s next? Passport refusals on the grounds that one’s student loan payments are delinquent? Denials of passports because of mortgage defaults? It’s a bit ironic that a nation which historically has been a refuge for the destitute seeking a new start could become one big debtors’ prison with the combination of provisions like the Passport Denial Program, oppressive bankruptcy laws and a failing economy.
See the USA in your Toyota (as long as you carry your passport)
Homeland Security Secretary Michael Chertoff is unhappy. It seems there are several states that are resisting the federal effort to make them upgrade their state-issued drivers’ licenses to meet the standards for a new national personal ID card.
His response? Issue threats that residents of those states that don’t go along with the national ID will be required to show U.S. passports to enter federal buildings, national parks and monuments, even board an airplane for a domestic flight.
“This is not a mandate. A state doesn’t have to do this,” he said. “But we’ve been very clear and the law is very clear, if the state doesn’t have at the end of the day, the end of the deadline, Real ID compliant licenses, then that state cannot expect that those licenses will be accepted for federal purposes.”
The systematic destruction of a precious right
Middle-aged Americans remember how our leaders, parents and teachers distinguished our country from the Soviet Union and its Warsaw Pact allies by pointing to the pictures and films of desperate East Germans and Hungarians who were forced to risk their lives just to move to a new country. In those days, there were people like William O. Douglas who had both the inclination and the power to defend Americans’ right to travel, but today, with so many fundamental liberties under assault at once, the more subtle attack on freedom of movement has received little attention. It would be tragic if some Americans finally come to the conclusion there is no option but to leave their repressive homeland only to find that they have already lost the right to do so without risking a dangerous, illegal run across a border.
Ezekiel maintains a website with American expats living in Croatia, Belize, Portugal and Uruguay with information about emigrating from the U. S. Go to sheltersfromthestorm.org.

POLICE TO FOCUS ARRESTS ON AGGRESSIVE DRIVERS ON I-65 IN JEFFERSON AND BULLIT COUNTIES , AND I-75 IN BOONE – KENTON COUNTIES

Monday, August 20th, 2007

FRANKFORT, Ky. – Beginning today, August 20, 2007 and continuing through mid September a public awareness initiative of radio advertising will be heard throughout the state to further educate motorists on the importance of leaving more space.
The Department of Kentucky Vehicle Enforcement is also erecting highway signs in the focused enforcement corridors informing motorists, “Don’t Get a Ticket, Leave More Space.? Additional public awareness materials on this important subject can be found at the department web site at www.kve.ky.gov.
Statistics in recent years for Kentucky show approximately 72 percent of all commercial motor vehicle (CMV) involved fatal crashes are caused by a non-CMV driver.  That is why beginning in September and running throughout the year, law enforcement officers will be focusing enforcement efforts in some of Kentucky’s most dangerous interstate corridors where commercial motor vehicles and passenger vehicles historically crash together. Violations including excessive speeding, improper lane changing, reckless driving and not leaving sufficient space around all vehicles will be strictly enforced.
This project will focus on violations by all drivers in two of the worst CMV-involved crash corridors in Kentucky.
*                     Jefferson/Bullitt Counties:  Interstate 65 (Watterson Expressway 264 to mile marker 110 near Lebanon Junction)
*                     Boone/Kenton Counties:  Interstate 75 (Interstate 75 from Ohio River to I-71/75 Interchange)
This program, which is 80% federally funded, will place law enforcement officers in the listed corridors to aggressively enforce violations. 

Despite Fletchers high visibility, his numbers remain low in polls

Sunday, August 19th, 2007

By Larry Dale Keeling  HERALD-LEADER COLUMNIST  Aug. 17, 2007
For the better part of three months, Democratic gubernatorial candidate Steve Beshear has stayed largely under the public radar.
Sure, he’s attended the few forums that have been held, as well as the Fancy Farm Picnic and related events that weekend. Lately, he also has issued a couple of position papers.
Other than that, though, Beshear has stayed out of sight and has made little news since the May primary, presumably concentrating instead on building an organization and a bankroll for the fall campaign.
Gov. Ernie Fletcher, on the other hand, has been a near constant blip on the radar screen, mainly with his “the sky is falling” insistence on calling a special legislative session to pass an energy bill that one day may allow Mr. Peabody’s coal train to haul the state treasury away.
Oops! I forgot the current “spin” that this trumped-up session isn’t about one company or even just coal, but rather is an opportunity to pass a comprehensive energy measure that, according to House Speaker Jody Richards, is also an “environmental protection bill.”
There is some validity to the “comprehensive” claim, since the bill does have numerous features other than incentives for coal-to-liquid and coal-to-gas plants.
But given the current state of those particular technologies, any measure that offers incentives for such plants can’t live up to the “environmental protection” claim.
And despite the spin, Mr. Peabody’s train remains the force driving the coming special session because the only reason to deal with this legislation now, instead of next year, is to influence Peabody Energy’s decision on where it may build a $3 billion coal-to-gas facility.
(Cynic that I am, I believe the may in that last sentence can’t be overemphasized. Even if Peabody announces that Kentucky will be the site if and when it ever builds such a facility, I don’t expect to see the first shovel of dirt turned anytime soon unless there is a sea change in national energy policy.)
Without the expectation that Peabody will make a decision soon, House Democrats would not have agreed to a special session in the middle of a Republican governor’s re-election campaign, a session he hopes will make Kentucky voters forget his record of failed leadership.
Unfortunately for Fletcher, it’s not working out that way, as the poll Preston-Osborne conducted recently for The Lane Report indicated. A plurality of respondents in that poll agreed that the special session Fletcher called last month, with 66 items on the agenda, was “a political ploy.”
Like other recent polls, the Preston-Osborne sampling showed Beshear with a lead, 49 percent to 31 percent in this instance.
And much like the results of a recent SurveyUSA poll, some of the Preston-Osborne findings suggest that Fletcher’s opposition to letting Kentuckians vote on expanded gambling could be as damaging to him as it is helpful.
But the thing that has struck me about all the recent polls is the lack of significant movement in Fletcher’s figures.
Even with that radar screen virtually to himself for three months and even with bringing every power of the governor’s office into play on behalf of his campaign, he hasn’t budged his numbers noticeably.
The latest SurveyUSA poll pitting him against Beshear put his support at 37 percent to Beshear’s 58 percent. A Hasting Wyman’s Southern Political Report poll that found just 41 percent support for Beshear had Fletcher at 38 percent. And there’s that dismal 31 percent in the Preston-Osborne poll.
Fletcher got at least a psychological lift last week when a SurveyUSA poll that didn’t pit the candidates against each other put the incumbent governor’s job approval rating at 40 percent, the first time he has cracked that barrier in more than two-and-a-half years. But that was up just two points from May.
On the down side, his disapproval rating remained at 57 percent.
Such stagnant numbers hovering in or barely out of the 30s suggest to me that Kentuckians have formed their opinion of Fletcher and that there may be precious little he can do to change their minds.
He has a base that seems to be oblivious to his failures and shortcomings, but it’s a relatively small base. And with less than three months to go, it’s showing no real potential for growth.

New Medicare program announced by Bush Adm. will leave victims of malpractice in crossfire between hospitals and insurers.

Saturday, August 18th, 2007

LawReader Comment:  This program appears to leave the sick patient in the lurch.  If Medicare won’t pay for bad hospital procedures, or procedures that cause injury to innocent patients who will?   The hospital can not be expected to readily admit that a patient was injured by their misdeeds.  So if the Government won’t pay the bill, the patient is going to get stuck with an injury caused by the hospital and a large corporate hospital dunning him for the medical bills.  The patient will bear the burden of proving negligence just to get his medical bill paid.   The law provides that when Medicare declares  a procedure unnecessary or harmful, the Hospital will not be allowed to bill the patient. We question how that will work in the real world. Will Medicare have a cadre of malpractice lawyers and experts on the job to review all medical bills? What will happen when private insurance companies jump on this bandwagon?  Will their declaration that a procedure was unnecessary place the burden on the patient ?  Will the patient be trapped in the cross-fire between the hospital and the insurer?  Will hospitals simply refuse to provide service in areas which might be necessary for some patients but be questionable for others?

 By ROBERT PEAR  New York Times August 19, 2007
WASHINGTON, Aug. 18 — In a significant policy change, Bush administration officials say that Medicare will no longer pay the extra costs of treating preventable errors, injuries and infections that occur in hospitals, a move they say could save lives and millions of dollars. Skip to next paragraph Private insurers are considering similar changes, which they said could multiply the savings and benefits for patients.Under the new rules, to be published next week, Medicare will not pay hospitals for the costs of treating certain “conditions that could reasonably have been prevented.?Among the conditions that will be affected are bedsores, or pressure ulcers; injuries caused by falls; and infections resulting from the prolonged use of catheters in blood vessels or the bladder.

In addition, Medicare says it will not pay for the treatment of “serious preventable events? like leaving a sponge or other object in a patient during surgery and providing a patient with incompatible blood or blood products. “If a patient goes into the hospital with pneumonia, we don’t want them to leave with a broken arm,? said Herb B. Kuhn, acting deputy administrator of the Centers for Medicare and Medicaid Services. The new policy — one of several federal initiatives to improve care purchased by Medicare, at a cost of more than $400 billion a year — is sending ripples through the health industry. It also raises the possibility of changes in medical practice as doctors hew more closely to clinical guidelines and hospitals perform more tests to assess the condition of patients at the time of admission. Hospital executives worry that they will have to absorb the costs of these extra tests because Medicare generally pays a flat amount for each case.The Centers for Disease Control and Prevention estimates that patients develop 1.7 million infections in hospitals each year, and it says those infections cause or contribute to the death of 99,000 people a year — about 270 a day. Intravenous catheters are widely used to provide hospital patients with medications, nutrition and fluids, but complications are relatively common.One state, Michigan, has had spectacular success with systematic efforts to reduce infection rates in intensive care units.

Susan M. Pisano, a spokeswoman for America’s Health Insurance Plans, a trade group, said, “Private insurers will take a close look at what Medicare is doing, with an eye to adopting similar policies.?Consumer groups welcomed the change. And while hospital executives endorsed the goal of patient safety, they said the policy would require them to collect large amounts of data they did not now have.Lisa A. McGiffert, a health policy analyst at Consumers Union, hailed the rules.“Hundreds of thousands of people suffer needlessly from preventable hospital infections and medical errors every year,? Ms. McGiffert said. “Medicare is using its clout to improve care and keep patients safe. It’s forcing hospitals to face this problem in a way they never have before.?

Christine K. Cahill, a registered nurse who used to inspect hospitals for the California Department of Public Health, said: “This is a great start. Infection-control specialists have been screaming for 20 years that federal and state officials should pay more attention to this problem because hospital infections hurt patients and cost money.?The Bush administration estimates the new policy will save Medicare $20 million a year. But other experts say the savings could be substantially greater.

Nancy E. Foster, a vice president of the American Hospital Association, agreed that doctors and hospitals knew how to prevent the transfusion of incompatible blood products and should not be paid more if they accidentally left objects in patients during surgery.But Ms. Foster said that some of the conditions cited by Medicare officials were not entirely preventable. Commenting on the proposed rules in June, the American Hospital Association said, “Certain patients, including those at the end of life, may be exceptionally prone to developing pressure ulcers, despite receiving appropriate care.?In most states, Ms. Foster said, hospital records do not show whether a particular condition developed before or after a patient entered the hospital. Under the new rules, she said, hospitals will have to perform more laboratory tests to determine, for example, if patients have urinary tract infections at the time of admission.

Dr. Tammy S. Lundstrom, the chief medical officer at Providence Hospital in Southfield, Mich., said, “The rules could encourage unnecessary testing by hospitals eager to show that infections were already present at the time of admission and did not develop in the hospital.? Moreover, she said, “Serious, costly infections can occur even when doctors and nurses take all the recommended precautions.? The rules, first reported in The Star-Ledger of Newark, carry out a directive from Congress included in a 2006 law. When they were proposed in May, consumer advocates said they feared that some hospitals might charge patients for costs that Medicare refused to pay. But that is forbidden. “The hospital cannot bill the beneficiary for any charges associated with the hospital-acquired complication,? the final rules say. Eileen O’Neill-Pardo of Everett, Wash., said her experience showed the need for the rules. Her 82-year-old mother, Margaret M. O’Neill, died of an infection that developed during intestinal surgery at a Seattle hospital in 2004.“The operation — to remove scar tissue — was successful, but the patient died,? Ms. O’Neill-Pardo said. “The hospital staff did not take steps to control the infection, which took over her body. My mother died less than a week after the operation.?Michigan hospitals have been extremely successful in reducing bloodstream infections related to such catheters, researchers reported recently in The New England Journal of Medicine. The hospitals did not use expensive new technology, but systematically followed well-established infection-control practices, like covering doctors and patients from head to toe with sterile gowns and sheets while the catheters were inserted.Hospital executives said these techniques had saved 1,700 lives and $246 million by reducing infection rates in intensive care units since 2004.

Some of the complications for which Medicare will not pay, under the new policy, are caused by common strains of staphylococcus bacteria. Other life-threatening staphylococcal infections may be added to the list in the future, Medicare officials said.Dr. Kenneth W. Kizer, an expert on patient safety who was the top health official at the Department of Veterans Affairs from 1994 to 1999, said: “I applaud the intent of the new Medicare rules, but I worry that hospitals will figure out ways to get around them. The new policy should be part of a larger initiative to require the reporting of health care events that everyone agrees should never happen. Any such effort must include a mechanism to make sure hospitals comply.?

 

 

Shannon Raglands new book about UK football getting great press

Saturday, August 18th, 2007

Shannon Raglands new book, The Thin Thirty, details how UK coach Charley Bradshaw ran off 58 players with his physical method of coaching in 1963.  The remaining players were called The Thin Thirty.  The stories of players having sex with Rock Hudson, and another story of a game being fixed are raising eyebrows.
(The Rock Hudson story was widely known in Lexington, and some versions included an Eastern Ky. Football player.)
The Thin Thirty, was profiled pre-launch by Alan Cutler on WLEX on Lexington’s largest television station on Friday.  It received a 2 1/2 minute story on the evening news which is unusual to say the least.  To see the video go to: http://www.wlextv.com/Global/category.asp?C=35554&nav=menu203_4
The book may be purchased online  at:
http://www.amazon.com/Thin-Thirty-Shannon-Ragland/dp/097912221X/ref=pd_bbs_sr_1/105-2789154-4127664?ie=UTF8&s=books&qid=1187451941&sr=8-1

U.S. Attorney Agrees With Fen Phen Lawyers that Federal Judge Bertlesman Cannot Hold Bond Hearing After Issue Appealed to 6th. Circuit

Saturday, August 18th, 2007

By Paul A. Long  Ky Post Aug. 18, 2007

The three Central Kentucky lawyers sitting in jail on charges they bilked their clients out of nearly $65 million say a federal judge has no right to re-open their bond hearing next week.
And the U.S. Attorney’s Office, which is prosecuting the trio, agrees with them.
Both sides say when the lawyers appealed the decision of U.S. District Judge William O. Bertelsman to revoke their bonds, he lost jurisdiction over the issue. The decision now lies with the U.S. Court of Appeals for the Sixth Circuit, both said in separate filings in U.S. District Court in Covington.
The attorneys – Melbourne Mills, 76, of Versailles, and William Gallion, 56, and Shirley Cunningham Jr., 52, both of Lexington – also said they will not be able to comply with Bertelsman’s order that they file a financial disclosure statement outlining their assets in time for the hearing. Because they remain in the Boone County Jail, they said, they do not have access to their records.
The three filed notices of appeals on Monday, three days after Bertelsman revoked their bonds. The next day, Bertelsman entered another order, saying he was re-opening the issue because of addition information he had received.
He scheduled a hearing for Tuesday morning and said the three should remain jailed at least until then.
But he cannot do that, said a motion by O. Hale Almand and W. Robert Lotz, who represent Gallion.
“It is well settled that district courts lack jurisdiction to enter orders that affect the merits of an appeal after a notice of appeal is filed,” their motion said.
“Citing the United States Supreme Court, the Court of Appeals stated that it is ‘generally understood that a federal district court and a federal court of appeals should not attempt to assert jurisdiction over a case simultaneously.’”
Assistant U.S. Attorney Robert Wisdom Jr., chief of the office’s appellate division, made a similar argument.
“The United States concurs that the court lacks jurisdiction to reopen the bond hearing,” he wrote in a motion filed Friday. “The defendants have each filed a proper appeal from this Court’s bond ruling. The filing of the notices of appeal deprives this court of jurisdiction to act in matters involving the merits of those appeals.”
On Thursday, Bertelsman re-iterated his order for the hearing, saying attorneys should continue to prepare for it. As of late Friday, he had made no response to the new filings.
Mills, Gallion, and Cunningham face a single count of fraud, and a conviction could land each in prison for up to 20 years. They are scheduled to stand trial Jan. 7, 2008 – and Bertelsman has ordered them held in jail until the trial.
At least one, Gallion, has asked the appeals court to release him during his appeal.
The three attorneys have had their law licenses suspended for their conduct in the $200 million settlement of a civil case against the makers of fen-phen, in which users of the once-popular diet drug claimed it caused serious health problems.
The lawyers are accused in a federal indictment of lying to their clients about the amount of the settlement and taking two-thirds of it in fees and expenses when they were only entitled to about one-third.
A civil lawsuit also has been filed against the lawyers.
The attorney in that case, Angela Ford, filed a motion in federal court saying the three attorneys belong in jail. They are “textbook examples” of flight risk, she said. She said Gallion and Cunningham have business interests in the horse racing industry in Brazil.
“Victims believe that it is very likely that these defendants will flee the country if released from custody,” she said.
“The victims believe that this court’s previous recognition of the defendants’ flight-risk status was not only appropriate but essential to insuring their appearance at future proceedings. Accordingly … victims ask the court to keep its present orders in place and to compel defendants to make the ordered financial disclosures.”

court victory for cell users Judges say Cingular’s contracts can’t block class-action suits. The ruling also could benefit other consumers.

Saturday, August 18th, 2007

-…a contract term is unconscionable if three conditions are met: The consumer contract was drafted by a party with “superior bargaining power”; the dispute involves small amounts of damages; and the party with the superior bargaining power is accused of trying to deliberately cheat large numbers of customers out of small amounts of money.-

 

By Henry Weinstein  L.A.Times August 18, 2007
 

Cingular Wireless can’t compel customers to sign away their right to file class-action lawsuits against the company, a federal appeals court ruled Friday.

Calling the clause in Cingular’s contract “unconscionable,” the U.S. 9th Circuit Court of Appeals in San Francisco paved the way for a consumer class-action suit to go to trial in Los Angeles.

That’s important because disputes with cell phone providers don’t usually involve the kind of big bucks that would tempt lawyers to take up customers’ cases. By banding together, aggrieved consumers have a better hope of getting wireless providers to change disputed practices.

The ruling’s effect also could stretch far beyond Cingular, now owned by San Antonio-based AT&T Inc. and renamed AT&T. Virtually all of the nation’s major credit card firms and phone companies include similar clauses in their contracts, as do car dealers and many retailers.

The 3-0 decision could affect at least 10 other cases in which customers sued Cingular only to have company attorneys argue that their cell phone contracts bound them to settle disputes through arbitration. Federal court judges in several parts of California have rejected Cingular’s position in all of those lawsuits, and legal experts said they thought Friday’s ruling would affect the outcome of any appeals the company lodged in those cases.

Paul Bland, an attorney with Trial Lawyers for Public Justice in Washington, said the ruling was significant because companies had launched “relentless attacks” when courts have ruled in favor of consumers on this issue.

“It is one of those battles where it feels like it never stays won,” said Bland, who has argued similar cases around the country. “This is a carefully thought-out, scholarly opinion that will hopefully put to rest a lot of the efforts to re-litigate this issue.”

Friday’s ruling stemmed from a suit filed by Kenneth Shroyer of Los Angeles. Shroyer, who had been an AT&T Wireless customer, alleged that the quality of his service deteriorated after the company was acquired by Cingular in 2004. He said that when he called to complain he was told that he could get better service if he switched to a Cingular system, which involved getting a new chip in his phone.

To get the chip, Shroyer’s suit alleges, he had to sign a contract that said if he had a dispute with the company, he would have to settle it on his own and could not join other consumers in a lawsuit.

Shroyer filed a class-action suit in California state court, alleging that Cingular and AT&T had engaged in unfair competition, untrue and misleading advertising, violations of state consumer laws, fraud and deceit, and unjust enrichment.

The company removed the case to federal court, contending that it was governed by the Federal Arbitration Act, and asked a federal judge to compel Shroyer into arbitration.

The appeals court found that U.S. District Judge Manuel Real in Los Angeles had incorrectly interpreted precedent in the case and had adopted a proposed order by the phone company “without making any changes to it.”

Both Shroyer and Cingular agreed before the 9th Circuit that California law should be applied to determine whether the company’s arbitration-class-action waiver was “unconscionable.”

California courts have determined that a contract term is unconscionable if three conditions are met: The consumer contract was drafted by a party with “superior bargaining power”; the dispute involves small amounts of damages; and the party with the superior bargaining power is accused of trying to deliberately cheat large numbers of customers out of small amounts of money.

The 9th Circuit said this case met the first two tests because, at most, Shroyer and other class members suffered individual damages in the hundreds of dollars. The court said the case met the third qualification because Shroyer had alleged that Cingular deliberately and falsely told thousands of AT&T customers that their service would be improved only if they entered into contract extensions with Cingular.

The appeals court ruling, written by Judge Stephen Reinhardt, also concluded that the suit was not barred by the Federal Arbitration Act.

Shroyer’s attorneys, William Weinstein of New York and Michael Kelly of El Segundo, said they were pleased with the ruling, which could affect thousands of Cingular customers. Kelly said many companies had changed the language of their arbitration agreements in recent years in an attempt to have them pass muster under a 2005 decision by the California Supreme Court.

He said this was the first time the 9th Circuit had ruled on one of the new “so-called friendly clauses.”

AT&T spokesman Walt Sharp said that the ruling was based on the company’s old arbitration clause, and that it had been improved to become “more consumer-friendly.”

“We believe arbitration is the best course of resolution for our customers,” he said.

Sharp said the company was still reviewing its options, which include asking the 9th Circuit to rehear the case with a larger panel of judges or asking the U.S. Supreme Court to review the case.

henry.weinstein@latimes.com