Archive for September, 2007

KY. COURT OF APPEALS UPHOLDS LARGE JUDGMENT AGAINST NEGLIGENT MORTGAGE COMPANY THAT FAILS TO RELEASE MORTGAGE LIEN. PENALTY OF $98,000 UPHELD. BANKING INDUSTRY IS PAYING MILLIONS IN SIMILAR PENALTIES.

Sunday, September 23rd, 2007

 By LawReader Senior Editor Stan Billingsley    Sept. 23, 2007

Poor customer relations policies result in banking industry being penalized millions for failure to release liens.

 

  Poorly executed lien release policies by major mortgage companies are resulting in large verdicts against in Kentucky and other states. Even though numerous judgments have been handed down against lenders they just don’t get the message.  When a borrower pays off his mortgage, and forwards the check to the lender, they are required to forward a simple one page form to the county clerk’s office in the county where the property is located.  This “lien release? is then recorded by the County Clerk, and gives notice that the lien no longer encumbers the property.  Without this lien release the owner can not give a clear title to the new buyer.  Without the lien release being properly filed, the property owner cannot borrow against the property.  Property sales are delayed, and consumers are placed in a difficult situation due to these oversights by large corporate lenders.

 

In response to consumer complaints about the cold shoulder given by large corporate lenders to requests for the filing of lien releases, the legislature enacted a law that places a penalty on the lender for failing to abide by their duty to promptly release their liens.

 

  In 1978 the Kentucky legislature adopted KRS 382.3654.(4) as the ultimate consumer protection law for property owners who have paid off their mortgages but can’t obtain lien releases from lenders. 

 

This is a national problem. We have found court decisions in seven other states that impose penalties for failure of lenders to release liens, and suspect that most states have similar laws.

 

The statute imposes penalties of $100 a day for delay in lenders releasing paid off mortgages.  The penalty does to the property owner.

 

While sitting as a Circuit Judge in Boone County, I personally ruled in a number of these cases, and became aware of similar cases by other judges, where the large corporate banks and lenders just refused to comply with the law.  Even when given notice, as required, by the borrower of the request for the lien release to be filed, and even after being sued, the lenders continued to neglect their legal duty to file the lien releases.  As a result I have personally entered several judgments in the range of $50,000 to $65,000 against banks.

 

In a decision issued by the Court of Appeals on Sept. 21, 2007, the Court upheld a judgment against  JP MORGAN CHASE BANK in which the Laurel Circuit Court awarded $98,000.   I would not be surprised to find out that a review of similar judgments across the state would total awards in the millions of dollars.

 

Don’t blame the judge for these large awards.  The statute provides a formula the court must follow.  Once the penalty is triggered by the tolling of fifteen days after the required notice is mailed to the lender, the court just multiplies the number of days of violation by $100 per day, to arrive at the amount of the judgment.  There is no discretion allowed to the court.

 

Consumers who bring these complaints often detail a history of letters and phone calls to the lender asking for the release to be filed.  They report that they get only answering machines or uncaring bank employees who won’t cooperate with them.  

 

The banks have seriously failed to develop customer relation policies to respond to their legal duties.  On the other hand, if a borrower misses a payment, the banks have no shortage of staff to seek prompt collection of delinquent payments.

 

One would think that the banking industry would enact policies to monitor this problem. These large penalties will continue to be imposed on lenders until they start fulfilling their contractual duties to release mortgage liens when the loans are paid off. 

 

In a prior opinion the Court explained the law:

 

[U] Wolter v. U.S. Bancorp, No. 2003-CA-002788-MR (Ky.App. 12/23/2004)

(Pursuant to: KRS 382.365(4))

 

“A holder of a lien on real property, including a lien provided for in KRS 376.010, shall release the lien in the county clerk’s office where the lien is recorded within thirty (30) days from the date of satisfaction.

A proceeding may be filed by any owner of real property or any party acquiring an interest in the real property in District Court or Circuit Court against a lienholder that violates subsection (1) of this section. A proceeding filed under this section shall be given precedence over other matters pending before the court.

 Upon proof to the court of the lien being satisfied, the court shall enter a judgment releasing the lien. The judgment shall be with costs including a reasonable attorney’s fee

 

 If the court finds that the lienholder received written notice of its failure to release and lacked good cause for not releasing the lien, the lienholder shall be liable to the owner of the real property in the amount of one hundred dollars ($100) per day for each day, beginning on the fifteenth day after receipt of the written notice, of the violation for which good cause did not exist.?

 

 

The following decision awarding $98,000 against JP Morgan Chase Bank was released by the Ky. Court of Appeals on Sept. 21, 2007.

 

JP MORGAN CHASE BANK, ET AL.  VS.   ENGLE (HARVEY SCOTT), ET AL.

 

LawReader Synopsis:

 

“Although the bank was properly served, it neither filed an answer nor made any entry of appearance in response to the Engles’ complaint

 

…if a defaulting party demonstrates good cause, a trial court may set aside a default judgment providing said good cause meets the requirements set forth in CR 60.02.2

 

To show good cause and, thereby, justify vacating a default judgment, the defaulting party must (1) provide the trial court with a valid excuse for the default, (2) demonstrate a meritorious defense, and (3) show the absence of prejudice to the non-defaulting party.

 

All three elements must be present to set aside a default judgment.?

 

For full text of case go to  2006-CA-001182

 

 

Kentucky’s Lien Release Statute:
 

KRS 382.365 Release of lien, with notice to property owner, within thirty days of satisfaction — Proceeding against lienholder in District Court or Circuit Court — Liability of lienholder when lien not released or notice not sent — Notice to

state or lienholder.

 

(1) A holder of a lien on real property, including a lien provided for in KRS 376.010, shall release the lien in the county clerk’s office where the lien is recorded within thirty (30) days from the date of satisfaction.

(2) A proceeding may be filed by any owner of real property or any party acquiring an interest in the real property in District Court or Circuit Court against a lienholder that violates subsection (1) of this section. A proceeding filed under this section shall be given precedence over other matters pending before the court.

(3) Upon proof to the court of the lien being satisfied, the court shall enter a judgment releasing the lien. The judgment shall be with costs including a reasonable attorney’s fee. If the court finds that the lienholder received written notice of its failure to release and lacked good cause for not releasing the lien, the lienholder shall be liable to the owner of the real property in the amount of one hundred dollars

($100) per day for each day, beginning on the fifteenth day after receipt of the written notice, of the violation for which good cause did not exist.

(4) A lienholder that continues to fail to release a satisfied real estate lien, without good cause, within forty-five (45) days from the date of written notice shall be liable to the owner of the real property for an additional four hundred dollars ($400) per day for each day for which good cause did not exist after the forty-fifth day from the date of written notice, for a total of five hundred dollars ($500) per day for each day for which good cause did not exist after the forty-fifth day from the date of written notice. The lienholder shall also be liable for any actual expense including a

reasonable attorney’s fee incurred by the owner in securing the release of real property by such violation.

(5) The former holder of a lien on real property shall send by regular mail a copy of the lien release to the property owner at his last known address within seven (7) days of the release. A former lienholder that violates this subsection shall be liable to the owner of the real property for fifty dollars ($50) and any actual expense incurred by

the owner in obtaining documentation of the lien release.

(6) For the purposes of this section, “date of satisfaction” means that date of receipt by a holder of a lien on real property of a sum of money in the form of a certified check, cashier’s check, wired transferred funds, or other form of payment satisfactory to the lienholder that is sufficient to pay the principal, interest, and other

costs owing on the obligation that is secured by the lien on the property.

(7) The provisions of this section shall not apply when a lienholder is deceased and the estate of the lienholder has not been settled.

(8) The state licensing agency, if applicable, or any holder of a lien on real property shall be notified of the disposition of any actions brought under this section against the lienholder.

(9) The provisions of this section shall be held and construed as ancillary and supplemental to any other remedy provided by law.

Effective: July 14, 2000

History: Amended 2000 Ky. Acts ch. 412, sec. 1, effective July 14, 2000. — Amended

1998 Ky. Acts ch. 280, sec. 1, effective July 15, 1998; and ch. 507, sec. 1, effective

July 15, 1998. — Amended 1988 Ky. Acts ch. 259, sec. 3, effective July 15, 1988. –

Amended 1986 Ky. Acts ch. 191, sec. 1, effective July 15, 1986. — Created 1978 Ky.

Acts ch. 331, sec. 1, effective June 17, 1978.

ANNOTATIONS FOR THIS STATUTE:

            [U] Wolter v. U.S. Bancorp, No. 2003-CA-002788-MR (Ky.App. 12/23/2004)

Upon proof to the court of the lien being satisfied, the court shall enter a judgment releasing the lien. The judgment shall be with costs including a reasonable attorney’s fee. If the court finds that the lienholder received written notice of its failure to release and lacked good cause for not releasing the lien, the lienholder shall be liable to the owner of the real property in the amount of one hundred dollars ($100) per day for each day, beginning on the fifteenth day after receipt of the written notice, of the violation for which good cause did not exist. (Emphasis added.)

 

Other states have similar lien release penalty statutes:

Nay v. First Financial Bank, 2003 Ok Civ. App. 91 (Okla. App. 10/24/2003), 2003 Ok Civ. App. 91 (Okla. Civ. App., 2003)

 

 

K & P Plumbing & Heating, Inc. v. Winterton, 543 P.2d 1352 (Utah, 1975)

 

Southwest Forest Industries, Dunlap Division v. Firth, 435 N.E.2d 295 (Ind.App. 1 Dist., 1982)

 

Washington Int’l Ins. Co. v. Hughes Supply, Inc., A04A1198 (GA 10/13/2004) (Ga, 2004)

 

. In re Lortz, 344 B.R. 579 (Bankr. C.D. Ill., 2006)

 

Santana v. Citimortgage, Inc., No. CV05 401 06 07 (Conn. Super. 5/22/2006) (Conn. Super., 2006)   (refers to similar statute in Ohio)

 

Defendants Right to Consult with their Attorney under Attack in Gitmo and Frankfort

Sunday, September 23rd, 2007

LawReader note:  Ky. House Speaker Jody Richards has prefiled a bill for the 2008 legislature that would prevent DUI defendants from having the right to call their lawyer prior to taking a BA test.  Bush started this trend with denial of attorney visits for terrorists.

 

By BEN FOX – Sept. 23

 

SAN JUAN, Puerto Rico (AP) — Attorneys for Guantanamo Bay detainees will ask a judge to rescind a ruling that created a new hurdle for some lawyers seeking to visit their clients at the prison in Cuba.

In Thursday’s ruling, District Court Judge Ricardo Urbina in Washington dismissed 16 lawsuits challenging the indefinite confinement of dozens of men.

In an e-mail to lawyers, the Justice Department said Friday that the ruling invalidated an order that establishes rules for contact with detainees. It warned attorneys that they will be cut off from their clients unless they file new suits under a 2005 law and agree to tighter restrictions on visits and letters to detainees.

Attorney visits provide one of the few sources of information about detainees at Guantanamo, an isolated Navy base in Cuba where the U.S. holds about 340 men under extremely tight security on suspicion of terrorism or links to al-Qaida or the Taliban.

Most of the prisoners are held without charge and have filed petitions of habeas corpus, a legal challenge to their confinement.

Last year, Congress passed the Military Commissions Act, which stripped all detainees of the right to file habeas petitions — a fundamental legal right under the Constitution. The Supreme Court has said it will consider the law in its next term.

In the meantime, lower court judges have either stayed pending challenges or dismissed them, as Urbina did on Thursday.

A Justice Department spokesman, Erik Ablin, said Saturday the e-mail reflects the government’s standing interpretation of the law and the rules for the “protective orders” that authorize attorney visits to Guantanamo.

“If a habeas case has been dismissed, it has long been our view that there is no protective order under which visits can be permitted,” Ablin said.

Attorneys are free to file new challenges under the 2005 Detainee Treatment Act and to seek permission under another order that would grant them access to their clients, Ablin said.

David Remes, a Washington attorney whose firm is handling two of the dismissed cases, said he will file an appeal Monday arguing that the judge should not have dismissed the petitions because a higher court was still considering appeals to Urbina’s decisions in other aspects of the cases. An immediate decision was not expected.

He also said a number of attorneys have already filed the new lawsuits and agreed to the restrictions.

But Wells Dixon, an attorney for the New York-based Center for Constitutional Rights, complained he would most likely not be able to complete the required steps in time for a scheduled visit with a Libyan client in October.

“This is just the latest example of the government’s efforts to frustrate counsel access to detainees,” Dixon said.

U.S. officials deny that lawyers have faced undue roadblocks to assisting their clients.

“We have afforded detainees at Guantanamo with greater access to attorneys than any other combatants in the history of warfare,” said Navy Cmdr. Jeffrey Gordon, a Pentagon spokesman

 

Sunday, September 23rd, 2007

Professor Toobin Invites You to meet the Supremes in his new book on High Court

Sunday, September 23rd, 2007

Review of THE NINE- Inside the Secret World of the Supreme Court by Jeffrey Toobin

DAVID MARGOLICK New York Times  September 23, 2007

DAVID MARGOLICK New York Times  September 23, 2007The farewell ceremony for Chief Justice William Rehnquist at the United States Supreme Court in September 2005 offers the kind of monumental tracking shot authors adore. Neatly and conveniently arrayed that day on the marble steps leading into the building, standing, by tradition, in reverse order of seniority, the justices line up. As some of Rehnquist’s former law clerks (his soon-to-be successor, John Roberts, among them) carry his casket past his former colleagues, Jeffrey Toobin follows the procession, freezing on each of the justices, then introducing them in turn.

But to anyone who watches the court, or watches those who watch it, Toobin’s descriptions afford something else, arguably even more interesting: the chance to ponder which of those justices talked to him for this book, and which did not. And talk to him some of them clearly did. Without their off-the-record whispers, there would be no “inside? story of any “secret? world to tell in “The Nine: Inside the Secret World of the Supreme Court.?

Of course, the myth is that the justices sit sealed on their Olympian perches, forever mum. In truth, some talk when it suits them, to toot their own horns, unburden their souls, allay their loneliness or justify something they’ve done. They talk very selectively: the more eminent and powerful the reporter or the publication, the more likely such conversations are. One can usually guess who’s gabbing, for among those who follow such things, their penchants are well known. But there are other hints, like a certain kindness of tone in whatever ends up on the air or the printed page. With that in mind, let’s accompany Toobin up those marble steps.

First there’s Stephen Breyer, with what Toobin calls his “gregarious good nature.? Odds are he spoke, a fair amount. Then Ruth Bader Ginsburg, “frail? and “shy? and, Toobin says, with only marginal influence on her colleagues. Maybe, but she’d have said precious little. Clarence Thomas, we learn, had gotten old and fat since his famously bloody confirmation battle. No way. David Souter “detested Washington? and “cared little what others thought of him.? Probably not, but he’s quirky enough to have tossed off a tidbit or two. Then Anthony Kennedy, far more worldly and influential than the “conventional, even boring? burgher he first appeared to be. Almost certainly yes.

Antonin Scalia looked “lost and lonely? that day: absolutely not. Then Sandra Day O’Connor, about to entrust her seat to President George W. Bush, whom she considered “arrogant, lawless, incompetent and extreme.? Her fingerprints — or voice prints — practically leap off the page: how else could Toobin write something so incendiary so confidently? And finally there’s John Paul Stevens, “respected by his colleagues, if not really known to them.? Highly unlikely.

Reading Toobin’s smart and entertaining book, these hunches quickly solidify. Sprinkled throughout are quotes, facts, anecdotes, insights and interior monologues that could only have come from particular justices — most conspicuously, O’Connor, Breyer and Kennedy — along with flattering adjectives about each. Toobin, of course, never names names.

Try imagining any branch of government — the White House, say, or the State Department — covered solely on the basis of public events and printed releases, with nothing about its inner workings. It’s inconceivable. But that’s essentially how the Supreme Court beat works. Reporters assigned there rarely venture beyond oral arguments, briefs and decisions. Almost never do they stray from their cubicles. Part of this is perfectly sensible: the court makes most of its news through its opinions, and interpreting them, often heaps of them, at once, on tight deadlines, is damnably (and, maybe, deliberately) difficult. Those who do it well are rare, and they have little time to spare.

But it’s not the only reason for sticking to the handouts. Going beyond them, getting into the court’s internal operations and culture, is nearly impossible. And examining the justices critically, grading the quality and propriety and intellectual honesty of their work, is dangerous: you risk losing whatever tiny chance you have that one of them will talk to you in a pinch or throw you an occasional crumb. So almost no one even tries. No other reporters are as passive as Supreme Court reporters. Details about the drama and passion and pettiness of the place — in other words, about the way it does its work, our work — emerge only years after the fact, and only (as with the posthumous papers of Justice Harry Blackmun) when they are made available to the public.

Baghdad bureau chiefs and White House correspondents change every few years for a reason: over time reporters become entrenched or co-opted or burned out. But because covering the court is so difficult, or because everyone likes things as they are, reporters there enjoy an aberrational kind of tenure. Some are there for decades, becoming almost adjuncts of the court, absorbing its elitism, acting as cheerleaders or apologists or scolds, feeding the cult of personality that surrounds its members. Others become quasi justices themselves, handing down clever opinions on opinions rather than ever picking up a phone and asking a few questions.

The cartel is not only closed, but, as television news has withered, it is also shrinking. And scholars aren’t much help. Many top law professors once clerked on the court; cherishing their relations with the justices, along with the power to pull strings from Cambridge or New Haven or Palo Alto to land similar positions for their students, few dig deeply into court affairs. It all works very neatly; the only ones hurt are the American people, who know little about nine individuals with enormous power over their lives.

That is why, every decade or so, an enterprising and intelligent outsider like Toobin can come along and shine a much-needed spotlight on the place. He’s pedigreed (Harvard Law School), well connected (The New Yorker, CNN) and visible, the kind of person immured justices like to say they know. Most important, he’s not in one of those cubicles. He has an independence and perspective the lifers don’t. He’s not in awe of the place, not prone to covering it in hushed tones or to writing endlessly about red velvet curtains or black robes.
So, not surprisingly, “The Nine? is engaging, erudite, candid and accessible, often hard to put down. Toobin is a natural storyteller, and the stories he tells — how a coalition of centrist justices saved Roe v. Wade; why Rehnquist, despite having loathed the rights granted to criminal suspects by Miranda v. Arizona, eventually declined to overturn the decision; how right-wing firebrands deep-sixed the Supreme Court candidacies of Alberto Gonzales and Harriet Miers — are gripping. But its greatest surprise is that there are few great surprises. Toobin writes about the court more fluidly and fluently than anyone, but his buddies on the bench didn’t tell him much we don’t already know.

ike “Supreme Conflict,? Jan Crawford Greenburg’s recent examination of the same subject, Toobin seeks to plumb the court’s deepest mystery: why a tribunal so stuffed with Republicans (there have been only two Democratic nominees in the last 40 years) hasn’t shifted more radically rightward. He offers many explanations. Souter, appointed by the first President Bush, was to conservatives a colossal miscalculation. Rehnquist got tired, then sick. Breyer lobbied effectively from the left, or what’s left of the left, while Scalia’s extremism and blustery condescension miffed those in the middle. Kennedy became enraptured by foreign travel and more liberal foreign jurisprudence. Gay clerks came out of the closet.

O’Connor was clearly Toobin’s most important source. She’s also — readers can decide if it’s coincidental — his hero: the justice, he argues, who through her pragmatic, seat-of-the-pants jurisprudence single-handedly kept the court close to the American mainstream, particularly on matters like reproductive freedom and affirmative action. The Rehnquist court was really the O’Connor court, Toobin writes early on. But he’s only warming up: before long, the first female justice has shoved aside Eleanor Roosevelt, Margaret Sanger, Harriet Beecher Stowe and Susan B. Anthony to become “the most important woman in American history.? Give him another 60 pages, and she’s surpassed most of the men as well.

This is despite what Toobin himself concedes was her ignoble role in Bush v. Gore, the case that decided the 2000 presidential election. Beat reporters and academics initially denounced the court’s involvement in that case, its hastiness to enter the political thicket and the half-baked and strained decision that resulted; but invested in the image of the court as a principled and apolitical institution (and perhaps afraid of offending anyone), they quickly and predictably backed off. Yet even after writing an entire book about that case six years ago, Toobin remains white-hot about it, calling it “one of the lowest moments in the court’s history,? one that revealed the worst of just about everyone involved.

Here he does name names, as no beat reporter has ever done or would ever do, at least nibbling some of the hands that fed him. Only Stevens and Souter are spared. To Toobin’s credit, he does not exempt O’Connor.

A lifelong Republican — in her memos to Rehnquist, she routinely referred to her party as “we? and “us? — O’Connor played tennis with Barbara Bush, watched approvingly while George W. Bush rose as a “compassionate conservative,? looked “stricken? to fellow partygoers on election night 2000 when Al Gore appeared to have won. She determined early on in the litigation to stop the Florida recount, and in the five-to-four decision that followed, her vote was decisive. But her reasoning, as Toobin notes, was more visceral than legal — she hated untidiness, blamed Florida voters for being too stupid to follow instructions and thought Americans wanted the matter settled. She was wrong on both the facts and the law. It was an egregious performance, one that historians will skewer. Or maybe not, given who usually writes these histories.

Amid a torrent of criticism, O’Connor clearly held off-the-record conversations with reporters, trying to justify what she had done. Toobin does not mention this, nor the more general issue of the justices’ surreptitious ties to the press. Perhaps it’s too much to expect. Or perhaps he was just too busy taking down all of O’Connor’s ire, because she spends an awful lot of “The Nine? either annoyed, affronted or downright appalled by the events of the past few years.

She was appalled, for instance, by former Attorney General John Ashcroft, whom she considered extreme, polarizing, moralistic and — to use her favorite word — “unattractive.? She was appalled by how the Bush administration pandered to the religious right in the Terri Schiavo case. She was appalled by the nomination of Harriet Miers. And she’s been appalled, too, by Bush’s stances on affirmative action, the war on terror and the war in Iraq. And how did she feel when Bush brushed off the report of the Iraq Study Group, to which she belonged? She was appalled. And she was really, really appalled that the lower-court judge whose dissent in one crucial case she deemed “repugnant? — he’d have upheld a Pennsylvania law requiring wives to notify husbands before getting abortions — was the very man Bush picked to replace her: Samuel Alito.

A person is welcome to her opinions, but given O’Connor’s crucial role in putting Bush in office, such constant off-the-record carping is really a bit much. Toobin, naturally, doesn’t challenge her on any of it; when justices talk — and especially when they vent — you just let your tape recorder roll and hope the red light is flickering. But all this spinning makes one appreciate Thomas and Scalia; whatever one thinks of them or their jurisprudence, they speak their pieces in public — for attribution.

The book includes beautifully written essays on each of the justices, woven artfully into the narrative. The one on Thomas manages to be both sympathetic and devastating. There’s the reclusive Souter, who’d never heard of Diet Coke or of the other “Supremes? (the ones with Diana Ross), and the grandiloquent Kennedy, who toils most over those passages in his opinions he thinks The New York Times will pick up. The book is filled with pithy phrases, crystalline distillations and fine tidbits: the impertinent notes Breyer and Thomas pass one another during oral arguments; O’Connor’s efforts to marry off the bachelor Souter; Souter weeping — and contemplating resignation — after the Bush v. Gore decision.

But there are significant gaps. Toobin calls relations between the justices “cordial? but, frustratingly, offers only a few elaborations. How Ginsburg and O’Connor, the court’s first two women, got along surely warrants more than a sentence or two. Why were O’Connor and Stevens the only colleagues the dying Rehnquist allowed into his home? And who most regularly persuades whom (if, on such a factionalized court, there’s any persuasion going on at all)? Can it be true, as Greenburg has written, that at least initially it was not Scalia who influenced Thomas, but the other way around?+

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THE NINE
Inside the Secret World of the Supreme Court.
By Jeffrey Toobin.
Illustrated. 369 pp. Doubleday. $27.95.
Related
First Chapter: ‘The Nine: Inside the Secret World of the Supreme Court’ (September 23, 2007)
Times Topics: The Supreme Court

Much of Toobin’s book is based on oral arguments, briefs and opinions — nothing especially “secret? or “inside? about that. Sometimes, he actually strays quite far from the court. And he devotes lots of space to musty, antiquarian topics: Warren Burger’s vanity, the doomed nomination of Robert Bork, Bill Clinton’s attempt to woo Mario Cuomo into a court appointment. Going through “The Nine? is a bit like reading one of those Roger Angell essays on a recent World Series: the writing is exquisite, but the game’s been over awhile. Despite the importance of Roberts and Alito, Toobin takes far too long to reach them, then tells us far too little about what kind of men, and justices, and colleagues, they are turning out to be. He had a year to study them and might have told us much the beat reporters couldn’t or wouldn’t or, in any case, haven’t. Describing the body language on the court’s last day this past June (Souter seething, Breyer rolling his eyes, Alito staring at Breyer, Roberts’s jaw muscles twitching) doesn’t really do the trick.

Considering the secrecy shrouding the place, just about Toobin’s only remaining reportorial option was to try what Bob Woodward and Scott Armstrong did in “The Brethren? a generation ago: canvass former law clerks, three or four of whom pass through each chamber every year. They are, as Toobin writes, not nearly as important as they think they are; after all, they’re not privy to their bosses’ deliberations. And they can be very full of themselves, priggish and protective, even proprietary, about the court. Just ask Edward Lazarus, who in 1998 published an account of his year clerking for Justice Blackmun; for his breach of omertà, his fellow clerks shunned him at Blackmun’s funeral.

But there are many, many clerks; they heard — and still hear — a lot; and for all the sycophants and careerists, kingmakers and aspiring federal judges among them, some are surprisingly independent and outspoken, believing that excessive deference to even the most necessarily private branch of government ill serves our democracy. Toobin says he spoke to 75 of them, but anyone writing a book like this simply has to telephone them all, even if 9 of every 10 hang up in a huff. I wish Toobin had done this, because it would have made his book even better. When it comes to covering the United States Supreme Court as a living, breathing, human institution rather than as a collection of icons, “The Nine? is state of the art. But it’s an art in need of a renaissance.

David Margolick is a contributing editor at Vanity Fair and the author of “Beyond Glory: Joe Louis vs. Max Schmeling, and a World on the Brink.? He once covered legal affairs for The Times.
 

John G. Prather, Sr. War Hero and one of states Leading Lawyers Passes On.

Sunday, September 23rd, 2007

SOMERSET PRATHER, JOHN G. SR., was born in Somerset, KY, on December 12, 1919, the second son of James F. Prather and Josephine Collier Prather. He graduated from Somerset High School in 1936. He received his A.B. degree from the University of Kentucky in 1940 and worked as an insurance agent with Prather Insurance Agency until 1941 when he was employed by the FBI Identification Headquarters in Washington, D.C.
 

He joined the United States Navy in April of 1942 and served in North Africa and in Italy, including participation in the invasion of Sicily. In Palermo, Senior Lieutenant Prather served as an operations officer until March of 1945, returning to the United States on Easter Sunday 1945. He was eventually assigned to the operations staff at Naval District Headquarters in San Francisco where he served until his released from active duty in January, 1946.
 

 Upon his return to the United States in 1945, he married Jean Moore, in Washington, D.C. On October 7, 2007 they would have celebrated their 62nd anniversary. After being discharged from the Navy he entered the University of Kentucky College of Law and graduated with his law degree in 1947.
 

He returned to Somerset and began his law practice and continued practicing actively until the fall of 2006. He served as city prosecuting attorney for the City of Somerset for eleven years and later as commonwealth attorney for the 28th Judicial District, then comprised of Pulaski and Rockcastle counties. He was a charter member of the Somerset Jaycees, president of the Somerset Kiwanis Club, with a perfect attendance record of fifty years; an elder in the First Christian Church where he was a Sunday school teacher and chairman of the board for 25 years.
 

He served as the institutional representative for Boy Scout Troop 79 for many years. He was a member of the Oleika Shrine Temple and the Lake Cumberland Shrine Club and a recipient of the 2006 Distinguished Community Service Award of the Somerset-Pulaski County Chamber of Commerce.
 

Additionally, he was a member of Post 38 of the American Legion and the VFW and served as service officer for both organizations. He was a member of the Masonic Lodge, the International Order of Oddfellows, the Pulaski County Bar Association and a sixty year member of the American Bar Association.
 

He was preceded in death by his parents; his son, Jerome Moore Prather; and his brother James F. Prather, Jr.
 He is survived by his wife, Jean Moore Prather, his son, John G. Prather Jr. (and Hilma S.Prather); his grandsons, Jerome Park Prather, Joel Moore Prather, John Hunt Prather; and his granddaughter, Anna Russell Prather; and his daughter-in-law, Joelyn Herndon Prather. Visitation will be held 5-8 p.m. on Sunday, September 23, 2007 at the First Christian Church, Somerset, KY. Funeral services celebrating the life of John G. Prather, Sr. will be 11 a.m. Monday, September 24, 2007 at First Christian Church with Dr. John Killinger, Rev. Joe Altman, and Dr. Robert Drake officiating, followed by burial at the Somerset Cemetery.
 

Military honors will be conducted by the American Legion Post #38, and the family suggests expressions of sympathy take the form of contributions to the Somerset First Christian Church Building Fund, The Boy Scouts of America Troop #79 or the Shriners Childrens Hospital of Lexington, KY Pulaski Funeral Home is honored to be in charge of the arrangements of Mr. John G. Prather Sr.

Published in The Courier-Journal on 9/23/2007

 

Public Defenders Face Fiscal Crisis and Heavy Caseloads

Saturday, September 22nd, 2007

The Public Defenders in Ky. are facing a fiscal crisis with increasing caseloads and low pay. This problem is also affecting Prosecutors.  

By Joe Biesk  AP – Sept. 22, 2007 

FRANKFORT –
Kentucky’s heavy caseloads for attorneys representing indigent defendants are taxing the public defense system and possibly jeopardizing clients’ access to justice, the Department of Public Advocacy’s top official said.
Public defense attorneys in Kentucky on average are juggling about 436 cases per year, according to the agency’s annual report released yesterday. Public defenders in urban areas, however, are facing even fiercer caseloads, as high as 651 in Lexington, the report found.
Still, caseloads are down from an average of 468 per attorney during the 2006 fiscal year, the report found.
The numbers reflect an agency budget crunch that has been years in the making, said Ernie Lewis, who heads the state public defender system. And it could lead to systemwide problems, Lewis said.
“My lawyers are working as hard as they can work, lots of overtime, trying to do the best they can do on individual cases,” Lewis said. “When caseloads get above the national standards, you’re risking systemic problems at that point.”
During the past seven years, there has been an increase of more than 50 percent in caseloads, the report said.
Lewis said the agency is facing a fiscal crisis; he’s already instituted a hiring freeze and has paid bills late as a way to save money. Right now, there are 60 vacancies in the agency, including slots for 30 to 40 additional attorneys.
“I’m looking at a difficult time getting through this fiscal year,” Lewis said.
Sixty-two public defenders in Louisville, Kentucky’s largest urban area, handled more than 33,400 cases during the last fiscal year that ended in June for an average of 539 cases per attorney.
While above the agency’s overall average caseload, the number reflected a drop in Louisville public defenders’ caseloads from the 2006 fiscal year when they had about 604 each, according to the report.
In Lexington, the 16 public defenders there had an average caseload of 651 during the last fiscal year, compared with 442 the year before, the report said.
Meanwhile, the five public defenders in Glasgow had an average caseload that ranked among the lightest in the state at nearly 341 each.
High caseloads translate to less time spent with individual clients, Lewis said. An attorney who opens 436 cases per year has about four hours to work on a case, Lewis said.
While that may be adequate for some cases, others require more time, he said.
“We’re not making Doritos, we’re representing individuals whose liberties have been threatened,” Lewis said. “All of that times a lot of time.”
 

 

 

 

Bush Nominee for Attn. General Has Independent Streak.

Saturday, September 22nd, 2007

L.A. Times  Sept. 22
WASHINGTON — By all accounts, Michael B. Mukasey is not someone who is easily intimidated.

As a federal judge, he stared down convicted terrorists. He presided over a fiercely independent Manhattan federal court nicknamed the “Sovereign District of New York.” He is little interested in politics or politicians.

And if confirmed as attorney general, his independent streak could pose problems for President Bush.

With his reputation already well established and a gig at the Justice Department likely to last no more than a year or so, Mukasey, at 66, has little to lose. As a result, observers expect him to view his role much differently than did his predecessor, former Atty. Gen. Alberto R. Gonzales, who developed a reputation as a loyal advocate for administration legal positions and policies.

Although he would be in the Bush cabinet and expected to be part of the team, those who know him say he would not hesitate to bring his considerable legal heft to bear if he believed Bush was not following the law. This could cause Bush some uncomfortable moments, especially in dealing with Congress in the ongoing probes of the Justice Department and White House.

“He is not going to be pushed around,” said Bruce Ackerman, a Yale Law School professor who was a classmate there with Mukasey in the 1960s. “He is very much a serious judge. The administration cannot afford to antagonize him.”

Some who have known Mukasey for years wonder if Bush really knows what he is getting into. “If I were George W. Bush, I never would have picked Michael Mukasey,” said Edward M. Shaw, a former colleague of Mukasey’s at the U.S. attorney office in Manhattan.

On Friday, Bush officially launched the confirmation process, sending Mukasey’s name to the Senate to succeed Gonzales, his longtime friend and adviser. A former prosecutor himself and a judge for nearly two decades, Mukasey is widely viewed as a man of integrity who has, despite conservative leanings, won early support from Democrats as well as Republicans.

Nevertheless, Mukasey may face tough questions from Democrats about his conservative views on national security versus civil liberties. The Senate has not yet scheduled confirmation hearings; Judiciary Committee Chairman Sen. Patrick Leahy (D-Vt.) has threatened to delay the hearings if the White House continues to withhold documents and testimony related to the committee’s probe of the Justice Department.

In rounds of meetings with lawmakers late last week, Mukasey made it clear that he would fire any Justice Department employee who discussed sensitive cases with anyone at the White House. Under Gonzales, a pipeline developed between Justice and White House officials that critics believe opened the way to abuse. He also said that politicians calling the Justice Department would be given only two phone numbers — his and that of his top deputy.

He is also likely to face demands from Democrats to appoint a special prosecutor to investigate whether crimes were committed in connection with the firing last year of nine U.S. attorneys. An internal Justice Department probe into the matter is already underway. It is far from clear what Mukasey will do on that score, although some note he hails from the same New York legal circles that produced James Comey, the former deputy attorney general who in 2003 appointed a special prosecutor to probe the White House’s involvement in the CIA leak case.

Mukasey could also have an effect on other Bush administration policies, including the two-decades-old system under which criminals are sentenced in federal court. Gonzales was a strong proponent of strict guidelines that gave judges little discretion in their sentencing. While on the bench, Mukasey was among a number of judges who found that the guidelines, and the limits they placed on the power of the courts, violated the principle of separation of powers under the U.S. Constitution.

In 2003, when Congress enacted a new law that required judges to report every case in which they ordered a sentence that was below the guidelines, Mukasey was among those threatening open revolt. “They can have their blacklist,” he declared in an interview. “But we have life tenure.”

To be sure, Mukasey seems to be like-minded on many issues that Bush cares about. He is a relative hawk on national security matters, and has supported aggressive measures in the war on terror. He approved the rounding up of scores of illegal immigrants after the Sept. 11 attacks with a controversial form of warrant that allowed their incarceration because they may have been witnesses to crimes. He has defended the USA Patriot Act, and derided some of its major critics, including librarians who have said the law threatened 1st Amendment rights of citizens.

Interviews with several dozen people, including former prosecutors and judges, as well as attorneys who have appeared before Mukasey as a judge and worked beside him as a lawyer, present a picture of a thoughtful person who never shoots from the hip and who is not above recognizing his mistakes and correcting them. Not all lawyers agree with him, but they all seem to agree that he gives them a fair shake.

“This guy is not a lefty, he’s not a progressive, he’s not a liberal,” said Stanley Cohen, who has defended alleged terrorists in New York and is concerned about the “love fest” that has arisen over the announcement of Mukasey’s appointment, particularly among some liberal Democrats. But “he does express some independent thought.”

As an example, Cohen recalled a case he had before the judge in the 1990s. The defendant was a man who refused to testify before a federal grand jury about why his name showed up as co-signer to a checkbook belonging to the political director of Hamas, the militant Palestinian group identified by the United States and others as a terrorist organization. The refusal meant that Mukasey could hold the man in jail for 18 months or until the end of the grand jury’s term, in the hopes that that would persuade him to talk.

But, Cohen said, “after three or four months he let him out. He applied the law strictly and found there was a zero chance that this guy sitting in jail would change his mind.”

Jeffrey G. Smith, a New York securities lawyer, tried to have the judge taken off a case that he filed in the mid-1990s against Philip Morris Cos., alleging that the company defrauded investors by hiding evidence that it had manipulated nicotine levels in cigarettes to hook smokers.

He asked for the recusal after Mukasey revealed that as a young lawyer in the 1960s he had done work defending tobacco companies against suits by smokers with lung cancer. “He denied my motion, saying [his prior work] was so long ago that it would not affect his judgment,” said Smith. “Boy was I glad he did.”

Latest Poll by Courier Journal shows Beshear Leading by 20 pts.

Thursday, September 20th, 2007

By Joseph Gerth  The Courier-Journal    Sept. 21, 2007
Democrat Steve Beshear has a commanding lead over Gov. Ernie Fletcher with less than seven weeks remaining before the Nov. 6 gubernatorial election, according to a Courier-Journal Bluegrass Poll.

In a poll of 667 likely voters, the newspaper found that Beshear leads Fletcher 55 percent to 35 percent, with 10 percent undecided. The poll has a margin of error of plus or minus 3.8 percentage points.

The poll found that Beshear leads among both men and women, all age groups and income levels and in every congressional district in the state.

In Jefferson County, Beshear leads by a margin of more than 3 to 1.

The two candidates are virtually tied among voters who attend a church, synagogue or mosque on a weekly basis.

But among those voters who consider themselves evangelical or born-again Christians, 53 percent say they will vote for Beshear and only 40 percent say they will vote for Fletcher, the Republican.

Be Careful In Using Wi-Fi At Airports – You may get Hacked

Thursday, September 20th, 2007

If you spend a lot of your time at the airport, you’ve probably noticed that the Internet access features have changed a lot in the past couple of years. Nowadays, you can find a wireless access point on every corner of every waiting area, in all of the restaurants, coffee shops, etc. They’re everywhere! And because of that, it’s so easy to just whip out your laptop and start using the Internet right in the middle of the airport. Now, while that’s very convenient and high-tech, you also have to keep in mind that, in reality, you’re using your computer in front of everyone around you. Everything on your laptop is basically there for all to see. That is, if you’re not careful! 

Don’t get me wrong, airport hot spots are perfectly safe to use, but you still need to be cautious of your surroundings. For example, if you’re at the airport, looking around for an available hot spot to use and you see one labeled as “Free WiFi” (or a similar name), beware. That kind of name should put an immediate red flag in your mind, because that name seems to be the basis behind a new hot spot scam that is hitting airports all over the world. Yikes! Read on for all the details. 

Basically, what happens is a hacker sets up their own hot spot at the airport and they just wait for someone like you to come along and connect into it. Once you log in, the hacker can then root around your laptop and create havoc. For example, they can easily steal your username and password information, they can look at your personal files, they can lift your credit card information to steal your identity, they can infest your computer with spyware and other types of malware, they can spread spam all over your PC and so on and so on. There’s no telling what can happen when a hacker gets free access to your personal computer. And this is especially true with Windows Vista users, because it’s even harder to identify something like this on a Vista computer. 

So, what’s really happening when you start using the “Free WiFi” hot spot? Well, like I said before, hackers are able to generate their own hot spot and while you think you’re connecting to the Internet, you’re actually tapping into the hacker’s ad hoc, or peer-to-peer network. It’s usually set up by someone sitting near you in the airport, but with so many people using laptops these days, it’s hard to figure out just who it is. So, while you’re still able to use the Internet and browse the Web through their connection, all of your traffic actually goes to their computer for them to steal, etc. Plus, if you’re set up to allow file sharing, the attacker can get in to your files and tamper with whatever they please. How clever, huh? 

Of course, while all of this is going on, you have no idea whatsoever. You think you’re just surfing the Web like you normally do and that nothing is out of the ordinary. Once the hacker has what they want from your PC, they leave you alone and it’s not until a few days later that you realize something has gone terribly wrong. And by that time, you have left the airport, so you have no way of knowing who the attacker was. And on top of that, the next time you turn on your laptop, that ad hoc connection could still come through and if it does, it could broadcast your “Free WiFi” network ID for anyone to see. Others could then connect into it without your knowledge and do even more damage to your computer. How awful! 

This type of scam is, unfortunately, becoming more popular everyday. There have been several reports of it going on in some of the bigger airports in the U.S., including LaGuardia in New York, the O’Hare in Chicago and LAX in Los Angeles. Several security companies have been doing some surveys in some of the bigger airports as well and the results aren’t good. For example, at the O’Hare, more than 20 ad hocs were found during one survey and 80 percent of them were advertising the “Free WiFi” connection. This type of thing is bound to happen in other popular locations sooner or later as well, such as coffee shops and universities. 

So, now that you know all about this new type of scam, please promise me you’ll be extra careful when using your laptop at the airport. If you’re going to use it, don’t ever fall for one of the “Free WiFi” advertisements. You’re better off sticking with the hot spots the airport itself provides for you. Don’t just go around looking for a connection. Make sure it’s secure and that you’re going to be safe while using it. You could even ask an airport employee if you have to. Your computer holds so much of your life in its hands, so it’s best to take a little extra time and find a hot spot that will protect you. I would hate to hear about anything like this happening to any of you! 

Gwen Billingsley
C.E.O. Lawreader.com 

Grandmother Arrested for Not Watering her Lawn…

Wednesday, September 19th, 2007

Tasha Scott, ace Boone County lawyer sent us this comment and story.

Bad boys, bad boys, whatcha going do when the come for you……….          .Good thing they don’t have this Ordinance in NKY or everyone would be in jail since we have not had any rain since July, 05. We need more 79 great-grandmas in the prison population.  They are generally good at baking, and inmates would love them. 

 Case draws famed lawyer Allred 

By Donald W. Meyers The Salt Lake Tribune 

 Posted: 11:51 AM- OREM – Betty Perry pleaded innocent Tuesday to charges she failed to water her lawn and resisted arrest when an officer attempted to cite her.
    Perry appeared in 4th District Court in Orem to enter her plea in a case prominent Los Angeles attorney Gloria Allred described as a gross injustice.
    “Today, law enforcement in Orem has enshrined itself as the laughing stock of our country by prosecuting a 79-year-old great-grandmother for allegedly not watering her lawn during a drought,” Allred said. “This ill-conceived action ensures Orem’s law enforcement authorities first place in the [Guinness World Records] for stupidity and incompetence.”
    Perry’s next appearance will be on Oct. 11 for a pre-trial conference where she is facing several years in jail.
    In July, Perry was cited by Officer James Flygare of the police’s Neighborhood Preservation Unit for failing to water her lawn and allowing it to get too brown. Perry refused to give her name, told the officer that “is phooey? and  to go find some real crime and started to walk in the door.   Officer Flygare tried to stop her from going back inside her house, grabbed her causing Perry to lose her balance and trip.  Due to the fall, Perry broke her nose and injured her face.  Officer Flygare placed her in handuffs and reportedly threatened to taser Perry  if she did not comply with his Orders, a neighbor reported. 

    She was arrested and taken to jail.     An investigation by the state Department of Public Safety cleared Flygare of any wrongdoing, and city officials pressed charges against Perry on the landscape violation, a class C misdemeanor, and interfering with a police officer, a class B Felony.  The Department of Public Safety stated that it will prosecute Perry to the fullest extent of the law. 

  

Fletcher Campaign Issue Re: Kentucky Central Discussed by Herald Leader. Story omits Fletcher Connectons

Tuesday, September 18th, 2007

Note:  The Beshear Campaign issued a statement that his law firm recovered over $300 million dollars for investors.  Several officials in the Fletcher campaign and administration were also active in the Kentucky Central dissolution.  The Herald Leader story does not mention the Fletcher connection to the Kentucky Central saga.

The Herald Leader story:

By Ryan Alessi  HERALD-LEADER

FRANKFORT –
Quite simply, the Kentucky Central saga –and Democratic gubernatorial candidate Steve Beshear’s role in it — is not easy to explain.
It’s a complicated account of complex financial deals and a decade’s worth of litigation, told almost exclusively through box upon box of court motions and depositions.
Beshear’s legal work during the liquidation of one of Kentucky’s most storied home-grown corporations also is one of the most prominent undertakings, or even the crown jewel, of his career in private practice.
His law firm, Stites & Harbison, performed the largest chunk of work on behalf of the court-appointed liquidator of Kentucky Central Life Insurance Co. during the 1990s. It billed $21 million in fees for that work.
Kentucky Central also remains a sensitive subject among those affected by the multibillion-dollar company’s collapse. More than 750 people lost jobs, while hundreds of shareholders received little back from their investments.
And now questions have arisen about a “confidential” investigation into Beshear’s law firm, Stites & Harbison, over a conflict-of-interest allegation stemming from the case.
All of this helps thrust the 15-year ordeal back into the spotlight now that Beshear is asking Kentucky voters to elect him as the next governor.
Here’s a primer on the Kentucky Central liquidation process and how it has become relevant to the gubernatorial race:
Question: What happened to Kentucky Central?
In 1992, state regulators found that the company, which held more than $40 billion in life insurance policies, was in financial trouble.
It had overreached by making a host of investments in real estate and had engaged in some questionable financial deals, including several involving Lexington developers Dudley and Donald Webb.
The office of insurance attempted to “rehabilitate” it, but in February 1993 then-commissioner of insurance Don Stephens began its formal dismantling, or liquidation. Franklin Circuit Judge William L. Graham signed off on the process and would oversee the case.
What was Beshear’s role?
Stephens, as the liquidator, hired Beshear’s firm Stites & Harbison to handle the legal proceedings. Beshear and Janet Craig of the firm’s Lexington office were the chief lawyers.
What was the deal that sparked allegations of conflict of interest?
In July 1993, a Kentucky Central employee found out that the Bank of Louisville had sold $15 million in securities that had been transferred from Kentucky Central as part of a series of three-way deals between the insurance company, the bank and the Webbs from 1989 to 1992. Stites & Harbison counseled the Bank of Louisville during those deals.
The Kentucky Central employee, Robert Mucci, later testified that a bank employee told him that Stites & Harbison advised the bank to sell those securities.
The firm, however, had promised Stephens in February it wouldn’t counsel the Bank of Louisville on those deals so as not to conflict with the work regarding Kentucky Central. After all, representing both at the same time would raise questions, such as: Would the firm give inside information about the liquidation to the bank? Or could the firm try to protect the bank from litigation?
What advice did Stites & Harbison give?
It was unclear whether the bank had “ownership” of those securities, given that Kentucky Central had been taken over by the state. Even the bank questioned the ownership. That’s why lawyers from Stites & Harbison, as it turned out, ended up finding a creative route through the Government National Mortgage Association to sell those $15 million in securities.
Was that a conflict of interest?
Some defense lawyers in one of the Kentucky Central-related suits said it was a conflict and questioned why all the parties involved in the original deal –the bank, the Webbs and the Kentucky Central official who signed off on them — were all sued by Stephens, but not Stites & Harbison.
During the lawsuit, in August 1995, Judge Graham authorized an investigation into Stites & Harbison to be done “confidentially” by Cincinnati-based Porter, Wright, Morris & Arthur.
Where was Beshear?
Beshear participated in two conference calls with his Stites & Harbison colleagues working with the Bank of Louisville in May 1993 — the same time they were talking with bank officials about that $15 million in securities and whether they could be sold. Beshear says he was assured that his colleagues, Alfred Joseph and Richard Vance, were merely defending their previous work on the deal, not giving new advice.
What did Stites & Harbison’s lawyers have to say about it?
On April 10, 1995, Frank Becker — then the lawyer representing one of the lawsuit defendants — deposed three Stites & Harbison attorneys about their involvement, including Beshear and Joseph. Here’s an excerpt:
Becker: Did it occur to you that what you were doing was not in the best interest or might not be in the best interest of Kentucky Central or the rehabilitator?
Joseph: That was a topic that was not considered very much.
Becker: Did it occur to you, was the question … If it didn’t occur to you, fine; if it occurred to you, answer yes.
Joseph: It occurred to me.
Becker: And what did you do about that concern?
Joseph: I did nothing. I did nothing about that because — because I felt then and feel now the scope of our involvement was a 1992 involvement.
Joseph and Stites & Harbison were essentially arguing that all they did for the bank was review past work on the deal, not offer new advice.
Where is the “secret” report now?
It remains at the Cincinnati office of Porter, Wright, Morris & Arthur. The Herald-Leader, joined by The Courier-Journal of Louisville, has asked a judge to direct the firm to release the investigation report.

Speaker Richards Prefiles New DUI Bill to Toughen Penalties

Tuesday, September 18th, 2007

The following two bills have been prefiled for the 2008 session of the General Assembly.
BR 169 – Representative Jody Richards (08/14/07)
     AN ACT relating to driving under the influence.
     Amend KRS 189A.010 to establish a per se violation of the DUI statute if the driver has at least a certain amount of a controlled substance in the urine or blood; create a rebuttable presumption; reduce the alcohol concentration from 0.18 to 0.15 for an aggravating circumstance; amend KRS 189A.105 to delete statutory right of DUI suspects to make telephonic communication with an attorney upon arrest; lower the alcohol percentage from 0.18 to 0.15 for increased penalties; name the Act the Martin Mitchell Act.

     (Prefiled by the sponsor(s).)
and

BR 97 – Representative Jim DeCesare (07/31/07)
     AN ACT relating to driving under the influence.
     Amend KRS 189A.010 to establish a per se violation of the DUI statute if the driver has at least a certain amount of a controlled substance in the urine or blood; create a rebuttable presumption; reduce the alcohol concentration from 0.18 to 0.15 for an aggravating circumstance; amend KRS 189A.105 to delete statutory right of DUI suspects to make telephonic communication with an attorney upon arrest; lower the alcohol percentage from 0.18 to 0.15 for increased penalties; name the Act the Martin Mitchell Act.

Justice for Detainees – Congress Can Right a Wrong on War On Terrorism

Tuesday, September 18th, 2007

Editorial September 18, 2007 The National Law Journal
CONGRESS IS once again poised to consider legislation to give those held as enemy combatants the right to challenge their detention in U.S. federal court. As a matter of law and conscience, lawmakers should act quickly to pass it.

It’s one of the sad and confounding legacies of the administration’s war on terrorism that the United States has imprisoned for years people who have had no real chance to challenge their imprisonment. This failure falls primarily on the shoulders of the Bush administration. From the earliest days after the terrorist strikes of Sept. 11, 2001, the administration resisted extending even a modicum of due process to those whose freedom it unilaterally stripped away. That was not only un-American but unwise. Rather than fortifying its position, the administration’s intransigence has been counterproductive and has led to reversals in the Supreme Court — reversals that may prove more significant than the modest concessions the administration could have made to fend off critics. The president’s own pick for attorney general, former New York federal judge Michael B. Mukasey, rapped the administration for denying legal representation even to Jose Padilla, a U.S. citizen.

Administration allies in Congress also bear responsibility for failing to craft an alternative legal system that could have served the interests of national security while bestowing on detainees meaningful legal protections. The tribunals and commissions at Guantanamo Bay concocted for such purposes were laughable in their ineffectiveness and deplorably lacking in fundamental fairness. When federal courts began to shoot down the tribunals and commissions as legally insufficient, what did Congress do? It passed a law to strip judges of jurisdiction over these cases.

The Habeas Corpus Restoration Act of 2007, as the legislation wending its way through Congress is known, would not have been necessary but for these failures of Congress and the administration. But justice now demands passage of the measure, sponsored by Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) and ranking Republican member Arlen Specter (Pa.). In the Senate, where debate commenced yesterday, the legislation has been attached as an amendment to a defense bill. A vote on the amendment is expected later this week.

The measure is simple: It would grant to any detainee held by the United States the right to bring a legal challenge in U.S. federal court. Federal courts would not have been our forum of choice for most noncitizen detainees. But given the absolute breakdown of the tribunals and commissions, the federal courts are the only venues available that would allow detainees the immediate ability to emerge from what has essentially been a legal black hole.

 

The hundreds of pages of arguments in the more than 30 briefs filed in what many call the most important securities case in a generation boil down to one question: Who, besides the chief actor in a securities fraud, can be sued in private securities litigation?

And the answer, agree the two sides who agree on virtually nothing else, could have major ramifications for law firms and accounting firms, in particular.

The U.S. Supreme Court on Oct. 9 will hear arguments in Stoneridge Investment Partners v. Scientific-Atlanta Inc. and Motorola Inc., No. 06-43, a securities class action challenge stemming from fraud by a cable communications company.

Stoneridge is dwarfed by an even bigger lawsuit, one the Supreme Court has yet to decide whether to hear or not — a securities class action arising out of the Enron debacle. Regents of the University of California v. Merrill Lynch, No. 06-1341.

Nonetheless, Stoneridge has captured the attention of almost every major securities law scholar and litigator, business and investor group, and denizen of the Supreme Court bar.

The facts in Stoneridge involve a suit against vendors of the cable company, Charter Communications Inc., noted securities scholar J. Robert Brown of the University of Denver Sturm College of Law, who runs a corporate governance blog.

But, “The language of the opinion could easily affect the standard of liability for accounting firms and law firms, both of whom are very involved in the compliance process and, at least under the law now, can sometimes be liable in connection with a company’s disclosure,” added Brown.

While lawyers, accountants, bankers, vendors and others fear an increased potential liability if Stoneridge prevails, shareholders and investors have more at stake than a possibly lucrative category of new defendants.

“I think there is fear among shareholder and investor groups that as a matter of policy, the Supreme Court will rewrite [Securities and Exchange Commission (SEC)] Rule 10b-5 to continue to make it very difficult to use,” said Brown. “This case will provide a clear signal about that.”

IN DISGUISE?

Key to the Stoneridge case is the high court’s 1994 decision in Central Bank of Denver v. First Interstate Bank, 511 U.S. 164, in which the justices held that there is no liability against aiders and abettors of securities fraud under §10(b) of the 1934 Securities Exchange Act and SEC Rule 10b-5.

The court limited liability to “primary” actors — those that make fraudulent statements — or secondary actors who meet all of the requirements of primary actors.

But what about a company, such as Scientific-Atlanta and Motorola, that allegedly engages in a scheme involving a sham transaction with a primary actor, such as Charter, knowing that the primary actor will use the transaction to inflate revenues to deceive Wall Street analysts? Can that company be a primary actor if it doesn’t make public fraudulent statements of its own?

The 8th U.S. Circuit Court of Appeals in Stoneridge, and the 5th Circuit in the Enron case, have said no. Without a misstatement by the secondary actor, they contend, so-called scheme liability is aiding and abetting liability and Central Bank prohibits it.

The 9th Circuit has disagreed.

Stoneridge’s counsel, veteran securities litigator Stanley M. Grossman of New York’s Pomerantz Haudek Block Grossman & Gross, claims that Scientific-Atlanta and Motorola committed a primary violation by engaging in a scheme with Charter to inflate Charter’s cash flow by $17 million in one quarter to meet Wall Street expectations.

The two vendors, he said, agreed to accept additional, above-price money for their cable television set-top boxes and to return the money to Charter in the form of advertising fees. They falsified documents to conceal the sham transactions, according to the lawsuit.

The two vendors’ conduct was “garden variety securities fraud,” claimed Grossman, who is supported by shareholder and investor groups, senior lobby group AARP, 32 states, former SEC chairmen and others.

Section 10(b) makes it unlawful for “any person, directly or indirectly” to “use or employ,” in connection with the purchase or sale of securities, “any … deceptive device or contrivance” in violation of implementing SEC regulations.

The vendors’ conduct, he argues, “fits easily” within the plain language of §10(b) as well as of Rule 10b-5.

The 8th Circuit, he adds, “rewrote the statute” by limiting its reach to verbal misrepresentations.

Veteran high court litigator Stephen Shapiro of Chicago’s Mayer Brown, who represents the vendors, counters that scheme liability is simply aiding and abetting liability in disguise.

Central Bank, he argues, requires a plaintiff to show reliance on each individual defendant’s misstatement or omission.

The plaintiffs in Stoneridge, he said, claim to have relied on Charter’s public financial misstatements, and do not claim any public misstatements were made by the vendors.

Shapiro, supported by an array of amicus briefs from business, banks and even the major lawyers’ insurance association, said that the scheme theory “would impose upon anyone doing business with a public company legal responsibility for that company’s financial reporting,” and expose them to such disproportionate liability that “irresistible pressure to settle even meritless claims would result.”

But professor Jill Fisch, director of the Corporate Law Center at Fordham University School of Law, who filed an amicus brief supporting Stoneridge on behalf of a group of legal experts, countered that argument, saying that a “key limiting principle” is the requirement that any defendant actually engage in deceptive conduct.

“That’s going to protect any third-party actor, any lawyer, accountant, customer supplier who engages in legitimate transactions,” she said. “But a legitimate transaction doesn’t include phony documents and transactions the counterparty knows has no substance.”

Only seven justices are expected to hear the Stoneridge challenge. Chief Justice John G. Roberts Jr. and Justice Stephen G. Breyer have recused themselves.

Based on the votes in Central Bank in 1994, said Denver’s Brown, the outcome may rest on the shoulders of Justice Samuel A. Alito. Jr.

Biased Texas Supreme Court ruling lets companies avoid liability for negligence or injuries to workers.

Tuesday, September 18th, 2007

The Texas Supreme Court, in an earlier era, looked kindly on the plaintiff’s lawyers who financed the justices’ election campaigns. These days the court has a well-earned reputation for ruling in favor of the wealthy insurance companies and other corporations that generously underwrite the justices’ re-elections.

If further proof of this propensity were needed, Justice Don Willett provided it in his opinion for the unanimous court in the case of Entergy Gulf States, Inc., v. John Summers. In order to side with big business, the opinion offends not only the law, but also court precedent, legislative intent, reason, custom and common notions of justice.

The facts of the case are uncomplicated. Summers worked for a contractor, International Maintenance Corp., and was injured while performing maintenance at Entergy’s Sabine Station plant. Summers sued Entergy for damages, alleging negligence.

Willett’s opinion, dismissing Summer’s case before trial, says it relies upon the plain meaning of the law, but it does not furnish any of that meaning. Perhaps the omission owes to the likelihood that the law’s wording would not readily support the court’s assertions. The opinion overruled the Ninth Court of Appeals, which had found the plain meaning of the law to mean precisely the opposite of Willett’s conclusion.

Texas law shields contractors and subcontractors who provide their employees with workers’ compensation insurance from further liability for workplace injuries. In its ruling, the court found that a plant owner can call itself a contractor, even if it has no contract with itself to perform any work.

The

Ninth Court

had ruled, reasonably enough, that Entergy was the owner of the premises and had no contract with itself and thus was not a contractor exempted from liability. Most reasonable people would make the same distinction. When homeowners hire a contractor to perform some task, they don’t regard themselves as building contractors bound contractually to share in the work. In this respect Entergy is no different from a homeowner.

The Texas Legislature in recent years has declined repeatedly to allow plant owners to be simultaneously contractors shielded from liability for workplace injuries. The court’s ruling makes the justices guilty of blatant judicial activism, which many conservatives regard as an unpardonable sin.

Had the Texas Supreme Court’s ruling come earlier, the victims of the BP explosion in Texas City and their families might not have been been able to sue for damages, regardless of BP’s dangerous and careless practices. Henceforth, negligent and unsafe plant owners can call themselves contractors and, by purchasing worker’s comp, shield themselves from liability for workplace injuries no matter how egregious their conduct.

Making the workplace safe for reckless abandon is not the direction Texas should take. The Legislature, at its first opportunity, should make that crystal clear to the high court.

IF THERE IS A PENALTY FOR CAMPAIGN MALPRACTICE, THIS IS A CASE THAT CRIES OUT FOR SANCTIONS.

Monday, September 17th, 2007

 

Sept. 16, 2007.  Courier Journal columnist Joseph Gerth details a gross falsehood being broadcast in the Ky. Governor’s race in a TV add paid for by the Republican Governor’s Association.

 

The ad claims that Steve Beshear “voted to let violent criminals out of jail early.?

 

Gerth pursued the grounds for such a claim with the ad’s sponsors. He asked them for documentation to back up the claim.  The Republican Governors group sent him a copy of a story that Al Cross wrote for the Courier Journal in l996.  The story parsed an ad that Sen. Mitch McConnel ran against Beshear making the same claim.

 

The Al Cross story contained a comment from Beshear which was not mentioned by the Republican Governors group or in the old McConnell ad. The excised comment by Beshear stated that he had proposed doing away with parole for violent criminals when he was a state attorney general in l979-83, and supported “truth in sentencing?, in which juries are informed how soon a convict may be paroled.

 

Therefore the claim that Beshear “voted to let violent criminals out of jail early? is a total falsehood.  He did just the opposite.  

 

There really should be some kind of sanction for this kind of sleazy campaign claim.

HERALD LEADER POLL SHOWS 17 POINT BESHEAR LEAD

Friday, September 14th, 2007

 

 Gov. Ernie Fletcher must overcome a steep 17-point deficit to Democratic challenger Steve Beshear over the next seven weeks to win a second term, new poll numbers show. 

Beshear, the former attorney general and lieutenant governor, leads Fletcher 56 percent to 39 percent with 5 percent of the 600 respondents still undecided, according to the Herald-Leader/Action News 36 Election Poll. 

Overall, 40 percent of respondents said they viewed Fletcher favorably, while 57 percent had an unfavorable opinion of the governor. 

Opinions of Beshear were mirror opposites, with the Democratic challenger receiving positive marks from 57 percent of respondents and 34 percent viewing him unfavorably. 

KENTUCKY AUTHOR RAGLAND TOPS BOOK CHARTS WITH NEW BOOK

Thursday, September 13th, 2007

Shannon Raglands new book The Thin Thirty, about UK football in 1962 is doing well on the charts.  The book hit No. 1 on Amazon nationally yesterday in the category, History of Sports.  Raglands book currently  ranking us ahead of some very well-known authors.
 

You can buy this book online at: http://www.amazon.com/Thin-Thirty-Shannon-P-Ragland/dp/097912221X
 

The book is also available at most book stores.

STUMBO SUES GOVERNOR OVER APPOINTMENT POWERS. GOVERNORS COUNSEL SAYS LAW IS ONLY A GOAL NOT A MANDATE. This issue was settled 107 years ago by the courts.

Thursday, September 13th, 2007

Attorney General Greg Stumbo yesterday asked a judge to declare that Governor Fletcher  has failed to follow state law in naming members to the state university boards.


 The laws require that the boards reflect the state’s voter registration, which is more than 3-2 Democratic over Republican, Stumbo said. Among the state’s eight universities, only Morehead State’s board complies with the law, he said.
“You can’t just obey the laws that you choose to obey,” Stumbo said at a news conference. “This governor has yet to learn that lesson.”


 David Fleenor, the governor’s general counsel, said Fletcher had followed the law.
The suit, filed in Franklin Circuit Court, says that about 61 percent of Kentucky’s registered voters are Democrats and about 39 percent are Republicans. Based on those percentages, there are 13 too many Republicans on the boards of seven of the eight universities, the suit says.


 Stumbo sent Fletcher a letter last month, asking him to make the needed corrections. That request was rejected in a reply from Fleenor last week.
The attorney general said he was left with “no choice except to seek remedy in the courts.”


 At issue is the state law that says a governor’s appointments to the university boards “shall reflect proportional representation of the two leading political parties.”


 At his news conference, Stumbo said:


 “I don’t think there’s any question about how the statute reads,” he said. “It doesn’t say ‘may.’ It doesn’t say ‘might.’ It doesn’t say ‘ought to.’ It doesn’t say ‘think about it.’ It says ‘the governor shall,’ “


 The suit contends that — because of appointments Fletcher has made to the boards since taking office in December 2003 — the University of Louisville board has two too many Republicans.


 The suit also contends there are three too many Republicans on the University of Kentucky board; two at Eastern Kentucky University, Western Kentucky University and Kentucky State University; and one at Murray State University and Northern Kentucky University.


 Fleenor told Stumbo in a letter last week that the laws at issue “generally require political balance” — a requirement Fletcher has met.
“The law does not — and plainly cannot — require strict compliance with a precise proportionality formula,” the letter said.


 The Governor’s legal counsel, David Fleenor,  has raised questions about the constitutionality of a law that attempts to restrict a governor’s appointment powers to college boards of regents.


 Fleenor says: “The governor’s appointment power is grounded firmly in the Constitution of the Commonwealth,”. “The legislature’s ability to proscribe this power is very limited.”


 ARE THERE CONSTITUTIONAL POWERS THAT ALLOW A GOVERNOR TO FILL APPOINTIVE OFFICES IN VIOLATION OF A STATUTORY MANDATE?


 Our examination of the Ky. Constitution for such power as alleged by Mr. Fleenor leads us to Section 76 which states:


 Kentucky Constitution  -Section 76   Power of Governor to fill vacancies.
He shall have the power, except as otherwise provided in this Constitution, to fill vacancies by granting commissions, which shall expire when such vacancies shall have been filled according to the provisions of this Constitution.  Text as Ratified on: August 3, 1891, and revised September 28, 1891.
History: Not yet amended.
   We assume that Section 76  is the constitutional authority Mr. Fleenor believes grants the Governor the power to fill vacancies on college boards (and all other vacancies in state government).  LawReader therefore has examined the decisions of the appellate courts with regard to Section 76.  We conclude that this issue has been settled law since 1900.  

The  Poyntz case (see below) interprets Section 76 of the Ky. Constitution and recognizes that the Governor does not have the power to fill “appointive? offices without specific constitutional authorization (which doesn’t exist) or statutory authority (which says the governor may only appoint members of the boards of regents from a list of nominees submitted by the nominating committee spelled out in statutory law.)

This issue was decided 107 years ago when the highest court in Ky. Ruled that Section 76 of the Kentucky Constitution does not apply to “appointive offices?. 

See: Poyntz v. Shackelford, 107 Ky. 546 (Ky. App., 1900)
   “ We conclude, therefore, that this section  (Section 152) does not touch or affect the question of filling vacancies in appointive offices, and is wholly irrevelant to the issue here involved.

        The remaining section of the Constitution relied on to invalidate the statute under which the plaintiffs hold is as follows:

        ”Section 76. He [the Governor] shall have the power, except as otherwise provided in the Constitution, to fill vacancies by granting commissions, which shall expire when such vacancies shall have been filled according to the provisions of this Constitution.”

     

   This section is found in that division of the Constitution relating to the executive department and the general grant of power to it. The preceding sections provide that the supreme executive power of the State shall be vested in a chief magistrate, who shall be called the Governor; that he shall be elected for a term of four years, and be ineligible thereafter; that he shall be at least thirty years old, shall enter on his office the fifth Tuesday after his election, and shall be commander in chief of the military forces of the State. Then follows the section above quoted.

 

        By its provisions, it confers only power to fill vacancies by granting commissions which shall expire when the vacancies shall be filled according to the provisions of the Constitution. It can not, of necessity, have any application to vacancies in office for the filling of which no provision is made in the Constitution; for, as to such offices, there would be no period at which the commissions granted by the Governor would expire.
 

        It does not, therefore, apply to the offices in question, unless there is some other provision in the Constitution directing how vacancies in them shall be filled. The only other provision of that instrument respecting vacancies is that of section 152, which, as we have seen, does not affect the filling of vacancies in other than elective offices, and the offices in dispute are not of that class.

 

        In our opinion, the section is in fact merely an abstract and general grant of power to the Governor to fill vacancies by granting commissions which should expire when the vacancies should be filled according to the provisions of the Constitution.

 

        It was not supposed by the framers of the Constitution that by this general grant of power they had invested the Governor with the right to fill any specific vacancy; for, as we have seen, in the only other section of the Constitution on that subject (152), they provided that vacancies in State offices and for districts larger than a county should be filled by the appointment of the Governor, — a wholly useless provision, if the right theretofore had been conferred on him under section 76. As a matter of fact, this section 76 is a copy substantially of section 9, article 3, of the old Constitution. That section is as follows:

 

        ”He shall have power to fill vacancies that may occur by granting commissions, which shall expire when such vacancies shall have been filled according to the provisions of this Constitution.”

 

        In 1881 it became necessary to consider the power of the Governor, under this section, to fill temporarily a vacancy on this bench caused by the death of one of the judges.

 

        This court said (Opinion of the Judges, 79 Ky., 623) that the section confers on the Governor as the head of the executive department, “the general power to fill vacancies;” that its literal meaning would doubtless authorize appointments by the Governor to fill vacancies temporarily, in the absence of other provisions of the Constitution or laws passed in pursuance thereof; but, looking to the whole instrument, the court said:

 

        ”And, when we look at the Constitution upon the subject of vacancies, it is clear that the power to fill vacancies temporarily under said section, which is not self executing, was not conferred on the Governor to be exercised by him upon his knowledge of the existence of a vacancy, without further constitutional or statutory authority; and it will not do to say that, unless the power to fill vacancies temporarily belongs to the Governor, in the literal and isolated sense of the section quoted, offices will be without incumbents for a time,” etc.

 

        And the court, referring to section 26, article 8, of the old Constitution, providing for filling vacancies by the Governor in certain State offices in the recess of the Senate, said:

 

        ”Thus, by this section, power to fill the vacancy temporarily in those offices, and until the end of the next session of the Senate, is expressly conferred upon the Governor; yet if he had the power, under section 9, article 3 (section 76 now), to fill vacancies until they shall have been filled according to the provisions of the Constitution, and its framers had so understood and intended the section, it was wholly unnecessary to confer upon him the power to fill vacancies in those offices until they shall have been filled by and with the advice and consent of the Senate.”

 

        And the court further illustrated its conclusion that section 3, article 9, was not self-executing, and was not a grant of specific power to fill vacancies, by referring to the statutes providing that vacancies in the offices of Commonwealth’s Attorney and circuit court clerk were to be filled temporarily by the circuit judge; that vacancies in the offices of sheriff, coroner, surveyor, county court clerk, etc., should be temporarily filled by the county court, etc. The exercise of the right to fill these vacancies by these various tribunals was in the face of the constitutional provision apparently, though not really, conferring that power on the Governor.?

 

       “We think the new section confers no other or greater power on the Governor than the old section, and it does not, in any event, confer the right on him to fill the vacancies in the appointive offices in dispute, in the face of the statute providing otherwise.
 

 

STATUTORY AUTHORITY:
 

The legislature has adopted laws to regulate the appointment of members of the board of regents for the states colleges and universities.
 

These laws create a nominating committee who submits three names to the governor.  The Governor is then mandated to select the nominee from among those three names. 
 

KRS 164.005 (2)(b) The Governor shall make the appointments so as to reflect, inasmuch as possible, equal representation of the two (2) sexes and no less than proportional representation of the two (2) leading political parties of the  Commonwealth based on the state’s voter registration and to assure that appointments reflect the minority racial composition of the Commonwealth
 

The committee shall be responsible for submitting three (3) nominations from
 which the Governor shall select each gubernatorial appointment?
 

 

WHAT DOES “SHALL? MEAN?
 

The foregoing statute regarding appointment of college regents uses the word “shall? with regard to the duty of the Governor is making appointments to college boards. 

 

The basic legal definition of “shall? is stated throughout the law as meaning “mandatory?.  However the courts have allowed some leeway in interpreting this word.

The courts have held that “shall? can sometimes be interpreted as not being mandatory.

 

A good example in how this term is to be applied is discussed by the court in the Knox case (below).

 

Knox says: “the use of the word `shall’ with reference to some requirements . . . is usually indicative that it is mandatory, but it will not be so regarded if the legislative intention appears otherwise.” Id. at 886. …?
 

So when presented with the use of the word “shall? the court has ruled that the procedure to determine the meaning of this term is to examine the context in which it is used.  
Knox says: “In considering whether the provision is mandatory or directory, we depend “not on form, but on the legislative intent, which is to be ascertained by interpretation from consideration of the entire act, its nature and object, and the consequence of construction one way or the other.” In other words, “if the directions given by the statute to accomplish a given end are violated, but the given end is in fact accomplished, without affecting the real merits of the case, then the statute is to be regarded as directory merely.” Id. at 886.?
   So to decide if “shall? is used as mandatory in KRS 164.005 (2)(b)  we need to read the statute and apply the test created in Knox.  In doing this we see a detailed plan for the selection and qualification of nominees.  We see a committee designated to make the selection of three candidates, and then the governor is directed to make his appointment from those three nominees.

 

If the term is used as advisory, then the whole legislative scheme of having the committee find nominees and presenting them to the Governor is surplusage and a wasted effort. If the Governor can appoint anyone he wants without regard to adhering to the list of nominees then there is simply no reason for having a nominating committee..   So in applying the rules of statutory construction we can see that the context in which this term “shall? is used in KRS 164.005 is indeed mandatory.
 

The Governor’s legal counsel has been quoted in saying this statute is advisory and “represents only goals?. 

 

Authorities:
 

Knox County v. Hammons, No. 2002-SC-0530-DG (Ky. 3/18/2004) (Ky., 2004)

March 18, 2004

 

“the use of the word `shall’ with reference to some requirements . . . is usually indicative that it is mandatory, but it will not be so regarded if the legislative intention appears otherwise.” Id. at 886. …?

“In order to determine whether strict compliance or substantial compliance is sufficient to satisfy a statutory provision, it first must be determined whether the applicable provision is mandatory or directory. This determination is vital because “[a] proceeding not following a mandatory provision of a statute is rendered illegal and void, while an omission to observe or failure to conform to a directory provision is not.” Skaggs v. Fyffe, 266 Ky. 337, 98 S.W.2d 884, 886 (1936).

 In considering whether the provision is mandatory or directory, we depend “not on form, but on the legislative intent, which is to be ascertained by interpretation from consideration of the entire act, its nature and object, and the consequence of construction one way or the other.” In other words, “if the directions given by the statute to accomplish a given end are violated, but the given end is in fact accomplished, without affecting the real merits of the case, then the statute is to be regarded as directory merely.” Id. at 886.
 

See full text of statute to determine if the context of the word “shall? is mandatory or advisory:
 

KRS 164.005 Governor’s Postsecondary Education Nominating Committee –Membership — Terms — Duties.
(1) There is established the Governor’s Postsecondary Education Nominating
Committee which shall consist of seven (7) members representing each of the
Supreme Court districts who shall be appointed by the Governor with the consent of the House of Representatives and the Senate. If the General Assembly is not in
session at the time of appointment, the consent of the General Assembly shall be
obtained during the time the General Assembly next convenes.
(2) (a) In order to be eligible to serve on the Governor’s Postsecondary Education
Nominating Committee, a member at the time of appointment shall have no
conflict of interest pursuant to KRS 45A.340. In addition, no member shall
have a relative employed by a public postsecondary institution, the Council on
Postsecondary Education, the Kentucky Higher Education Assistance
Authority, the Kentucky Higher Education Student Loan Corporation, or the
Kentucky Authority for Educational Television during his or her tenure on the
committee. No more than two (2) persons holding an undergraduate degree
from the same institution of higher education shall be members of the
committee.
(b) The Governor shall make the appointments so as to reflect, inasmuch as
possible, equal representation of the two (2) sexes and no less than
proportional representation of the two (2) leading political parties of the
Commonwealth based on the state’s voter registration and to assure that
appointments reflect the minority racial composition of the Commonwealth.
In filling vacancies to the committee, the Governor shall act so as to provide,
inasmuch as possible, equal representation of the two (2) sexes by appointing
a member of the sex that is the lesser represented at the time of the
appointment. If the remaining membership already has an equal number of
males and females, the Governor may appoint a member of either sex.
(c) In selecting the members of the committee, the Governor shall solicit
recommendations from each of the following:
1. Advisory Conference of Presidents;
2. Council on Postsecondary Education Student Advisory Committee;
3. Associations representing faculty from universities, technical
institutions, and community colleges;
4. Associations representing university, technical institutions, and
community college alumni;
5. Postsecondary education advocacy groups;
6. The Kentucky Board of Education;
7. Associations representing business and civic interests; and
8. Associations representing independent, nonprofit colleges and
universities.
(3) (a) Members of the committee representing Supreme Court districts shall serve
six (6) year terms and until a successor is appointed, except the initial
appointments shall be as follows:
1. Two (2) members shall serve a two (2) year term;
2. Two (2) members shall serve a four (4) year term; and
3. Three (3) members shall serve a six (6) year term.
(b) The terms of the original appointees shall expire on April 14 in the year
designated for the term, and the terms of each member appointed thereafter
shall begin on April 15. Appointments shall be submitted to the Senate and to
the House of Representatives for confirmation by February 1 in each year that
a regular session of the General Assembly convenes. Each appointment shall
be consented to by both chambers in order for the person to be confirmed. At
the first regular meeting of the committee each fiscal year, a chairperson shall
be selected by the membership.
(4) The members of the committee may be reimbursed for actual and necessary
expenditures incurred in the performance of their duties. The expenses of the
committee shall be paid out of the appropriation for the Governor’s office.
(5) (a) The committee shall be responsible for submitting three (3) nominations from which the Governor shall select each gubernatorial appointment to a university or Kentucky Community and Technical College System governing board made pursuant to KRS 164.131, 164.321, and 164.821 and to the Council on Postsecondary Education pursuant to KRS 164.011. The committee shall not make recommendations for alumni, faculty, and staff appointments made pursuant to  KRS 164.131 and 164.821 and the student
appointments made pursuant to KRS 164.131, 164.321, and 164.821.

 

If more than one (1) equivalent gubernatorial appointment is being made to a
governing board or the Council on Postsecondary Education at the same time,
the committee shall submit a number of nominees equal to three (3) times the
number of vacancies. The committee shall provide to the Governor, inasmuch
as possible, an equal number of male and female nominees. If the Governor
needs nominees of a particular sex in order to make an appointment, the
committee shall only provide nominees of that sex. The Governor shall select
the appointees from among the nominees.
(b) The committee shall be responsible for submitting three (3) nominations from
which the Governor shall select each gubernatorial appointment to the
Kentucky Authority for Educational Television made pursuant to KRS
168.040, the Kentucky Higher Education Assistance Authority pursuant to
KRS 164.746, and the Kentucky Higher Education Student Loan Corporation
pursuant to KRS 164A.050. If more than one (1) appointment is being made at
the same time, the committee shall submit a number of nominees equal to
three (3) times the number of vacancies. The Governor shall select the
appointees from among the nominees.
(c) Nominations shall be made thirty (30) days prior to the expiration of a term or
as soon as practicable following an unforeseen vacancy. The Governor shall
make the appointment within sixty (60) days following receipt of the
nominations. If the Governor does not make the appointment within sixty (60)
days, the committee shall select one (1) of the nominees to serve.
(6) In making its nominations, the committee shall consider the needs of the respective institutions, locate potential appointees, review candidates’ qualifications and references, conduct interviews, and carry out other search and screening activities as necessary.
(7) The Governor’s office staff shall provide support services for the committee.
Effective: June 24, 2003
 

Fen Phen Lawyers Ordered to Provide Court Accounting of Money They Received Before Bond Will Be Set

Wednesday, September 12th, 2007

By Roger Alford

COVINGTON, Ky. — Two owners of Preakness winner Curlin will remain in jail until they account for money they received in a lawsuit over the diet drug fen-phen, a judge ruled yesterday.
U.S. District Judge William Bertelsman said he would hold a hearing to consider releasing the men, both of whom are attorneys, after they provide a detailed accounting of what they did with money they received from a $200 million settlement.
William Gallion and Shirley Cunningham Jr. are in jail in Northern Kentucky pending trial on charges of conspiring to commit wire fraud. A third attorney charged in the case, Melbourne Mills of Lexington, is also jailed.
“My intent is to detain them until their financial reports are filed ‘in toto.’ ” Bertelsman said. “I need to know where the money went from that settlement.”
Bertelsman said in order to determine the appropriate bond for the defendants, he needs to know how much money they have and where they have it. He said he believes the defendants will be able to compile detailed financial reports within two weeks.
Bertelsman jailed the three lawyers in August, saying he was concerned the men had the resources to flee the country.
A federal appeals court last week ordered Bertelsman to hold a hearing to determine whether the attorneys should be released on bond.
The hearing, which began Monday, included testimony from several character witnesses for the defense who said the lawyers are not flight risks, are not dangers to the community and should be released on bond pending their trial.
James Shuffett, a Lexington attorney representing Mills, said his 76-year-old client will get the financial report together as ordered by the judge in hopes of getting out of jail.
“We’re disappointed,” said defense attorney Stephen Dobson, who represents Cunningham. “Virtually every witness said they are not a flight risk and not a danger to the community.”
Assistant U.S. Attorney Laura Voorhees urged Bertelsman to continue detaining the attorneys until he determines where the money is.
FBI agent Marty Trotman testified yesterday that the attorneys, who represented about 440 clients sickened by fen-phen, settled the case for $200 million.
Trotman said the clients received $74.8 million from the settlement. Gallion received $30.4 million; Mills, $23.7 million; and Cunningham $20.7 million. A chunk of the settlement also went to other attorneys and employees involved in the case.
However, Bertelsman said yesterday that millions of dollars are still unaccounted for.
Bertelsman closed the courtroom to the public Monday when a probation officer testified about the lawyers’ known financial holdings. Lexington attorney Angela Ford, who is now representing the fen-phen victims in a lawsuit against Gallion, Cunningham and Mills, said she has been unable to get them to turn over detailed financial reports.
Defense attorneys yesterday mentioned the existence of trust funds and homes owned by the attorneys. Gallion and Cunningham also own a 20 percent interest in Curlin.
Cunningham, 52, and Gallion, 56, bought Curlin for $57,000 as a yearling through their Midnight Cry Stable. They sold controlling interest in the horse in February for a reported $3.5 million to a group composed of Jess Jackson, founder of Kendall-Jackson wines; Satish Sanan’s Padua Stables; and George Bolton, an investment banker.

Beshear leads Fletcher 58% to 39% in USA/WHAS POLL

Tuesday, September 11th, 2007

Steve Beshear still has a huge lead over Ernie Fletcher in the latest Survey USA/WHAS11 News poll released this morning. 

Beshear has a 58%-39% lead over Fletcher, with just 2% undecided in the survey of likely Kentucky voters. The poll was conducted Sept. 8-10 and has a margin of error of 4.3%. 

Beshear had a 21 point lead last month, so Fletcher has sliced a little off his lead. But with just 8 weeks until election day, Fletcher still trails by double digit margins in every area of the state. The one piece of good news for Fletcher is that he has made significant and statistical gains among voters 65 or older and is now tied with Beshear (49% apiece) among those “mature” voters. It seems clear that Fletcher’s “Say No to Casinos” TV campaign has had virtually no impact on voters except those who are 65 or older. I’m still wondering what poll numbers Fletcher’s folks have been looking at in deciding that the anti-gambling issue was a winner. The Survey USA polls have consistently shown more than 70% of Kentuckians say there should be a vote on expanding gaming. It’s 79%-20% in this month’s poll.