Archive for April, 2008

Judge Kathleen Montano left a trial of accomplishments during her short life.

Wednesday, April 23rd, 2008


She was a popular and respected Judge and she will be missed. 

Her funeral will be this Friday. Visitation at 2-8 p.m. Wednesday and Thursday at Pearson-Ratterman Funeral Home, 12900 Shelbyville Rd. in Middletown, KY


MONTANO, KATHLEEN VOOR, 46, of Louisville, passed away Monday, April 21, 2008 at Baptist East Hospital. A Jefferson Circuit Court Judge, Judge Montano previously served on the Family Court, Teen Court, Truancy Court and as a District Court Judge. Before taking the bench, she served as a senior staff attorney for the Kentucky Court of Appeals and worked in private practice at Mosley, Clare & Townes. Judge Montano received her law degree from the University of Louisville Brandeis School of Law in 1987. She was a graduate of Bellarmine University (1984), attending the University of Oxford, Oxford, England in 1984. She graduated from Mercy Academy in Louisville in 1980, where she was Student Association President. Judge Montano served the Commonwealth and the community she loved in countless capacities: chair of the Louisville Metro Criminal Justice Commission; member of the American, Kentucky, and Louisville Bar Associations; member Jefferson County Women Lawyers Association; member Business and Professional Women/ River City; the Jefferson County Teen Court Program (as Advisor to Administrative Office of the Courts); a Master of the Louis D. Brandeis American Inn of Court; member Jefferson County Delinquency Prevention Council (member Comprehensive Strategy/ Community Planning Team and Chair of the Data Collection and Analysis Subcommittee) Judicial Representative and Member of the Louisville Pro Bono Consortium, Chief Judge, Pro Tem of the Jefferson District Court (Appointed 1998-2000; Reappointed 2001-2002), Faculty Member & Lecturer, District Court Judges’ Judicial College, and Member of the Corrections Transition Task Force Appointed by Mayor Abramson. She also gave her time as Sentencing Judge and Speaker of the Broken Hearts Program, former Den Leader, Boy Scouts of America, Lincoln Heritage Counsel, Neighborhood Volunteer: American & Juvenile Diabetes Association, Girls Basketball Coach and Coach of the Quick Recall Team, St. Albert the Great, Member of the Mercy Academy Alumni Association, Mercy Academy, Board of Directors, and Member of the Alumni Board of Directors, Bellarmine University. Judge Montano was loved by her family members, friends, colleagues and admired by all for her honesty, hard work, dedication to others and devotion to the law. Judge Montano was preceded in death by her mother, Joan T. Dwane Voor. Judge Montano is survived by husband Joseph M. Montano Sr; and children, Joseph Michael (18), Catherine Clare (17), Therese Marie and Michael Bernard both (16). She is also survived by her father, Bernard H. Voor Jr., of Jacksonville, FL; and siblings, Mary Pat Dadisman (Jack), Bernard H. Voor III (Donna), Ruth A. Voor, Joan T. O’Connell (Daniel), and Michael J. Voor (Shannon). Survivors also include numerous aunts; uncles; cousins; nieces; and nephews; including several “Fairy Godchildren.”


The funeral Mass will be 11 a.m. Friday at Saint Albert the Great Catholic Church, 1404 Techny Lane. Burial will follow at Calvary Cemetery in Louisville, KY.


Visitation will be 2-8 p.m. Wednesday and Thursday at Pearson-Ratterman Funeral Home, 12900 Shelbyville Rd. in Middletown, KY. In lieu of flowers, memorial donations may be made to Mercy Academy, Saint Xavier High School, or Saint Albert the Great Catholic Church.
Published in The Courier-Journal on 4/23/2008.   Guest Book

Ohio Supreme Court justices rule on wording of charges

Monday, April 21st, 2008

Just before he was sentenced for his role in the robberies of pizza deliverymen, James Bryant was arraigned again on two counts of robbery – for the same crimes and with the same facts, but with different language in the indictment. 

The extra step was necessary based on a recent decision by the Ohio Supreme Court. The ruling said indictments on robbery charges had not been worded correctly and therefore were “defective.” 

And a defective indictment means the defendant has not actually been charged. 

The legal community locally and throughout the state is beginning to react to the high court’s decision in State vs. Colon, a case out of Cuyahoga County. More specifically, prosecuting attorneys and defense lawyers are trying to figure out the possible ramifications. 

“If it’s fully enforced the way we are interpreting, it is a profound opinion that would affect not only pending cases, but every case where someone was ever convicted … over an issue that should not be a major issue,” said John Murphy, executive director of the Ohio Prosecuting Attorneys Association. 

“It’ll probably be OK on pending cases; we can react and go back and reindict with the new language,” he added. “It’s the old cases that have concluded that we’re concerned about.” 

That could mean “tens of thousands” of cases, said 

John Weglian, chief of the Lucas County Prosecutor’s special units division. Anticipating that thousands of cases will return to Lucas County on appeals and post-conviction relief motions, Mr. Weglian said he’s hopeful the Supreme Court will reconsider the decision. 

The opinion was released April 9 and affirmed by justices Thomas J. Moyer, Paul E. Pfeifer, Maureen O’Connor, and William Wolff, of the Second Appellate District sitting in for Justice Robert Cupp. Dissenting were justices Evelyn Lundberg Stratton, Terrence O’Donnell, and Judith Ann Lanzinger. 

The case revolved around Vincent Colon, who was convicted by a jury on a charge of robbery. Prior to his trial, the Cuyahoga County grand jury indicted him on a single count, charging: “[I]n attempting or committing a theft offense … or in fleeing immediately after the attempt or offense upon [the victim, the defendant did] inflict, attempt to inflict, or threaten to inflict physical harm on [the victim].” 

The court agreed that the “indictment did not expressly charge the [mental state of the defendant] element of the crime of robbery,” therefore the indictment was defective. 

Specifically, because the word “reckless” was not added to describe the type of force inflicted while committing the theft, the indictments omitted an element of the crime. 

Without an element of the crime, the indictment actually failed to charge a crime at all, the decision said. 

The decision further said the judge in the case failed to speak about the mental state of the defendant at the time of the offense while giving instruction to the jury. 

Both omissions meant that Colon did not receive a constitutional indictment or a constitutional trial, the opinion said. 

The Supreme Court also ruled that the issue could be brought up on appeal, even though it was never raised at the time of trial, because it “protects defendant’s right to a grand jury indictment.” 

Defense attorney John Thebes agreed with the decision but questioned the implementation. Saying that the opinion was “good law,” Mr. Thebes pointed out that it may be too early to determine what the effect would be. 

“Any time a defendant and his attorney are notified through the indictment as to all the elements of the crime, including mental state, I think it’s a good thing,” he said. “What’s at issue is going to be the practical effect of the opinion on past cases. At this point, it’s too early to tell.” 

“It’s a terrific decision,” said Jeffrey Gamso, legal director for the American Civil Liberties Union of Ohio. “It’s an all-too-rare recognition that Ohio’s requirement of a grand jury indictment is a real and serious issue.” 

Mr. Gamso applauded the decision and said he believed it should be retroactive to all defendants currently or previously incarcerated on robbery charges under a defective indictment. He added that what is likely to happen is that the Supreme Court will clarify its decision further. 

“I think the right thing to do is that if you were convicted under a defective indictment, then you shouldn’t be convicted at all,” he said. “I don’t think that’s how it will be applied in the long run. Although that’s how it should be, I don’t think it will.” 

Mr. Gamso listed the State vs. Foster case as an example of the Supreme Court modifying its decision so that only those cases still active were included. 

The Foster ruling affected the language used at sentencing and resulted in those defendants with cases on appeal being resentenced under the new law, he said. 

Mr. Murphy said the Cuyahoga County prosecutor’s office intends to file a motion to reconsider the decision today. The Ohio Prosecuting Attorneys Association will be filing a friend of the court brief supporting it, he said. 

Until then, prosecutors should indict – and reindict – using the new language, Mr. Murphy said. 

“The advice is to fix your current cases and the best we can do is ask the Supreme Court to reconsider so that we can address some of the things we are concerned about,” he said. 

Since the decision was released, Lucas County has reindicted dozens of robbery cases. For James Bryant, 32, of 1212 Liberty St., the corrected indictment came in the form of a bill of information that was stipulated to by Bryant and his attorney, allowing Common Pleas Court Judge James Jensen to continue Friday with his sentence. 

Bryant, who was convicted of robbing pizza deliverymen – including using a machete one time – was sentenced to a total of 19 years and three months in prison for the two counts of robbery and one count each of aggravated robbery and abduction. 

An 18-month sentence for a community control violation was added to the total. 

Mr. Weglian said the numerous re-indictments are a result of the prosecutor’s office not taking “the chance” that the Supreme Court will reconsider. 

He added that the definitions of “inflict” and “attempt to inflict,” both elements of the robbery charge, have the connotation that the acts were intentional. That, he said, provides the mental state that the Supreme Court decided was missing from the charge. 

Common Pleas Judge James Bates noted that the Colon case had a few mistakes along the way, including that the Cuyahoga County prosecutor’s office conceded that the indictment was defective and that the judge in the case failed to instruct the jury on the defendant’s mental state. 

But with those facts, he said it would seem that the Supreme Court could have reversed that particular case and changed the law for indictments in the future. 

Because as it stands, thousands of robbery cases could potentially return to the courts, Judge Bates said. 

“That’s the law right now so we better hope they modify it slightly or be ready to crank it up because we’re going to be busy this next year,” he said

Microsoft Vista Update Wreaks Havoc

Monday, April 21st, 2008

Are you a Windows Vista user? If so, have you been experiencing some problems with some of your USB devices within the last couple of days? Perhaps your keyboard and mouse just stopped working or maybe you’re having trouble with some of your other devices. Either way, what a pain, right?! I mean, how are you supposed to get any of your work done on your computer if the devices you count on everyday don’t even work? Well, keep reading as I explain what happened and what you can do about it!  On April 17, 2008 (just last Thursday), Microsoft made an announcement that one of their recent Windows Vista updates didn’t mix so well with certain USB devices. If you’re a Vista user, you probably know that a Windows Defender update came through to your computer last week. That update was intended to patch a critical hole in the Defender program and while that may have worked, it did the opposite for USB devices like keyboards and mice. Yep, it caused them to stop working completely.  

Unfortunately, even though Microsoft is aware of the problem, they are only “investigating the matter” and they don’t have any further information about it as of yet. So, all I can really tell you right now is to hang tight. If you’re having trouble with your devices, just try to be patient and wait for Microsoft to fix this. I will also continue to keep you updated on this. As soon as I hear anything, you all will be the first to know. No doubt about it!  


Legislature illegally passed several laws after expiration of the 2008 Session in violation of the Constitution.

Sunday, April 20th, 2008

-Courts have voided such acts. There may be a Penal Code violation.-

By LawReader Senior Editor Stan Billingsley                           April 20,2008

  In the last minutes of the 2008 session of the Ky. General Assembly, the clocks on the wall of the Ky.  House of Representatives, and Ky. State Senate.  Several bills were voted on after midnight on April 15th., the constitutional deadline for the official session of the legislature.

The purpose of this ruse was to pretend that the legal date of April l5, 2008 contained more hours than the other 364 days, thereby allowing legislation passed between sessions to be valid.

Section 42 of the Kentucky Constitution states that a session of the Ky. General Assembly “shall not extend beyond April l5?.

See FN3: Kentucky Constitution -Section 42  - Length of sessions — Legislative day.
“….a session occurring in odd-numbered years extend beyond March 30; nor shall a session of the General Assembly continue beyond sixty legislative days nor shall it extend beyond April 15; these  limitations as to length of session shall not apply to the Senate when sitting as a court of impeachment. A legislative day shall be construed to mean a calendar day, exclusive of Sundays, legal holidays, or any day on which neither House meets.       Text as Ratified on: November 7, 2000.?
Assuming that anyone wanted to spend the time and money to challenge the two or three bills that were apparently passed on April l6th, then they have some pretty good evidence to present.  The Courier-Journal said the whole procedure was captured on the KET television cameras which continued to roll after the clocks were stopped.

    We have reviewed the case law on this issue and find a very instructive ruling from our sister state West Virginia. FN1  The Supreme Court of West Virginia said the constitutional limits to the session of the legislature could not be extended by the ruse of stopping the clock on the legislative wall.  

They held that while there was a presumption from the official records of the legality of legislation, they held that extrinsic evidence other than the official journal and record of the legislature could be considered, and could require the courts to find that legislation passed after the expiration date and hour of the legislature were void.

The West Virginia court held:  “the device or the practice of stopping or turning back the legislative clock is emphatically disapproved. Such device or practice can not in law stop the actual passage of time or lawfully continue or prolong a regular session of the Legislature beyond the end of the sixty day limit.?

     The Court in Nevada  FN2 allowed the legislature to approve legislation after midnight, but this was based on an interesting  technicality found in the Nevada Constitution.  The court held:

“The Nevada Constitution requires the Legislature to adjourn its regular session “not later than midnight Pacific standard time 120 calendar days following its commencement.? 

The Nevada court went on to reason that the legislative clocks on the wall had been adjusted to Pacific Daylight Savings Time, while the constitution referred only to Pacific Standard Time.

  The court reasoned that this gave the legislature a one-hour grace period, and as a result all legislation passed prior to the expiration of midnight  Standard Time did not violate the constitution.   But they clearly upheld the theory that had they not been saved by the Standard time being one hour longer than Daylight Savings time, they would have violated the state constitution.

The wording of Section 42 of the Kentucky Constitution does not mention Daylight Savings Time, and that same theory would not appear to be valid to raise in Kentucky.

If the legislature can extend the session to a period of time greater than 60 days, then what prevents it from extending it to 100 days?   If they can change the date on the calendar and turn off the clocks, they could claim unlimited authority to extend their sessions as long as they wished.

While the legislative record will indicate the session did not extend longer than April l5th,  than any attestation of any officer of the Legislature who says it was not extended would be subject to prosecution for perjury.  We assume that the signing and enrollment of a bill by the Speaker of the House, the Clerk and the Senate President require an oath of attestation.  If so one can logically see how such an act, if proven, might violate the Ky. Penal Code. 

    Theoretically any person who falsely attested that the bill was passed legally could be charged with Perjury for deceiving the Governor about the legality of any bill passed after midnight on April l5th. The Governor would be the “public servant? who was “mislead? as required in KRS 523.030.

See: KRS 523.030 Perjury in the second degree.
(1) A person is guilty of perjury in the second degree when he makes a material false
statement which he does not believe in a subscribed written instrument for which an
oath is required or authorized by law with the intent to mislead a public servant in
the performance of his official functions.
(2) Perjury in the second degree is a Class A misdemeanor.
Effective: January 1, 1975. We have a better solution to this issue.  Why doesn’t the Ky. Supreme Court just declare that the penalty for this alleged transgression would be that this whole session of the legislature must be set aside and just call it a “forfeit?.  It will not be missed by anyone.

That would be not unlike the occasion some years ago when the NCAA took away WKU’s trophies when it was later found that one of their players had signed with an Agent before the NCAA tournament.

FOOTNOTE 1 –West Virginia    

See:  State ex rel. Heck’s Discount Centers, Inc. v. Winters, 132 S.E.2d 374, 147 W.Va. 861 (W.Va., 1963) September 10, 1963

‘While this Court must accord to the Legislature, a co-ordinate branch of the government, every constitutional power or right possessed by it, the fact must not be overlooked that the Court is charged with the solemn duty of determining what acts of the Legislature are constitutional, and what acts have been passed by the Legislature in conformity with the demands of the Constitution, when such questions are properly presented to the Court.

The mere stopping of a clock does not stop the passing of time. The sixty day provision of the Constitution does not prevent the Legislature, by ‘a concurrence of two-thirds of the members elected to each house’, from extending a session beyond sixty days, if necessity therefor exists. The method so provided for an extension of the session by the Constitution appears ample but, if not ample, we are not warranted in avoiding the direct and certain command of the Constitution by any sort of subterfuge, and we do not hesitate to say this Court, at least as now constituted, would adjudge any legislation invalid if it be established by a proper showing to have been enacted beyond the sixty day period, where no constitutional extension is shown to have been authorized.’
   State v. Heston, 137 W.Va. 375, 71 S.E.2d 481, the Court quoted with approval the language quoted above from the opinion in the Armbrecht case, carefully reviewed pertinent precedents and held in the third point of the syllabus: ‘A bill duly enrolled, authenticated, and approved is presumed to have been passed by the Legislature in conformity with the requirements of the Constitution, unless the contrary affirmatively appears from the journal of either house or other legislative records; and the failure of the [147 W.Va. 870] Legislature to comply with constitutional requirements in its enactment, which can be considered only when disclosed by ambiguity, omission or conflict in such journal or other legislative records, must be clearly and convincingly established to overcome such presumption.

That case is authority for the proposition that extrinsic evidence may be considered in a case such as this to prove that the legislature failed to comply with constitutional requirements in case of ambiguilty, omission or conflict in the legislative journal.

  • * * There is nothing in any of the records of the regular session, 1951, of the Legislature which indicates that the time clock in either House was stopped or turned back before midnight of March 10, 1951, or that creates any ambiguity concerning that fact which would permit its establishment by extrinsic evidence. For these reasons that question can not be determined by this Court in this proceeding. It should be said, however, that the device or the practice of stopping or turning back the legislative clock is emphatically disapproved. Such device or practice can not in law stop the actual passage of time or lawfully continue or prolong a regular session of the Legislature beyond the end of the sixty day limit imposed by Article VI, Section 22, of the Constitution of this State. Any legislative action taken, after the expiration by the actual passage of time at midnight or the sixtieth day of an unextended regular session, under the device or the practice of stopping or turning back the legislative clock, or other like device or practice,[147 W.Va. 871] is forbidden by the Constitution of this State, is unconstitutional, null and void and, in a proper proceeding in which it is shown by competent evidence that any such action has been taken, will be necessarily and unhesitatingly so held and declared by this Court.’


FOOTNOTE 2- Nevada:

Nevada Mining Ass’n v Erdoes, 26 P.3d 753, 117 Nev. 531 (Nev., 2001)  The Nevada Constitution requires the Legislature to adjourn its regular session “not later than midnight Pacific standard time 120 calendar days following its commencement,” and deems any action taken after the deadline void unless it is taken during a special session. The Nevada Legislature commenced its 71st session on Monday, February 5, 2001, and took its final action on Assembly Bills No. 94 and No. 661 on Tuesday, June 5, 2001, between midnight and 1:00 a.m. Pacific daylight saving time. The question presented by these writ petitions is whether the legislative action was constitutional. We conclude that it was, because midnight Pacific standard time (PST) is equivalent to 1:00 a.m. Pacific daylight saving time (PDST); thus, the Legislature’s final action on the bills was taken before the constitutional deadline and the bills must be enrolled and delivered to the Governor.

The fundamental intent of the constitutional amendment is to set a durational limit on legislative sessions. Our construction of the provision gives full effect to the 120-day limitation, without extending the limitation beyond its terms or frustrating its purpose. It would be absurd for us to interpret Pacific standard time to be the same as Pacific daylight saving time, and we decline to do so.(FN29) Midnight Pacific standard time on June 4, 2001, was the equivalent of 1:00 a.m. Pacific daylight saving time on June 5, 2001, and the Legislature had authority to act until the clock struck 1:00 a.m. Since A.B. 94 and A.B. 661 were passed by both houses before the adjournment deadline, Legislative Counsel has a constitutional and statutory duty to enroll the bills and deliver them to the Governor.

Kentucky Constitution -                Section 42

Compensation of members — Length of sessions — Legislative day.

     The members of the General Assembly shall severally receive from the State Treasury compensation for their services: Provided, No change shall take effect during the session at which it is made; nor shall a session occurring in odd-numbered years extend beyond March 30; nor shall a session of the General Assembly continue beyond sixty legislative days nor shall it extend beyond April 15; these  limitations as to length of session shall not apply to the Senate when sitting as a court of impeachment. A legislative day shall be construed to mean a calendar day, exclusive of Sundays, legal holidays, or any day on which neither House meets.

     Text as Ratified on: November 7, 2000.

Study Shows State Courts Vacating Many Arbitration Awards for Employees, but Not for Employers

Saturday, April 19th, 2008

Marcia Coyle The National Law Journal April 21, 2008 

As consumer, employee and other groups carefully build momentum in Congress for changes in the nation’s arbitration landscape and business groups just as carefully organize their opposition, a new empirical study reports a “disturbing trend” at the state level: state courts vacating many arbitration awards for employees, but not for employers. 

The new study, conducted by labor and employment law scholar Michael LeRoy of the University of Illinois College of Law, is another and important piece in the complex arbitration mosaic, whose various parts are being re-examined by members of Congress and others for legislative “fixes” before the end of this year or early next year — depending on the November election outcome. 

The legislation in Congress focuses primarily on the front end of the system and would prohibit mandatory, predispute arbitration in consumer, employee and franchise agreements. LeRoy’s study focuses on the back end of the system: federal and state court review of employment arbitral awards. 

LeRoy’s data reflects a sense of “snowballing futility for employees,” said the author. 

“When courts vacate many awards that rule for employees, the individual must either return to a lengthy and costly ‘do over’ arbitration — or worse, be stuck with a useless award, and no other recourse” because a Supreme Court ruling prevents them from suing, the study said. Court review is becoming “an insurance program that protects employers from costly awards.” 

LeRoy’s findings did not surprise lawyers at the Washington-based Public Justice (formerly Trial Lawyers for Public Justice), which has a mandatory arbitration abuse prevention project. In preparing a manual for that project, the organization did a less exhaustive review of challenged arbitration awards, recalled staff attorney F. Paul Bland. 

“You almost never see a court overturn the arbitrator’s decision in consumer cases, but you do see it in employment cases and almost overwhelmingly where the arbitrator ruled for the employee,” he said. 


LeRoy’s database includes 443 federal and state court rulings on arbitration awards — four levels of review, two in the federal court system and two in state systems — from 1975 to 2007. 

The data set is five years in the making and it is an ongoing project, he said, explaining, “It started with my interest in how employers and employees were responding to mandatory arbitration programs, implemented in the mid- to late-1990s.” 

His study found a “statistically significant” difference in the rates for confirmation of employer and employee victories by state appellate courts: 

“Remarkably, state appellate courts confirmed only 56.4 percent of employee wins in arbitration. But when the same courts ruled on employer victories, they confirmed 86.7 percent of awards,” the study found. 

The lower state courts acted like the state appellate courts: 87.2 percent of employer awards confirmed; 77.6 percent of employee wins confirmed. 

By comparison, federal appeals courts upheld 85.7 percent of employer wins and 85 percent of employee victories. Federal district judges enforced 92.2 percent of employer awards and 92.7 percent of employee wins. 

The main reason for the difference between the state and federal court rates, said LeRoy, is that federal courts are essentially following the limited standards of judicial review established by the Federal Arbitration Act (FAA) and state courts are not. 

“The problem is that the number of award-reviewing standards is growing, due to new state laws and creeping expansion of common law standards,” said LeRoy. “This causes judges to deviate from the FAA’s extremely deferential principles.” 

The “remarkable irony” in what is happening is that employees are losing under these state laws and standards, which were enacted to protect the weaker party in the relationship — here the employee, said LeRoy. 

“Other arbitration scholars have identified what they call the ‘repeat player effect,’” he said. “Corporations are repeat players in either the employment or credit card arbitration systems and they learn the system. Even if they lose, they are smarter about how to make system work to their advantage. In any given dispute, they go up against a one-shot player.” 

Using examples drawn from his database, LeRoy shows in his study how these new laws and standards create pitfalls for arbitrators, or “trip wires,” that employers learn to use to their advantage in challenging awards against them. 

“Arbitrators tend to be highly experienced neutrals and they often cross state lines and are unaware of varying state laws,” he said, adding, for example, a state law prohibiting an award of attorney fees. “I rule for a party and after I rule, the loser does research and finds I have not complied with that or another requirement under state law and gets the award vacated.” 

If state courts followed the four main elements for judicial review in Section 10 of the FAA, there would be 10 percent or fewer awards overturned, said LeRoy. 

“The door was cracked open by the Uniform Arbitration Act and further opened by the Revised Uniform Arbitration Act, and then furthered opened by piecemeal arbitration statutes,” he said. 


LeRoy is no foe of arbitration. In fact, he believes due process recommendations adopted by the American Arbitration Association and others have eliminated many of the egregious horror stories emanating from arbitration programs in their early incarnation. 

“In my opinion, these changes have not received adequate credit for reforming the system without legislating,” he said. 

Legislation to prohibit mandatory arbitration now pending in Congress doesn’t reflect the fact that many private systems now have opt-out provisions for individuals, added LeRoy. 

“One can fairly complain the provisions are cosmetic and designed to be overlooked by individuals,” he said. “In some sense, the legislation doesn’t appear to account for the fact the market is moving away from mandatory agreements in the employment area. It’s a different matter when you look at consumer agreements.” 

There are two main bills in Congress that are the focus of pro- and anti-mandatory arbitration interest groups: S. 1782, whose prime sponsor is Sen. Russell Feingold, D-Wis., and H.R. 3010, whose chief sponsor is Rep. Henry “Hank” Johnson, D-Ga. 

The bills are identical in prohibiting mandatory predispute arbitration in consumer, employer and franchise agreements as well as in any dispute arising under any statute intended to protect civil rights or to regulate contracts or transactions between parties of unequal bargaining power. 

House and Senate hearings have been held on the bills which, not surprisingly, have drawn combat lines between business interests, such as the U.S. Chamber of Commerce, on one side, and trial lawyer and consumer interests, such as the American Association for Justice and Public Citizen, on the opposite side. 

Lobbyists and Hill staffers following the legislation now say nothing of substance is likely to happen on those two bills this year because of the expectation of a presidential veto. 

“If the election goes well from the Democrats’ perspective, I expect to see a significant ramping up of efforts — early introduction in the new session and a big push,” predicted one lobbyist. 

Two possible scenarios surround the two bills, some say. They could end up like the Family Medical Leave Act, which was vigorously opposed by business and took nine years to enact, or they could gain immediate traction because of the economy. 

Consumers are now squeezed by an ailing economy, high credit card debt and an anti-consumer bankruptcy law. There also has been widespread publicity about the National Arbitration Association and criticism that it is a badly rigged system against consumers. 

“The credit card companies are the principal people funding support for current use of arbitration clauses,” said a consumer representative. “If that industry has too many more people angry with it, then this bill will move faster than people thought.” 

But Larry Akey, spokesman for the U.S. Chamber’s Institute for Legal Reform, said the Chamber and its supporters believe there will be an attempt to move something on arbitration before the end of this congressional session. 

“We keep hearing rumors emanating particularly from the Senate that Feingold would like to get a [committee] markup on his bill sometime before summer,” said Akey. 


What may happen before the end of the session, both sides agree, is legislation to prohibit mandatory arbitration in industry-specific areas, most likely nursing homes and car buyers. 

There currently are bills pending to prohibit mandatory arbitration clauses in nursing home admittance policies, livestock and poultry contracts, homebuilding contracts, predatory tax refund anticipation loans and consumer auto purchases. 

“It’s what I call carve-outs,” said Mark A. de Bernardo, partner in the Vienna, Va., office of Jackson Lewis and executive director and president of the Council for Employment Law Equity. 

That strategy, he said, makes it difficult for the business community to oppose the bills because it fragments the business community and the piecemeal effort makes the issue appear less controversial. 

“What’s particularly negative is three things: If we’re saying mandatory arbitration is bad for Joe and Sally and then for Bob and Judy, that sets in motion a mindset that is harmful to the very nature of arbitration,” he said. 

Two, he added, the piecemeal effort has a tendency to lock in some legislators who may vote for one bill that they consider noncontroversial. 

“The leap from taking a small step to a larger step may not seem as significant,” he said. 

Finally, the strategy gives momentum to the bills’ proponents. 

The U.S. Chamber and other business groups would rather not be divided by that strategy, he said, adding, “It’s like sniper fire picking off individual soldiers. As a fighting force, we’re less effective.” 

There may be hearings on, and a push for, the nursing home legislation this year. That area, say the bill’s proponents, is rife with horror stories of abusive arbitrations. There also is the possibility of movement, they say, on the car-buyer legislation. Congress several years ago exempted car dealers from the FAA after complaints about their unequal bargaining power in arbitrations with car manufacturers. 

“We are getting an ever-mounting number of complaints from consumers and employees who have endured awful treatment in the arbitration system,” said Public Justice’s Bland. “It would not surprise me if the intense and growing level of anger and unhappiness we are seeing translates into significant pressure on legislators.” 

There is little hope for compromise in any of these areas. 

“We see it as one big package by the trial lawyer association to advance it as in many separate proposals as possible in the hope they can demonstrate this is a wide-ranging problem,” said the U.S. Chamber’s Akey. 

“I think it’s hard to compromise when the goal of other side is to effectively eliminate arbitration.” 

Va. Court Rejects Drug Searches based on Vague Suspicions

Saturday, April 19th, 2008

Police Acted on Vague Suspicions 

By Tom Jackman Washington Post, April 19, 2008; Page B01  

The Virginia Supreme Court reined in police searches yesterday, overturning convictions in two 2005 drug cases in which the court said police had conducted searches based on vague suspicions. 

In one case, a Henrico County officer followed a woman who appeared intoxicated to her car, saw what appeared to be marijuana joints inside and arrested her. The officer then found cocaine and heroin in the car. But the Supreme Court ruled that the officer had no grounds for the marijuana arrest. 

The court also deemed illegal the search of a Danville man who was seen getting into a car after leaving a suspected drug house. An officer pulled the car over for defective equipment and learned that neither the woman who was driving nor the man had a license. The officer ordered both out of the car, frisked them and found a gun and cocaine on the man. 

L. Steven Emmert, a Virginia Beach lawyer who writes about the state’s courts online, said he wasn’t surprised by the rulings. “While Virginia is still one of the law-and-order states,” Emmert said, “the Supreme Court is very respective of Bill of Rights types of cases.” 

Corinne Magee, a McLean defense lawyer, said the rulings weren’t unusual because the Supreme Court has been regularly reversing the state Court of Appeals. “What we’re seeing is the conservatism that has developed in the Court of Appeals,” Magee said, “and the Supremes reacting to that.” 

The first reversal involved Frances G. Buhrman, who was “having some difficulty maintaining her balance while walking” at a convenience store, according to Henrico Officer C.M. Nelson. She appeared to “fall asleep while operating a frozen drink machine,” the officer said. 

Nelson testified that she was concerned that Buhrman might be drunk and then drive. She followed Buhrman to her car and asked for identification, and Buhrman promptly complied. In doing so, she revealed “hand-rolled cigarettes in the interior door handle.” The officer said that she smelled a “faint odor,” that the cigarettes had a “coloration” and that she suspected marijuana. 

A trial court rejected Buhrman’s attorney’s attempt to suppress the arrest, as did the appeals court, and she was sentenced to six months in jail. 

Supreme Court Justice Lawrence L. Koontz Jr. wrote that “evidence of intoxication and vaguely ‘suspicious’ actions, without more, does not suffice to indicate that hand-rolled cigarette materials are being used for the illegitimate purpose of smoking marijuana, as opposed to the legitimate purpose of smoking tobacco.” He also said the officer failed to specify what kind of “faint odor” she smelled, making that “insufficient to create probable cause to arrest an individual for possession of marijuana in this case.” 

In the second case, Danville Officer R.V. Worsham watched a car pull up outside a house where an informant had bought cocaine months earlier. The occupants went inside and were back within a minute. Worsham pulled the car over, found that neither occupant had a driver’s license and frisked them both, finding drugs and a gun on Tyrone Junior McCain. 

Worsham also testified that he conducts pat-down searches of everyone in that “high crime” neighborhood, “for my safety.” 

Justice S. Bernard Goodwyn wrote, “A person’s Fourth Amendment rights are not lessened simply because he or she happens to live or travel in a ‘high crime’ area.” He noted that Supreme Court precedent requires specific suspicion of an individual before a search can be conducted. 

“That is a fantastic decision,” Christopher B. Amolsch, an Alexandria defense lawyer, said of the Danville case. “If the Supreme Court didn’t reverse that,” particularly after the officer said he frisked everyone, Amolsch said, “they’d be giving police a license to shake down everybody in a high-crime neighborhood.” 


UK President Todd discusses hardships caused by 2008 state budget

Friday, April 18th, 2008
Dear Alumni and Friends:

The 2008 Session of the Kentucky General Assembly adjourned Tuesday, April 15. I am very appreciative of the commitment to higher education demonstrated by state legislators in their budget agreement. Confronted with an extremely challenging economy and abundant needs across the state, our legislature and its leaders worked hard to shield higher education from substantial reductions.

We thank them for their tireless efforts on behalf of public education and the Commonwealth, and we pledge to continue working with them to demonstrate that their investment will build the foundation for a stronger University of Kentucky and a stronger Commonwealth.

The University’s budget for 2008-2009 will be very tough. We face reduced state appropriations and increased costs, and we must handle those realities without massive tuition increases.

The three percent recurring budget cut imposed by the Governor this year, combined with an additional three percent cut in our state appropriations for 2008-2009, means we will have $20 million less in state support next year. If we covered the cuts with tuition alone, it would require an 18 percent increase in tuition and mandatory fees. That is simply too high.

We have decided to keep our tuition increase below double digits, at nine percent. Even with the tuition increase and no salary increases for faculty or staff, we are still facing a $14 million shortfall that we must cover internally.

We all want a healthier budget, with lower tuition and an increase in salaries. But this tough budget does not change our responsibilities to the people of Kentucky. We owe it to them to give it our very best, regardless of the budget conditions we face.

They still need their flagship university to be affordable. They still need their statewide research university to be dedicated to fighting disease, creating businesses and jobs, and improving lives. They still need their land-grant university to reach out to every community and every family in our state. And they still need their University of Kentucky to aim to be among the Top 20 in the United States.

Thanks to all of you who contacted your legislators on our behalf during the session. We are fortunate to have such strong support across the Commonwealth. I will continue to keep you informed and call upon you in the future to help us better serve your local communities.

Lee T. Todd, Jr. ’68

Chief Justice considering raising filing fees $50 to offset budget cuts

Friday, April 18th, 2008

Jude Steve Horner reports in his weekly LawReader column that Mark Hebert of WHAS11-TV reported recently that Chief Justice Joseph Lambert is expected to recommend an increase in filing fees of $50 for circuit court civil cases, $25 for district court civil cases and $26 for wage garnishment filings. The reason? To offset budget cuts imposed on the judicial branch by the General Assembly.

Judge Approves Settlement in AIK Comp Case

Friday, April 18th, 2008

FRANKFORT, Ky. (April 18, 2008) – A settlement agreement including a $5 million payment on behalf of former officers and trustees of AIK Comp has been approved by Franklin Circuit Court Judge Thomas D. Wingate.
     The order was entered on April 17, approving a settlement agreement with Philadelphia Insurance Company to pay the money, the maximum amount available under the professional liability insurance policy covering AIK Comp’s former officers and trustees. According to John Burkholder, acting executive director of the Kentucky Office of Insurance and AIK Comp rehabilitator, the $5 million will be used to reduce the fund’s deficit and pay benefits to injured workers.
     The settlement agreement requires dismissal of all claims against former officers and trustees and enters a “bar order,? which prohibits future lawsuits against those company officials.
     However, the order does not end any actions filed against other defendants, including AIK Comp’s sponsoring organization, its auditor and its actuary for alleged failures in the operation, management and sponsorship of AIK Comp.
     AIK Comp, a self-insured workers’ compensation fund, entered rehabilitation in August 2004 and former member businesses have been assessed over $90.7 million to fulfill the fund’s benefit obligations.

Vacancy for Adm. Law Judge – Applications being taken

Wednesday, April 16th, 2008

Administrative Law Judge
Kentucky Office of Workers Claims

The Workers Compensation Nominating Commission is now accepting resumes for positions as Administrative Law Judge (ALJ) for the Kentucky Office of Workers Claims.  These are full-time positions and appointees shall not hold any other public office or maintain any private practice. 

Applicants for the Administrative Law Judge positions must be licensed attorneys and must have five (5) years experience in the Commonwealth in the practice of workers compensation law or a related field and extensive knowledge of workers compensation law (KRS 342.230(3)).  The salary to be paid is that of a Circuit Court Judge. 

APPLICATIONS MUST BE RECEIVED ON OR BEFORE FRIDAY, MAY 9, 2008, by noon (EST).   Interested parties are required to send one original resume and seven copies, along with a cover letter containing an e-mail address, to the attention of Brenda Majcher, Nominating Commission Clerk, Office of Workers’ Claims, Prevention Park, 657 Chamberlin Avenue, Frankfort, Kentucky  40601.  Questions may be directed to Mrs. Majcher at (502) 564-5550.

Those serving on the Workers Compensation Nominating Commission are as follows:

Hon. Charles Baird, Chairman
Pikeville, KY

Hon. W Grover Arnett
Salyersville, KY

Mr. Dave Disponett
Lawrenceburg, KY

Mr. Brockton Edwards
Louisville, KY

Hon. James G. Fogle
Louisville, KY

Hon. Phillip Wheeler, Jr.
Pikeville, KY

The Commonwealth of Kentucky does not discriminate on the basis of race, color, religion, national origin, sex, age, disability, sexual orientation, gender identity, ancestry or veteran status in the admission or access to, or participation or employment in, its programs or services.  Applicants and employees in this classification may be required to submit to a drug screening test and background check.

Equal Opportunity Employer M/F/D

Brenda W. Majcher
Special Assistant to the Executive Director
Office of Workers’ Claims
657 Chamberlin Avenue
Frankfort, KY  40601
(502) 564-5550 Ext. 4439

Legislature ends. 150 out of 1000 bills passed, see summary

Wednesday, April 16th, 2008


FRANKFORT — State lawmakers have adjourned “sine die,” bringing the Kentucky General Assembly’s 2008 session to a close. 


Over the course of this year’s 60-day legislative session, lawmakers considered more than 1,000 bills. More than 150 of those bills were approved and sent to the governor, including the budget bill that will guide state spending over the next two years. 


A sampling of some of the legislation approved during this year’s session follows: 


Adventure Tourism. Senate Bill 196 will boost the state’s adventure tourism industry by allowing the state to enter into agreements with private property owners for the use of their land for recreational activities. The agreements would allow property owners to permit public use of the land without facing the liability issues they otherwise would. 


Agriculture. SB 242 will establish a training fund to improve, promote, protect and support Kentucky’s beekeeping industry. Supporters of the bill note that bee colonies play a key role in the state’s agricultural industry by helping to pollinate crops. 


Alcohol vaporizers. House Bill 202 will ban the sale, purchase or use of alcohol vaporizing devices, which can be used to inhale intoxicating fumes of alcohol. 


Alternative teacher certification. SB 64 will create incentives to help train those with math and science degrees who want to become certified to teach, as well as help teachers in other fields become re-certified in math and science. 


Amusement park safety. SB 203 will require more frequent inspections of amusement park rides and prevent anyone under 18 from operating the rides. 


Animal cruelty. SB 58 will increase penalties for those who torture dogs or cats. Causing physical injury to a dog or cat as a result of torture would be a Class A misdemeanor that carries up to a year in jail, while causing serious physical injury or death would be a Class D felony punishable by 1-5 years in prison. Currently, all torture cases involving a dog or cat are Class A misdemeanors for a first offense. 


Blood donations. HB 139 will allow 16-year-olds who weigh at least 110 pounds to donate blood with written parental or legal guardian consent. The bill was crafted to help address blood shortages. 


Booster Seats. SB 120 will require young children who are too big for infant car seats to be placed in booster seats when riding in vehicles. The bill states that children under 7 years old and between 40-50 inches tall must use the boosters. 


Bullying. HB 91 will require the state Department of Education to craft discipline guidelines. The bill will also require local school authorities to alert law enforcement when school harassment involves a potential felony. Yearly reports on school harassment will be made to the Department of Education and the Legislature. 


Cancer. SB 98 will provide Medicaid coverage for breast and cervical cancer treatments for uninsured women. SB 96 will require insurers to cover colorectal cancer screenings, in accordance with guidelines of the American Cancer Society. 


Clean waterways. HB 717 will create watershed authorities to restore and improve streams around the Commonwealth. The authorities will select cleanup projects and will help leverage more money for these efforts through various grants and programs. 


Criminal justice. HB 683 allows the state Parole Board to review the cases of Class C felons without a hearing, allows for GPS tracking technology for home incarceration cases, and mandates DNA collection from all felons as well as violent juvenile offenders. 


Early voting. HB 479 will give citizens greater access to the voting process by allowing them to request absentee ballot applications via email. The bill also allows members of the military to return unused absentee ballots and still be allowed to vote on Election Day. 


Elections. HB 370 will erase the requirement that runoff elections be held in gubernatorial primary races if no candidate receives at least 40 percent of the vote. 


Energy consumption. HB 2 creates incentives for homeowners to use solar and wind energy, and to use other energy-efficient lights, windows, and insulation. The bill also requires state government and local schools to build and lease energy-efficient buildings, and establishes a low-interest loan program to help businesses and public agencies become more energy efficient. 


Gas theft. SB 136 will give gas station operators a way to collect payments from people who drive off without paying for fuel. The bill outlines specific civil liability and related procedures for financial recovery after fuel theft without immediately going to court. 

Holocaust education. House Joint Resolution 6 will require the Department of Education to develop a curriculum guide for schools that may be used to teach about the Holocaust as example of genocide. 

Kentucky products. HB 484 will promote use of locally-grown produce and other food products by public postsecondary institutions. If colleges and universities use a vendor or food service, the legislation encourages them to use food produced in Kentucky. 


Math and science incentives. SB 2 will offer incentives to increase the number of students taking advanced math and science courses in Kentucky. Incentives would be provided from a science and mathematics advancement fund aimed at improving students’ math and science knowledge from elementary school through college. 

 Merit scholarships. SB 75 will allow students with 2.5 GPAs who are on track to graduate from college to keep their full KEES scholarship money each semester. Currently, students with GPAs above 2.5 but below 3.0 only receive half their award. 


Military. HB 168 will allow active duty military serving outside the state up to 90 days to renew their driver’s licenses after returning to Kentucky. They could not be cited for driving without a license during that period. 


Penal code. Senate Joint Resolution 80 calls for a legislative subcommittee to undertake a review of the state penal code. The legislation would require the Legislature’s Judiciary Committee to appoint a Penal Code Study Subcommittee, upon approval of General Assembly leadership. The subcommittee would be responsible for thoroughly reviewing the state’s penal code and finding ways to redraft and modernize it. 


Sex offenders. HB 211 will broaden Kentucky’s child sex abuse laws while increasing penalties for abusers and those who fail to report abuse. The bill will include older children under state laws that protect minors from first-degree sexual abuse by raising the age of children covered by the law from 12 to 16, or 16 to 18, if the perpetrator is in a position of trust or authority. 


Trauma care. HB 371 seeks to create a statewide trauma care program in the Department of public health. The bill also establishes an advisory commission and registry of trauma incidents. 


Water and sewer projects. HB 608 contains line-item water and sewer projects for coal and non-coal counties in Kentucky. Funding for projects in non-coal counties will come from $150 million in bonds derived from the state’s master tobacco settlement dollars, while funding for coal county projects will come from $75 million in bonds paid with coal severance revenue. 




Governor allows increased Legislature Budget to become law without his signature

Wednesday, April 16th, 2008

While cutting all other branches of Governor the Legislature increased their own budget by $10 million.  The Governor registered a silent protest by allowing the bill to become law by laying on his desk for ten days without his signature.
HB 407,  AN ACT making appropriations for the operations, maintenance, and support of the Legislative Branch of the Commonwealth of Kentucky.
     The Legislative Branch Budget: appropriate from the General Fund $52,712,900 for fiscal year 2008-2009 and $55,452,600 for fiscal year 2009-2010; appropriate from Restricted Funds $89,600 for fiscal year 2008-2009 and $217,000 for fiscal year 2009-2010;
Appropriations are allocated as follows:
2008-2009 $18,837,800
2009-2010 $19,680,200
2008-2009 $33,964,700
2009-2010 $33,989,400.
One other bill also was allowed to become law without the Governor’s signature.
 410 AN ACT relating to the Local Government Economic Development Program.
     Amend KRS 42.4588 to provide that single county coal severance projects included in the budget are deemed approved and do not have to go through the statutory application process; maintain all other reporting and disbursement requirements; apply to projects beginning with the 2008-2010 budget.

Cunningham and Holton appointed to Jefferson Court seats.

Wednesday, April 16th, 2008

Gov. Steve Beshear yesterday filled two vacancies in the Jefferson County court system.  The Governor appointed David L. Holton II to fill the District Court vacancy created by the move of Judge Audra Jean Eckerle to Circuit Court.

The Gov. also appointed Charles L. Cunningham Jr. to fill the Circuit Court seat vacated by the move of Judge Denise Clayton to the Ct. of Appeals.

 Both appointtees will serve until the election this November. Both are candidates for the election to serve the balance of the term vacated by their predecessors.

Supreme Court rules in tax cases – taxation of out of state companies, taxpayer seeking refund

Tuesday, April 15th, 2008

APRIL 15, 2008 


[JURIST] The US Supreme Court [official website; JURIST news archive] handed down decisions in two tax cases Tuesday, including MeadWestvaco Corp. v. Illinois Department of Revenue [LII case backgrounder; JURIST report], where the Court overturned an Illinois state court decision allowing the state to tax a portion of the $1 billion capital gain realized by MeadWestvaco’s predecessor when it sold its interest in Lexis/Nexis. The Court wrote: 

The Due Process and Commerce Clauses forbid the States to tax “‘extraterritorial values.’” … A State may, however, tax an apportioned share of the value generated by the intrastate and extrastate activities of a multistate enterprise if those activities form part of a “‘unitary business.’” We have been asked in this case to decide whether the State of Illinois constitutionally taxed an apportioned share of the capital gain realized by an out-of-state corporation on the sale of one of its business divisions. The Appellate Court of Illinois upheld the tax and affirmed a judgment in the State’s favor. Because we conclude that the state courts misapprehended the principles that we have developed for determining whether a multistate business is unitary, we vacate the decision of the Appellate Court of Illinois. 


Read the Court’s opinion [text] per Justice Alito, along with a concurrence [text] from Justice Thomas.

In US v. Clintwood Elkhorn Mining Co. [Duke Law case backgrounder; JURIST report], the Court held that a taxpayer seeking to bring an action in federal court to obtain a tax refund must first exhaust the administrative refund claim procedure outlined in the Internal Revenue Code [text]. Clintwood Elkhorn Mining paid coal export taxes, later found to be unconstitutional, and filed a claim agianst the government under the Tucker Act [text] to recover a portion of the export taxes paid. The US Court of Federal Claims [official website] allowed the Tucker Act lawsuit, as did the US Court of Appeals for the Federal Circuit, but the Supreme Court reversed the appeals court, writing: 

The Internal Revenue Code provides that taxpayers seeking a refund of taxes unlawfully assessed must comply with tax refund procedures set forth in the Code. Under those procedures, a taxpayer must file an administrative claim with the Internal Revenue Service before filing suit against the Government. Such a claim must be filed within three years of the filing of a return or two years of payment of the tax, whichever is later. The Tucker Act, in contrast, is more forgiving, allowing claims to be brought against the United States within six years of the challenged conduct. The question in this case is whether a taxpayer suing for a refund of taxes collected in violation of the Export Clause of the Constitution may proceed under the Tucker Act, when his suit does not meet the time limits for refund actions in the Internal Revenue Code. The answer is no. …

We therefore hold that the plain language of 26 U. S. C. §§7422(a) and 6511 requires a taxpayer seeking a refund for a tax assessed in violation of the Export Clause, just as for any other unlawfully assessed tax, to file a timely administrative refund claim before bringing suit against the Government. 


Read the Court’s opinion [text] per Chief Justice Roberts. SCOTUSblog has more on both decisions

Lawsuit advances theory that Legislature must appropriate adequate funds for Judicial Branch

Friday, April 11th, 2008


By Jasmes Odato Capitol bureau  Times Union – New York

Friday, April 11, 2008

ALBANY — In her final months on the bench, Court of Appeals Chief Judge Judith Kaye will be fighting in the courts for more money.
Living up to her threat of litigation if the state budget didn’t include judicial pay raises, the state’s top judge, who must step down by year’s end because she turns 70 in August, sued on behalf of her colleagues Thursday.

Kaye, who earns $156,000 a year, blamed Gov. David Paterson, Assembly Speaker Sheldon Silver and Senate Majority Leader Joseph L. Bruno for the “gridlock” denying almost 3,000 judges a raise since January 1999. State Supreme Court justices earn $136,700.
Her suit, filed in state Supreme Court in Manhattan the day after the state budget was passed, charges the leaders are violating the state constitution by allowing judges’ pay to diminish and by not recognizing the separation of powers. The complaint notes leaders found hundreds of millions of dollars for pork projects but couldn’t spare a dime for judicial pay increases.
Kaye is represented by Bernard Nussbaum, 71, a former Clinton White House counsel whose Manhattan law firm sometimes argues before state judges. He expects the case to go before state Supreme Court Justice Edward Lehner, who has a related case filed earlier this year on behalf of four judges.
Nussbaum asked Lehner to hear the case promptly, by May 14, because of the “constitutional crisis.” The pay raise impasse, he said, has caused judges to retire early, tap pension accounts or plan moves to law firms. As a result, he said, the judiciary’s morale is at a historic low.
The state attorney general’s office will defend the case.
Lehner, he said, isn’t conflicted because the case involves all judges, not just the pocketbook of the one hearing the case, and the ancient “rule of necessity” requires that someone preside.
The necessity doctrine, which forces a judge to sit on a case, may come up with individual judges as they are asked to handle cases involving Silver’s law firm, Weitz & Luxenberg, which specializes in personal-injury suits, said Albany Law School professor Vincent Bonventre.
“Since he’s a named party . . . who can preside over any of the cases in which his firm is involved? Every single judge in the state has an interest in Kaye versus Silver . . . so every judge in the state would have to recuse (himself).”
Nussbaum said his firm, which is doing the suit for free, isn’t buying goodwill among judges that may benefit its clients down the road.
“We’re doing it because we believe it is the right thing to do. Judges try cases on the merits here . . . they may be grateful,” he said.
Kaye, he said, asked him to take the case. The two are friends from college.
The suit blasts the Legislature for linking raises for lawmakers to judicial pay and therefore failing to enact salary hikes because it is politically difficult to do so.
Lawmakers make $79,500 in base pay and tie their increases to those in the judiciary. That’s not fair, Nussbaum said, because lawmakers are allowed to pursue outside income, and some have lucrative second jobs.
When judges and lawmakers got their last raise, in 1999, the salary of a state Supreme Court justice rose to $136,700, the same as U.S. District Court judges, and legislators’ pay rose to $79,500, a 38 percent boost and the first in nine years.
Page 2 of 2)

The pay has been frozen ever since. Yet federal judges have received a series of increases and now make $169,300.
“The executive and the Legislature have abused their powers,” Nussbaum wrote. “They threaten to seriously impair the functioning of the judiciary . . . They have undermined a pillar of our form of government.”
A spokesman for Paterson said the matter should be resolved legislatively, not in court. Bruno blamed the Assembly for failing to take up two Senate bills that would have resolved the issue.
A Silver spokesman said the speaker supports Kaye’s position and noted the budget included $48 million for extra judges’ pay, although the omission of enabling language prohibits the expenditure.
Nussbaum said the state Constitution bars the legislative and executive branches from cutting judicial pay, which has eroded 27 percent through inflation.
Bonventre said the separation of powers argument is lacking, since the Legislature has the authority to decide pay. But, he said, the judges could win the case if it is determined their pay has effectively been cut.
New York’s judges are paid less than those in 48 other states and only Hawaii’s judiciary is paid less, he noted. Further, thousands of state employees make more than the state’s highest paid judges.
The judiciary and other branches of government have duked it out in the past. In 1991, Chief Judge Sol Wachtler and Administrative Judge Matthew Crosson sued Gov. Mario Cuomo when he cut the judicial budget by diverting $100 million to other state needs.
Crosson laid off 500 court workers and closed a third of the civil courts before Cuomo restored the funds after a year.
“The basis was the judicial branch has a constitutional responsibility and the other branch cannot deny it of the resources necessary,” said Crosson, now president of the Long Island Association. “Here, I guess they’ll draw a similar argument: If you effectively allow the wages of judges to shrink you effectively are reducing the resources.”

Scientists lower the speed of light down to a walk

Thursday, April 10th, 2008


 Introduction by S.W. Billingsley, Billingsley Aerospace

One of my old friends from Wyoming (Marlan Scully) told me about using
Lasers ( he wrote the textbooks on laser physics), they have been able to slow the speed of light to 40 or so MPH ! . At  first I thought he was kidding but see the attachment below.
The potential for storage of huge amount of data in the slowed down light beam is massive !

Dr. Marlan Scully:
Techniques that use quantum interference effects are being actively
investigated to manipulate the optical properties of quantum systems1.
One such example is electromagnetically induced transparency, a quantum
effect that permits the propagation of light pulses through an otherwise
opaque medium2, 3, 4, 5. Here we report an experimental demonstration of
electromagnetically induced transparency in an ultracold gas of sodium
atoms, in which the optical pulses propagate at twenty million times
slower than the speed of light in a vacuum. The gas is cooled to
nanokelvin temperatures by laser and evaporative cooling6, 7, 8, 9, 10.
The quantum interference controlling the optical properties of the
medium is set up by a ‘coupling’ laser beam propagating at a right angle
to the pulsed ‘probe’ beam. At nanokelvin temperatures, the variation of
refractive index with probe frequency can be made very steep. In
conjunction with the high atomic density, this results in the
exceptionally low light speeds observed. By cooling the cloud below the
transition temperature for Bose–Einstein condensation11, 12, 13 (causing
a macroscopic population of alkali atoms in the quantum ground state of
the confining potential), we observe even lower pulse propagation
velocities (17 m s-1) owing to the increased atom density. We report an
inferred nonlinear refractive index of 0.18 cm2 W-1 and find that the
system shows exceptionally large optical nonlinearities, which are of
potential fundamental and technological interest for quantum optics.

The experiment is performed with a gas of sodium atoms cooled to
nanokelvin temperatures. Our atom cooling set-up is described in some
detail in ref. 14. Atoms emitted from a ‘candlestick’ atomic beam
source15 are decelerated in a Zeeman slower and loaded into a
magneto-optical trap. In a few seconds we collect a cloud of 1010 atoms
at a temperature of 1 mK and a density of 6times 1011 cm-3. The atoms
are then polarization gradient cooled for a few milliseconds to 50
microK and optically pumped into the F = 1 ground state with an equal
population of the three magnetic sublevels. We then turn all laser beams
off and confine the atoms magnetically in the ’4 Dee’ trap14. Only atoms
in the MF = -1 state, with magnetic dipole moments directed opposite to
the magnetic field direction (picked as the quantization axis), are
trapped in the asymmetric harmonic trapping potential. This magnetic
filtering results in a sample of atoms that are all in a single atomic
state (state |1right fence in Fig.1b) which allows adiabatic optical
preparation of the atoms, as described below, and minimal heating of the
Figure 1: Experimental set-up.
Figure 1 : Experimental set-up. Unfortunately we are unable to provide
accessible alternative text for this. If you require assistance to
access this image, or to obtain a text description, please contact

A ‘coupling’ laser beam propagates along the x axis with its linear
polarization along the 11-G bias field in the z direction. The ‘probe’
laser pulse propagates along the z axis and is left-circularly
polarized. With a flipper mirror in front of the camera CCD 1, we direct
this probe beam either to the camera or to the photomultiplier (PMT).
For pulse delay measurements, we place a pinhole in an external image
plane of the imaging optics and select a small area, 15 microm in
diameter, of the probe beam centred on the atom clouds (as indicated by
the dashed circle in inset (i)). The pulse delays are measured with the
PMT. The imaging beam propagating along the y axis is used to image atom
clouds onto camera CCD 2 to find the length of the clouds along the
pulse propagation direction (z axis) for determination of light speeds.
Inset (ii) shows atoms cooled to 450 nK which is 15 nK above Tc. (Note
that this imaging beam is never applied at the same time as the probe
pulse and coupling laser). The position of a cloud and its diameter in
the two transverse directions, x and y, are found with CCD 1. Inset (i)
shows an image of a condensate.
High resolution image and legend (121K)

Next we evaporatively cool the atoms for 38 s to the transition
temperature for Bose–Einstein condensation, Tc. The magnetic fields are
then adjusted to adiabatically soften the trap. The resulting trapping
potential has a frequency of fz = 21 Hz along the symmetry (z) axis of
the 4 Dee trap, and transverse frequencies f x = fy = 69 Hz . The bias
field, parallel to the z axis, is 11 G. When we cool well below Tc, we
are left with 1–2 million atoms in the condensate. For these parameters
the transition occurs at a temperature of Tc = 435 nK and a peak density
in the cloud of 5times 1012 cm-3.

We now apply a linearly polarized laser beam, the coupling beam, tuned
to the transition between the unpopulated hyperfine states |2right fence
and |3right fence (Fig. 1b). This beam couples states |2right fence and
|3right fence and creates a quantum interference for a weaker probe
laser beam (left circularly polarized) which is tuned to the |1right
fence right arrow |3right fence transition. A stable eigenstate (the
‘dark state’) of the atom in the presence of coupling and probe lasers
is a coherent superposition of the two hyperfine ground states |1right
fence and |2right fence. The ratio of the probability amplitudes is such
that the contributions to the atomic dipole moment induced by the two
lasers exactly cancel. The quantum interference occurs in a narrow
interval of probe frequencies, with a width determined by the coupling
laser power.

Figure 2a shows the calculated transmission of the probe beam as a
function of its detuning from resonance for parameters which are typical
of this work. In the absence of dephasing of the |1right fence right
arrow |2right fence transition, the quantum interference would be
perfect, and at line centre, the transmission would be unity. Figure 2b
shows the refractive index for the probe beam as a function of detuning.
Due to the very small Doppler broadening of the |1right fence right
arrow |2right fence transition in our nanokelvin samples, application of
very low coupling intensity leads to a transparency peak with a width
much smaller than the natural line width of the |1right fence right
arrow |3right fence transition. Correspondingly, the dispersion curve is
much steeper than can be obtained by any other technique, and this
results in the unprecedented low group velocities reported here. The
group velocity vg for a propagating electromagnetic pulse is16, 17, 18, 19:

Unfortunately we are unable to provide accessible alternative text for
this. If you require assistance to access this image, or to obtain a
text description, please contact

Here n(omega p) is the refractive index at probe frequency omegap (rad s
-1), |Omegac|2 is the square of the Rabi frequency for the coupling
laser and varies linearly with intensity, micro13 is the electric dipole
matrix element between states |1right fence and |3right fence, N is the
atomic density, and epsilon0 is the permittivity of free space. At line
centre, the refractive index is unity, and the second term in the
denominator of equation (1) dominates the first. An important
characteristic of the refractive index profile is that on resonance the
dispersion of the group velocity is zero (see ref. 16), that is, d2
n/domegap2 = 0, and to lowest order, the pulse maintains its shape as it
propagates. The established quantum interference allows pulse
transmission through our atom clouds which would otherwise have
transmission coefficients of e-110 (below T c), and creates a steep
dispersive profile and very low group velocity for light pulses
propagating through the clouds.

Figure 2: Effect of probe detuning.
Figure 2 : Effect of probe detuning. Unfortunately we are unable to
provide accessible alternative text for this. If you require assistance
to access this image, or to obtain a text description, please contact

a, Transmission profile. Calculated probe transmission as a function of
detuning from the |1right fence right arrow |3right fence resonance for
an atom cloud cooled to 450 nK, with a peak density of 3.3 times 10 12
cm-3 and a length of 229 microm (corresponding to the cloud in inset
(ii) of Fig. 1a). The coupling laser is resonant with the |2right fence
right arrow |3right fence transition and has a power density of 52 mW
cm-2. b, Refractive index profile. The calculated refractive index is
shown as a function of probe detuning for the same parameters as in a.
The steepness of the slope at resonance is inversely proportional to the
group velocity of transmitted light pulses and is controlled by the
coupling laser intensity. Note that as a result of the a.c. Stark shift
of the |2right fence right arrow |3right fence transition, caused by a
coupling of states |2right fence and |4right fence through the coupling
laser field, the centre of the transmission and refractive index
profiles is shifted by 0.6 MHz. The shift of the refractive index
profile results in the nonlinear refractive index described in the text.
High resolution image and legend (19K)

We note that the centres of the curves in Fig. 2 are shifted by 0.6 MHz
from probe resonance. This is due to a coupling of state |2right fence
to state |4right fence through the coupling laser field, which results
in an a.c. Stark shift of level |2right fence and a corresponding line
shift of the 2right arrow 3 transition. As the transparency peak and
unity refractive index are obtained at two-photon resonance, this leads
to a refractive index at the 1right arrow 3 resonance frequency which is
different from unity. The difference is proportional to the a.c. Stark
shift and hence to the coupling laser intensity, which is important for
predicting the nonlinear refractive index as described below.

A diagram of the experiment is shown in Fig. 1a. The 2.5-mm-diameter
coupling beam propagates along the x axis with its linear polarization
parallel to the B field. The 0.5-mm-diameter, sigma – polarized probe
beam propagates along the z axis. The size and position of the atom
cloud in the transverse directions, x and y, are obtained by imaging the
transmission profile of the probe beam after the cloud onto a
charge-coupled-device (CCD) camera. An image of a condensate is shown as
inset (i). A 55 mW cm-2 coupling laser beam was present during the
10-micros exposure of the atoms to a 5 mW cm-2 probe beam tuned close to
resonance. The f/7 imaging optics are diffraction-limited to a
resolution of 7 microm.

During the pulse delay experiments, a pinhole (placed in an external
image plane of the lens system) is used to select only the part of the
probe light that has passed through the central 15 microm of the atom
cloud where the column density is the greatest. The outline of the
pinhole is indicated with the dashed circle in inset (i).

Both coupling and probe beams are derived from the same dye laser. The
frequency of the coupling beam is set by an acousto-optic modulator
(AOM) to the |2right fence right arrow |3right fence resonance. Here we
take into account both Zeeman shifts and the a.c. Stark shift described

The corresponding probe resonance is found by measuring the transmission
of the probe beam as a function of its frequency. We apply a fast
frequency sweep, across 32 MHz in 50 micros, and determine resonance
from the transmission peak. The sweep is controlled by a separate AOM.
The frequency is then fixed at resonance, and the temporal shape of the
probe pulse is generated by controlling the r.f. drive power to the AOM.
The resulting pulse is approximately gaussian with a full-width at
half-maximum of 2.5 micros. The peak power is 1 mW cm-2 corresponding to
a Rabi frequency of Omegap = 0.20 A, where the Einstein A coefficient is
6.3 times 107 rad s -1. To avoid distortion of the pulse, it is made of
sufficient duration that its Fourier components are contained within the
transparency peak.

Probe pulses are launched along the z axis 4 micros after the coupling
beam is turned on (the coupling field is left on for 100 micros). Due to
the magnetic filtering discussed above, all atoms are initially in state
|1right fence which is a dark state in the presence of the coupling
laser only. When the pulse arrives, the atoms adiabatically evolve so
that theprobability amplitude of state |2right fence is equal to the
ratio Omegap/(Omega p2 + Omegac2)1/2, where Omegap is the probe Rabi
frequency. To establish the coherent superposition state, energy is
transferred from the front of the probe pulse to the atoms and the
coupling laser field. At the end of the pulse, the atoms adiabatically
return to the original state |1right fence and the energy returns to the
back of the probe pulse with no net energy and momentum transfer to the
atomic cloud. Because the refractive index is unity, the electric field
is unchanged as the probe pulse enters the medium. As the group velocity
is decreased, the total energy density must increase so as to keep
constant the power per area. This increase is represented by the energy
stored in the atoms and the coupling laser field during pulse
propagation through the cloud.

The pulses are recorded with a photomultiplier (3-ns response time)
after they penetrate the atom clouds. The output from the
photomultiplier is amplified by a 150-MHz-bandwidth amplifier and the
waveforms are recorded on a digital scope. With a ‘flipper’ mirror in
front of the camera we control whether the probe beam is directed to the
camera or to the photomultiplier.

The result of a pulse delay measurement is shown in Fig. 3. The front
pulse is a reference pulse obtained with no atoms present. The pulse
delayed by 7.05 micros was slowed down in an atom cloud with a length of
229 microm (see Fig. 1a, inset (ii)). The resulting light speed is 32.5
m s-1 . We used a coupling laser intensity of 12 mW cm -2 corresponding
to a Rabi frequency of Omegac = 0.56 A. The cloud was cooled to 450 nK
(which is 15 nK above Tc), the peak density was 3.3 times 1012 cm-3, and
the total number of atoms was 3.8 times 106. From these numbers we
calculate that the pulse transmission coefficient would be e-63 in the
absence of the coupling laser. The probe pulse was indeed observed to be
totally absorbed by the atoms when the coupling beam was left off.
Inhomogeneous broadening due to spatially varying Zeeman shifts is
negligible (approx20 kHz) for the low temperatures and correspondingly
small cloud sizes used here.

Figure 3: Pulse delay measurement.
Figure 3 : Pulse delay measurement. Unfortunately we are unable to
provide accessible alternative text for this. If you require assistance
to access this image, or to obtain a text description, please contact

The front pulse (open circles) is a reference pulse with no atoms in the
system. The other pulse (filled circles) is delayed by 7.05 micros in a
229-microm-long atom cloud (see inset (ii) in Fig. 1a ). The
corresponding light speed is 32.5 m s-1 . The curves represent gaussian
fits to the measured pulses.

High resolution image and legend (19K)

The size of the atom cloud in the z direction is obtained with another
CCD camera. For this purpose, we use a separate 1 mW cm -2 laser beam
propagating along the vertical y axis and tuned 20 MHz below the F = 2
right arrow 3 transition. The atoms are pumped to the F = 2 ground state
for 10 micros before the imaging which is performed with an exposure
time of 10 micros. We image the transmission profile of the laser beam
after the atom cloud with diffraction-limited f/5 optics. An example is
shown in Fig. 1a, inset (ii), where the asymmetry of the trap is clear
from the cloud’s elliptical profile. We note that the imaging laser is
never applied at the same time as the coupling laser and probe pulse,
and for each recorded pulse or CCD picture a new cloud is loaded.

We measured a series of pulse delays and corresponding cloud sizes for
atoms cooled to temperatures between 2.5 microK and 50 nK. From these
pairs of numbers we obtain the corresponding propagation velocities
(Fig. 4). The open circles are for a coupling power of 52 mW cm-2
(Omegac = 1.2 A). The light speed is inversely proportional to the atom
density (equation (1)) which increases with lower temperatures, with an
additional density increase when a condensate is formed. The filled
circles are for a coupling power of 12 mW cm -2. The lower coupling
power is seen to cause a decrease of group velocities in agreement with
equation (1). We obtain a light speed of 17 m s-1 for pulse propagation
in an atom cloud initially prepared as an almost pure Bose–Einstein
condensate (condensate fraction is greater than or equal to90%). Whether
the cloud remains a condensate during and after pulse propagation is an
issue that is beyond the scope of this Letter.

Figure 4: Light speed versus atom cloud temperature.
Figure 4 : Light speed versus atom cloud temperature. Unfortunately we
are unable to provide accessible alternative text for this. If you
require assistance to access this image, or to obtain a text
description, please contact

The speed decreases with temperature due to the atom density increase.
The open circles are for a coupling power of 52 mW cm -2 and the filled
circles are for a coupling power of 12 mW cm -2. The temperature Tc
marks the transition temperature for Bose–Einstein condensation. The
decrease in group velocity below Tc is due to a density increase of the
atom cloud when the condensate is formed. From imaging measurements we
obtain a maximum atom density of 8times 1013 cm-3 at a temperature of
200 nK. Here, the dense condensate component constitutes 60% of all
atoms, and the total atom density is 16 times larger than the density of
a non-condensed cloud at Tc. The light speed measurement at 50 nK is for
a cloud with a condensate fraction greater than or equal to90%. The
finite dephasing rate due to state |4right fence does not allow pulse
penetration of the most dense clouds. This problem could be overcome by
tuning the laser to the Dl line as described in the text.
High resolution image and legend (16K)

Transitions from state |2right fence to state |4right fence, induced by
the coupling laser (detuned by 60 MHz from this transition), result in a
finite decay rate of the established coherence between states |1right
fence and |2right fence and limit pulse transmission. The dephasing rate
is proportional to the power density of the coupling laser and we
expect, and find, that probe pulses have a peak transmission that is
independent of coupling intensity and a velocity which reduces linearly
with this intensity. The dephasing time is determined from the slope of
a semi-log plot of transmission versus pulse delay19. At a coupling
power of 12 mW cm-2, we measured a dephasing time of 9 micros for atom
clouds just above Tc.

Giant Kerr nonlinearities are of interest for areas of quantum optics
such as optical squeezing, quantum nondemolition, and studies of
nonlocality. It was recently proposed that they may be obtained using
electromagnetically induced transparency20. Here we report the first (to
our knowledge) measurement of such a nonlinearity. The refractive index
for zero probe detuning is given by n= 1 + (n2 Ic) where Ic is the
coupling laser intensity, and n2 the cross phase nonlinear refractive
index. As seen from Fig. 2b, the nonlinear term (n 2Ic) equals the
product of the slope of the refractive index at probe resonance and the
a.c. Stark shift of the |2right fence right arrow |3right fence
transition caused by the coupling laser. We can then express n2 by the
formula (see equation (1));

Unfortunately we are unable to provide accessible alternative text for
this. If you require assistance to access this image, or to obtain a
text description, please contact

where DeltaomegaS is the a.c. Stark shift, proportional to Ic, and
lambda the wavelength of the probe transition. We measured an a.c. Stark
shift of 1.3 times 106 rad s -1 for a coupling laser intensity of 40 mW
cm -2. For a measured group velocity of 17 m s -1 (Fig. 4), we obtain a
nonlinear refractive index of 0.18 cm2 W-1. This nonlinear index is
approx106 times greater than that measured in cold Cs atoms21.

With a system that avoids the |1right fence-|2right fence dephasing rate
described above (which can be obtained by tuning to the Dl line in
sodium), the method used here could be developed to yield the
collision-induced dephasing rate of the double condensate which is
generated in the process of establishing electromagnetically induced
transparency (see also refs 22, 23).
 In that case, the square of the probability amplitude for state |3right fence could be kept below 10-5 during pulse propagation, with no heating of the condensate as a result.
With improved frequency stability of our set-up and lower coupling
intensities, even lower light speeds would be possible, perhaps of the
order of centimetres per second, comparable to the speed of sound in a
Bose–Einstein condensate. Under these conditions we expect phonon
excitation during light pulse propagation through the condensate. By
deliberately tuning another laser beam to the |2right fence right arrow
|4right fence transition, it should be possible to demonstrate optical
switching at the single photon level24. Finally, we note that during
propagation of the atom clouds, light pulses are compressed in the z
direction by a ratio of c/vg. For our experimental parameters, that
results in pulses with a spatial extent of only 43 microm.


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We thank J. A. Golovchenko for discussions and C. Liu for experimental
assistance. L.V.H. acknowledges support from the Rowland Institute for
Science. S.E.H. is supported by the US Air Force Office of Scientific
Research, the US Army Research Office, and the US Office of Naval
Research. C.H.B. is supported by an NSF fellowship.








Wednesday, April 9th, 2008

A new Kentucky poll shows New York Sen. Hillary Rodham Clinton with a substantial early lead over Illinois Sen. Barack Obama in the state’s May 20 Democratic presidential primary election, 56 percent to 25 percent.
The survey, conducted by Lexington-based marketing and research firm Preston-Osborne, also shows that the 600 “frequent voters” who participated in the poll solidly favored presumptive Republican nominee, Arizona Sen. John McCain, would defeat Clinton, 53 percent to 42 percent and Obama by a greater margin, 60 percent to 29 percent.

The poll has a margin of error of plus or minus 4 percent. Click here to view Preston Osborne’s news release and regional breakdown of the poll.

2008 Session of General Assembly Angers Public

Wednesday, April 9th, 2008

By LawReader Editorial by Senior Editor Stan Billingsley            April 9, 2008
The LawReader poll pretty well sums up the public’s reaction to the work product of the 2008 Session of the General Assembly.  83% of poll respondents ranked this session BELOW AVERAGE, 10% ranked the session AVERAGE, and only 7% rank the session as ABOVE AVERAGE.
There are still two days (April l4 and l5) when the Legislature could still pass legislation solving the main issue that has the public angered.  We doubt that they will get the message and actually solve the budget problem instead of trying to delay it.
The Budget that came out robs boards and commissions of large chunks of their operating funds, has failed Education progress which has resulted in UK tuition being raised 9% (which other state colleges to surely follow suit), has cut the Judicial Budget by $50 million, has eviscerated over 50 jobs at the Public Advocates program, has cut prosecutors, police, ditched many capital construction projects, and the list goes on and on.
The Legislature can’t even raise the cigarette tax by five nickels a pack.  Only one other state has a lower cigarette tax.
Bridge and highway projects languish as the price of gasoline fluctuates five or ten cents a day, and an increase in the low Kentucky gas tax of only 7 cents would fund most of these projects (and stimulate employment). Adding 7 cents to each gallon of gas wouldn’t even be noticed in todays environment.
It seems alright to allow Exxon and Mobil to reap large profits, but motorists in Kentucky can only look forward to the one construction project this Legislature seemed to embrace, that is the construction of Toll Booths.
Voodoo economics of issuing short term bonds, and hoping that 3,000 state workers will retire seem to be the only creative attempt at budget balancing achieved by the Legislature.  If those ruses fail, we might as well just shut down.
There is still a chance that a solution to the State Retirement program deficits might come out, but this problem should have been solved ten years ago, but has simply been booted every other year to the future…well the future is here.  Isn’t it about time our Legislators did some heavy lifting.
We respect the opinion of Republican columnist Jon David Dyche who published a column in the Courier-Journal this week arguing that the total anti-tax philosophy of his party was misguided.
This misguided philosophy has also infected the Democratic Party.
The job of a legislator, from my limited experience (1974-75) as a State Representative, is to meet the needs of the public, and to assure continued growth and progress.  This budget fails to continue the progress this state has made in the last twenty years.
I look longingly to the days when the Governor had the power to propose a budget and get it passed.  Today we seem to have a legislature that only thumbs its nose at the Executive Branch (and Judicial Branch) and is more concerned about demonstrating their own power.
The level of partisanship in Frankfort is at the highest level in 50 years.  It seems very important to exercise legislative power even if it means total gridlock with no compromise.
Some anti-tax people cite the example of Louie Nunn, who raised the sales tax 2 cents and was never elected to anything again. That argument ignores the fact that by that courageous act, he also earned his place in history as a far sighted and progressive Governor. 
We would suggest that history has long indicated that Kentuckians only tend to elect Republicans to the office of Governor for one term every thirty years.  That historical fact, the term limits to the constitution that were then in effect, and other problems in the Nunn Administration should be given more credit to his failure to make it to the U.S. Senate.  We doubt that his efforts to fund higher education and secondary education and to actually build some roads, did him in.
The last fifteen years has seen state revenue cuts and business tax breaks of some $600 million dollars by the Legislature, and a failure to consequently raise needed funds in other areas to assure growth.
We further see a great fraud in the Legislators attempt to appear anti-tax. They have directly caused the increase in college tuition, they have mandated increases in court costs (while skimming part of these court costs for the General Fund), and they have stolen from the 90 boards and commissions who are largely funded by the businesses they regulate. 
And if they get away with the idea that building toll booths across the states highways and bridges is not a tax increase, then they deserve the Butch Cassidy Award.
This do-nothing session will likely go down in Kentucky history as one of the worst ever. The people in Indiana are dancing in the streets that this Legislature wouldn’t even let the public decide the casino gambling issue. Hundreds of millions of Kentucky dollars, now going to Indiana Casinos parked hard by our border, will build roads, bridges and schools in Indiana not in Kentucky. 
We doubt that any buildings at our state colleges will ever be named after any members of this years General Assembly.

Attorneys in Mississippi Class Action Cases Plead Guilty

Wednesday, April 9th, 2008


The guilty pleas of three trial lawyers signal a need for balanced tort reform.

Wednesday, April 9, 2008; A18

AT ONE TIME, William S. Lerach, Melvyn I. Weiss and Richard F. Scruggs would have been described as three of the nation’s most feared and successful trial lawyers. Today, all three can simply be called crooks.

Mr. Weiss pleaded guilty last week to paying kickbacks to plaintiffs he recruited to file class action lawsuits against companies. He must pay a $10 million fine and faces up to 33 months in prison. His former law partner, Mr. Lerach, pleaded guilty to similar charges last fall; he was fined $8 million and was sentenced to one year behind bars. Mr. Scruggs, who came to national prominence in the 1990s as one of the lead lawyers in the massive litigation against tobacco companies, last month pleaded guilty to conspiring to bribe a Mississippi judge. Mr. Scruggs could be imprisoned for up to five years and be fined $250,000.

Many business figures and others who did battle with the trio are understandably celebrating the developments. These three, after all, came to be seen as the epitome of all that is wrong with a legal system that business believes is driven by lawyers who concoct legal claims to blackmail corporations into huge settlements. They were, in short, seen as opportunistic leeches, offering little or no benefits to clients and pursuing litigation only to line their own pockets. And each did become wealthy, earning tens, if not hundreds, of millions of dollars over his legal career. Apparently the risk of prison time wasn’t enough to keep Mr. Weiss, Mr. Lerach and Mr. Scruggs from stooping to criminality in their quest for more riches.

Businesses are pointing to the terrible trio as proof positive that, for example, class actions should be abolished, punitive damages capped and losing parties compelled to pay the legal fees of their opponents. These changes would undeniably tilt the scales in favor of corporate interests, which may be exactly what business wants. But such a possible imbalance is not necessarily what would be best.

The truth is that there have always been and will always be voracious and ethically challenged lawyers, just as there have always been and will always be voracious and ethically challenged people in business. Both sets of scoundrels deserve to be punished. What is needed now is a sober discussion about how best to achieve a fairer, more balanced legal system through comprehensive tort reform. Such a system would not be lopsided but would shield businesses from legal blackmail, just as it would protect the rights of legitimate plaintiffs to win just compensation from negligent businesses that caused them real harm. Smart and ethical businesspeople and lawyers — and, yes, there are many who fit the bill — would be wise to start working together to craft such a fix.


Tuesday, April 8th, 2008