Archive for October, 2007

SurveyUSA Poll Fletcher Ebbs, Beshear Maintains Large Lead in Kentucky Governor Race

Thursday, October 25th, 2007

Poll numbers projected with 40% turnout of registered voters indicates 200,000 plus vote margin for Beshear


Oct. 24, 2007 –  Now 14 days to the election for Governor in the state of Kentucky. In a vote today, incumbent Republican Ernie Fletcher is unseated, Democratic challenger Steve Beshear is elected, and the Kentucky statehouse is a Democrat takeaway. Beshear gets 58% in today’s track, the 6th SurveyUSA poll conducted since May. Fletcher gets 38%.
Beshear leads by 20 points. Beshear has led by as many as 28 points, and as few as 16 points in SurveyUSA’s most recent release. Seniors appear to have flirted with re-electing Fletcher in September, but now overwhelmingly vote to unseat the Governor in the campaign’s final weeks. Kentucky’s Moderates are dug-in for Beshear; no movement there in 5 months. Kentucky’s Conservatives are dug-in for Fletcher; little movement there in 5 months.
The two groups offset each other. Though Kentucky has few Liberals, they vote overwhelmingly for the Democrat, and are just enough to tip the election that way. Beshear leads in all regions of the state. In Eastern KY, Beshear leads by 22. In Western KY, Beshear leads by 12. In North Central KY, Beshear leads by 17.
In greater Louisville, Beshear leads by 33. So much of the voting population has not budged, since May, that something truly de-stabilizing would need to happen in the next 13 days in order for the outcome to not be a foregone conclusion

6th. Cirt. Ct. of Appeals Rules Obscenity Law Violates Constitution

Thursday, October 25th, 2007

By David Kravets 10.24.07 

A federal appeals court has struck down a 1988 law requiring adult entertainment producers to keep records on their models and performers, complicating the Justice Department’s anti-child porn efforts, and diminishing a legal cloud hovering over websites hosting amateur, user-produced porn. 

The 6th U.S. Circuit Court of Appeals ruled Tuesday that the Child Protection and Obscenity Enforcement Act is overly broad and violates the First Amendment. The law requires anyone who distributes or produces sexually explicit images and videos to keep identification records on the photographers and subjects, which the government can obtain without a warrant. 

“This statute not only regulates a person’s right to take sexually explicit photographs, but it also requires that person to identify him or herself as the photographer as well as identify the individual depicted,” wrote Judge Cornelia Kennedy in the majority opinion of the three-judge panel. “While the individual depicted is shown in the photograph, that person still has a First Amendment right to not provide his or her name and therefore retain a certain level of anonymity.” 

The Justice Department argued that regulating all photographs of sexually explicit conduct was justified by its legitimate interest in “eradicating” child pornography. 

The case was brought by Connection Distributing — a now defunct affiliate of Cleveland-based video distributor GVA-TWN — that produced swinger publications. The publisher filed its lawsuit against the government preemptively for fear it would have to comply with the law for publishing nude photos of its patrons. 

The Cincinnati-based appeals court, one stop short of the U.S. Supreme Court, agreed with the publisher that the law went too far and treaded on constitutional free speech rights. 

“To appreciate why speech would be chilled, consider the following,” Kennedy wrote. “A couple wishes to take photographs of themselves engaging in sexual activity. To do so means compiling records, affixing statements, maintaining such records for at least five years and opening their property up for visitation by government officials to inspect the records.” 

Fighting child pornography is a legitimate reason to curtail some speech rights, Kennedy wrote. “Applying the recordkeeping regulations to all depictions of actual sexually explicit conduct between two adults, however, is not clearly within the statute’s plainly legitimate sweep.” 

The decision affects Kentucky, Ohio, Michigan and Tennessee and does not have the force of law yet. The government is likely to appeal. 

The ruling could be an important one, not just to professional producers of adult content, but to increasing numbers of amateurs participating in community driven sites like PornTube and YouPorn, which let adults upload and share their own videos. In July, the Justice Department proposed expanding the law’s scope to reach such Porn 2.0 sites. 

“This issue has been brewing and I think it will continue to brew until this is finally resolved in the courts,” said Chris Potoski, president of No Rivals Media, which serves professional porn over 700 domain names. 

The statute requires record keeping when “sexually explicit conduct” is depicted. Such conduct is defined to include images of “sexual intercourse, including genital-genital, oral-genital or oral-anal, whether between persons of the same or opposite sex.” Also included are images of bestiality, masturbation, sadistic or masochistic abuse and “lascivious exhibition of the genitals or pubic area of any person.” 

Under the law, the producer of such images must inspect an individual’s government-issued photo I.D., and keep a copy, along with records of where the images were published, including any websites. 

“These records are then subject to inspection by agents of the attorney general, without advance notice,” according to the law. 

Violating the reporting requirements, or falsifying them, is a felony with stiff penalties of up to five years in prison. 

Potoski said his legal counsel advised him to keep up with the recordkeeping until other federal circuits join with the 6th, or the Supreme Court hears an appeal. 


Holistic Law Takes Practice Back to Civil Ways

Thursday, October 25th, 2007

ERIC SMITH  The Memphis  Daily News  Oct. 25, 2007

The word “holistic” is often linked to the medical field as a way to describe an alternative form of healing, but there’s a movement afoot among lawyers to bring that same concept to the legal community.

Now, that concept of “holistic law” is coming to Memphis.

It’s the theme of “Lawyers as Peacemakers, Lawyers as Problem Solvers,” a regional conference set for Sunday and Monday and hosted by the Cecil C. Humphreys School of Law at the University of Memphis.

The two-day event is the first of its kind in Memphis. It features 13 presenters discussing the principles of holistic law, a concept that’s been around for a couple of decades but is now experiencing a resurgence as practitioners seek new ways to help their clients – and themselves.

Maureen Holland, president of the Memphis chapter of Renaissance Lawyers, has been involved for years with holistic law, which she said is a move away from the adversarial model toward a “more peaceful, more cooperative, more conscious model.”

“In many ways the practice of law is very hostile,” said Holland, who will present at the conference. “Holistic law, as I look at it, is an incorporation of problem solving from other disciplines in order to facilitate this change and reaching back into the way law used to be practiced, which is that you can’t sue everybody and you have to be civil.”
Bringing calm to the case

Civility is certainly one tenet of holistic law, and it should be practiced by every attorney, noted Chris Zawisza, director of the Child and Family Litigation Clinic at the U of M law school and another presenter at the conference.

“Sometimes you have to be an adversary, but you don’t have to be an adversary in a mean or spiteful way,” Zawisza said.

That’s where the idea of being a peacemaker comes in. Instead of contention, why not bring calm? For lawyers who practice juvenile law, such as Zawisza, the concept of bringing peace to the courtroom – and to the families involved – is imperative.

Lawyers as Peacemakers, Lawyers as Problem Solvers

Holistic Law conference
Sunday, Monday
Holiday Inn-University of Memphis and Fogelman Executive Center
Visit for more information and to register

“Everybody in juvenile court is hurting some way or another,” she said. “So in my practice I see holistic law in terms of trying to resolve the legal issues and the problem that brought everybody there, with the least amount of trauma to everybody. Can you do it (work a juvenile case) in a way where the child’s parents are left with at least some dignity?”
Finding peace

In regard to juvenile lawyers, holistic law – or comprehensive law, as it’s sometimes called – often means going beyond the typical duties of lawyers to bring the proper resolution to a case.

“A big part of holistic law, or therapeutic jurisprudence, in a juvenile dependency setting is finding the services and the resources – nonlegal for the most part – that are going to help that family to resolve the problems long range,” Zawisza said.

The benefits go beyond helping the litigants in the case. Law is a profession notorious for drug and alcohol abuse, suicide and early departure from the practice, Holland said. By adopting holistic principles, the hope is that lawyers will become happier in their chosen profession and remain practitioners for many years.

“When you’re constantly fighting the other lawyer, it’s exhausting,” she said. “You’re always in combat, if you will. Making it more peaceful has advantages for the lawyers themselves and how they relate to other lawyers.”
Lessons from the top

“Lawyers as Peacemakers, Lawyers as Problem Solvers” includes four nationally recognized experts in the field of holistic law: David Hall, Susan Daicoff, Marty Price and J. Kim Wright.

They will present interactive workshops to participants with such titles as “Spiritual Intelligence and Ethical Responsibility: A Workshop for the Lawyer’s Soul,” “Collaborative Law: Resolving Disputes Respectfully” and “Restorative Justice: Healing Justice in Crimes of Severe Violence.”

Organizers of the conference, which also includes nine presenters from Tennessee, are excited about the holistic law acumen each presenter brings to Memphis.

“The level of people who are coming to talk are tops in the country,” Holland said. “If you’re going to have someone come in and introduce something, it’s fantastic if it’s top echelon.”

More than just lectures about the theory of holistic law, the presenters will work with each participant to ensure attendees come away with a deep understanding of what it means to be a peacemaker and problem solver.

“We’re trying to introduce it interactively, so rather than just talking heads, they’re going to have to participate in an experiment through role play or some kind of exercise,” Zawisza said.

Although the conference will have something for everyone, those who are not at all familiar with holistic law stand to gain the most by attending.

“The primary thrust of this conference is about introducing a number of these concepts to the Memphis legal community,” Holland said.

But, as Zawisza pointed out, many lawyers have been serving as peacemakers in their practice even if they didn’t have a label like “holistic” to apply.

“I would expect that there are lawyers out there practicing in this manner who have never called it anything other than, ‘This is the way I choose to practice law,’” she said. “They’re doing it but they’re not connecting to other people who are doing it and talking about it and putting a name on it.”


Tilting the Scales of Justice

Thursday, October 25th, 2007

October 24, 2007  Editorial The New York Times

Every time we take a look at the United States attorney scandal, more evidence emerges that Alberto Gonzales politicized the Justice Department to the point where it sometimes seems like a branch of the Republican National Committee.

Yesterday, for example, Richard Thornburgh, a former Republican attorney general, told a Congressional hearing that his client, Dr. Cyril Wecht, a Democratic officeholder in Pennsylvania, was indicted on federal charges that should not be federal charges by a United States attorney who targeted Democrats.

At the same hearing, more evidence emerged that the prosecutions of Don Siegelman, the former Alabama governor, and Paul Minor, a prominent Mississippi Democrat, may have been political hits. And a University of Missouri professor testified that his statistical analysis showed that the Justice Department engaged in “political profiling.?

Dr. Wecht’s case has gotten little attention, but that may change. Mr. Thornburgh said prosecutors are using “unprecedented? legal theories to turn mostly “nickel and dime transgressions? into major federal felonies. He charged that while United States Attorney Mary Beth Buchanan went after Dr. Wecht and other Democrats, she ignored the offenses of Republican officials, including a congressman whose staff accused him of using government employees in his election campaign.

Mr. Siegelman’s lawyer, Doug Jones, said the investigation of the former governor was very limited until it turned around “180 degrees? in late 2004, after Washington officials told local prosecutors “to go back and look at the case, review the case top to bottom.? That is consistent with the account of Dana Jill Simpson, a Republican lawyer who says she was on a phone call in which Republican operatives said Karl Rove was involved in the prosecution.

In his introductory remarks, Representative Robert Scott, Democrat of Virginia, said that Mr. Minor’s prosecution appeared to have been political. He said that a Republican contributor who is the brother-in-law of a Republican senator was “not even investigated, let alone indicted? for activities similar to Mr. Minor’s.

Committee members said they have learned of other prosecutions that may have been political and listed several defendants by name. Donald Shields, the University of Missouri professor, testified that the Justice Department prosecuted 5.6 local Democratic officials for every Republican. The odds of that occurring by chance, he found, is less than 1 in 10,000.

Republicans on the committee refused to take the allegations seriously — even though this sort of politicization should offend anyone who cares about the justice system. They called the claims “ridiculous,? and asked the witnesses if they had specific evidence that United States attorneys talked to the president or to other top officials about a plan to target Democrats.

That sounds good, but the best evidence about what occurred lies with the current and former members of the Bush administration — and Mr. Rove and Harriet Miers have pleaded executive privilege and defied Congressional subpoenas. They should testify about what they know, and the Justice Department should hand over documents the committee requested months ago.


The American people have a right to know what happened in the last six years at the Justice Department. Any wrongful prosecutions should be rectified.

To Save Research Time Study Briefs Submitted to Ky. Sup. Ct. & Ct. of Appeals

Thursday, October 25th, 2007

Chase Law School now posts a library oKy. f Sup. Ct. and Ky. Ct. of Appeals Briefs.  This resource may save you hours of research by finding a good brief and studying the citations and arguments. 

To view briefs submitted to the Ky. Appeallate Courts, go to:

Go to: 


This archive contains those briefs submitted to the Kentucky Supreme Court in cases decided since January 2000 and Kentucky Court of Appeals in cases decided since October 2005. 




Ky. Supreme Court Live webcast of oral arguments lauched by UofK Law School and Adm. Office of the Courts

Thursday, October 25th, 2007

Ky. Supreme Court Live webcast of oral arguments  was broadcast for the first time on Wed. Oct. 24. 

The next webcast will be Oct. 25.  The program sponsed by the U of K Law School and the Admin. Office of the Courts is a evoluntionary use of technology that will be of benefit to all members of the bar, and no doubt will be useful to educators.

Go to:   Supreme Court LIVE Live stream of oral arguments being presented to the Supreme Court of Kentucky 

 To view the calendar of upcoming Oral Arguments, go to:  Oral Arguments Calendar  

For more AOC information go to:  AOC - COURTS PAGE     


Kentucky Supreme Court LIVE allows public access to Supreme Court of Kentucky Oral Arguments

Tuesday, October 23rd, 2007

The Kentucky Supreme Court plans to go on-line and live with their oral arguments for October 2007!
FRANKFORT, Ky., Oct. 23, 2007 – Oral arguments presented to the Supreme Court will be available Oct. 24-26 via an online website called Supreme Court LIVE.
“I have long endeavored to promote public trust and confidence in the Kentucky Judiciary,” said Chief Justice Joseph E. Lambert. “Broadcasting Supreme Court Oral Arguments live gives every citizen access to our proceedings and an opportunity to see their highest court doing its work.”
“The Justices on the Kentucky Supreme Court recognize that cases argued before it can be useful teaching tools, so we are pleased to partner with the University of Kentucky College of Law to open Oral Arguments to students all across the world via live streaming of the oral arguments,? said Justice John D. Minton, Jr.
Oral Arguments online will allow the general public, students and press to have easy access to the oral arguments being presented to the Supreme Court. The program will give individuals with internet access the ability to see how the Supreme Court of Kentucky works and will bring a more open court system to Kentucky. 
The oral arguments site will be available from the Court of Justice website, as well as from the University of Kentucky College of Law’s website, The University of Kentucky will maintain the site that will host the live oral arguments. 


Upcoming Oral Arguments:





9:00 a.m. BROWN V. COMMONWEALTH (2005-SC-967-DG)

“Criminal Law. RCr 11 .42. Assistance of Counsel. Issues include whether Court of Appeals engaged in fact-finding and credibility assessment in reversing trial court’s grant of post-conviction relief under RCr 11.42.”
Discretionary review granted 8/17/2006
Fayette Circuit Court, Judge Gary D. Payne
For Movant: Marguerite Neill Thomas
For Respondent: Todd D. Ferguson

10:00 a.m. ASSET ACCEPTANCE, LLC V. MOBERLY (2006-SC-617-DG)
“Final and Appealable Orders. Setting Aside Default Judgment. Issues include whether order setting aside default judgment against debtor, ordering restoration of monies collected through non-wage garnishment, and permitting alleged debtor to file answer was a final and appealable order.”
Discretionary review granted 12/13/2006
Madison Circuit Court, Judge Julia Hylton Adams
For Movant: Kyle A. Cooper, Charlie W. Gordon, and Joshua Albert De Renzo
For Respondent: James T. Gilbert and Jason Stephen Wilson

ET AL. (2006-SC-436-DG)

“Torts. Duty. When riding ATVs on public roadways is prohibited by statute, whether the Commonwealth is liable for damages from injuries incurred during such illegal ATV riding.”
Discretionary review granted 12/13/2006
Wayne Circuit Court, Judge Vernon Miniard, Jr.
For Movant: Andrew Martin Stephens
For Respondents: Richard Hay, Van F. Phillips, Rhonda G. Hatfield-Jeffers, and G. Mitchell Mattingly



9:00 a.m. COMMONWEALTH V. COFFEY, ET AL. (2006-SC-172-DG)
“Forfeiture Pursuant to KRS 218A.410(h)2. Innocent Owner Defense. Issues include whether ownership is to be determined by record title or whether indicia of ownership and control will be the determining factors.”
Discretionary review granted 8/17/2006
Barren Circuit Court, Judge Phillip R. Patton
For Movant: George G. Seelig
For Respondents: Steven Scott Basil

10:00 a.m. HYMAN & ARMSTRONG, P.S.C., ET AL. V. GUNDERSON, ET AL. (2006-SC-175-DG)

“Medical Malpractice. Products Liability. Loss of Parental Consortium. Hearsay. Daubert Hearing. Federal Preemption. Learned Intermediary Rule. Punitive Damages. In medical malpractice/products liability action against the doctor who prescribed, and the pharmaceutical company which manufactured,
drug administered to suppress postpartum lactation, among the numerous questions raised are issues relating to (1) the failure to conduct a Daubert hearing; (2) evidence allowed and excluded relating to proof of the loss-of parental-consortium claim; (3) introduction of the cross claim which was settled prior to trial; (4) federal preemption of claims of inadequate warnings; (5) the award of punitive damages; and (6) the application of the learned intermediary rule.”
Discretionary review granted 10/12/2006
Jefferson Circuit Court, Judge Barry Willett
For Movants (Hyman & Armstrong, P.S.C., Et Al.): Raymond G. Smith, Edward H. Stopher, and Rodney Dale Payne
For Movant (Sandoz Pharmaceuticals Corporation): Virginia Hamilton Snell, Katharine R. Latimer, Bruce J. Berger, Joe G. Hollingsworth, and Deborah H. Patterson
For Respondents: Larry B. Franklin and Michael R. Hance

11:00 a.m. COMMONWEALTH V. GADDIE (2006-SC-575-DG)
“Criminal Law. Drug Court. Sentence Modification. At issue is whether, more than ten days after imposition of sentence, the court may, with the defendant’s consent, increase the defendant’s underlying sentence in conjunction with a referral to drug court.”
Discretionary review granted 1/18/2007
Hardin Circuit Court, Judge Kelly M. Easton
For Movant: Jennifer B. Pitts
For Respondent: Shane Alan Young



9:00 a.m. COMMONWEALTH V. MORGAN (2005-SC-702-DG)
“Criminal Law. Search. Issues relate to whether police had reasonable suspicion of criminal activity justifying an investigatory stop.”
Discretionary review granted 4/12/2006
Hart Circuit Court, Judge Larry Raikes
For Movant: Michael Harned
For Respondent: Samuel N. Potter

10:00 a.m. COMMONWEALTH V. MARR (2003-SC-564-DG)
“Criminal Law. Search. Issues relate to whether police had reasonable suspicion of criminal activity justifying an investigatory stop.”
Discretionary review granted 4/12/2006
Jefferson Circuit Court, Judge Thomas Wine
For Movant: Teresa Young
For Respondent: David A. Lambertus

“Writ of Mandamus to compel expenditure of funds for indigent post-conviction petitioners.”
Letcher Circuit Court, Judge Eddy Coleman
For Movants: Armand I. Judah, Laurence E. Komp, Heather Christina McGregor and David M. Barron
For Respondents: Rickey L. Bartley, David A. Smith and Damon L. Preston
(Note: Justice Noble is recused)
(Rescheduled from August 15, 2007)



9:00 a.m. LACH V. MAN O WAR, LLC (2005-SC-1014-DG)
“Partnerships. Discovery. Issues include whether general partners effected unlawful conversion of limited partnership to limited-liability company; whether transfer of partnership assets to limited-liability company was unlawful; whether general partners breached fiduciary duty to limited partner; and whether trial court improperly limited discovery by plaintiff limited partner.”
Discretionary review granted 8/17/2006
Fayette Circuit Court, Judge Gary D. Payne
For Movant: Glen S. Bagby, J. Robert Lyons, Jr. and Elizabeth U. Mendel
For Respondent: Phillip D. Scott, Theodore R. Martin, Carroll M. Redford, III, and Robert S. Ryan
(Note: Justice Noble is recused)
(Rescheduled from August 15, 2007)

10:00 a.m. JONES V. CROSS (2005-SC-854-DG) AND (CROSS-MOTION) CROSS V. JONES (2006-SC-164-DG)
“Official Immunity. KRS 70.040. Issues include whether KRS 70.040 grants a limited waiver of a sheriff’s official capacity immunity for allegedly negligent actions of a deputy sheriff. The cross-motion questions the constitutionality of KRS 70.040.”
Discretionary review granted 2/15/2006 and 4/12/2006
Barren Circuit Court, Judge Phillip R. Patton
For Movant/Cross-Respondent: Marc A. Lovell and Travis Wayne Calvert
For Respondent/Cross-Movant: Lee Huddleston
(Note: Justice Minton is recused)
(Rescheduled from August 17, 2007)

“Revival of Action. Limitations. Insolvent Insurer. KRS 395.278. KRS 304.36-085. Issues include whether KRS 304.36-085 automatically tolls the one-year limitations period for revival of an action imposed in KRS 395.278; and whether the stay of a proceeding involving an insolvent insurer is, pursuant to KRS 304.36-085, automatic and self-executing.”
Discretionary review granted 10/12/2005
Hardin Circuit Court, Judge T. Steven Bland
For Hardin County, Etc., Et Al: Ken M. Howard, Thomas Neal Kerrick, Thomas B.Russell, and Scott Donald Laufenberg
For Bessie Wilkerson: James T. Kelley
For Cynthia Randolph Hall, R.N.: Craig L. Johnson

U.S. and British Special Forces Operating in Iran

Tuesday, October 23rd, 2007

…American special forces are operating inside Iran in an attempt to preempt a possible attack…

British special forces have carried out several operations inside Iran in recent months in an attempt to prevent the Revolutionary Guard’s Al-Quds force from shipping weapons to Iraq, the Sunday Times reported.
The British and Australian SAS forces are reportedly working with American special forces to patrol the border to prevent weapons – including surface-to-air missiles and parts for IEDs (improvised explosive devices) – from reaching the hands of Iraqi insurgents.
According to the article, the SAS have engaged in at least six “intense firefights” with both Iranian and Iraqi Shi’ite arms smugglers. The fighting has reportedly taken place on both sides of the Iran-Iraq border, and Iran has fired mortar shells across the border.
The Times said that officials have stated that while the British troops are working to prevent arms smuggling, they do not cross the border into Iran.
As of last week, the report said, UK armed forces minister Bob Ainsworth could not say whether any Iranians had been killed or captured as part of the special forces operations.
Meanwhile, ongoing reports have come out that American special forces are operating inside Iran in an attempt to preempt a possible attack. British and American forces share intelligence on Iranian activity.
(©) The Jerusalem Post

Executive Branch Ethics Commission Ignores Prosecutorial Immunity and Considers anonymous complaint against Attorney General. Rules they can now act as the Prosecutors Ethics Commission

Monday, October 22nd, 2007

--Most prosecutors are surprised to learn that the EBEC has determined that it is now their Conduct Commission – we see a tsunami of  anonymous complaints on the horizon, as the word gets out to the prison lawyer community that prosecutors are now fair game. 


By LawReader Senior Editor Stan Billingsley -  Oct. 22, 2007


On October 17th,  the Executive Branch Ethics Commission (EBEC) was permitted by Franklin Circuit Judge Wingate, to proceed with the investigation of an anonymous ethics complaint filed against Attorney General Greg Stumbo.  The investigation concerns the Attorney General’s prosecution of Governor Ernie Fletcher and other members of his administration for violations of the state Merit System laws. 


This assumption of power by the EBEC would give them the right to impose civil fines up to $5000 and remove an offender from office, and some offenses can be prosecuted as a Class D Felony, if the EBEC determines a prosecutor has violated provisions of the Executive Branch Code of Ethics found in KRS Chapter 11A.


It is apparent that the EBEC is taking a proactive position regarding the expansion of their jurisdiction.


The first step in the evolutionary effort to expand the jurisdiction of the EBEC came in 2006 when the EBEC issued a “warning letter? to Attorney General Stumbo advising him that if he prosecuted Governor Fletcher and then filed to run for Governor against Fletcher that he might be violating the Executive Branch Code of Ethics in KRS Chapter 11A.


The second step in the expansion of EBEC jurisdiction over prosecutors was the

Issuance of their own advisory opinion which enlarged their jurisdiction over prosecutors. Advisory Opinion 06-3 (see below)


The third step in the expansion of EBEC jurisdiction over prosecutors was the court ruling by Judge Wingate, who was appointed by Governor Fletcher in 2006,  which allowed the EBEC to investigate an anonymous complaint against the Attorney General arising out of the Attorney General’s office investigation and prosecution of Gov. Fletcher.


We are not privy to the confidential claims presented in the anonymous complaint which the EBEC seeks to investigate concerning Attorney General Greg Stumbo. Statements in the press indicated that the complaint involves actions taken by the Attorney General in his investigation of the Fletcher administration for merit system violations.


The Attorney General’s merit system investigation was prompted by documents delivered to his office by a “whistle blower?.  The investigation resulted in the Governor and 26 members of his administration being indicted by the Franklin County Grand Jury.


The Governor subsequently pardoned all members of his administration except for himself, and he entered into a plea agreement concerning his own conduct.  The Governor now disavows any wrong doing on his part.


Now in the midst of a campaign where the Governor is seeking re-election, the EBEC,   consisting of five citizens appointed by Governor Fletcher, has instituted an ethics investigation of the Attorney General.  Apparently the foundation of the allegations are that the Attorney General received a “private benefit? by prosecuting the Governor and members of his administration, because he had ambitions for seeking public office. 

The EBEC has been accused of partisan use of their powers in the past.

Aug. 17, 2007 story by The Courier-Journal’s Tom Loftus quoting former EBEC member Cynthia Stone, on prior EBEC’s decisions:  “From my position there have been numerous decisions within the past year which have been partisan action, or inaction.?

The statement by former EBEC member Cynthia Stone alleges not only partisan action, it alleges partisan “inaction?.  That seems to suggest that the EBEC has elected not to proceed against a person or persons who may have violated the Ethics Code.

A former Fletcher administration employee Dan Druen, who had cooperated with the Attorney General’s investigation, alleges that the EBEC action against him was intentionally delayed until after the Nov. 6th. election for Governor is over.  Druen says he had requested an earlier hearing before the commission, and intimated that he was willing to “tell all? about Fletcher administration violations of the merit system.

On the September 17th, 2007 episode of Kentucky Tonight, Gov. Ernie Fletcher referred to Greg Stumbo as ‘Mike Nifong.’  That same day, the anonymous complaint was sent to the Executive Branch Ethics Commission in which Greg Stumbo is compared to ‘Mike Nifong.’ 

These anecdotal statements and observations provide support for the impression that the five members of the commission, all of whom were appointed by Gov. Fletcher, are using the EBEC as a political tool.

The EBEC attempted to interfere with Attorney General Stumbo’s campaign during last year’s primary election cycle.

In an unusual opinion the EBEC held that it would potentially be a violation of the Executive Branch Code of Ethics under KRS Chapter 11A, for the Attorney General to prosecute Governor Fletcher at a time when he was running for Governor against the sitting Governor.  We understand that their opinion was based on their interpretation of KRS 11A.005(1)(c) which states:

KRS 11A.005 Statement of public policy.
“(1) (c) A public servant not use public office to obtain private benefits;?

Under their theory of the law, the Attorney  General would receive a “private benefit? i.e. the enhancement of his chances for election as Governor, if he participated in the prosecution of the Governor in the Merit System investigation.  Stumbo in response to the EBEC warning opinion, removed himself from direct participation in the investigation.


The EBEC in another advisory opinion reversed prior opinions they had issued, and expanded their jurisdiction over Commonwealth Attorneys.


The EBEC opinion exempts County Attorneys from their jurisdiction since they are not “state officials? and their ethical conduct is theoretically monitored by County Ethics Codes, and therefore they are exempt from regulation by the EBEC. (See:  KRS 11A.015 below)


We submit that the legislature probably did not contemplate, the ability of the commission to expand its powers to take over the regulation of the conduct and practices of the Attorney General and all Commonwealth Attorneys.  We doubt that the General Assembly fully understood the power to create mischief they gave to the commission.


Opinion of the Commission Increasing their Jurisdiction

In April of 2006 the EBEC issued Advisory Opinion 06-3  and found:


“In Advisory Opinion 93-7, the Commission determined that neither Commonwealth’s nor county attorneys are subject to the Code based on the fact that they are elected only by voters of a county or local district, and are not, in most of their duties, “accountable to the executive branch of state government.?  Upon further review, the Commission reverses this earlier opinion regarding Commonwealth’s attorneys. “

The EBEC conceded that Commonwealth Attorneys were not in the classified service (i.e. Merit System) but were nevertheless subject to their jurisdiction:


“Commonwealth’s attorneys, while not within the merit system, are still considered to be in state service.?

The EBEC stated in Advisory Opinion 06-3:


“…it is the opinion of the Commission that Commonwealth’s attorneys and their staffs are “public servants? as defined in KRS 11A.010(9), presented below, and thus are subject to the Executive Branch Code of Ethics..?


The Attorney General is specifically mentioned in Chapter 11A, and his office 

is therefore subject to EBEC jurisdiction, since he is an executive branch official.


Chapter 11A applies to all public officers and employees of executive branch agencies.  


Under the reasoning of the EBEC, an argument can be made that Circuit Clerks are also

subject to regulation by the EBEC since circuit clerks are listed in the Ky. Constitution

under the heading of executive branch officers. (See Section 92, Kentucky Constitution.) 

Will the EBEC soon be hearing complaints against Circuit Clerks? 


The Attorney General is clearly identified as a public servant subject to the jurisdiction of the EBEC by KRS 11A.010 Definitions for chapter. (9)(d)


KRS 11A.010(9) (d): 

(9)        “Public servant” means:

(d)        The Attorney General


The EBEC’s conclusion that they have the jurisdiction to regulate and sanction any unethical conduct of the Attorney General appears legally sound.


That being the case, the EBEC by undertaking an investigation of the anonymous complaint filed against the Attorney General rightfully should not ignore the statutory duties of the Attorney General which authorizes him to investigate and prosecute violations of the law. They should be cautious in infringing upon the lawful duties of the Attorney General.


The duties of the attorney general include the investigation and prosecution of crimes, which include merit system violations.  His duties are authorized by:


“KRS 15.210 Authority in criminal prosecutions.
Whenever the Attorney General shall undertake any of the actions prescribed herein, he
shall be authorized to exercise all powers and perform all duties in respect to such
criminal actions or proceedings which the prosecuting attorney would otherwise perform
or exercise, including, but not limited to the authority to sign, file and present any and all
complaints, affidavits, information, presentments, accusations, indictments, subpoenas,
and processes of any kind, and to appear before all grand juries, courts or tribunals.
Effective: January 2, 1978?

“KRS 15.715 Intervention in criminal prosecutions by Attorney General –
 (6) The Attorney General shall have the duty, within the Forty-eighth Judicial Circuit,
to prosecute any person who receives compensation from the Treasury of the
Commonwealth of Kentucky for all violations of the criminal and penal laws arising
out of, involving or in connection with state funds, or the sale or transfer of goods
or services by or to the Commonwealth or any of its political subdivisions; and
specifically including, but not limited to, all violations set forth in KRS Chapters
521 and 522. Nothing herein shall be construed to change the venue provision
presently existing under Kentucky law as of July 15, 1980.?


“KRS 15.190 Assistance in criminal proceedings on request of local prosecuting officials.  County and Commonwealth attorneys may request in writing the assistance of the Attorney General in the conduct of any criminal investigation or proceeding. The
Attorney General may take such action as he deems appropriate and practicable under the circumstances in the rendering of such assistance.
History: Created 1964 Ky. Acts ch. 28, sec. 1.?

We can understand a potential situation where an Attorney General conducted an investigation without legal jurisdiction or authority, if he personally violated some criminal law, if he personally received some financial benefit for conducting a prosecution, then he may have committed some act which might be considered as an “ethical violation?.   But the performance of his lawful duty to investigate and prosecute, which merely enhanced his potential be elected to higher office in the future, has never been the basis for an ethical violation.  Such a doctrine is without precedent in the United States.


Raising such an issue in the middle of the investigation (as was done by the EBEC) falls outside the realm of regulation of ethics, and arguable enters the realm of political interference by the Commission.   The purpose of the legislature in creating such a commission was to limit political interference with public officials, not to enlarge it.


Every citizen of this state, has the constitutional right to run for public office.  If a public official performs some legal duty, and as a result his chances for election are enhanced, then how is the public harmed?   All public officials should do their job well, and if they do it well, their chances for future public service is justifiable enhanced.


A sitting Governor who travels all over the state handing out million dollar checks for public projects, is clearly using his office to enhance his chances for re-election.


Under the reasoning of the EBEC (as is being applied to the Attorney General), such a practice must be defined as receiving a “private benefit? from his official actions   If that is a violation of the Executive Branch Code of Ethics when done by the Attorney General, where is the investigation by the EBEC of Governor Fletcher for performing public duties from which he gets the “private benefit? of having his chances for re-election enhanced? 


In our own research and in previous communications with the EBEC we have determined that there is no statutory nor judicial definition of the phrase  “obtain a private benefit? as used in Chapter 11A.   That phrase is the operative clause that has been used by the commission to issue an advisory opinion to the Attorney General that he could not prosecute Gov. Fletcher if he was going to be a candidate running against Fletcher.


We assume that this same ?private benefits?  provision of the Ethics Code is the legal basis they are using to justify their current investigation of the Attorney General.


The  concession by the Attorney General to withdraw from the prosecution was not enough. Now they seek, after the fact, to further establish their jurisdiction to regulate the “ethical conduct? of prosecutors who prosecute criminal cases.


The term “private benefits? being undefined by statute, has been so broadly defined by the EBEC as to prohibit conduct which is otherwise legal. This strongly suggests that the statute as applied may not survive a constitutional review for  “vagueness? and “overbreadth?.


Actions of EBEC Send chilling message to other prosecutors
This sends a chilling message to all other prosecutors who would prosecute a potential opponent.  (And sends a message to anyone about to be prosecuted to run down and file to run against the incumbent prosecutor.)


The result of the reasoning of the EBEC is that Chapter 11A is to be interpreted as an additional amendment to the Ky. Constitution (Section 92) which sets the qualifications for the office of attorney general.  Their reasoning results in a reading of  Chapter 11A  so as to disqualify any public officer holder from future public office if his conduct makes the current occupier or other candidate for that office look bad.


The practice of a committee appointed by the sitting Governor sanctioning Attorney Generals and Commonwealth Attorneys for the performance of their official duties raises many troubling issues.  


The qualification for membership on the EBEC does not require any of the members to be an attorney much less a prosecutor. (See KRS 11A.060).  The only requirement for appointment is that they be registered voters.  There is no requirement that the appointments be made up of some division of democrats and republicans as are many other boards and commissions.


In sanctioning the actions of prosecutors, commission members will be required to interpret the law, the criminal rules, the evidence rules, and the relevant case law regarding the powers and duties of prosecutors.  Their membership does not include a prosecutor to explain the complex constitutional and legal issues faced by other prosecutors.



The legislature has recognized a far more workable procedure to monitor the ethical conduct of judges.   We would think that prosecutors now being faced with the choice of having their conduct monitored by five political appointees of the Governor, may well consider creation of a Prosecutors Conduct Commission modeled on the Judicial Conduct Commission.


Members of the Judiciary are subject to a Code of Conduct. Judges conduct is investigated and enforced through the Judicial Conduct Commission.   The commission is made up of representatives of the District Court, the Circuit Court, the Court of Appeals,

the Kentucky Bar Association and two citizen members.


A Prosecutors Conduct Commission, if it followed the Judicial Conduct Commission model, would likely have one member selected by County Attorneys, one member selected by Commonwealth Attorneys, one member designated by the Attorney General, one member nominated by the Ky. Bar Association, and two citizen members appointed by the Governor.  Actions of the Judicial Conduct Commission are reviewable by the Supreme Court. 


The quasi-judicial role of prosecutors merits a conduct commission free of political interference. Such a body would be inherently designed to better understand the powers and duties of prosecutors, and to apply the ethics code in an informed manner.



Actions of the Judicial Conduct Commission against a judge, are appealable directly to the Ky. Supreme Court, which has unlimited power to change rulings and reduce penalties.  The appellate remedies from an administrative agency such as the EBEC are far more limited.


“An appellate court’s role is to review administrative decisions, not to reinterpret them.? Johnson v. Galen Health Care, Inc., Ky. App., 39 S.W.3d 828, 833 (2001).


A circuit court must uphold an administrative agency’s decision if it is supported by substantial evidence in the record.? Id. at 833.


“Our role on appeal from the circuit court, however, “is to determine whether or not the circuit court’s findings upholding the [Board’s decision] are clearly erroneous.? Id. at 833. “

The Circuit Court hearing an appeal from a EBEC action cannot summarily set aside, ignore or change the commissions findings.  The prosecutors should have the same opportunity for unlimited appellate de nova review that judges have if they are sanctioned. 


The EBEC as an administrative agency is subject to only such appeal rights as are granted by statute. 


Statute of Limitations on Actions Taken by EBEC

One defense that a prosecutor could raise in defense of a complaint by the EBEC may be the statute of limitations.

We note that the Judicial Conduct Code is limited in its application to actions which have occurred by a statute of limitation. (See Judicial Conduct Commission statute of limitations below at Footnote 4).  This limitation applies to judges in office, but expires if no action has been filed against the judge within six months of his having left office. 

The statutory language in Chapter 11A does not specify a statute of limitations for violation of the Executive Branch Code of Ethics.  Therefore we must refer to Chapter 413 to find the relevant statute of limitation.)

Two statutes of limitations apply to EBEC actions. One is for lawyers and one for non-lawyers.  Non lawyers are apparently covered by  KRS 413.160 (see below), which is a 10 year period catch all statute of limitations for actions which have no specific statute of limitation.  So KRS 413.160 would apply to non-lawyer employees of the executive branch.  This means that the EBEC can conduct investigations of prior administrations and former state employees, up to ten years after they have left office. 


KRS 413.160 Actions not provided for by statute – 10 year limitation.
An action for relief, not provided for by statute can only be commenced within 10 years after the cause of action accrued.

We opine that employees of the executive branch who are also licensed lawyers, may fall within the period of limitations spelled out in KRS 413.245.  Arguably an attorney (i.e. prosecutor) could argue that the one year statute of limitations for “professional service malpractice? under KRS 413.245 or KRS 413.140 may apply to any violations of the Executive Branch Code of Ethics if the executive branch attorney’s alleged violation can be defined as “professional services?.  There is no court ruling on this novel issue

KRS 413.245 Actions for professional service malpractice.
Notwithstanding any other prescribed limitation of actions which might otherwise appear
applicable, except those provided in KRS 413.140, a civil action, whether brought in tort
or contract, arising out of any act or omission in rendering, or failing to render,
professional services for others shall be brought within one (1) year from the date of the
occurrence or from the date when the cause of action was, or reasonably should have
been, discovered by the party injured. Time shall not commence against a party under
legal disability until removal of the disability.
Effective: July 15, 1980
History: Created 1980 Ky. Acts ch. 159, sec. 2, effective July 15, 1980

KRS 413.243 “Professional services” defined.
As used in KRS 413.245, “professional services” means any service rendered in a
profession required to be licensed, administered and regulated as professions in the
Commonwealth of Kentucky, except those professions governed by KRS 413.140.
Effective: July 15, 1980
History: Created 1980 Ky. Acts ch. 159, sec. 1, effective July 15, 1980.


KRS 413.140 Actions to be brought within one year.
(1) The following actions shall be commenced within one (1) year after the cause of
action accrued:
(c) An action for malicious prosecution, conspiracy, arrest, seduction, criminal
conversation, or breach of promise of marriage;

Sovereign Immunity of Prosecutors May Trump EBEC Investigation

Another defense that would appear to apply to actions of the Attorney General and all other prosecutors is sovereign immunity.  We do not know if this defense was raised in the hearing by Franklin Circuit Judge Wingate, but it is certainly the prosecutors best protection from retaliation and interference with the performance of their official duties.

In McCollum v. Garrett, 880 S.W.2d 530 (Ky., 1994) the Kentucky Supreme Court recognized prosecutorial immunity.


“On the question of prosecutorial immunity for malicious prosecution, Kentucky law is well expressed in Dugger v. Off 2nd, Inc., Ky.App., 612 S.W.2d 756 (1981), wherein the Court of Appeals rejected a prosecutor’s absolute immunity claim. Dugger was wrongfully arrested pursuant to a warrant charging him with disorderly conduct. He alleged that the prosecutor signed the judge’s name to the warrant and that the prosecutor’s actions constituted gross negligence, wantonness, abuse of process and collusion since Dugger’s wife was then being represented in divorce litigation by the prosecutor’s law partner. The court correctly recognized that a public prosecutor must have immunity when he is acting within the scope of his authority for without it, the prosecutorial function would suffer.

Nevertheless, the court examined the applicable constitutional and statutory provisions and concluded that as the prosecutor had no lawful authority to sign the name of a judge to an arrest warrant, he was outside the scope of his authority and without immunity. Throughout the Dugger opinion, one encounters the concept of “scope of prosecutorial duties,” or words to that effect, as defining the availability of prosecutorial immunity. The opinion is clear that so long as a prosecutor acts within the scope of the duties imposed by law, quasi-judicial immunity is available, but otherwise it is not.?

        “A recent decision of the Supreme Court of the United States, Buckley v. Fitzsimmons, 509 U.S. —-, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993), is in accord with Dugger. Relying on its recent decisions Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), and Burns v. Reed, 500 U.S. 478, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1992), the Supreme Court recognized that certain actions of a prosecutor were necessarily preliminary to the initiation of a prosecution, but were nonetheless protected by absolute immunity. Such acts were said to include the professional evaluation of evidence assembled and appropriate preparation for its presentation at trial or to a Grand Jury. On the other hand, Buckley is clear that absolute immunity does not follow a prosecutor in all of his actions. On those occasions when a prosecutor functions as an administrator or investigator, prosecutorial immunity is limited to qualified immunity. “  

We note that there is no court ruling that specifically allows the doctrine of sovereign immunity to be applied as a defense against an “ethics? action nor is there a ruling that says sovereign immunity does not apply. This fact suggests the novelty of this issue and the audacious nature of the EBEC actions.


Under the EBEC procedures, which were approved by Franklin Circuit Judge Wingate last week, the commission can investigate the Attorney General (or any  prosecutor) on the mere basis of an anonymous complaint.   Due to the fact that prosecutors by the nature of their official duties, send a lot of people to jail, we see a tsunami of anonymous complaints on the horizon, as the word gets out to the prison lawyer community that prosecutors are now fair game.  


Judge Wingate’s ruling, and the broad interpretation of Chapter 11A by the EBEC which allows them to ignore sovereign immunity and which extends their jurisdiction over the Attorney General and Commonwealth Attorneys, cries out for appellate review. This specific issue will be one of first impression in Kentucky.


   We are unaware of any Code of Ethics having been adopted by prosecutors in Kentucky.  Current law would permit the prosecutors to be exempt from Chapter 11A if the legislature were to direct them to create their own Code of Conduct and Ethics.

See: “KRS 11A.015 Agency exempt from chapter if law or administrative regulation creates its code of ethics. An agency that is directed by statute to adopt a code of ethics shall be exempt from KRS Chapter 11A upon the effective date of an Act of the General Assembly creating the agency’s code of ethics or upon the effective date of an administrative regulation that creates the agency’s code of ethics.?

We believe the EBEC having applied their Code of Conduct to encompass  prosecutors, coupled with their broad interpretation of the phrase “obtain a personal benefit? places prosecutors in a position of having a Code of Conduct written for them without their knowledge or input.  Now they appear to have a Code of Conduct…perhaps they will now have the incentive to ask the legislature to adopt a Prosecutors Code of Conduct which recognizes the special and complex duties they perform.


The next step to remove prosecutors from jurisdiction of the EBEC, would be to seek the creation of a Prosecutors Conduct Commission to monitor and enforce the prosecutors Code of Ethics. These actions would require authorizing legislation by the General Assembly.

We believe the legislation and rules which created the Judicial Conduct Commission can provide a valuable guideline for prosecutors.


Footnote 1:

The statute creating the commission has allowed Governor Fletcher to appoint all current members of the EBEC.  It will not be until sometime in 2010 before the next governor will be able to appoint a majority (3) of the EBEC.


Assuming that the original commission members were appointed in l992 when the act creating the commission was adopted, then the following list shows that the commission appointed by Governor Fletcher will remain in control of the EBEC well into 2010.


Current terms of office for EBEC Commission Members

1 member was last appointed in 2007 and term will expire in 2011

1 member was last appointed in 2006 and term will expire in 2010

1 member was last appointed in 2007 and term will expire in 2011

2 members were last appointed in 2006 and terms will expire in 2010


Footnote 2:

Executive Branch Ethics Commission



April 10, 2006



Re:                   Are Commonwealth’s attorneys subject to the provisions of KRS Chapter 11A?

Decision:         Yes, except when covered by KRS Chapter 15.733.  


            This opinion is issued by the Executive Branch Ethics Commission (“Commission?) upon its own initiative.  This matter was reviewed at previous meetings of the Commission, beginning December 17, 2004, and is a reconsideration of Advisory Opinion 93-7. 


            In its attempt to properly interpret KRS Chapter 11A, the Commission revisits the issue of whether Commonwealth’s and county attorneys, and their staffs, are subject to the Executive Branch Code of Ethics (“Code?).  In Advisory Opinion 93-7, the Commission determined that neither Commonwealth’s nor county attorneys are subject to the Code based on the fact that they are elected only by voters of a county or local district, and are not, in most of their duties, “accountable to the executive branch of state government.?  Upon further review, the Commission reverses this earlier opinion regarding Commonwealth’s attorneys. 


            The Commonwealth’s attorney program is made up of 57 elected Commonwealth’s attorneys and their staffs.  Commonwealth’s attorneys and their staffs are employees of the Unified Prosecutorial System (“UPS?), as are county attorneys and their staffs.  Pursuant to KRS 15.700, which established the UPS in order to “maintain uniform and efficient enforcement of the criminal law and the administration of criminal justice throughout the Commonwealth,? the Attorney General is the chief prosecutor of the Commonwealth.  The Prosecutors Advisory Council (“PAC?) was established in KRS 15.705 to administer the UPS and is administratively attached to the Office of the Attorney General (“OAG?).  The Attorney General, by statute, is chairman of the PAC, which is responsible for, but not limited to, the preparation of the budget of the UPS as well as its continuing legal education and program development.  Within the OAG is the Prosecutors Advisory Council Services Division, which performs staff services for the PAC and UPS.  The compensation of each Commonwealth’s attorney and his staff is paid out of

Executive Branch Ethics Commission

April 10, 2006

Page Two



the State Treasury pursuant to KRS 15.755.  Unlike the county attorneys, who act as legal advisers to the county in which they serve as well as criminal prosecutors under the UPS, the Commonwealth’s attorneys serve in their official capacities within their judicial circuits as criminal prosecutors only, so they have no duties outside of those that fall within the mission of the UPS.


While KRS 18A.115(1)(v) excepts Commonwealth’s attorneys and their respective appointees from the classified service, this fact is irrelevant in determining whether Commonwealth’s attorneys are subject to the Code.  Numerous individuals and positions excepted from the classified service by KRS 18A.115(1) are public servants as defined in KRS 11A.010(9) and therefore subject to the Code, including, for example, the Governor, cabinet secretaries, and division directors.  Furthermore, since KRS 18A.115(1) states in its opening paragraph that:  “The classified service . . . shall comprise all positions in the state service now existing or hereafter established, except the following. . .?, it is clear that all the positions listed therein, including the Commonwealth’s attorneys, while not within the merit system, are still considered to be in state service. 


            KRS 11A.015 provides that an agency directed by statute to adopt a code of ethics shall be exempt from KRS Chapter 11A.  During the 1994 General Assembly, the legislature passed a law requiring the governing body of each city and county to adopt a code of ethics for city and county officials and employees.  This legislation, codified as KRS 65.003, states that “the elected officials of a city or county to which a code of ethics shall apply include the mayor, county judge/executive, members of the governing body, county clerk, county attorney, sheriff, jailer, coroner, surveyor and constable, but do not include members of any school board.?  Although county attorneys are listed as elected officials to whom a code of ethics adopted by the local governing body would apply, and thus would presumably be exempt from KRS Chapter 11A, the Commonwealth’s attorneys are not.   Thus, it does not appear that the Commonwealth’s attorneys are elected officials of a “city? or “county?, but rather are elected officials of the “state?, within the executive branch.


            This situation is similar to that of the Property Valuation Administrators (“PVAs?), who also are not listed in KRS 65.003, but rather are elected “state? employees of the Revenue Cabinet.  (See Advisory Opinion 92-10.)  Much as the PVAs are under the direction, instruction, and supervision of the Revenue Cabinet pursuant to KRS 132.420, the Commonwealth’s attorneys are under the general supervision of the OAG through the UPS pursuant to KRS 15.700.  Employees of agencies administratively attached to the OAG, just as employees of the Revenue Cabinet, are considered to be state officials/employees within the executive branch of state government.


Executive Branch Ethics Commission

April 10, 2006

Page Three



            The Commission recognizes that KRS 15.733 provides guidance for Commonwealth’s attorneys as to when a prosecuting attorney must disqualify himself from prosecuting a case on the basis of a conflict of interest.  The Commission believes that such specific statutory guidance in this area complements the provisions in KRS Chapter 11A, but does not cover the many other possible conflicts of interest, and other ethical concerns, that may exist for Commonwealth’s attorneys and their staffs.  Further, the specific guidance in KRS 15.733 applies only to prosecuting attorneys and not to other employees of the UPS.


            Based on the facts presented above that Commonwealth’s attorneys and their staffs are employees of the UPS, that Commonwealth’s attorneys and their staffs are paid out of the State Treasury, that although specifically exempted from classified service they are within the state service, and that they are not included in KRS 65.003 as elected “city? or “county? officials, it is the opinion of the Commission that Commonwealth’s attorneys and their staffs are “public servants? as defined in KRS 11A.010(9), presented below, and thus are subject to the Executive Branch Code of Ethics in matters that are not addressed by KRS 15.733, such as in the general operation of their offices, personal conflicts, acceptance of gifts from vendors, etc.  The Commission believes that the Code does not extend to “proceedings? as that term is defined in KRS 15.733(1)(a), so that a possible violation of KRS Chapter 11A by a Commonwealth’s attorney or an assistant would not require disqualification of prosecutorial duties unless a potential violation of KRS 15.733 also existed.   

            Furthermore Commonwealth’s attorneys (but not their staffs) would be considered “officers? as defined in KRS 11A.010(7) below. 


(9)           “Public servant” means:

(a)           The Governor;

(b)           The Lieutenant Governor;

(c)           The Secretary of State;

(d)           The Attorney General;

(e)           The Treasurer;

(f)            The Commissioner of Agriculture;

(g)           The Auditor of Public Accounts; and

(h)           All employees in the executive branch including officers as defined in subsection (7) of this section and merit employees;


Executive Branch Ethics Commission

April 10, 2006

Page Four



(7)           “Officer” means all major management personnel in the executive branch of state government, including the secretary of the cabinet, the Governor’s chief executive officers, cabinet secretaries, deputy cabinet secretaries, general counsels, commissioners, deputy commissioners, principal assistants, division directors, members and full-time chief administrative officers of the Parole Board, Board of Tax Appeals, Board of Claims, Kentucky Retirement Systems board of trustees, Public Service Commission, Worker’s Compensation Board and its administrative law judges, the Occupational Safety and Health Review Commission, the Kentucky Board of Education, the State Board for Adult and Technical Education, the Council on Postsecondary Education, and any person who holds a personal service contract to perform on a full-time basis for a period of time not less than six (6) months a function of any position listed in this subsection;



                                                                        Executive Branch Ethics Commission


                                    By Chair:        John A. Webb


Enclosures:       Advisory Opinion 93-7

Advisory Opinion 92-10


(Emphasis added throughout by LawReader.)



The court in McCollum v. Garret ruled that there was no absolute immunity for a prosecutor but there was qualified immunity for official actions.  That ruling was accompanied by a persuasive dissent by Special Justice Philip Taliaferro:

McCollum v. Garrett, 880 S.W.2d 530 (Ky., 1994)
   PHILIP TALIAFERRO, Special Justice, dissents and files a dissenting opinion in which REYNOLDS and SPAIN, JJ., join.
        TALIAFERRO, Special Justice, concurring in part and dissenting in part.
        I agree with the majority’s opinion that Mr. McCollum was properly sued in his individual capacity under the analysis of
Calvert Investments, Inc. v. Louisville & Jefferson County Metropolitan Sewer District, Ky., 805 S.W.2d 133 (1991), and Smith v. Isaacs, Ky., 777 S.W.2d 921 (1989).
        However, I take exception to the majority’s holding that McCollum is entitled to only qualified immunity for his actions in this case. In my view, McCollum was acting within the scope of his authority as county
Page 536
prosecutor after Ms. Griffin accused Fay Garrett and he therefore should be absolutely immune from common law liability. I believe that the common law precedent and public policy of Kentucky, together with the opinions of the United States Supreme Court, compel this Court to apply absolute immunity in this case. Therefore, I respectfully dissent.
        In Kentucky, the roots of prosecutorial immunity are found in the absolute judicial immunity, set forth Dixon v. Cooper, 109 Ky. 29, 58 S.W. 437 (1900), and reaffirmed by Bryant v. Crossland, 182 Ky. 556, 206 S.W. 791 (1918), and Henry v. Wilson, 249 Ky. 589, 61 S.W.2d 305 (1933). Duncan v. Brothers, Ky., 344 S.W.2d 398 (1961), the Court of Appeals extended the scope of judicial immunity to include police court.
        This Court, in a majority opinion authored by Justice Stephens, extended absolute judicial immunity to the issuance of a warrant by a deputy clerk, holding that such issuance was a “judicial function” even though the issuance of the arrest warrant was contrary to law. City of Louisville v. Bergel, Ky., 610 S.W.2d 292, 293 (1980).
        The Court of Appeals further extended the scope of absolute immunity to the Commissioner of the Department of Economic Security when it ruled that she was entitled to absolute immunity from civil liability while she was in the exercise of a discretionary function and so long as she acted within the general scope of her authority. Thompson v. Huecker, Ky.App., 559 S.W.2d 488 (1977).
        This case arose out of Huecker’s departmental reorganization which had eliminated the job of Thompson, a merit employee. The Court reasoned that: “To impose tort liability would discourage public officers from undertaking plans to improve the efficiency of government.” Id. at 496 and 497. The Court adopted the policy set forth by Judge Learned Hand in Gregoire v. Biddle, 177 F.2d 579, 581 (2nd Cir.1949):
[I]t has been though in the end better to leave unredressed the wrongs by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.
        Finally, in 1993, this Court, in a majority opinion authored by Justice Lambert, further extended absolute immunity to the Chairman of the State Racing Commission in Compton v. Romans, Ky., 869 S.W.2d 24 (1993). The Court in Compton granted absolute immunity despite a jury verdict which found the Chairman liable for knowing or reckless defamation in the course of an investigation. As pointed out by the majority, this holding has the occasional effect of protecting “officials in their misconduct,” but is the necessary price for “sound public policy.” Id. at 27. The Compton opinion discussed the “lawful authority” vested in the official as support for absolute immunity:
To determine the extent to which a public official shall have protection of the doctrine of absolute immunity, it is necessary to examine the lawful authority, including such discretionary authority as may reasonably be implied….
        Id. at 27. The Compton opinion reasoned that the State Racing Commissioner had a broad grant of authority. A county attorney in Kentucky also has a broad grant of authority to cooperate in the enforcement of criminal and penal laws within his judicial circuit. KRS 15.725. The Compton Court also cited McAlister & Co. v. Jenkins, 214 Ky. 802, 284 S.W. 88 (1926). In the McAlister case, the Court granted absolute immunity to an official report of the Kentucky Real Estate Commission. The Compton Court’s rationale for absolute immunity for the Chairman of the State Racing Commission is as follows:
While we intend no comfort for those public officials who may despicably defame their fellow citizens, the public interest in the unflinching enforcement of the law must prevail over the private interest of a wronged citizen.
        Id. at 28, citing Tanner v. Stevenson, 138 Ky. 578, 128 S.W. 878 (1910). Prosecutors such as McCollum, need and should also be granted absolute immunity as a matter of public policy.
        It is also my opinion that it would be inconsistent with and in violation of this State’s public policy to grant absolute immunity to a deputy clerk, to a report of Kentucky
Page 537
Real Estate Commissioners, to the Commissioner of the Department of Economic Security and to the Chairman of the State Racing Commission but not to prosecutors. Since Kentucky courts grant absolute immunity in the above-mentioned cases, it must a fortiori grant absolute immunity to prosecutors.
        The public policy behind absolute prosecutorial (and judicial) immunity is, in my view, compelling. It is essential to a prosecutor’s public trust that he or she be at liberty to exercise his or her functions with independence, free from the distraction of potential liability. As the Supreme Court stated in McAlister, supra, and reaffirmed in Compton, supra at 26:
[Absolute immunity] is a rule … of public policy, not designed to protect the malicious official from the consequences of his wrongful act, but to protect the whole public from weak and vacillating public service by those upon whom such duties are imposed by law.
        The Restatement (Second) of Torts § 656 (1977) has adopted this policy, as have a majority of states 1 and commentators W. Prosser and W.P. Keeton. 2 Specifically, § 656 of the Restatement (Second) of Torts (1977) states:
A public prosecutor acting in his official capacity is absolutely privileged to initiate, institute or continue criminal proceedings.
        Comment b to this section clarifies this language:
The privilege stated in this Section is absolute. It protects the public prosecutor against inquiry into his motives, and from liability, even though he knows that he has no probable cause for the institution of the proceedings and initiates them for an altogether improper purpose.
        The case of Dugger v. Off 2nd, Inc., Ky.App., 612 S.W.2d 756 (1981), cited the United States Supreme Court case of Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), for the proposition that a prosecutor’s immunity was a “quasi-judicial immunity,” available only when a prosecutor acts within the scope of his or her prosecutorial duties. The Dugger court held likewise: “We also hold that a prosecutor is immune from liability only to the extent that he has acted within the scope of his duties as a prosecutor.” 612 S.W.2d at 755. It is clear that the prosecutor’s alleged signing of a judge’s name to a warrant was outside the scope of his prosecutorial authority.
        It is equally clear that McCollum was acting within the scope of his prosecutorial authority after Ms. Griffin indicated to him that she had seen Fay Garrett hugging and kissing the prisoners. The trial court was correct in its finding that McCollum was acting within the scope of his official duties and was therefore entitled to absolute immunity.
        McCollum’s conduct unquestionably meets the Imbler test if being “intimately associated with the judicial phase of the criminal process.” Imbler, 424 U.S. at 430, 96 S.Ct. at 955. After Ms. Garrett was accused, McCollum was functioning as an advocate for the State of Kentucky within the scope of his authority and in the exercise of a discretionary function. Buckley v. Fitzsimmons, 509 U.S. —-, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). As such, I believe his acts are entitled to absolute immunity pursuant to the analysis set forth herein. Therefore, I believe that judgment should be entered for McCollum and this case dismissed.
        REYNOLDS and SPAIN, JJ., join in this opinion

KRS Chapter 11A has no specific statute of limitations therefore allowing the EBEC to investigate and sanction state officials for up to ten years after they leave office.  The Judicial Conduct Commission structure limits the jurisdiction of the J.C.C. as follows:

Judicial Conduct Commission statute of limitations:


SCR 4.025 Authority of commission in certain situations
(1) The Commission shall have the authority set out in SCR 4.020 without regard to separation of a judge from office or defeat of a candidate in an election, except as specifically limited in SCR 4.000 to SCR 4.300.
(2) For any violation related to campaign conduct in a primary or general election, the authority of the Commission to take action shall be barred unless notice of preliminary investigation pursuant to SCR 4.170 has been issued by the Commission within 180 days of the date of the general election following the campaign as to which the conduct relates.
(3) For any violation other than a campaign violation, the authority of the Commission to take action against a judge who has left office shall be barred unless notice of preliminary investigation pursuant to SCR 4.170 has been issued within 180 days after the date the judge leaves office.
(4) Nothing in SCR 4.000 to 4.300 shall bar proceedings against sitting judges who have left judicial office after a prior term of office concerning conduct not previously adjudicated by the Commission.



Ky. Sup. Ct. Grants Discretionary Review to Sex Offender Banishment Law

Saturday, October 20th, 2007

Kenton Judge Martin Sheehan: … Kentucky’s sex offender residency restrictions constitute a form of banishment, a punishment that is historically and traditionally punitive…

By Paul A. Long Ky. Post staff reporter   Oct. 20, 2007
The state Supreme Court has agreed to decide the constitutionality of a state law mandating that sex offenders cannot live within 1,000 yards of a school or playground after a Kenton County judge declared it unconstitutional.
A key issue in the high court’s review of the case will be whether the residency restriction law is punitive or merely part of the regulation of sex offenders. The difference is important because the former makes it an unconstitutional ex post facto law, while the latter is allowed.
An ex post facto law is one passed to punish a person after the commission of an act. In the residency requirement laws, it applies to all sex offenders, even those who committed their crimes and served out their punishments years ago.
It’s an issue states across the country are grappling with after they passed laws in the past decade or so to require sex offenders to register with police and then limited where they can live. In Miami, for instance, Florida’s laws are so restrictive that the only legal place for a sex offender to live is under the bridge across the Biscayne Bay.
In Ohio, the state Supreme Court is reviewing the case of Gerry Porter, who bought a house in Cheviot in 1991. He was convicted of sex crimes in 1995 and 1999, and is now being forced to move because the house is within 1,000 feet of a school – its back yard is 983 feet from St. Jude Elementary School.
A Hamilton County Common Pleas Court ruled against Porter, saying the move does not violate any of his substantial right. The 1st District Court of Appeals upheld that ruling. However, in another case, the 2nd District Court of Appeals found the residency restriction was unconstitutional.
A similar situation occurred in Kenton County, where District Judge Ann Ruttle upheld the law in a brief, two-page decision, while District Judge Martin Sheehan wrote a 36-page decision throwing out the cases against 11 sex offenders.
All of them were convicted of the sex crimes before the residency requirement laws were changed in 2006. After the new law took force they were charged with violating it because they lived too close to a school or park.
“This court concludes that Kentucky’s sex offender residency restrictions constitute a form of banishment, a punishment that is historically and traditionally punitive,” Sheehan wrote.
“This court concludes that Kentucky’s sex offender residency restrictions promote retribution, a traditional aim of punishment…. This court finds that the residency restrictions imposed by Kentucky law do not bear a rational connection to the interests they are intended to serve and are excessive in relation to any non-punitive purpose which can be inferred.”
Kentucky first passed its version of Megan’s law in 1998, calling on all sex offenders to register their addresses, and allowing for public notification. Failing to register is a felony punishable by up to five years in prison.
The state Supreme Court upheld that law four years later, saying it was Constitutional, non-punitive, and merely compiled information already in the public domain.
Megan’s laws are named after Megan Kanka, a 7-year-old New Jersey girl who in 1994 was abducted, raped and murdered by a neighbor who had committed prior sexual offenses against children. After her death, Megan’s parents pushed New Jersey to pass a law requiring the notification of neighbors when a convicted sexual offender moves into an area.
Other states quickly followed suit. The federal government passed a law setting up a nationwide notification network, and said every state must join or face the loss of federal funds.
States have gone beyond that, though, requiring limits on where sex offenders can live. In 2006, Kentucky passed a law saying they could not live within 1,000 feet of a school, playground, or child-care center.
Sheehan’s decision impacts only on the specific cases he ruled on. Kenton County prosecutors are technically not appealing the decision; instead they are asking the high court to certify the law. Even if it upholds the law, the Supreme Court cannot bring back the cases against the 11 men.
However, Assistant County Attorney Chris Nordloh said the state can again cite them with violating the law if the Supreme Court upholds it.
Nordloh said it’s obvious the law is an extension of the registration process, not a new punishment. Both the legislators’ passing the law, and Gov. Ernie Fletcher’s signing statement, made that point, he said.
“Here, the commonwealth maintains that residency restrictions are not punitive, but rather only an extension of an existing regulatory scheme regarding sexual offenders,” he wrote in papers field with the Supreme Court. “Regulatory restrictions imposing limitations and boundaries on sex offenders have a primary purpose of protecting the public, especially children.”
Sheehan’s order said, though, that much of that protection is illusory. The laws are popular with the public because their main impact is against sex offenders, “the political pariahs of our day,” he said.
A problem with residency requirements is that it merely limits where a sex offender can live, Sheehan said, not what he can do around children.
“Residency restrictions do no restrict the sex offender from sitting on a bench in or near the very playground which serves to restrict his residency,” Sheehan said.
“That same offender can operate his car and ‘cruise’ the area around the very daycare which serves to restrict his residency. He can return to the family home from which he was forced to move, on a daily basis if he so chooses, provided he does not sleep there, and peer out the window in deviant lust at the toddlers frolicking on the playground.”

A.G. Nominee Mukasey Waffles on Pledge to Uphold the Law. Senators throw softballs.

Saturday, October 20th, 2007

…the fix was in …the answers he gave were the answers you would expect from a mob lawyer.


by Steve Fournier OPednEWS.COM     Oct. 20, 2007


We waited all day for this question: “Judge Mukasey, there’s every reason to believe the last attorney general and the president have violated federal laws, precipitating a crisis of confidence in the Constitution of the United States and the rule of law itself. What are you going to do about that??


Turned out the fix was in. The senators of the judiciary committee had met with the worthy judge in private and had all their fondest hopes fulfilled and all their worst fears dispelled. He must have assured them he would be a modest caretaker for the remainder of the Bush term. On the record, he was cautioned in the most respectful terms to be independent and not to repeat the missteps of his predecessor. There was a lot of hoping among Democrats on the committee. Mukasey promised nothing in the way of justice.


Patrick Leahy recited with due gravity a litany of criminal offenses committed by employees of the justice department and higher levels of the executive branch, urging the nominee and all of us to “acknowledge wrongdoing.? Leahy made generous reference to various hearings on Iraq, U.S. Attorneys, Blackwater, and other instances of executive malfeasance, but it was a modest call for reform and Leahy demanded no accounting. The ranking member Arlen Spector expressed mild dissatisfaction over abuses of executive authority that the senator considers “necessary because we are at war.?

These men should not need to be reminded that when government attorneys misbehave, that’s a crime. The attorney general and his employees hold the scales of justice in hand.


When they are corrupted, a crime is committed against the USA.

You would think, at a time when justice department employees and other executive officials have committed notorious abuses of authority that amount to racketeering, that a hearing on the confirmation of an attorney general would make reference to the enforcement of the criminal laws the leaders violated. You would be wrong.


Commandeering the Department of Justice for political ends is a crime, and Leahy accused somebody of doing it, but he didn’t call for a criminal accounting. Is it now not politically correct to prosecute high-ranking officials or even mention their criminal culpability, or “wrongdoing,? as Leahy would toothlessly have it?

Introducing the nominee, Senator Lieberman offered a fond reminiscence of his and Mukasey’s days together at Yale Law School, and Senator Schumer, who talked to some mutual friends from the ruling class, was confident of the nominee’s probity and suitability. I can almost hear the buzz in the Oval Office after somebody said, “Let’s get a Jew! With a Jew you get Spector, Schumer, Lieberman, like half the Democrats on the committee.? Make it a New York right-winger. Win-win, as they say.


The members of the committee took up most of their time on this first day of questioning to air select grievances against the Justice Department or get commitments of support for favored programs. They didn’t put many substantive questions to the nominee. Typically, the senator says what he expects of an attorney general and expresses a hope that Mukasey will live up to expecations. The nominee counters with what he hopes he can, indeed, do. His were not the answers of a lawyer. Law is. The role of the attorney general is to bring the rule of law to the executive, restraining it whenever necessary. We don’t hope we can do it. We do it.


To the rare substantive questions that were put to the nominee, the answers he gave were the answers you would expect from a mob lawyer. He never made a pronouncement of loyalty to the rule of law that didn’t have an escape clause. “To the extent possible? and “as far as I am able? are lethal qualifiers in the parlance of organized crime, which this is. Mukasey’s tone and pace were trance-inducers, and the content of his answers was pure pablum. Nobody in America, not any senator and not any citizen, heard the latter part of any of his answers.


Senator Herb Kohl, Democrat, asked Mukasey directly whether the US government should close the prison at Guantanamo. He seemed content with the response that the attorney general will get the best advice available and act on that. Kohl allowed Mukasey to bloviate on what the feds can do to stem gang violence and on the advantages of having more cops on the street, especially under programs that benefit Kohl’s loyal patrons. Kohl and the other senators were deferential at a time when deference is altogether inappropriate.


Accountability, in the committee’s view, will take the form of “restructuring? and “assembling a top-flight staff.? The new regime will emphasize merit hiring, and they will no longer be taking calls from politicians. Never mind that the calls already received from politicians were felonies, and the new attorney general would be the guy charged with the prosecution of people like Rove and Domenici, to name just two callers. The senators couldn’t even name two. Among the bunch of them, they couldn’t think of two public officials who committed crimes and aren’t being prosecuted for them, or even one. I can name 50.


“They’re new! They’re novel!? That was Lindsay Graham’s triumphal declaration in reference to legal theories rationalizing imprisonment without trial and torture as a means of interrogation. Truer words were never spoken. Lawyers used to employ precedent, but torture and denial of legal process are without precedent, and the legal theories advanced to promote these practices are new, novel, and phony. As Lindsay Graham knows. He’s a lawyer and he knows he’s not allowed to endorse legal tripe of this sort, and so he challenged the nominee. He wanted to know whether it wasn’t better, on balance, to afford prisoners the benefits of notice and an opportunity to be heard. Graham thought he could get Mukasey to assent to this modest commitment to fundamental human rights.

Forget about it. Mukasey vowed to respect fundamental human rights but only if it doesn’t impede the gathering of intelligence. In response to Graham’s question, the nominee acknowledged being “uncomfortable? with what used to be called water torture.


He didn’t give a suitable answer to any of Graham’s questions. Graham’s conclusion: “I have every confidence you will do a good job.? Senator Graham could have asked whether the government lawyers who advanced legal theories rationalizing torture and imprisonment without trial should be disbarred, but he didn’t. None of the senators did.


As nearly as I could discern, the proceedings were to an empty chamber, at least on the committee’s side of the table. C-SPAN tried not to let on, but every so often that naughty cameraman, the one that picks out the best-looking people in every room and puts them on just for art’s sake, that guy shot the empty row of seats. It was Leahy along with whoever was at bat and whoever was on deck.


Evident from the nominee’s evasions was a guarantee that he will be able to lend his imprimatur to just about any executive usurpation. Like most of the villains who would be a party to such corruption, he’s a vainglorious twit who has been seduced to a position of power beyond his mother’s wildest dreams. This is not his fault. This is our fault. We allow totalitarians like this nominee and the senators who pet him to prosper.


This confirmation process looks like a sham, a deal that was concluded in private. The guy’s a totalitarian, and the senators know it. They are going to give him the job not in spite of his fascist tendencies but because of them. They have his pledge to preserve the imperial courts for the Democrats, if they can win them. The “unitary executive,? which has no existence in traditional legal doctrine, is the main point of agreement between Democrats and Republicans, and this attorney general, who hopes to uphold the Constitution and may choose to heed the rule of law if it doesn’t get in the way of intelligence gathering, is just the man to make it happen.


Anti Gay Marriage Law Does Not Void Domestic Violence Laws re: Unmarried Couples

Saturday, October 20th, 2007

This ruling may provide guidance for any future challenge based on similar Ky. Gay Marriage Constitutional Amendment


By Dan Sewell  Associated Press


October 20, 2007  LEBANON , Ohio- A man pleaded guilty Friday to a charge of domestic violence against his live-in girlfriend, three months after the Ohio Supreme Court rejected his contention that the state’s ban on gay marriage barred his prosecution in the case.


Michael Carswell, 30, entered the plea in Warren County Common Pleas Court to one count of domestic violence, a felony, stemming from an assault on his girlfriend in 2005.

The case had drawn statewide attention after a Warren County judge initially dismissed the charge against Carswell when he argued the section of the law under which he was charged conflicted with the gay marriage amendment. The charge was reinstated by an appeals court, and wound up in front of the Ohio Supreme Court.


In a 6-1 ruling in July, the justices rejected Carswell’s argument that he could not be charged with domestic violence because the constitutional amendment, adopted in 2004, prohibits the state from assigning legal status to unmarried couples.


Chief Justice Thomas Moyer wrote in the opinion that the domestic violence law included many groups and that describing living arrangements isn’t the same as legal status. “The state does not have a role in creating cohabitation, but it does have a role in creating a marriage,” Moyer wrote.


A variety of civil rights, gay rights, advocates for domestic violence victims and other groups applauded the high court’s ruling.


Carswell’s attorney, Thomas Eagle of Lebanon, said Friday his client decided to plead guilty after weighing the potential risks and impacts of a trial.

“Anything controversial is in the past,” Eagle said.


Carswell, who will be sentenced in about 30 days, could face up to five years in prison.

“I think this was a very important case,” Warren County Prosecutor Rachel Hutzel said. “It’s an important issue for the protection of domestic violence victims.”


Her office said Carswell also will be sentenced for nonsupport of dependents, and owes some $13,000 in child support.


Voter Registration Figures Set for Election, Registration Record Broken

Friday, October 19th, 2007

(Frankfort, KY) – More Kentuckians are registered to vote than ever before in Kentucky, according to figures released by Secretary of State Trey Grayson and the Kentucky State Board of Elections.  In total, 2,840,898 citizens will appear on Kentucky’s voter rolls for the November 6, 2007 general election. This figure eclipses the previous record, set for the 2007 primary election, which totaled 2,795,013. There were 2,766,288 citizens registered to vote in the 2006 general election and 2,709,959 in the 2006 primary. 
            “These figures are indicative of the diligent work of the State Board of Elections and County Clerks to ensure a fair and honest election while maximizing the number of registered voters in the Commonwealth. Because of their efforts, Kentucky has one of the best voter registration databases in the country,? stated Secretary of State Trey Grayson.  “These healthy registration figures are hopefully an indication of a potentially strong turnout on election day.?
The registration totals are a net increase of 45,885 voters from those who were registered to vote in the 2007 primary election, increasing the voter rolls by 1.64%. 
            Registration figures continued to show little change in the percentage of male and female voters with females representing nearly 53% of the registration population and males representing 47%. 
In terms of party registration, voters registered as “Others? saw the greatest percentage increases.  While both Democrats and Republicans increased their number of registered voters by 1.60%, 1.47%, since May of 2007, respectively, “Others? nearly doubled their pace by increasing by 2.98%.  Democrats increased their voters by 25,495 to 1,616,586.  Republicans increased their voters by 15,001 to 1,037,861.  “Others? increased their voters by 5,389 to 186,451.
            “Others? were also the only designation to increase their percentages of the Kentucky voter rolls as they now comprise 6.56% of Kentucky voters.  That is an increase of 0.08% since the primary election.  Democrats and Republicans saw their percentage decrease from 56.93% and 36.6%, respectively, in the May primary election to 56.9% and 36.53% for the upcoming election, a decrease of 0.03% and 0.07%, respectively.
Compared to the 2003 general registration figures, there has been a net increase of 135,445 in total voters, or 5.00%; 30,768 in Democratic voters, or 1.94%; 93,664 in Republican voters, or 9.92%, and 11,013 “other? voters, or 6.28%.  Democrats, Republicans, and “Others? represented 58.62%, 34.90%, and 6.49% of the electorate in 2003, respectively.  Since 2003, the percentage of the electorate has changed -1.69% for Democrats, 1.7% for Republicans and 0.07% for “Others? as compared to current percentages of Kentucky registered voters.
Secretary Grayson noted that the election’s focus now shifts to getting people to the polls on Election Day.  “Now that the registration books are closed, we must work diligently to see that every registered Kentuckian votes in the November 6, 2007 general election.? 
Grayson encouraged citizens to utilize the Voter Information Center (VIC) on the State Board of Election’s website to confirm their voter registration, determine whether they are eligible to vote in the primary, and to locate their polling place.  For complete registration statistics and additional election information or to access the VIC, please visit

Ky. Lawmakers discuss bills to expand DUI offenses

Friday, October 19th, 2007

- two bills that would create a “per se” DUI violation for drivers who have a detectable amount of a controlled substance in their urine or blood have been pre-filed-


 Oct. 19, 2007 – LEXINGTON — Proposals that would allow state courts to prosecute individuals for driving under the influence of drugs if they have detectable amounts of controlled substances, such as narcotics, in their bodies were discussed by a state legislative committee today. 

At least two bills that would create a “per se” DUI violation for drivers who have a detectable amount of a controlled substance in their urine or blood have been pre-filed for consideration by the 2008 General Assembly, which begins meeting in January. 

Sen. Ray Jones, D-Pikeville, who filed similar legislation during the 2007 Regular Session, told the Interim Joint Committee on Judiciary during its meeting this morning at the Robert F. Stephens Circuit Courthouse that some criminal defense attorneys are asking courts to suppress blood or urine tests showing drivers had illegal drugs or abused prescription drugs in their system at the time of an accident based on the claim there is no evidence that the person was too impaired to drive. A per se violation would aid in the prosecution of those cases, he said. 

“In Bowling Green, there was a serious collision where someone was not able to be prosecuted because of this loophole in the law,” Jones said. “It doesn’t make any sense to me that if someone has cocaine in their possession that they can be charged for possession of it, but can take it and get on the highway and avoid prosecution.” 

Jones explained that a person with a high tolerance for alcohol or drugs may allow them to show less impairment while driving than someone with less tolerance, but that doesn’t change the fact that driving over a certain blood alcohol limit (.08 for drivers of most vehicles, .04 for commercial drivers and .02 for juveniles) is against the law. “We have a zero tolerance when those folks get on the highway,” he said. 

Alan George with the Kentucky County Attorneys Association said he has been prosecuting DUI cases since 1981 and has seen an increase in DUI drug cases, but that a lack of funding for toxicology experts makes the cases difficult to prosecute without a per se violation. 


“We believe this is something that is absolutely needed to assist in prosecution of these cases,” said George. “If it’s illegal to have these drugs, it should be illegal to have them in your system.” 

Committee member Rep. Robin Webb, D-Grayson, questioned whether a per se violation in the law was appropriate if there is no obvious driving impairment. 

“We’re not talking about the condition of impairment here. It’s there (in the body). It doesn’t have to affect you,” she said. 

 Criminal defense attorney Bob Lotz, who testified before the committee, had a similar view. “We’re talking about… convicting people of driving under the influence when there is no proof that they are driving under the influence. (The blood level ) could be .0001 of any controlled substance, and you are guilty of DUI.” 

Committee co-chair Sen. Robert Stivers, R-Manchester, said drug experts should be able to testify in court of the effects of certain drugs on the body in DUI cases. Providing more funding for crime labs and toxicologists would help address the problem, he suggested. 

“I think as a Legislature we need to look at the funding mechanism for our crime labs,” he said. 

According to Kentucky State Police Captain Tim Lucas, who also testified before the committee, 7,500 DUI offenders were tested for drugs in 2006. Sixty three percent of them tested positive for use of a controlled substance, he said. 


Judge Wingate sets Precedent Permitting EBEC to Monitor the Conduct of All Prosecutors

Friday, October 19th, 2007


Oct. 19, 2007 –  Franklin Circuit Judge has backhandedly created a new function for the Executive Branch Ethics Commission in a decision granted Oct. 17, 2007 in which he ruled that the EBEC could look into an anonymous complaint it received about Attorney General Greg Stumbo.  The complaint is believed to have risen out of the Merit System investigation conducted by the Attorney General against Gov. Ernie Fletcher and his administration.

 By allowing the Executive Branch Ethics Commission to review the complaint against the Attorney General, the court has recognized the jurisdiction of the commission to set standards of conduct for prosecutors. 

 Franklin Circuit Court Judge Thomas Wingate was appointed by Gov. Ernie Fletcher on June 16, 2006 to fill the vacancy created by the retirement of Judge William Graham.

 The anonymous complaint is believed to be a retaliation for the Attorney General’s investigation which Gov. Fletcher has called “a witch hunt?. 

 On the 9/17/07 episode of Kentucky Tonight, Gov. Ernie Fletcher referred to Greg Stumbo as ‘Mike Nifong.’  That same day, the anonymous complaint was sent to the Executive Branch Ethics Commission in which Greg Stumbo is compared to ‘Mike Nifong.’  The Complaint is dated September 17, 2007.

For more details on the Wingate ruling see Courier Journal article:

 By Stephenie Steitzer    The Courier-Journal
FRANKFORT, Ky. — A Franklin circuit judge ruled yesterday that the Executive Branch Ethics Commission may look into the attorney general’s handling of the state merit system investigation based on an anonymous complaint it received.
The complaint, sent by a “concerned citizen” in September, accuses Attorney General Greg Stumbo and two members of his staff of both prosecutorial misconduct and violating the state ethics code.
It was sent to the commission and leaked to The Courier-Journal, other media outlets and bloggers.
Jill LeMaster, the commission’s executive director, told The Courier-Journal at the time that the commission staff had received the complaint but could not say whether an investigation would be opened.
Stumbo’s office filed a request for a temporary injunction by the court to stop the investigation.
Franklin Circuit Judge Thomas Wingate said the investigation could proceed but criticized the commission for confirming that it had received the complaint.
“Although it appears that it was the complainant who provided specific names to the media, rather than the commission, to confirm the receipt of the complaint was inappropriate,” he said.
Wingate said that violates the part of the law that requires confidentiality in matters pertaining to a preliminary investigation.
The judge also ordered the commission to stop soliciting informal complaints from the public, although it is free to continue accepting and reviewing them.
Commission attorney John Steffen said it would get rid of the informal complaint form on its Web site if necessary.
“I think it’s a good order for the commission,” he said. “I recognize the judge did grant part of what the (attorney general) asked for. It’s never been the commission’s policy of soliciting informal complaints anyway.”
Steffen also said he believes the criticism of the commission’s decision to confirm the receipt of complaints is fair. The commission welcomes the chance to clarify its policies, he said.
The ethics commission is expected to decide today whether it will proceed with an investigation into the matter. Under the law, however, it will not make that decision public.
Deputy Attorney General Pierce Whites said the office is reviewing the possibility of appealing the part of the ruling that allows the commission to proceed with an investigation.
He added, however, that the office welcomes “all legitimate inquiries because the attorney general is very proud of the work his office did in exposing public corruption.”
Stumbo’s office led a 2005-06 investigation of the Fletcher administration’s hiring practices under the state merit system.
A Franklin County grand jury returned indictments against 15 named defendants, including Gov. Ernie Fletcher, and 14 sealed indictments.
Fletcher pardoned others charged, and the three misdemeanor charges against him were dropped as part of an agreement with Stumbo in which the governor admitted serious evidence of wrongdoing in his administration.
Reporter Stephenie Steitzer can be reached at (502) 875-5136.

Denise Clayton becomes First Black Woman on Ky. Court of Appeals

Friday, October 19th, 2007

Gov. Ernie Fletcher appointed Clayton yesterday to fill the seat vacated by Lisabeth Hughes Abramson, who last month replaced the late Justice William E. McAnulty Jr. on the Kentucky Supreme Court.
 Clayton, who is chief circuit judge for Jefferson County, called the appointment exciting and humbling, but also bittersweet because of McAnulty’s death from cancer just a few months after he was appointed to the state’s highest court.
Judge Clayton was also  the first black woman to become a Kentucky Circuit Court judge.
 See: Full Courier Journal article
: Clayton first black woman on Ky. Appeals Court
Supporters applaud governor’s action
She was the first black woman to become a Kentucky Circuit Court judge. Now, Denise Clayton is setting another first — breaking the same barrier on the state’s Court of Appeals.

Mothers Against Drunk Drivers used to oppose fixing DUI tickets, now they accept cash to look the other way.

Thursday, October 18th, 2007

The act of granting a pretrial diversion of criminal charges, has historically been described as “fixing a ticket?.  We find no statutory authority for such a practice.

By LawReader Senior Editor Stan Billingsley  – Oct. 18, 2007A Kentucky newspaper carried a story this week, which has resulted in users’ questioning LawReader about the authority for a County Attorney to operate a pretrial diversion program and then to donate the money raised  to MADD, (Mother’s Against Drunk Drivers) as a condition for misdemeanor charges to be diverted.  In the news story, the prosecutor took credit for having raised $36,000 for MADD since 2005, thru his pretrial diversion program.MADD uses the money donated by the County Attorney (from funds raised from defendants as a condition for the diversion (i.e. dismissal) of criminal charges,)  “…for its outreach mission, including the annual MADD candlelight vigil and school education programs.?We note that all prosecutors have certain inherent powers, as do judges, which are not spelled out in the statutory law.  That being said it would appear that only Commonwealth Attorneys have clear statutory authority to operate a pre-trial diversion program, and then diversions must be approved by the court.In l998 the General Assembly enacted KRS 533.250 through KRS 533.262 which established pretrial diversion and set forth the criteria and procedure for its use. However, the pretrial diversion program created by the General Assembly only applies to Class D Felony offenses. (Clements v. Com., 203 S.W.3d 710 (Ky. App., 2006) and requires court approval.

When there is a diversion of a DUI charge, then even more serious questions about the practice arise.

KRS 189A.120  prohibits a prosecutor from amending a DUI charge to a lesser offense, and charges him with the duty to not agree to any amendment made by the trial court.

See: KRS 189A.120 Prosecutor’s duties with regard to amendment of charges – Amendment of blood alcohol concentration — Record of charges and amendments.
  (1) When an alcohol concentration for a person twenty-one (21) years of age or older in a prosecution for violation of KRS 189A.010 is 0.08 or above, is 0.02 or above for a person under the age of twenty-one (21), or when the defendant, regardless of age, has refused to take an alcohol concentration or substance test, a prosecuting attorney shall not agree to the amendment of the charge to a lesser offense and shall oppose the amendment of the charge at trial, unless all prosecution witnesses are, and it is expected they will continue to be, unavailable for trial.
The Kentucky DUI statute is found in KRS Chapter 189A.  Under that law amendment or suspension to lesser charges is forbidden.

 See:  Krs 189A.010 (9):
 (9) When sentencing persons under subsection (5)(a) of this section, at least one (1) of the penalties shall be assessed and that penalty shall not be suspended, probated, or subject to conditional discharge or other form of early release.

This provision forbidding “suspension, probation or conditional discharge or other form of early release? applies to any DUI offense.  But a careful review of the wording in KRS 189A.010(9) requires consideration of the words, “When sentencing persons…?.  Those words are directed to the trial judge since he is the only person who gets to “sentence?.   

A diversion of the charges prevents a court from ever hearing the charge, and therefore there is no participation or involvement of the trial judge in any misdemeanor diversion decision.  To justify a diversion of the charges would require one to believe that “when sentencing persons? applied only to Judges, but that prosecutors by avoiding presentation of the case to the court could bypass all court procedures.

The language in  Flynt v. Commonwealth of Kentucky, 105 S.W.3d 415 (Ky., 2003), discusses a pretrial diversion procedure under KRS 533, and says the Circuit Court must approve the diversion agreement.  Of course KRS 533 deals only with Class D felony diversions and no authority is granted by Chapter 533 for the Circuit Court to grant DUI diversions of misdemeanor offenses.  Other rulings would allow the Circuit Court to sentence in a misdemeanor case if that case originally came to the Circuit Court attached with a felony.  But in a case which originally started out as a misdemeanor and not attached to a felony offense, would be in the sole jurisdiction of the District Court.

However, any DUI misdemeanor that happened to be tried by the Circuit Court would still be subject to the prohibition of amendment of DUI offenses as found in KRS 189A.010 (5) thru (9).
In the only statute authorizing pretrial diversion, the General Assembly limited this procedure to Class D felonies tried by Circuit Courts, and required approval of the diversion by the court.  The pretrial diversion program operated by a County Attorney has no statutory foundation.  There is no case law to our knowledge that authorizes such a program.  And since the case never gets to the District Court, there is no monitoring by the District Judge.The statute prohibiting amendments in DUI cases, appears to be directed towards the trial court. Technically when a prosecutor himself refuses to file the case with the court, or refuses to prosecute, and instead enters into a diversion agreement with the defendant, the court is effectively bypassed.  To justify a pretrial diversion program for DUI offenses one must impose a very narrow reading of the statute to justify the County Attorney doing what is forbidden for the Trial Judge to do.The only basis for a pretrial diversion program operated by a County Attorney if justified, must come from his inherent powers.  Any prosecutor is charged with the duty not to prosecute any offense for which the facts do not provide probable cause.  But the correct procedure in those instances would be a dismissal of the charge, not diversion.Diversion implies that there are sufficient facts to justify a prosecution (i.e. probable cause exists)  and the person could be tried.  The diversion process inherently suggests that since a penalty or payment of some sort is sometimes imposed, that the defendant did something wrong.  Further in a diversion program, there is always some condition imposed, and at least the implication exists that if the diversion program rules are not followed by the defendant, that the prosecutor will punish the defendant by prosecuting the defendant for the original diverted charge.The next issue presented by the donation to MADD is the total lack of authority in the law for a prosecutor (or a judge) to operate a program where they coerce “donations? from defendants in exchange for dismissal or amendment down of criminal charges, and for the donation then to be paid to private organizations such as MADD.

All fines collected by the courts are paid into the General Fund.  There is no law allowing the courts to collect fines, penalties, or diversion fees, and then bypass the General Fund and donate the money to a charity.

MADD by accepting donations of cash (made by defendants who were cited by a police officer for DUI), makes them complicit in encouraging a practice where persons charged with DUI offenses are allowed to go free of punishment, free of license suspension, free of jail time, and in violation of the clear intent of KRS 189A.090.  The practice clearly operates to allow people charged with DUI offenses to make a donation to MADD, and avoid prosecution.  This is like the church selling dispensations from sin.

For years after the current “Slammer Bill? was endorsed by MADD and adopted by the General Assembly in l984, the anti-drunk driving organization frequently attended court rooms and informed the press if a Judge amended a DUI charge.  That practice has apparently given way to their silence being purchased by cold cash.

We concede that diversion is not the real problem.  This tool when properly used by prosecutors often is a reasonable alternative to the court process.  We have to raise an eyebrow however, when the process is used to immunize drunk drivers from prosecution when the General Assembly has so strongly outlawed the practice.

If a judge is forbidden from amending a DUI charge, and is forbidden from collecting “donations? for granting the amendment, and then giving this coerced money to a politically active private organization, then prosecutors should be forbidden to do the same thing.

The $36,000 accepted by MADD, according to the newspaper article admittedly came “from fees paid by participants in the county attorney’s DUI diversion program for first – time offenders.” 

This incident reminds one of the benefit the public derives from the Judicial Conduct Commission. There is no such body to hear complaints against Prosecutors.  

 As a former member of the Judicial Conduct Commission I recall that when prosecutors felt a judge had done something improper they didn’t hesitate to complain to the Judicial Conduct Commission.  If it serves the public to have a  Judicial Conduct Commission, then the same type of commission ought to be created by the legislature to monitor the conduct of prosecutors. 

This incident reminds one of the benefit the public derives from the Judicial Conduct Commission. There is no such body to hear complaints against Prosecutors. 

This incident reminds one of the benefit the public derives from the Judicial Conduct Commission. There is no such body to hear complaints against Prosecutors.  As a former member of the Judicial Conduct Commission I recall that when prosecutors felt a judge had done something improper they didn’t hesitate to complain to the Judicial Conduct Commission.  If it serves the public to have a  Judicial Conduct Commission, then the same type of commission ought to be created by the legislature to monitor the conduct of prosecutors.


 Clements v. Com., 203 S.W.3d 710 (Ky. App., 2006)
 In 1998, the General Assembly enacted KRS 533.250 through KRS 533.262 which established pretrial diversion and set forth the criteria and procedure for its use. Pretrial diversion allows an individual charged with certain Class D felonies who meets the statutory criteria to enter a guilty plea and be placed in a pretrial diversion program.


If the individual successfully completes pretrial diversion, then his felony charge will be “dismissed-diverted”. In essence, the record of the individual’s felony conviction is expunged.
 Flynt v. Commonwealth of Kentucky, 105 S.W.3d 415 (Ky., 2003)
  By approving a defendant’s application for pretrial diversion, a circuit court permits the defendant to embark upon a path, which, if successfully negotiated, will result in the defendant’s charges being “dismissed-diverted” — a status indistinguishable from any other dismissal as it is defined by statute as one that “shall not constitute a criminal conviction.”

Old Highway Dept. Office Bldg. In Downtown Frankfort Reopens Following Major Renovation

Wednesday, October 17th, 2007

FRANKFORT, Ky. — A rededication ceremony and ribbon cutting were held today at the newly renovated State Office Building on High Street in downtown Frankfort. A major restoration of the 1938 Art Deco office tour was recently completed to address both functional obsolescence and environmental issues.  

“The renovation of the State Office Building has been a wonderful success story for state government and downtown Frankfort,? said Governor Ernie Fletcher. “Not only did we save the architectural beauty of this historic structure while modernizing the workspace, we also increased building capacity and came in $4.1 million under budget.? 

New tenants of the building are the Kentucky Department of Revenue, the Commonwealth Office of Technology and the Personnel Cabinet. Prior to the renovation, the building served as home to employees of the Kentucky Transportation Cabinet (KYTC) until construction of the new KYTC building adjacent to the State Office Building was completed. 

“Prior to this renovation, the building included awkward office space, asbestos tile and out-of-date electrical systems,? said Sec. Robbie Rudolph. “If you were ever in this building before today, you know first-hand the tremendous improvements this renovation represents.? 

The last major renovation of the building dates back to the addition that was built in the 1960s. The building’s Art Deco influence, popular in the 1930s and 40s, is evident in the exterior brickwork and design of the building. Other Art Deco elements inside the building include the elevators, terrazzo tile and ornate brick work. 

“Great care was taken during this renovation to modernize the building while maintaining its architectural integrity,? said Mike Burnside, secretary of the Finance and Administration Cabinet. “I think we honored the historical significance of the structure while also bringing in 21st century office functionality.? 

The total cost of the project was approximately $55 million, $4.1 million under the $59 million appropriation. The building’s floor plan now features a modular design, which increased the occupancy from 800 to 1,200 employees. 

“We essentially got 400 more people in this building for free,? said Rudolph. 

Rudolph and Burnside were joined at today’s ceremony by Personnel Cabinet Secretary Brian J. Crall and Department of Revenue Commissioner John May. 

Sec. Crall said that relocating the Personnel Cabinet to the State Office Building provides greater accessibility for the many current and prospective state employees who visit the testing and counseling branch in hopes of gaining state employment. 

“Being in a facility this centrally located, and which allows for virtually all of the Personnel functions to operate under one roof, should serve to appreciably enhance our services to employees and employment seekers.? 

Revenue Commissioner May said the consolidation of his department’s many different locations into one facility is a great efficiency. 

“The Department of Revenue is truly excited to have its operations consolidated into the State Office Building,? said May. “The rehabilitation of this historic structure into modern office space affords Revenue operations the ability to better serve the citizens of Kentucky. This workspace is a welcome environment for our nearly 900 employees.” 

Renovations of the existing parking area and work on an additional lot on the site of the old Frankfort Scrapyard are ongoing and will be completed by the time the building is fully occupied. These parking areas will be landscaped to include medians with greenery and enhanced lighting for safety and security purposes. 

Many Businesses Face Upcoming Filing Deadline

Wednesday, October 17th, 2007

Oct. 17, 2007 – (Frankfort, KY) Businesses based in Kentucky, both foreign and domestic, are facing an upcoming deadline to file their annual reports with the Office of the Secretary of State.  Secretary of State Trey Grayson is reminding all Corporations, Limited Liability Companies (LLCs), and Professional Services Corporations (PSCs) plus all Limited Partnerships and Limited Liability partnerships formed after July 12, 2006, that are registered with the state and that failed to file an annual report by June 30 of this year that they are in bad standing and must file their annual report by October 31, 2007.  Non-profit corporations have until November 30, 2007.   Failure to do so will result in the entity being administratively dissolved or being revoked of its authority to do business in Kentucky.

The Office of the Secretary of State is encouraging business entities to “save time, and file online,? by utilizing the annual report online filing service on the office’s website at:   Businesses have until 11:59 p.m. ET on their respective filing deadline to file online.
“The easiest way for all businesses to file their annual report is to do so electronically on our website,? stated Secretary Grayson.  “In a matter of minutes, you can view your information, make any necessary changes, and file your report.  There is no waiting or turnaround time.  Just log in, and in few short moments, you are finished.?

Secretary Grayson also announced the latest new online service with regards to annual reports.  For the first time, annual reports can be amended.  The Office has made that option available either offline or via the web. 

During Grayson’s tenure, he has announced several new online services for annual reports.  Forms are now pre-populated to include generated information from the company’s previous filing, saving the company the redundancy of entering information every year.  In addition, these forms can be accessed at the beginning of the new year.  Previously, businesses had to wait until they received a mailed form from the Office of the Secretary of State.

For more information about annual reports or other business filings, visit or call (502) 564-2848.

Issues Confronting the 2008 Kentucky General Assembly book available online.

Wednesday, October 17th, 2007

Oct. 17, 2007 FRANKFORT – A book containing issue briefs on topics likely to confront lawmakers during the Kentucky General Assembly’s 2008 session is now available in print and online. “Issues Confronting the 2008 Kentucky General Assembly” contains 26 issue briefs prepared by members of the Legislative Research Commission staff. The book is not meant as an exhaustive list of issues that lawmakers will consider, but reflects a balanced look at some of the topics that have been discussed in legislative committee meetings. 

The book can be viewed at Copies can also be picked up at the LRC Publications Office in the State Capitol, Rm. 83