Archive for May, 2008

Polygamist ruling appealed to Texas Supreme Court

Saturday, May 24th, 2008

SAN ANGELO, Texas —  Texas child welfare authorities are appealing a ruling in the polygamist sect case, arguing that the state was right to put more than 440 children in foster care.
The state is also asking the Texas Supreme Court to allow it to keep custody of the children until the appeals are settled.
The filings Friday come one day after the Third Court of Appeals in Austin said the state failed to show the children were in any immediate danger when they were rounded up last month.
Members of the Fundamentalist Church of Jesus Christ of Latter Day Saints hailed Thursday’s ruling as vindication. They’ve said there was no abuse at the ranch in west Texas and they are being persecuted for their religious beliefs.
·                             Stories
·                                                       Court Rules Texas Illegally Seized Polygamist Sect’s Children
·                                                       Texas Officials: 15 Polygamist Mothers Thought to Be Underage Are Adults
·                                                       Texas Officials Investigating Claims That More Kids Reside at Polygamist Ranch Can’t Get Past Gate
·                                                       Authorities Return to Polygamist Ranch Amid Reports More Children May Be Living on Premises
·                                                       Non-Sect Relatives Seek Custody in Texas Polygamy Case
·                                                       Polygamist Parents Complain ‘Vague’ Custody Plans Impossible to Follow
·                                                       Second Polygamist Sect Baby Born Into Texas State Custody
Video
·                                                       Judge: Texas Polygamy Ranch Is Safe
·                                                       Texas Polygamy Families Ponder Lawsuit
·                                                       ‘We’re Very Private People’
·                                                       ‘It’s a Wonderful Life’ Pt. 1
·                                                       ‘It’s a Wonderful Life’ Pt. 2
Photo Essays
·                                                       Return to the Ranch
Polygamist Retreat

Kentucky Judge given 30 day suspension for being rude, and publicly opposing re-election of another judge.

Saturday, May 24th, 2008

 

May 23, 2008

 

District Judge Frank Wakefield II of Franklin, Ky., has received a 30 day suspension for talking too much in court and being rude.  On Friday May 23, 2008 the Judicial Conduct Commission issued a sanction against the Judge who sits in Allen and Simpson counties.

 

The Commission, which reviews the ethical conduct of Kentucky Judges said that Wakefield “engaged in lengthy and rambling discourse” in his courtrooms.   An investigation also documented reports that Wakefield often belittled people in his courtroom, violating a judicial canon that calls for judges to be dignified and courteous.

 

The Commission also determined that Wakefield violated canons by interrogating people in open court without regard to their privilege against self-incrimination and by publicly opposing a fellow judge who was seeking re-election.

 

The 30 day suspension will cost the Judge approximately $9000 in pay and benefits.

Judge Wakefield has the right to appeal the ruling directly to the Kentucky Supreme Court.

Congress continues to pursue Carl Rove Connection to U.S. Attorney Firing Scheme – constitutional crisis looms

Saturday, May 24th, 2008

The Bush Administration may be pushing their luck, as courts have never recognized theory of Executive privilege to degree advanced by the Executive Branch See judicial history of Executive Privilege

Rove Subpoenaed Again
By Dan Froomkin Special to washingtonpost.com  May 23, 2008
The House Judiciary Committee yesterday sent former White House political guru Karl Rove a new subpoena to add to his document collection. It makes a matching pair with the subpoena from the Senate Judiciary Committee that he’s been ignoring since last August.
Both relate to investigations of Rove’s role in the politicization of the Justice Department and the possibly politically-motivated firing of eight U.S. attorneys.
The House investigation is particularly focused on allegations of selective prosecution of former Alabama Gov. Don Siegelman. And because Rove — now a celebrated pundit and columnist — has been so outspoken in denying any involvement with the Siegelman case, House Judiciary Committee Chairman John Conyers argues that Rove’s refusal to appear at a public hearing and testify under oath is particularly inappropriate.
But there seems little doubt that Conyers will run into the same wall that has thwarted his Senate colleagues. The day Rove was supposed to testify before the Senate Judiciary Committee, he didn’t bother to show up. And the White House made the extraordinary claim that he has absolute immunity from congressional oversight. As I wrote in my Aug. 2 column, Karl Rove’s Immunity, the law does not appear to support anywhere near such a broad assertion. Traditionally, courts have recognized that the president’s right to confidentiality must be balanced against Congress’s legitimate oversight needs. But no matter. The White House asserted it — and the Senate folded.
Conyers is more of a fighter. When former White House counsel Harriet E. Miers didn’t show after a subpoena last summer, and when White House Chief of Staff Joshua B. Bolten refused to turn over subpoenaed documents, Conyers didn’t back down. He asked the Justice Department to enforce the subpoenas. And when Bush political appointees at Justice refused, he asked a federal judge to do it. That civil suit is pending.
Meanwhile, the White House shows no sign of letting up on its unprecedented assertions of privilege. White House spokesman Tony Fratto yesterday called the new subpoena an act of “political theater” and said: “They know he can’t respond to those questions.”
And as I wrote in my May 2 column, What Karl Rove Fears Most, the wily political operative will do just about anything to avoid being forced to answer a direct question — especially under oath.
The Documents in the Case

Conyers released a series of documents yesterday and issued this statement: “It is unfortunate that Mr. Rove has failed to cooperate with our requests. Although he does not seem the least bit hesitant to discuss these very issues weekly on cable television and in the print news media, Mr. Rove and his attorney have apparently concluded that a public hearing room would not be appropriate. Unfortunately, I have no choice today but to compel his testimony on these very important matters.”
In the most recent exchange between Conyers and Rove attorney Robert Luskin, Luskin wrote on Wednesday that “in light of your reported remarks about the need for ‘someone’ to ‘kick his ass’,” he was not “the least bit confused about the Committee’s motives and intentions. I confess, however, that I do not understand why the Committee is threatening a subpoena to Mr. Rove for information related to the alleged ‘politicization of the Department of Justice,’ when, as the Committee is surely aware, Mr. Rove has already received a subpoena for the same subject matter from the Senate Judiciary Committee. I do not understand why the Committee insists on provoking a gratuitous confrontation while the issues raised by the Committee’s request are being litigated in U.S. District Court or why the Committee refuses to consider a reasonable accommodation. . . .
“While the Committee has the authority to issue a subpoena, it is hard to see what this will accomplish, apart from a Groundhog Day replay of the same issues that are already the subject of litigation.”
Luskin also noted: “Your letter of May 14 draws attention to the fact that Mr. Rove has publicly denied any involvement in the prosecution of Gov. Siegelman or that he behaved improperly concerning the firing of U.S. Attorneys. There is no legal doctrine that stands for the proposition that Mr. Rove must stand silent in the face of false accusations or that his general denial of wrongdoing vitiates a privilege held by others.”
In his response, Conyers wrote back: “Your letter is incorrect in suggesting that the enclosed subpoena will raise the same issues as the Senate Judiciary Committee’s subpoena to Mr. Rove and the pending lawsuit concerning our Committee’s subpoena to Harriet Miers. Both these matters focus on the firing of U.S. Attorneys in 2006 and efforts to mislead Congress and the public on that subject. Here, as we have made clear from the outset, the Siegelman case is a principal focus of our request for Mr. Rove to testify. In addition, unlike Harriet Miers, Mr. Rove has made a number of on-the-record comments to the media about the Siegelman case and the U.S. Attorney firings, extending far beyond ‘general denials of wrongdoing.’ There is no question that both the prior subpoenas to Mr. Rove and Ms. Miers should have been complied with. But it is even more clear that Mr. Rove should testify as we have now directed.”
Rove Subpoenaed Again
Conyers also attached a subpoena.
And separately, Conyers released a May 5 letter from the Justice Department indicating that its Office of Professional Responsibility has opened an investigation of possible selective prosecution of Siegelman and at least three others.
The Coverage

Carrie Johnson writes in The Washington Post: “The House Judiciary Committee subpoenaed former presidential adviser Karl Rove yesterday to testify about his alleged meddling in Justice Department operations, escalating a long fight over lawmakers’ authority to question Bush administration aides.
“Committee Chairman John Conyers Jr. (D-Mich.) wants to ask Rove about alleged politicization of the Justice Department, including the firings of U.S. attorneys and any role Rove may have played in the prosecution of former Alabama governor Don Siegelman. Siegelman, a Democrat, was convicted on fraud charges but was released from prison in March pending the results of his appeal. . . .
“‘The decision about when, where and what a former assistant to the President may testify about raise issues of Executive Privilege and separation of powers that Mr. Rove does not control,’ Luskin wrote in a letter dated May 21 that was released yesterday.”
Neil A. Lewis writes in the New York Times: “Although Mr. Rove has left the White House and is now a political commentator, Mr. Luskin said that Mr. Rove ‘in these matters is not a free agent’ and must comply with instructions from the White House not to testify.
Mr. Conyers has argued that Mr. Rove may not himself invoke any privilege on behalf of the White House but that President Bush could do so. . . .
“If he does not appear, as expected, House Democrats will have to consider issuing a contempt citation as they did for Ms. Miers.”
The New York Times editorial board blogs: “The question of whether Mr. Rove needs to testify is not a close one. The House Judiciary Committee has the right to hear from him, in person and under oath. If he believes that any of the committee’s questions violate legal privileges, including executive privilege, he still needs to show up — and invoke the privilege in person.”
Elana Schor blogs for the Guardian: “Remember when a congressional subpoena meant something? Ah, the good old days, before George Bush extended his executive privilege like an alien spaceship over every registered Republican voter in the country.
“‘Testify before Congress?!’ he cried. ‘No one who ever sympathised with me may prostrate themselves before the Democrat party! Fools!’
“Just kidding — that dialogue would be far more Cheney-appropriate. As it is, today’s news . . . is intensely anti-climactic. No one in Washington expects Rove to show up, and it’s a matter of time before Rove asserts executive privilege again. ‘Tis sad but true.”
MSNBC host Keith Olbermann had George Washington University law professor Jonathan Turley on his show last night.
Olbermann: “Joe Wilson’s dream of watching Karl Rove frog marched out of the White House in handcuffs is gone, but a new dream has been born tonight. What about a turd-blossom perp walk out the front door of Fixed News down the street?”
Turley told Olbermann that “the president has once again forced a constitutional crisis. He’s basically telling Congress that even if I did politicize the Justice Department, even if there’s crimes here, I can tell people not to give you evidence. And we have now this . . . long list of people that are refusing to testify upon orders of the president.
“Congress has to do something about that. If it’s not going to become a virtual governmental unit, it has to do something when people look at the Congress straight in the eye and say, I just don’t give a darn whether you’re subpoenaing me or not. I’m not going to show up. So it’s a direct challenge to the Legislative Branch.”
 



 

KSP are citing people in parked cars who don’t have their seatbelt fastened

Friday, May 23rd, 2008

By LawReader Senior Editor Stan Billingsley:

KSP is interpreting the seatbelt law to hold that you can’t even sit in a car without your seatbelt being fastened.
 

The U.S. Transportation Dept. has given Kentucky $200,000 to conduct statewide enforcement of the mandatory seatbelt law.  We are told that officers will receive extra pay out of these funds if they write a minimum of three tickets.
 

The program went into operation on May l9, and is to continue until the first week in June.   We have noticed cars being pulled over in unusually high numbers throughout northern Kentucky and the Louisville area since May 19th.
 

A merchant in Owenton, Kentucky has reported to LawReader that they witnesseth a person cited by a Ky. State Trooper when the person was parked in a parking lot of a store they had just left.  The car was not moving.  The person cited had just entered their car. The person had inserted the key into the ignition before putting their seatbelt on, and thus were cited for operating a motor vehicle without a seatbelt.
 

We believe this is an overly broad interpretation of the mandatory seatbelt law adopted by the 2006 session of the General Assembly.
 

We have examined the law and find that “actual physical control” is required, and even under DUI rulings, a strict standard for interpretation of “actual physical control” is applied by the courts.
 

We conclude from the authorities cited below that a parking lot at a store is in most situations defined as “public roadway”, and the seatbelt law would apply to such parking lots.  That merely means a person cannot move their car in a parking lot without first fastening their seatbelt.
 

 

Under  Definitions for (The Seatbelt Law)  KRS 189.125.  Section (7) “Operator” means the person in actual physical control of a vehicle.”

 

The Seatbelt law definition of “operator” seems to impose the same requirement as the DUI laws that the operator must be in “physical control” of the vehicle.

 

The landmark case of Wells v. Com (see below). Places the burden of proof on the Commonwealth to prove “actual physical control”, and sets out standards for the determination of actual physical control.  We note that intent is one of these elements:

 

“We find that a number of factors have been used in determining whether a person operated or was in actual physical control of a motor vehicle including:
 

(1) whether or not the person in the vehicle was asleep or awake;
(2) whether or not the motor was running;
(3) the location of the vehicle and all of the circumstances bearing on how the vehicle arrived at that location; and
(4) the intent of the person behind the wheel.”
 

The Wells case dealt with a DUI.  The Seatbelt law we believe must be more strictly applied against the Commonwealth since an operater must unlock the seatbelt to leave the car, and not uncommonly starts the car before locking his seatbelt.  This starting of the car does not imply that he intends to move the car before locking his seatbelt.
 

We believe the Commonwealth will have difficulty in bearing its burden of proof by proposing that a running engine or insertion of the key in the ignition is the operate fact which will uphold a conviction.   We see not conclusion being justified that concludes that the person who starts his vehicle before locking his seatbelt has violated the law.  On the other hand, if the car is moving, and the seatbelt is unlocked, then the burden of intent has been met.
 

 

See Wells v. Com., 709 S.W.2d 847 (Ky. App., 1986)
 The appellant’s principal contention is that his actions do not constitute operating a motor vehicle under KRS 189A.010(1).
        KRS 189A.010(1) provides that “[n]o person shall operate a motor vehicle anywhere in this state while under the influence of alcohol or any other substance which may impair one’s driving ability.” The term “operate” is not defined in the statute, however KRS 189.010(6) defines “operator” as the person in actual physical control of the vehicle. Further, KRS 186.565(1), by which all persons operating a motor vehicle in Kentucky are deemed to consent to testing for blood alcohol content, also refers to the operation of a motor vehicle as “driving or actual physical control.”
        The court below relied on Newman v. Stinson, Ky., 489 S.W.2d 826 (1972), as the basis for its decision. In Newman, the defendant was arrested as he sat behind the steering wheel of his automobile nearly
Page 849
“passed out.” The automobile was stopped at an intersection with the motor running and had not moved although the light had changed several times. The question presented to the court was whether the officers had reasonable grounds to believe that the defendant was either driving the vehicle or in actual physical control of it that would provide cause for administering the breath analysis examination pursuant to KRS 186.565(1). The Court held that the circumstances of the defendant’s arrest would reasonably support either belief. Thus, the Court concluded that “[i]n this case the appellee [defendant] may well have had very little control of himself but the motor vehicle was unquestionably subject to his control or lack of it as the case may have been.” Id. at 828.
        DeHart v. Gray, Ky., 245 S.W.2d 434 (1952), cited in Newman, supra, the appellant was reported to the police for driving his truck in a dangerous manner. The police located the truck parked in the middle of the highway with the headlights on, the door open, and the motor running near a residence where the appellant was reported to be. The appellant staggered out of the residence, told the police the truck belonged to him and stepped on the vehicle’s running board stating he would move the truck. The appellant was then arrested for drunken driving. Following disposition of the criminal charge, the appellant brought suit against the officers for false imprisonment. The appellant argued that the arrest was illegal because the officers had insufficient grounds for making an arrest without a warrant.
        The Court pointed out there are numerous conflicting cases from other jurisdictions on what degree of conduct constitutes operation of a motor vehicle while under the influence of intoxicants. The Court stated that the appellant was in physical control of the truck when he left the truck in the middle of the road with the engine running and the lights on. Further, he continued to exercise control when he returned to the vehicle announcing that he intended to drive it. Thus, the Court concluded that the evidence of “operation” was sufficient to justify the arrest.
        We do not find that Newman, supra, or DeHart, supra, provide any hard and fast rules for determining when a person’s actions constitute operation of a motor vehicle. However, we think these cases, along with some decisions from other jurisdictions, will provide guidance in reaching any decision in the instant case. We find that a number of factors have been used in determining whether a person operated or was in actual physical control of a motor vehicle including: (1) whether or not the person in the vehicle was asleep or awake; (2) whether or not the motor was running; (3) the location of the vehicle and all of the circumstances bearing on how the vehicle arrived at that location; and (4) the intent of the person behind the wheel. See Annot., 93 A.L.R.3d 7 (1979).
        People v. Pomeroy, 419 Mich. 441, 355 N.W.2d 98 (1984), the intoxicated defendant was found asleep in the driver’s seat of a car legally parked outside a bar. The transmission was in neutral, the motor and heater were on, but the lights were off. The Court, under a statutory scheme virtually identical to Kentucky’s, held that the defendant was not operating a motor vehicle while under the influence of alcohol. The Court reasoned that a person in the driver’s seat of a car in motion may be operating the car although asleep or that an awake person in the driver’s seat may be in such physical control of the vehicle that he is operating it although the car is motionless. However, the Court concluded that a sleeping person could not be operating a vehicle which is not moving. See State v. O’Malley, 120 N.H. 507, 416 A.2d 1387 (1980).
        In most other jurisdictions where a sleeping person behind the steering wheel of a motionless car was held to be operating the motor vehicle, additional circumstances have been present that would show the person had in fact operated the vehicle. For example, Jacobson v. State, 551 P.2d 935 (Alaska, 1976), the defendant was intoxicated and was found asleep in his
Page 850
parked vehicle with the motor and heater running, but two wheels of the vehicle were situated on the highway and the other two were off the pavement. State v. Lariviere, 2 Conn.Cir. 221, 197 A.2d 529 (1963), the defendant’s car was found in a parking lot with its engine running and was obstructing traffic. The vehicle was not in a parking slot and the defendant was asleep in the driver’s seat. The vehicle had apparently rolled or was driven from a parking space. Commonwealth v. Kloch, 230 Pa.Super. 563, 327 A.2d 375 (1974).
        In the above cases, the vehicle in question could not have reached their locations without some form of operation. Further, the circumstances rendered it virtually impossible that anyone besides the respective defendants could have performed these maneuvers. Thus, one may reasonably conclude that various defendants did in fact operate these motor vehicles.
        Although the Kentucky cases of Newman, supra, and DeHart, supra, do not deal with the precise issue of operation of a motor vehicle under KRS 189A.010(1), it is apparent that facts concerning the location of these vehicles and the means of arrival were important. In Newman, supra, the car was found stopped at an intersection with a person nearly asleep sitting in the driver’s seat. In DeHart, supra, the vehicle was left in the middle of the road when the owner told the police that the vehicle was his and that he would move it. Thus, the respective vehicles must have been controlled by someone to reach their locations and it appeared certain that the persons charged exercised that control.
        In the instant case, the van was in a parking lot in a parking space, thus, there was no evidence that he had driven or otherwise operated the vehicle while intoxicated to its location. It was also not shown that he planned to operate the vehicle. That inference is negated by the facts that the transmission was in neutral and the parking brake was engaged. Most importantly, he was asleep at the time. “A sleeping person is seldom operating anything.” Pomeroy, supra, at 100. The only act clearly demonstrated was that the appellant started the van’s engine. When viewed in light of the other circumstances, we do believe that merely starting the engine in the van was not an exercise of actual physical control as defined in the above cases.
        The Commonwealth has the burden of proving each essential element of a crime beyond a reasonable doubt. Timmons v. Commonwealth, Ky., 555 S.W.2d 234 (1977). We think that the Commonwealth presented insufficient evidence of operation by the appellant to sustain a conviction under KRS 189A.010(1).”
Authorities:
The 2006 Mandatory Seatbelt Law:
 

KRS 189.125 Requirements of use of seat belts and child restraint systems — Exceptions.
(1) Except as otherwise provided in this section, “motor vehicle” as used in this section
means every vehicle designed to carry ten (10) or fewer passengers and used for the
transportation of persons, but the term does not include:
(a) Motorcycles;
(b) Motor driven cycles; or
(c) Farm trucks registered for agricultural use only and having a gross weight of
one (1) ton or more.
(2) A person shall not sell any new motor vehicle in this state nor shall any person
make application for registering a new motor vehicle in this state unless the front or
forward seat or seats have adequate anchors or attachments secured to the floor
and/or sides to the rear of the seat or seats to which seat belts may be secured.
(3) Any driver of a motor vehicle, when transporting a child of forty (40) inches in
height or less in a motor vehicle operated on the roadways, streets, and highways of
this state, shall have the child properly secured in a child restraint system of a type
meeting federal motor vehicle safety standards.
(4) As used in this section, “child restraint system” means any device manufactured to
transport children in a motor vehicle which conforms to all applicable federal motor
vehicle safety standards.
(5) Failure to wear a child passenger restraint shall not be considered as contributory
negligence, nor shall such failure to wear said passenger restraint system be
admissible as evidence in the trial of any civil action. Failure of any person to wear
a seat belt shall not constitute negligence per se.
(6) A person shall not operate a motor vehicle manufactured after 1981 on the public roadways of this state unless the driver and all passengers are wearing a properly adjusted and fastened seat belt, unless the passenger is a child who is secured as required in subsection (3) of this section. The provisions of this subsection shall not apply to:
(a) A person who has in his possession at the time of the conduct in question a
written statement from a physician or licensed chiropractor that he is unable,
for medical or physical reasons, to wear a seat belt; or
(b) A letter carrier of the United States postal service while engaged in the
performance of his duties.
(7) A conviction for a violation of subsection (6) of this section shall not be transmitted
by the court to the Transportation Cabinet. The Transportation Cabinet shall not
include a conviction for a violation of subsection (6) of this section as part of any
person’s driving history record.
(8) The provisions of subsection (6) of this section shall supersede any existing local
ordinance involving the use of seat belts. No ordinance contrary to subsection (6) of
this section may be enacted by any unit of local government.
Effective: July 12, 2006
 

Kenton County Public Parks Corp. v. Modlin, 901 S.W.2d 876 (Ky. App., 1995)  Modlin reasons that the statute of limitations in MVRA is applicable as “golf carts are commonly used in lieu of automobiles,” and because it is “common practice” for golf carts to transport people on and across highways near golf course surroundings. Modlin’s brief states: “The MVRA does not distinguish between public roadways and private property, but is applicable to any place in the Commonwealth a motor vehicle can travel.” Further, Modlin states: [A] golf course fairway is a “public roadway” within the meanings used in the MVRA. K.R.S. 304.39-020(9) defines “public roadway” broadly enough to include golf pathways and fairways on golf courses where golf carts are driven:
Public roadway means a way open to the use of the public for purposes of motor vehicle travel.
        Modlin’s argument, persuasive to the trial court, that the golf course fairway is a “public roadway,” so therefore a “public highway” within the meaning of MVRA, requires more of a leap in faith than a leap in logic.
        A golf course fairway is not a “public highway” nor a “public roadway” within the meaning of KRS 189.010(3) or KRS 189.010(9). There is nothing more we can say about it.

KRS 189.010:
 

(3)  ”Highway” means any public road, street, avenue, alley or boulevard, bridge, viaduct, or trestle and the approaches to them and includes private residential roads and parking lots covered by an agreement under KRS 61.362, off-street parking
facilities offered for public use, whether publicly or privately owned, except for-hire parking facilities listed in KRS 189.700
 

(9) “Right-of-way” means the right of one (1) vehicle or pedestrian to proceed in a
lawful manner in preference to another vehicle or pedestrian approaching under
such circumstances of direction, speed, and proximity as to give rise to danger of
collision unless one grants precedence to the other.

 

(10) “Roadway” means that portion of a highway improved, designed, or ordinarily used
for vehicular travel, exclusive of the berm or shoulder. If a highway includes two
(2) or more separate roadways, the term “roadway” as used herein shall refer to any
roadway separately but not to all such roadways collectively.

 

Exception:
 

KRS 189.700 Declaration of policy concerning parking lots and automobile storage
garages.
It is declared that the operation of automobile parking lots or automobile storage garages,
wherein automobiles are parked or stored for hire, is a business impressed with the public
interest. It is further declared that any contract purporting to limit the liability of the
operator of such a lot or garage, for loss of or damage to an automobile parked for hire, or
its contents, except liability for damage by the elements or by physical forces beyond the
control of the operator and his employees, is against public policy.
Effective: June 17, 1954
History: Created 1954 Ky. Acts ch. 154, sec. 1, effective June 17, 1954.
 

KRS 61.362 Agreement permitting peace officers to patrol private residential property to enforce state and local traffic and motor vehicle laws.
(1) Any public police department, sheriff’s office, or the Department of Kentucky State
Police may, upon written agreement with a residential property owner or a
residential property owners’ association, patrol the roadways and parking lots of
private residential communities within the jurisdiction of the public police
department, sheriff’s office, or the Department of Kentucky State Police and enforce
the traffic and motor vehicle laws of the Commonwealth of Kentucky and local
traffic and motor vehicle ordinances, on that residential private property.
(2) This section shall not permit a public police department, sheriff’s office, or the
Department of Kentucky State Police to enforce the private rules or regulations of
the residential property owner.
(3) This section shall not limit any peace officer from coming on residential private
property for the enforcement of the law, provided that the entry upon residential
private property is consistent with the provisions of the Constitution of the United
States, the Constitution of Kentucky, the Kentucky Revised Statutes, and applicable
court decisions.
Effective: June 26, 2007
History: Amended 2007 Ky. Acts ch. 85, sec. 129, effective June 26, 2007. — Created
1998 Ky. Acts ch. 587, sec. 1, effective July 15, 1998.
 

OPERATE:
 

The DUI statutes speak in terms of operation as being in “physical control” of a motor vehicle.
 

Lopez v. Com., 173 S.W.3d 905 (KY, 2005)  (Ky. Sup. Ct.) We conclude that the Fayette Circuit Court misconstrued the 2000 amendment of the statute. The General Assembly intended to criminalize the existence of a blood alcohol concentration of 0.08 or more only if the accused was then operating or in physical control of a motor vehicle.
 

 

 

Texas Appeals Court Says Polygamist Sects children illegally seized

Friday, May 23rd, 2008

 

By RALPH BLUMENTHAL New York Times – May 23, 2008

 

See: Text of the Ruling (pdf)
HOUSTON — A Texas appeals court ruled on Thursday that the state had illegally seized up to 468 children from their homes at a polygamist ranch in West Texas. The decision abruptly threw the largest custody case in recent American history into turmoil.
Skip to next paragraph Although the court did not order the children’s immediate release, it raised the prospect that many of them would be reunited with their families, possibly within 10 days. The children have been in foster homes scattered across Texas since early April, making their parents travel hundreds of miles to visit them.
Officials of the State Department of Family and Protective Services, which led the raid on the ranch in Eldorado, defended their actions as being taken in the children’s interest and said they were considering their next steps.
The unanimous ruling by three judges of the Third Court of Appeals in Austin revoked the state’s custody over the children of 38 mothers and, by extension, almost certainly the rest, for what it called a lack of evidence that they were in immediate danger of sexual or physical abuse.
One mother, Martha Emack, 23, said she was “totally thrilled” by the ruling. “Everyone is totally overjoyed to tears,” she said in a telephone interview.
Ms. Emack said both of her children had been seized — one just turned a year old and the other 2. “It’s been very emotional, very traumatizing,” she said.
When asked whether she ultimately wanted to return to the ranch with her children, Ms. Emack said quickly, “I do want to go back.”
The court said the record did “not reflect any reasonable effort on the part of the department to ascertain if some measure short of removal and/or separation would have eliminated the risk.”
It said that the evidence of danger to the children “was legally and factually insufficient” to justify the removal and that the lower court had “abused its discretion” in failing to return the children to the families.
The ruling, an unusual opinion granting relief in a case not yet decided, was issued on the custody challenge by the 38 women and an additional 54 who filed a second action. Lawyers said the burden was on the state to show why it should not apply to the rest of the children, as well.
Custody hearings under way before five judges in San Angelo were canceled.
Susan Hays, a lawyer in Dallas who specializes in appellate law and who is the lawyer for a 2-year-old taken from the ranch, said the children might begin returning home as early as next week.
“Right now, there is an order saying return the children,” Ms. Hays said. “It technically does not apply to all the women’s children. But practically it does.”
She said the state would have to file a motion for emergency release quickly that asks the court to stay the order.
“If they don’t,” Ms. Hays said, “then we’re done. The children could be returned as soon as next week, or not depending on what happens with the high court.”
The case began on April 3, when Texas investigators, saying they were responding to a girl’s call for help, raided the 1,691-acre Yearning for Zion ranch of the Fundamentalist Church of Jesus Christ of Latter-day Saints in Eldorado, about 45 miles south of San Angelo.
The caller was never found, and investigators now suspect that the call was a hoax.
The polygamous sect broke away from the Mormon church decades ago over the Mormons’ condemnation of plural marriage and began building its secluded compound in Eldorado in 2003.
The sect’s leader, Warren Jeffs, was sentenced last November in Utah to 10 years to life in prison for forcing a 14-year-old girl to marry her 19-year-old cousin and to submit to sexual relations against her will,
In a statement after the ruling on Thursday, the Department of Family and Protective Services said: “Child Protective Services has one duty: to protect children. When we see evidence that children have been sexually abused and remain at risk of further abuse, we will act.”
The agency said it removed the children “after finding a pervasive pattern of sexual abuse that puts every child at the ranch at risk.” The officials said interviews “revealed a pattern of under-age girls being ‘spiritually united’ with older men and having children with the men.”
“We will work with the Office of Attorney General to determine the state’s next steps in this case,” the department said.
The appeals judges who ruled, Chief Justice W. Kenneth Law and Justices Robert. H. Pemberton and Alan Waldrop, all Republicans, said removing children from their homes was “an extreme measure” justifiable only in the event of urgent or immediate danger.

Skip to next paragraph
Instead, the court said, the state argued that the “belief system” at the ranch condoned under-age marriage and pregnancy and that the whole ranch functioned as a “household” in which sexual abuse anywhere threatened children in the entire community.
But in reality, the judges said, there was no evidence of widespread abuse, and they faulted the district judge, Barbara Walther, for approving the children’s removal based on insufficient grounds.
David Schenck, a Dallas lawyer who represented one mother, Marie Steed, said that the appeals court had asked the state to respond to the women’s motion by last Monday and that the state had asked for more time.
“This was the court’s answer,” Mr. Schenck said.
The ruling was hailed by the Liberty Legal Institute, which litigates cases of religious freedom.
“One message from this decision is clear,” the group said. “The rights of every Texas parent will be taken seriously, no matter who you are.”
Jim Cohen, a law professor at Fordham University, said it was highly unusual for an appeals court to intervene in a continuing case, especially one involving child protection.
“It showed the proof was really weak, not a close call at all,” Professor Cohen said.
Tim Edwards, a lawyer in San Angelo who represents four mothers, said: “This is a wonderful day. It confirms not only my feeling, but the feeling of many, many attorneys involved in the case, that Child Protective Services failed to meet their burden of proof to justify a court order to remove more than 400 children from their homes for the last six or seven weeks.”
Mr. Edwards said even if the children went home soon, the effects were likely to linger.
“You’re talking about a situation that is traumatic to many people,” he said, “and the recovery from that trauma may be slow in coming.”
Cynthia Martinez, a spokeswoman for Texas RioGrande Legal Aid, which represents many of the women, said sentiments varied. Many mothers, Ms. Martinez said, voiced “a general concern that the ranch had lost its purpose because the mothers and children’s last memory is of the ranch being raided, and that is a huge concern for a lot of these parents.”
Ms. Hays said she was surprised by the judges, whom she described as among the most conservative on the court. “This ruling restored my faith in the rule of law,” she said. “This is an opinion based on law and not politics.”
Laura Nugent, a lawyer in Austin who represents four of the children, said she was thrilled. “I feel this is the correct way to rule on the evidence,” Ms. Nugent said. “I felt all along that the department did not bear their burden of proof.”
Ms. Nugent, whose clients are 6, 10, 11 and 12, said she was unsure whether the ruling applied to all the children she represented and was awaiting details.
“They all want to go home,” she said. “They are emphatic that they want to go home and be reunited with their parents and their siblings.”
It was not the first time a raid on polygamists may have backfired. In 1953 Arizona authorities under Gov. Howard Pyle raided the fundamentalist community of Short Creek, which is now Colorado City, Ariz., and Hildale, Utah, taking about 160 children into state custody.
But the custody ruling was overturned on appeal in 1955 after lawyers for the children argued that they were denied adequate legal representation. Most of the women and children then returned to Short Creek to join their husbands, who had pleaded guilty to misdemeanor conspiracy to commit unlawful cohabitation and were sentenced to one year on probation. Governor Pyle lost the 1954 election.
Mohave County Judge J.W. Faulkner later said he made a legal “blunder” during the custody hearings, writing after his retirement in 1955 that the reversal “will inevitably give new life to the cause of polygamy, and prolonging the fight for another 50 years.”
 

 

At U.S. Supreme Court, 5-to-4 Rulings Fade, but Why?

Friday, May 23rd, 2008

 

By LINDA GREENHOUSE May 23, 2008

 

WASHINGTON — Where have all the 5-to-4 decisions gone?

 

And whatever happened to the “

Kennedy Court

”?

A year ago at this time, the Supreme Court had decided 13 cases by votes of 5 to 4, out of 41 total decisions. That proved to be an accurate snapshot of a highly polarized term. By the time the court wrapped up its work five weeks later, a third of the cases — the highest proportion in years — had been decided by margins of a single vote.

 

But so far this term, with 35 cases decided with full opinions, there has been only a single 5-to-4 decision. It came in a low-visibility statutory case, not in a hot-button constitutional one. And the justices did not break along the ideological divisions that shaped the last term. Justice Anthony M. Kennedy, who was in the majority in all 24 of last term’s 5-to-4 decisions, voted in dissent.

 

Justice Kennedy’s dominance last term was so complete that, of 68 decisions, he cast only two dissenting votes. He has already dissented five times this term. So have Justices Samuel A. Alito Jr., Stephen G. Breyer and John Paul Stevens. In other words, no longer the essential justice, Anthony Kennedy now looks like just one of the pack.

 

Something is happening, clearly. The question is what. The caveats against drawing any hard conclusions at this stage are obvious. For one thing, the term is functionally only half over, with 35 cases down and 32 to come. And it is common for the hardest-fought decisions to come at the very end. The District of Columbia gun control case, the latest case on the rights of the Guantánamo detainees and a case on whether the death penalty is a constitutional punishment for raping a child are yet to be decided.

 

Still, there is a clear pattern in the cases the court has already decided this term. The court upheld Kentucky’s method of execution by lethal injection by a vote of 7 to 2. It upheld Indiana’s law requiring photo identification at the polls by a vote of 6 to 3. The justices voted 7 to 2 on Monday to uphold the latest federal effort to curb trade in child pornography.

 

All were major cases, all plausible candidates for 5-to-4 outcomes. All were government victories, hardly surprising coming from a conservative court. But even Justice John Paul Stevens, the leader of the court’s beleaguered liberal bloc, voted with the majority in all three cases. The surprise was that the government side won each so handily.

 

It would be too simplistic an explanation to say that the liberal justices, at least some of them, have simply given up. Something deeper seems to be at work. Each of those three cases might have received a harder-edged, more conclusively conservative treatment at the hands of the same five-member majority that controlled the last term.

 

Instead, the lethal injection and voter ID decisions hewed closely to the facts of each case. Kentucky’s lethal injection protocol passed muster, but the court left open the possibility that another state’s practice might not. The voter ID challenge reached the court on a nonexistent record, so perhaps a stronger case could be made at a later time. Justice Antonin Scalia’s majority opinion in the child pornography case construed the statute so narrowly as to allay the First Amendment concerns of Justices Stevens and Breyer and win their full concurrence.

 

So perhaps there was a bit of movement on both sides — not simple liberal capitulation, but liberals using their limited leverage to exact some modest concessions as the price of helping the conservatives avoid another parade of 5-to-4 decisions.

 

With the conservative bloc so clearly in control, what leverage could the liberals possibly have? Recall the pledge that Chief Justice John G. Roberts Jr. made, both in his 2005 confirmation hearing and in the early months of his tenure, to seek consensus and to lead the court in speaking in a modest judicial voice. That was not how the last term looked, as the majority took aim at precedents and appeared to have in mind an agenda much more ambitious than simply calling balls and strikes.

 

Indeed, much of the commentary on the court’s performance during the last term was harsh, and it came not only from liberals. Judge Richard A. Posner, the conservative icon who sits on the federal appeals court in Chicago, offers some pointed and unusually personal criticism of Chief Justice Roberts in his new book, “How Judges Think,” published this year by Harvard University Press. The chief justice’s self-description during his confirmation hearing as a simple baseball umpire might have been a “tactical error” for one who evidently “aspires to remake significant areas of constitutional law,” Judge Posner writes, adding:

 

“The tension between what he said at his confirmation hearing and what he is doing as a justice is a blow to Roberts’s reputation for candor and a further debasement of the already debased currency of the testimony of nominees at judicial confirmation hearings.”

 

Such words from Richard Posner would cause any member of the court, let alone a relatively new and young chief justice who undoubtedly admires him, to swallow hard.

The court’s modulated tone may also stem from the fact that this is an election year. Lee Epstein, a political scientist and law professor at Northwestern University, said that political scientists had long observed an “election effect” on the court that results in more consensus and fewer 5-to-4 decisions during an election year than in the preceding term.

“Of course, lots of things could explain this, but the pattern is pretty interesting,” Ms. Epstein said in an e-mail exchange, adding that the justices “probably don’t want to provoke controversy, or become an issue, during the election — especially an election with a highly uncertain outcome.”

 

Perhaps the conservative justices were taken aback by the public response to the Lilly Ledbetter case, a 5-to-4 decision in an employment discrimination case last term that placed a tight time limit on an employee’s ability to file a pay discrimination claim. The decision led to Congressional hearings during which the court was denounced as out of touch with the reality of women’s working lives. A bill to overturn the decision failed in the Senate, but came close.

 

Whether as a direct result, the court adopted a notably different tone in an employment discrimination case decided in February. The court voted 7 to 2 to excuse an employee’s failure to file the proper form to initiate an age discrimination case. With only Justices Scalia and Clarence Thomas dissenting, that case, Federal Express Corp. v. Holowecki, produced one of the term’s few liberal victories. Another closely watched employment discrimination case ended, surprisingly, with a unanimous decision that avoided drawing the clear line that the two sides were arguing over.

 

None of this is to suggest that whatever strategic decisions the justices are making are being made collectively. The court is by its nature an atomistic institution, its actions the aggregation of determinedly individual decisions. But if any one individual is smiling, it is no doubt Chief Justice Roberts. By this time last year, he had cast seven dissenting votes. So far this term, he has dissented only once.

 

Old case sheds light on Separation of Powers argument between Judiciary and Senate

Thursday, May 22nd, 2008

By LawReader Senior Editor Stan Billingsley   May 22, 2008

In a court ruling handed down 51 years ago (see below), the Court held that the Appointment of Judicial Branch officers was a Judicial function.  This ruling came l9 years before adoption of the Judicial  Amendments to the Ky. Constitution.  Those l976 Amendments provide even stronger arguments for Judicial Independence.
 

One issue that was not discussed in this ruling, or in any court ruling to date, is the fact that the office of Circuit Clerk is placed in Section 97 which is under the heading of “Executive Branch” officers in the Ky. Constitution. Therefore one may present an argument that Clerks are Executive Branch officials.  
 

This issue has never been ruled on in Kentucky.  There has always been the assumption that Clerks were Judicial officers. If the appointment of the Director of the Administrative Office of the Courts by Chief Justice Lambert, which ignores the statute which grants the Senate the power of conformation over the AOC Director, results in a lawsuit, then these issues will surely be raised.
 

297 S.W.2d 764
In re APPOINTMENT of the CLERK OF the COURT OF APPEALS.
Court of Appeals of Kentucky. Jan. 22, 1957.
        PER CURIAM.

        An obstruction to the administration of justice is threatened in Kentucky by a sequence of events involving the occupancy of the office of Clerk of the Court of Appeals, and it must be resolved quickly and finally in order that chaos shall not prevail with the result that the functioning of this Court be impaired. On the surface it appears to be a fight over patronage, but it is far more important than that because it involves the very vital question of whether one branch of government may impair the exercise of rightful powers of another.

        The death of the beloved Clerk of this Court, the Hon. Charles K. O’Connell, on January 10, 1957, created a vacancy in the office and the Court, by its order of January 14, 1957, appointed Miss Doris Owens, Deputy Clerk in the office for more than twenty years, Clerk of the Court to fill the vacancy. The power of the Court

Page 765

to do this is conceded. However, it is contended by the Executive Branch of the State Government that the power to fill the vacancy until the next election really belongs to the Governor whenever he is ready to act, and that, consequently, the Court’s appointment of Miss Owens was effective only until the Governor made his appointment. All efforts to settle the question by negotiation were unavailing because the Constitution itself was involved.

        On January 17, 1957, after receiving an inconclusive opinion from the Attorney General, the Governor commissioned Mr. Walter Ferguson, Clerk of the Court of Appeals, and that estimable gentleman took the oath of office on the next day. Confronted with the dilemma of whether the Governor’s appointee or the Court’s appointee is the legal occupant of the office, the Commissioner of Finance publicly announced for his own financial protection, according to the press, that he would pay neither until ordered to do so by some court. The problem thus developing peculiarly pertains to the functioning of this Court, the highest court in the Commonwealth, and to no other, and we shall deal with it directly. See discussion of original jurisdiction of this Court in Commonwealth ex rel. Ward v. Harrington, 266 Ky. 41, 98 S.W.2d 53. See, also, an ex parte opinion rendered by this Court in 1881 styled, Opinion of the Judges of the Court of Appeals on the Subject of the Power of the Governor to fill Vacancies by Appointment, 79 Ky. 621, 3 Ky.Law Rep. 2-11.

        It is the prime duty of this Court to assure to the best of its ability the orderly and effective administration of justice in this jurisdiction, and it has the inherent power to do what is reasonably necessary to attain that goal. As stated by the Montana Supreme Court State ex rel. Hillis v. Sullivan, 48 Mont. 320, 137 P. 392, 395:

‘The very conception of inherent power [in the courts] carries with it the implication that its use is for occasions not provided for by established methods. * * * When, however, these [established] methods fail and the court shall determine that by observing them the assistance necessary for the due and effective exercise of its own functions cannot be had, or when an emergency arises which the established methods cannot or do not instantly meet, then and not until then does the occasion arise for the exercise of the inherent power.’

        For various instances where the inherent power of the courts was invoked, see Mitcheson’s Adm’r v. Foster, etc., 60 Ky. 324; Louisville Industrial School of Reform v. City of Louisville, 88 Ky. 584, 11 S.W. 603; Burton v. Mayer, 274 Ky. 263, 118 S.W.2d 547; In re Janitor of Supreme Court, 1879, 35 Wis. 410; Noble County Council v. State ex rel. Fifer, 1955, 234 Ind. 172, 125 N.E.2d 709; Dahnke v. People, 168 Ill. 102, 48 N.E. 137, 39 L.R.A. 197; State ex rel. Kitzmeyer v. Davis, 26 Nev. 373, 68 P. 689; Leahey v. Farrell, 362 Pa. 52, 66 A.2d 577. And, indeed, a court ‘may, in appropriate cases, make ex parte orders without formally instituting an action to secure the desired relief.’ In re Court Room and Offices of Fifth Branch Circuit Court, Milwaukee County, 148 Wis. 109, 134 N.W. 490. An emergency has been created in this jurisdiction by the act and intended act of the Executive Department which cannot be promptly relieved by the ordinary routine of litigation, and fully justifies direct and forthright action by this Court, now.

        The act of the Governor in commissioning a Court Clerk of his own choosing to replace the Clerk appointed by this Court, and the understandable decision of the Commissioner of Finance in declaring that he will refuse to pay a salary to either Clerk, have not affected the functioning of

Page 766

the Executive Department, but they definitely have impaired and threaten to impair the functioning of the Judicial Department. The situation thus created makes clear the wisdom of our Constitution which prescribes in Section 27:

‘The powers of the government of the Commonwealth of Kentucky shall be divided into three distinct departments, and each of them be confined to a separate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.’

        And admonishes in Section 28:

‘No person or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted.’

        When the separation of the powers of government is appreciated and observed, when restraint and cooperation are practiced, democracy flourishes and dictatorship is impossible. Ever since the landmark opinion of Chief Justice Marshall in 1803 Marbury v. Madison, 1 Cranch 137, 2 L. Ed. 60, when a conflict occurs between or among these three great branches of government, it has historically been the duty of the highest court in the jurisdiction to resolve the constitutional issue. The judges of such a court, whether appointed or elected, are the persons in whom the people have placed the power and the duty to decide the issues. Just as the Supreme Court of the United States determines such matters, so must this Court determine them in Kentucky.

        The seven judges of this Court were elected by the people of Kentucky to head the judicial branch of their government. They have taken an oath to support the Constitution, and they would be quite remiss in the performance of their duties if they failed to do so. Faced with the necessity of having a Clerk in office at the opening of the Winter Term of the Court on January 14, 1957, we seven judges examined the Constitution and unanimously decided that we had the constitutional power to appoint the Clerk, and it is conceded that we had the power to make such an appointment at that time. A discussion of the pertinent sections of the Constitution will disclose that it would take quite a bit of gymnosophistry to reach the conclusion that the Clerk appointed by the Court must be replaced by a Clerk appointed by the Executive Department before the electorate has an opportunity to fill the office at the general election next November.

        Section 121 of the Constitution stipulates that, ‘No person shall be eligible to the office of Clerk of the Court of Appeals unless he is a citizen of Kentucky * * * and have a certificate from a Judge of the Court of Appeals that he has been examined by him, or by the Clerk of his Court under his supervision, and that he is qualified for the office.’ No effort was made to qualify the appointee of the Executive Department in compliance with this provision. Section 124 empowers the Court of Appeals to remove the Clerks of all Courts from office ‘upon information and good cause shown.’ And the most important pertinent provision of the Constitution in this controversy, Section 122, declares:

‘Should a vacancy occur in the office of the Clerk of the Court of Appeals, or should the Clerk be under charges, the Court of Appeals shall have power to appoint a Clerk until the vacancy be filled as provided in this Constitution, or until the Clerk be acquitted.’

        The whole tenor of these provisions of the Constitution indicates quite clearly that it was the intention of the Constitutional Convention to give the Court considerable power over its Clerk and to recognize the fundamental doctrine of the separation of powers of government (Sections 27 and

Page 767

28, heretofore quoted) by specifically directing the Court to fill any vacancy in the office of the Clerk until the electorate has the opportunity to fill it at the next proper election. The events of the past week confirm the wisdom of this conclusion.

        However, it is argued that the words of Section 122 that ‘the Court of Appeals shall have power to appoint a Clerk until the vacancy be filled as provided in this Constitution’ mean that the Court shall have the power only until the Executive Department exercises its power of appointment under Section 152 of the Constitution. The latter section provides in part:

‘Except as otherwise provided in this Constitution, vacancies in all elective offices shall be filled by election or appointment * * *. Vacancies in all offices for the State at large * * * shall be filled by appointment of the Governor; all other appointments shall be made as may be prescribed by law.’

        and goes on to fix the time when elections shall be held for the unexpired terms of offices. Under Section 152 vacancies on this Court and on the Circuit Bench are filled by appointment of the Governor until the next proper election.

        When read together, Sections 122 and 152 obviously mean that a vacancy in the office of Clerk of the Court of Appeals shall be filled by appointment of the Court until the election for the unexpired term as prescribed by Section 152. Section 122 is a specific provision and Section 152 expressly excepts it. In fact, no commission is required from the Governor for the Clerk appointed by the Court (Section 76 of the Constitution) as is required when the Governor has the power to appoint.

        Since the founding of this Commonwealth, the judges of the Court of Appeals have always had the authority to fill a vacancy in the office of the Clerk. Ky.Const., (1792) Art. VI, Sec. 5; Ky.Const., (1799) Art. IV, Sec. 10; Ky.Const., (1850) Art. IV, Sec. 13. This is made especially clear in the 1850 Constitution wherein the authority of the Governor was limited to the right to call an election when the vacancy exceeded one year. The Governor’s right to fill vacancies in other State elective offices was embodied in Art. VIII, Sec. 26, of that Constitution, and the office of Clerk of the Court of Appeals was omitted. The similarity of the principles embodied in the first three Constitutions, especially the third one, is striking. The separation of authority on this point has been embodied in our present Constitution in slightly different language.

        The doctrine of the separation of governmental powers, Sections 27 and 28, runs like a golden thread throughout the fabric of our government. For example, the General Assembly is the sole judge of the election and qualifications of its members, Section 38, it alone can expel a member, Section 39, and vacancies in the General Assembly can be filled only by an election by the people, Section 152. The Circuit Courts are authorized by statute to fill vacancies in the office of Circuit Court Clerks by court appointment. KRS 63.220(2). And it is common knowledge that the General Assembly selects its employees, so does this Court, and so does the Executive Branch.
        ’Each to its own’ is the law of the Constitution which the Executive Branch and the Judiciary each must obey. When constitutional prerogatives are as clearly defined as they are here, integrity requires that encroachment be firmly resisted and a compromise, which events have demonstrated violates the Constitution, be as firmly rejected. It is our unanimous opinion that this Court alone has the constitutional power of appointment to fill vacancies in the office of the Clerk of the Court of Appeals until the electorate has an opportunity to elect a candidate for the unexpired term at a proper election. In the light of the foregoing and in order to assure the orderly administration of justice

Page 768

in this jurisdiction, necessary orders will be made as required.

Order

        The Clerk of the Court of Appeals, Miss Doris Owens, is hereby directed to transcribe in full this Opinion and Order on the Order Book of this Court, this 22 day of January, 1957.

        It is the view of Judge CAMMACK that the Court has the duty to fill a vacancy in the office of the Clerk of the Court of Appeals as provided in the Constitution, and he concurs in the foregoing Order to that effect.

 

Fen Phen Trial Judge: I Relied on Attorneys & Stan Chesley as Class Action Expert

Thursday, May 22nd, 2008

 

The following story discussed the highlights of the trial testimony of retired Boone Circuit Judge Joseph Bamberger.  The prosecution called Judge Bamberger as a witness for the Government on the 8th. day of testimony in the trial.

 

The Administrative Office of the Courts has never provided a CLE on class action practice. LawReader called for new guidelines and rules for class action practice, and Chief Justice Lambert has appointed a committee to study the need for new class action rules in Kentucky. 

 

A review  of the Kentucky Class Action Rules (Civil Rule 23)  shows that little technical guidance is given to the court, and almost unlimited discretion is granted to the court.

 

Judges often rely on the attorneys to inform the court on the procedures for practice before their court.  The adversary system provides an incentive for a check and balance so that the court hears both sides of an issue.  When one party fails to uphold their adversarial duty the Court may receive incorrect advice.  The practice of conducting hearings to have the attorneys argue the correct procedure in a case is way courts operate and is hardly novel. Nevertheless, the trial judge still bears the ultimate responsibility for making a correct call.

 

The Code of Judicial Conduct immunizes a judge from sanctions for making a bad legal ruling.  The remedy for a bad judicial ruling is an appeal. Nevertherless, the Judicial Conduct Commission cited Judge Bamberger and sanctioned him.

 

Bamberger relied on the attorneys who were practicing the case before him. The Civil Rules provided almost no guidance on how to practice a class action case.  The attorneys are alleged to have lied to the court, and the video tapes played at the trial appear to bear this out.   This should serve as an example to every judge.  In the words of Ronald Reagan, you should adopt a policy of ‘Trust but verify”.  

 

Judge Bamberger has never been charged with the violation of any law. The only basis for his Judicial Conduct Commission sanction was “the appearance of impropriety”.

 

See excerpts from NKY.Com article by Jim Hannah- May 22, 2008

 

         Bamberger made Mistakes in $200M settlement 
COVINGTON – The judge who presided over a $200 million fen-phen settlement that three Lexington lawyers are accused of looting said he used “poor judgment” in his handling of the case.
“I’m embarrassed,” retired Circuit Judge Joseph “Jay” Bamberger testified during the eighth day of the three lawyers’ trial in U.S. District Court. As the busiest circuit judge in Kentucky at the time of the 2001 settlement, Bamberger said he depended on the advice of the Lexington lawyers in the case and on Cincinnati lawyer Stan Chesley.
Jurors then watched a video of a May 2001 hearing in which Bamberger approved the multimillion-dollar settlement. In the video, Bamberger seeks advice from Chesley on the proper way to proceed with the case.
Chesley is heard on the tape making a self-deprecating joke about his qualifications as a class-action expert. Over the laughs that follow, Bamberger said Chesley was “taking the role” of the expert in the fen-phen litigation.
Chesley, who has not been charged with a crime, declined to comment Wednesday afternoon when reached by telephone. He has previously said he didn’t represent the people sickened by the diet drug fen-phen. Chesley says he was brought into the case as “an adviser” to help the three lawyers reach an out-of-court settlement with the drug maker.
The lawyers – Shirley Cunningham Jr., William Gallion and Melbourne Mills Jr. – each face up to 20 years in prison if convicted of conspiracy to commit wire fraud.
The trio withheld information as part of a conspiracy to keep a huge share of the settlement money for themselves, U.S. Assistant Attorney Laura Voorhees said. The lawyers were entitled to about $60 million in fees, but they took an additional $45 million and put another $20 million into a charity they created and controlled, according to court records.
Bamberger told jurors in the federal trial that he had never presided over a class-action suit at that point in his career and looked to an acknowledged national expert, Chesley, to guide him. Despite mandatory continuing education during the 12 years he served as circuit judge in Boone and Gallatin counties, Bamberger testified he never received training on class-action lawsuits.
Bamberger acknowledged he should not have approved the creation of the charity with $20 million of the settlement money and then appoint Cunningham, Gallion, Mills, and later himself, to the board. Each board member, including Bamberger, was paid $5,000 a month to manage the charity.
Bamberger also said he made an error by issuing a court order approving the lawyers’ fees without specifying in writing how much those fees were. He said the lawyers didn’t tell him many pertinent facts about the case, including the fact they had agreed with their clients to take no more than 30 percent of any settlement.
Bamberger said “it would have changed life dramatically for everyone” had he known that, and other facts.
When Bamberger told jurors that he stepped down as judge in February 2006 to avoid being removed by Kentucky’s judicial conduct commission for his actions, Gallion’s defense attorney, O. Hale Almand, asked for a mistrial.
He said Bamberger’s testimony about his reprimand reflects badly on the lawyers. If the judge was guilty, then by implication the lawyers would be guilty, he said.
U.S. District Judge William Bertelsman disagreed and let the trial proceed.
The trial, which could last another three weeks, continues this morning. Bamberger, the 10th person to testify, has not yet been cross-examined by defense attorneys.
Staff writer Dan Horn contributed.
 

National Press can’t give Hillary a break…they twist exit polls to paint Ky. Primary as racist.

Wednesday, May 21st, 2008
May 21, 2008

In an Associated Press article published the morning after the Kentucky Primary Election racism was credited in the lopsided victory of Hillary Clinton (65%) over Barack Obama. (35%). 

The AP article opined: 

“Racial attitudes were also striking. About one in five whites in Kentucky said race played a role in choosing their candidate — on par with results in other Southern states. Nearly nine in 10 of that group backed Clinton — the highest proportion yet among the 29 states where that question has been asked.”

 

We interpret that article to read that only 20% of the white persons who submitted to an exit poll credited race as playing a role in their decision.  The AP could also have said that 80% of the white people polled said race was not a factor.  But that was not the way to sell newspapers.   

The pundits at the AP and most of the talking heads on television also interpreted that race was a factor in the Ky. primary.   

 

As we look at those poll numbers cited by the Associated Press, we believe it would be more accurate to conclude that race was a relatively minor factor in the Kentucky primary. 

 

When we compare the breakdown of African American voting patterns such as North Carolina, we note that 92% voted for Obama. In Indiana Obama got more than 90 percent of the black vote, while Clinton won only 61 percent of the white vote. In Washington D.C., Atlanta, South Carolina, Maryland, Virginia and other states, Obama has consistently received a higher per cent of the black vote than Hillary has received from white voters. 

We have not seen any AP articles painting the support of African Americans for Obama as being racist.  The press however, has no problem in jumping to the conclusion that white voting patterns prove that white voters are racist.   

 

We have no crystal ball that permits us to look into the hearts of voters and determine why they voted they way they did.  Maybe racism is a factor, but if it is, it probably is a factor shared by both races.  And the bottom line is that Obama would not have won any state without significant support of white voters. 

 

We believe that African American voters are not necessarily racist if they vote for a candidate on the basis of ethnic pride.  We also believe that in Kentucky Hillary, Bill and Chelsea worked very hard. There was hardly a city in the state they did not visit. Obama was hardly seen in the State.  Might not that have been a significant factor in the outcome of this election? Why doesn’t  the press credit the hard work of the Clinton campaign for the results in the Ky. primary, instead of making unsupported claims of white racism? 

Primary election results in Kentucky Judicial races.

Tuesday, May 20th, 2008

The top two candidates in each district will have a run-off this November in the General Election.
 

Kenton DISTRICT JUDGE 16TH DIST DIV 004 ELECTION RESULTS
Candidate
Party
Votes
Overall %

Ken Easterling
7,336
29.8%
Kathleen Lape
6,457
26.2%
Patrick Monohan
3,883
15.8%
Mary Fortner Rafizadeh
3,096
12.6%
Doreena A. Fox
1,927
7.8%
Dennis C. Alerding
1,924
7.8%

 

Jefferson CIRCUIT JUDGE 30TH DIST DIV 004 ELECTION RESULTS
Candidate
Party
Votes
Overall %

Charlie Cunningham
72,240
56.4%
W. Douglas Kemper
36,000
28.1%
Louie Guenthner
19,811
15.5%

 

Jefferson DISTRICT JUDGE 30TH DIST DIV 016 ELECTION RESULTS
Candidate
Party
Votes
Overall %

Katie King
34,149
23.8%
David Larry Holton II.
26,493
18.5%
Ann Bailey Smith
22,896
16.0%
David P. Bowles
14,688
10.2%
Allyson Cox
14,002
9.8%
Sheila Berman
11,538
8.0%
Shelley Santry
8,898
6.2%
Laura Prater Russell
4,498
3.1%
Aaron J. Silletto
3,814
2.7%
Jan Firkins Brightwell
2,530
1.8%

 

 

Laurel & Knox

Laurel & Knox
DISTRICT JUDGE 27TH DIST DIV 002 ELECTION RESULTS
Candidate
District total vote
John Chappell
5966
     
Harold Fish Dyche II.
2404      
Gilbert E. Holland
3178
     
Vanessa L. Sears
780      
Randy Azbill
442      

 

 

McCreary & Whitley

DISTRICT JUDGE 34TH DIST DIV 002 ELECTION RESULTS
Candidate
District total vote
Jane R. Butcher
2401      
Jason P. Price
2966
     
Fred F. White
2411
     
Leroy A. Gilbert Jr.
1220      

 

See other races in the May 20, 2008 Kentucky Primary election at http://electionresults.ky.gov/KyElectWeb/

Supreme Court Upholds Child Pornography Law which makes innocent child photos illegal if they suggest child pornography

Tuesday, May 20th, 2008

The law applies to “any person who knowingly advertises, promotes, presents, distributes, or solicits” the prohibited material, raising concerns about whether mainstream movies or innocent photographs of babies in the bath might invite prosecution.
oDigg
oFacebook
oMixx
oYahoo! Buzz
oPermalink
By LINDA GREENHOUSE May 20, 2008
WASHINGTON — The Supreme Court on Monday upheld the latest Congressional effort to curb the spread of child pornography on the Internet, a 2003 law that makes it a crime to offer or solicit sexually explicit images of children.
Skip to next paragraph The law, known as the Protect Act, applies regardless of whether the material turns out to consist solely of computer-generated images, or digitally altered photographs of adults, or even if the offer is fraudulent and the material does not exist at all.
“Offers to provide or requests to obtain child pornography are categorically excluded from the First Amendment,” Justice
Antonin Scalia wrote for the 7-to-2 majority.
The law at issue was a response to a Supreme Court ruling in 2002, a decision that found unconstitutional an earlier law that prohibited simple possession of purported child pornography even if the material turned out not to depict real children. The First Amendment was violated by a law that “prohibits the visual depiction of an idea,” Justice Anthony M. Kennedy said in the 2002 decision.
Justice Scalia said on Monday that by limiting the crime to the “pandering” of child pornography, the new law represented “a carefully crafted attempt to eliminate the First Amendment problems we identified” in the earlier decision.
The new law and the earlier one, the Child Pornography Prevention Act of 1996, were legislative efforts to deal with the challenge that technology poses to prosecutors if they must prove that material that looks like child pornography was actually produced using real children.
Under the court’s interpretation of the 2003 statute, a person offering material as child pornography can be convicted on either of two grounds: for believing that the material depicts real children, or for intending to convince a would-be recipient that it does.
The statute itself (“Protect” is an acronym for Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today) is open to a considerably broader interpretation, which led the federal appeals court in Atlanta to invalidate it in 2006, the decision that the justices overturned on Monday.
The law applies to “any person who knowingly advertises, promotes, presents, distributes, or solicits” the prohibited material, raising concerns about whether mainstream movies or innocent photographs of babies in the bath might invite prosecution.
Justice Scalia dismissed these concerns as “fanciful hypotheticals,” saying that such situations would either not give rise to prosecutions or, if they did, would be protected by the courts. In a concurring opinion, Justices John Paul Stevens and Stephen G. Breyer said they, too, were satisfied that the court’s narrow construction of the statute had allayed “any constitutional concerns that might arise.”
In effect, the court accepted the invitation of Solicitor General Paul D. Clement who, when he argued in defense of the statute last Oct. 30, urged the justices to impose “a more restrictive view” of the law’s scope if they thought it reached too far.
The two dissenting justices, David H. Souter and Ruth Bader Ginsburg, said their concerns had not been answered. In an opinion by Justice Souter, which Justice Ginsburg signed, they said they did not object to making it a crime to mislead others by offering material that did not in fact exist. That was simply fraud, Justice Souter said.
However, he added, possession of pornographic images that do not depict real children is constitutionally protected, and offering them should not be a crime. “If the act can effectively eliminate the real-child requirement when a proposal relates to extant material, a class of protected speech will disappear,” Justice Souter said.
Joan E. Bertin, executive director of the National Coalition Against Censorship, which filed a brief arguing that the law was unconstitutional, said the decision failed to offer protection against “over-zealous prosecutors.” In an interview, she said it appeared that “the court was not willing to send the case back to Congress again,” and so “narrowed the statute in order to save it.”
The case, United States v. Williams, No. 06-694, began in 2004 as the prosecution of a Florida man, Michael Williams, who was caught in a federal sting operation offering child pornography in an Internet chat room. He claimed to have “good pics” of his 4-year-old daughter. In fact, he did not have such pictures, but when federal agents executed a search warrant, they found 22 sexually explicit images of real children on his computer hard drives.
His conviction for possessing the images, and his five-year sentence for that crime, were not at issue in the case. He challenged his conviction under the new law for pandering and won a reversal in the United States Court of Appeals for the 11th Circuit, which found the law both overbroad and unconstitutionally vague.
See Text: Opinion (United States v. Williams) (pdf)

GOP VP wanabee Huckabee makes joke at NRA about Obama being shot at…bad taste continues

Monday, May 19th, 2008

 

Former GOP Presidential Candidate, and VP wanabee Mike Huckabee made an impromptu remarks upon hearing an offstage chair collapse, that “That was Barack Obama….Somebody aimed a gun at him and he dove to the floor.” He later apologized.

 

Bad taste regarding firearms and one’s opponents continues to be considered humor by some.

Contested Judicial Races on the Ballot this Tuesday

Saturday, May 17th, 2008

 

The following contested Judicial races will be on the ballot on Tuesday May 20th.
In the primary elections, the top two candidates will be selected, and will face off in the General Election this November.
 

 

Contested Ky. Supreme Court – Louisville
James M. “Jim” Shake4 th                  
Lisabeth Hughes Abramson4 th           
 

 

Contested Circuit Court – Louisville
Charlie Cunningham30 th             
Louie Guenthner 30 th                 
W. Douglas Kemper30 th                                                                                                     
 

CONTESTED DISTRICT COURT RACES
Kenton County
Dennis C. Alerding 16 th Judicial District 4th Nonpartisan
Doreena A. Fox 16 th Judicial District 4th Nonpartisan
Kathleen Lape 16 th Judicial District 4th Nonpartisan
Ken Easterling 16 th Judicial District 4th Nonpartisan
Mary Fortner Rafizadeh 16 th Judicial District 4th Nonpartisan
Patrick Monohan 16 th Judicial District 4th Nonpartisan
Laurel & Knox Counties
Gilbert E. Holland 27 th Judicial District 2nd Nonpartisan
Harold Fish Dyche II. 27 th Judicial District 2nd Nonpartisan
John Chappell 27 th Judicial District 2nd Nonpartisan
Randy Azbill 27 th Judicial District 2nd Nonpartisan
Vanessa L. Sears 27 th Judicial District 2nd Nonpartisan
Louisville-Jefferson County
Aaron J. Silletto 30 th Judicial District 16th Nonpartisan
Allyson Cox 30 th Judicial District 16th Nonpartisan
Ann Bailey Smith 30 th Judicial District 16th Nonpartisan
David P. Bowles 30 th Judicial District 16th Nonpartisan
David Larry Holton II. 30 th Judicial District 16th Nonpartisan
Jan Firkins Brightwell 30 th Judicial District 16th Nonpartisan
Katie King 30 th Judicial District 16th Nonpartisan
Laura Prater Russell 30 th Judicial District 16th Nonpartisan
Sheila Berman 30 th Judicial District 16th Nonpartisan
Shelley Santry 30 th Judicial District 16th Nonpartisan
McCreary & Whitley counties
Fred F. White 34 th Judicial District 2nd Nonpartisan
Jane R. Butcher 34 th Judicial District 2nd Nonpartisan
Jason P. Price 34 th Judicial District 2nd Nonpartisan
Leroy A. Gilbert Jr. 34 th Judicial District 2nd Nonpartisan
Jackson –Clay & Leslie Counties
Henria Bailey-Lewis 41 st Judicial District 2nd Nonpartisan
John T. Aubrey 41 st Judicial District 2nd Nonpartisan
 

 

Justice Minton to take oath on June 27th.

Saturday, May 17th, 2008

 

By the Bowling Green, Ky. Daily News Friday, May 16, 2008

Kentucky Supreme Court Justice John Minton has proven through the years that he is a capable jurist who knows the law to the letter and we can think of no one better to become the next chief justice of the state’s highest court.

On Monday, Minton, 56, was chosen by his colleagues to become only the fifth chief justice of the court. He will take the oath of office June 27 to replace current Chief Justice Joseph E. Lambert, who announced his retirement last month.

The Bowling Green resident has had quite an impressive career in the legal profession since graduating with honors from Western Kentucky University in 1974 and from the University of Kentucky School of Law in 1977. Minton practiced law for 15 years before becoming a Warren County Circuit Court judge in 1992 and served in that position until 2003, when he was elected to the Kentucky Court of Appeals.

While a circuit judge, Minton helped create the Warren County Drug Court and his commitment to these programs continues. In 2003, the Kentucky Bar Association honored him with its outstanding Judge Award. Minton is also a graduate of the National Judicial College.

He was appointed to the state’s highest court in July 2006 and was elected to the post in November of that year.

On the bench, he has served with distinction and integrity.

As chief justice, Minton will be responsible for overseeing the schedule of the Supreme Court and the entire Administrative Office of the Courts.

Everyone who knows Minton has nothing but fine things to say about his impeccable character and his integrity.

Local attorney Steve Thornton has been close friends with Minton since they became fraternity brothers at Western.

Thornton said Minton has been a mentor to him and that he introduced him to the bar when he became a lawyer.

“It’s a pretty longstanding relationship,” Thornton said. “He had done a lot of things that I wanted to do.”

Thornton says that Minton is a multifaceted person.

“He’s so involved with his church, his family and children and his parents. He’s such a humble person and really understands the plight of those who are less fortunate.”

Thornton said Minton is on the cutting edge of many things.

“When he went on the high court two years ago there were already people speculating that he would be chief justice.”

He said he believes that Minton will make a fine chief justice.

Thornton also said he could see Minton on a higher court some day.

“Judges are remembered for what they do on the bench and I believe John will be remembered for a long time for all he has done,” Thornton said.

We agree with Thornton’s assessment and believe that Minton is a man with the integrity, character and judicial temperament to make a fine chief justice of the state’s high court.
 

Senate Appropriations Chairman praises Williams lawsuit

Friday, May 16th, 2008

 

May 16, 2008

Senator Charlie Borders (R-Grayson) Chairman of the Appropriations and Revenue Committee has issued a statement of support for the lawsuit filed today by Senate President David Williams against Gov. Steve Beshear concerning the Governor’s veto of the transportation bill.

 

The bill passed by the General Assembly would have earmarked certain projects.  The Governor has said that he will use the funds appropriated on the projects as he determines is in the best interest of the state.  This sets up a confrontation in court to test the powers of the Executive Branch vs. the powers of the Legislative Branch of Kentucky State Government.

 

Sen. Borders said in a press release:

 “It is the duty and responsibility of Senator David L. Williams as Senate President to defend the Kentucky tax-payer.  The Executive Branch cannot spend funds without budgetary authority from the General Assembly. 
 

The Senate President has championed pension reform for two years now with comprehensive and fiscally responsible solutions. 
 

Furthermore, even the Governor himself has acknowledged that the legislature’s budget was better than his own plan which mandated 12% cuts on universities and no teacher raises. The budget also put more money toward the state pension system than did the Governor’s proposal.
 

The fact of the matter is that we have reached out to the Governor on numerous occasions on numerous topics in a bipartisan manner.”
 

Senator Charlie Borders (R-Grayson) serves as the Chairman of the Appropriations and Revenue Committee.  He sits on the Health and Welfare Committee, the Education Committee,  and the Transportation Committee.  Senator Borders represents the 18th District including Bracken, Carter, Greenup, Lewis, Mason, and Robertson counties

###

Senate President Williams files suit to void Gov. Beshear’s veto of transportation bill.

Friday, May 16th, 2008

Press Release from office of Senate President David Williams   May l6, 2008 

(FRANKFORT) Senate President David L. Williams filed suit today against Governor Steve Beshear to contest his unconstitutional veto of House Bill 79, the 2008-2010 Biennial Highway Construction Plan for the following reasons:
 

His attempted veto was beyond the constitutionally allowed 10 days after adjournment as per Section 88 of the Kentucky Constitution.
 It is established law that the Executive Branch cannot spend funds without budgetary authority from the General Assembly.
President Williams stated, “The Governor simply does not have the authority to expend public funds without budgetary authority.  His attempt to veto the road plan and supplant it with an unauthorized expenditure plan is clearly an unconstitutional usurpation of power.”

Senator Williams stated, “The Governor simply does not have the authority to expend public funds without budgetary authority.  His attempt to veto the road plan and supplant it with an unauthorized expenditure plan is clearly an unconstitutional usurpation of power.”
 
Veto language: “I have directed the Secretary of Transportation to publish a Six-Year Highway Plan as required by the provisions of House Bill 406 [the budget bill] that includes all the projects recommended in my original plan, as well as the proposed projects of the House and the Senate as contemplated by HB 406 HCS and HB 406 SCS, to provide maximum flexibility for the maintenance and the construction of the Commonwealth’s transportation infrastructure and to maintain consistency with past practices.”  (my emphasis)  Aside from the fundamental principle that the Executive Branch cannot expend funds without Legislative authority, please note that he is proposing to insert projects that never made it through the legislative process.
 
In addition, in HB 406 which was passed by the General Assembly, includes the following language:
(6)           2008-2010 Biennial Highway Construction Plan: Projects in the enacted 2006-2008 Biennial Highway Construction Plan are authorized to continue their current authorization into the 2008-2010 fiscal biennium.
So the Governor would be restricted to following the above in the budget bill.
 
Sec 88 of the Kentucky Constitution reads, in part, “…unless the General Assembly, by their adjournment, prevent its return, in which case it shall be a law, unless disapproved by him within ten days after the adjournment, in which case his veto message shall be spread upon the register kept by the Secretary of State.” (my emphasis)
LawReader note:  This case will revolve largely around the presumption given the Legislative Journal will usually be applied by the courts, but extrinsic evidence regarding  the television tape regarding the claim that the House and Senate stopped the official clocks may apply.  When did the legislature adjourn..that will be the question for the court to determine.  That issue will solve the issue of the time period in which the Governor had to veto the bill.

Chief Justice Minton will have some ‘splaning to do if he upholds Lambert pay raise decision.

Friday, May 16th, 2008

Chief Justice Minton faces first controversial Decision.

Editorial by LawReader Senior Editor Stan Billingsley     May 15, 2008

Chief Justice Joseph Lambert has made an executive decision that the Legislative appropriation earmarked for raises for the lowest paid Deputy Clerks will be partially used to enhance the 1% pay raise appropriated by the Legislature for other court workers.  The result will be to lessen the pay increase specifically earmarked for the lowest paid Deputy Clerks.

LawReader is hearing complaints from Circuit Court Clerks who spent a great deal of effort in lobbying the Legislature for the Deputy Clerks enhancements. Members of the Legislature are not happy about Lambert’s decision.

The decision by the Chief Justice means that some Judicial Branch employees will get pay raises larger than the 1% pay raise given to all other 31,000 state workers.  (This group includes all Judicial Branch workers earning less than $60,000 a year.  That excludes Judges.)

Justice Lambert will retire on June 27th., before the start of the next fiscal year (July 1, 2008).  John Minton has already been elected as the new Chief Justice.   This issue presents Minton’s first test as an administrator.  If he goes along with the Lambert decision he will be making his job as chief lobbyist for the Judicial Branch much harder in 2010 when the next session of the General Assembly convenes.  There will be (as my mother used to say) some ‘splaning to do”  if this decision by Justice Lambert is not rescinded.

There is a strong legal argument that the Legislature does not have the constitutional authority to mandate how the Judicial Budget is spent.  That is a valid argument.

Nevertheless we don’t believe this issue is the right issue for the new Chief Justice to use to demonstrate the boundaries of the Separation of  Powers doctrine.  Many acts passed by the Legislature are tolerated by the Judicial Branch “out of a sense of comity”, and this issue clearly appears to call for “comity” with the Legislature.

At a time the whole state is suffering, the Judicial Branch will get a black eye if they make a pay grab and thumb their nose at the Legislature.  We would suggest that Chief Justice Minton use this opportunity to build some trust and goodwill with the Legislative leaders he will soon be calling on for his first judicial budget request.  He should restore the pay raises directed to the most underpaid workers in the Judicial Branch.  Minton could set a good example by rescinding any pay raises for Judicial workers that exceed 1%, and out of a sense of “comity” spend the pay enhancement dollars for the lowest paid Deputy Clerks.

There is another theory that suggests that this decision by Justice Lambert is not advantageous.  It has long been recognized that the Circuit Clerks are the best lobbyists for the Judiciary.  Chief Justice Minton should be cautious in making his first decision one that angers his best lobbyists.

See excerpts from an article published in the Lexington Herald-Leader.

Court system’s pay raises stir controversy
By Brandon Ortiz  - Lexington Herald Leader   May 15, 2008
The state court system is defying a legislative budget mandate to spend $7.8 million next fiscal year on pay raises for deputy clerks. The controversial move raises constitutional questions and could spur a backlash from the General Assembly.
…Beyond a 1 percent raise that all state employees get, the legislature had only authorized pay raises for the approximately 1,800 deputy clerks, who are spread out in court houses throughout the state. The starting salary for deputy clerks is $18,120.
Some $8.4 million more was allocated by the courts for pay raises for all non-elected workers in fiscal year 2010.
News of the move angered several powerful legislators, who said the judicial branch is not complying with the law. Legislators said it could strain relations between the branches.
“When they just fly in the face of law, that is just disturbing to me as an attorney that my judicial branch would do that,” said state Rep. Robin Webb, D-Grayson, who sits on the judiciary and budget committees. “But it doesn’t surprise me with that bunch that they would flagrantly disregard legislative intent in the law.”
Future budget requests will not be well received by legislators, Webb said.
“They have no credibility with me at this time,” he said. “In the whole process this time, they would say one thing and do another. It is not good interbranch relations, if nothing else.”
Administrative Office of the Courts director Jason Nemes said Chief Justice Joseph E. Lambert knew the unauthorized raises might displease lawmakers. But he believes the mandated raises for deputy clerks were an unconstitutional trampling of the judiciary’s independence.
Citing a 1980 state Supreme Court case, ex parte Auditor of Public Accounts, Nemes said the judicial branch can spend money appropriated to it however it sees fit. He says the constitution makes the chief justice the top administrator of the courts.
The legislature can only appropriate a total dollar figure to the judicial branch, said Robert W. McGinnis, a circuit judge in Harrison, Nicholas, Pendleton and Robertson counties.
“We cannot permit them to micromanage how that budget is spent,” said McGinnis, the legislative chairman for the Kentucky Circuit Court Judges Association. “Because they could create a lot of mischief there. And they could control everything we do.”
Not surprisingly, legislators disagree.
Senate Judiciary Committee Chairman Robert Stivers, R-Manchester, said it is a well accepted constitutional principle that the legislature sets policy and controls the purse strings, and the judiciary interprets the law.
“They are interpreters, they are not policy-makers,” Stivers said.
…”If we were to file a lawsuit, they would hear it,” House Appropriations and Revenue Chairman Harry Moberly Jr. said. “It would be very difficult for us to win a lawsuit involving the courts, so they will probably be able to get away with it. But it will not be viewed very favorably by the General Assembly and it probably will affect their funding the next time.”
 

Pen Phen Trial begins before Judge Bertlesman

Wednesday, May 14th, 2008

COVINGTON Calling it a case of “unbridled greed,” a federal prosecutor described to jurors how three lawyers allegedly stole millions of dollars intended for Kentuckians sickened by fen-phen. 

The lawyers – Shirley Cunningham Jr., William Gallion and Melbourne Mills Jr. – defrauded 440 people sickened by the once popular diet drug of $65 million, Assistant U.S. Attorney Laura Voorhees said during the opening arguments Tuesday morning in the trio’s trial. 

The three lawyers, their employees and associates took a total of $125 million of a $200 million settlement for themselves, Voorhees said. The lawyers, she contended, were only entitled to $60 million in legal fees. 

That left less than half the settlement – $75 million – for people hurt by fen-phen. Some of the people who claimed to have been defrauded attended the trial. Voorhees said some people who were supposed to receive $95,000 under the settlement were originally offered just $15,000.

The defendants, locked up in the Boone County jail since August, appeared in court wearing suits. Each is facing up to 20 years in prison, and millions of dollars in restitution, if found guilty of one count of conspiracy to commit wire fraud.

Defense lawyers indicated that Gallion would take the stand to testify on his own behalf. Lawyers have not said if Cunningham and Mills would do the same.

Cunningham and Gallion have not disputed many of the facts presented by prosecutors. They have even conceded the fen-phen case could have been handled better, but they deny their clients broke any laws.

While Cunningham and Gallion appeared to collaborate on their defense, Mills sat along with his own attorney and rarely spoke to, or even looked at, his codefendants.

Gallion’s lawyer, O. Hal Almand, started the defense’s opening arguments shortly before the trial broke for lunch.

Almand tried to shift the blame of wrongdoing to others involved in the settlement who have not been charged with a crime. That included Cincinnati lawyer Stan Chesley.

Almand described Chesley as the “principal architect of the lawsuit.”

The trial is expected to last up to five weeks. About 150 prospective jurors were called to the federal courthouse on Monday as prosecutors and lawyers narrowed the jury pool down to 12 jurors and six alternates.

The defendants’ opening arguments are expected to continue through the rest of Tuesday afternoon

Some English Judges argue against plan to Ditch Wigs. New design for robes, and Courtroom Couture

Wednesday, May 14th, 2008

 

May 13, 2008
 

 

Judges in England and Wales will end a 300-year tradition when they stop wearing wigs and black gowns this autumn, replacing them with designer attire
This autumn, 300 years of tradition will be turned on its head when judges throw off their itchy horsehair wigs and old black gowns to be clad instead in modern designer threads.
Come October, judges will be dressed in outfits designed by Betty Jackson, who, as the Times notes today, is known for her “funky British clothes for aspiring funky British girls”.
Seniority will be shown with different coloured bands – gold or red depending on division – and cuffs will be lined with velvet. Judges hearing criminal cases, however, will keep the wigs, which they believe instil an important tone of authority during trial proceedings.
The Guardian’s legal editor, Clare Dyer, explains the backstory:
Successive lord chancellors consulted the public twice on possible reform of the court dress since the early 1990s but took no action. It was left to the lord chief justice, who took over as head of the judiciary in 2005, to bring the judges at least part way into the 21st century.
Lord Phillips, the lord chief justice, yesterday took to the business of modelling the new garb, which seemed fitting given that he was behind the plan. He had been tiring, he said, of five outfit changes a day on some occasions.
“Quite a lot of judges are not in favour of change at all because it is a break with tradition,” he told the Times, adding: “I shan’t be in charge of enforcement.”
A public consultation last year found that most barristers wanted to keep full legal dress in the higher courts, which may become an issue if judges are no longer wearing them. Also at issue within legal circles is the perceived lack of parity between the dress codes of barristers and solicitor advocates.
In April, the Barrister Briefs blog made reference to a letter that Kevin Martin, the president of the Law Society, had written to the lord chief justice pointing out that some solicitor-advocates had argued for dress code parity with barristers. “The difference can lead to solicitor-advocates being seen as inferior to barristers. Jurors may form the impression that a non-wigged lawyer is less credible,” Martin wrote.
On a purely aesthetic level, the new attire has been met with a somewhat mixed reaction. Referring to the new gowns “hitting the catwalk at the Royal Courts of Justice”, the Lawyer says: “The robes fit with Lancashire-born Jackson’s own design-style, which had been dubbed by one leading fashion critic as classic, unstructured and fluid, as evidenced in her high street collections for Marks & Spencers and Debenhams.”
The Guardian’s deputy fashion editor, Hadley Freeman, focuses on Lord Phillips’ appearance yesterday, concluding: “Look at this poor man: instead of appearing imperious, the lord chief justice now just looks like the man who sells you tickets for the Star Trek Experience at Caesars Palace in Las Vegas. And judging from his expression, he knows it.”
 

Polls show extended primary is not hurting Democrats

Wednesday, May 14th, 2008

The continuing primary battle between Clinton and Obama does not seem to be hurting democratic poll numbers against John McCain. In all polls shown, the Democrat leads the Republican candidate.  Some pundits believe the extended primary contests is helping the Democrats while others claim it is hurting.

Election 2008 National Head-to-Head Polls

MAY 14, 2008

General Election: McCain vs. Obama

Poll
Date
Sample
Obama (D)
McCain (R)
Spread
RCP Average
05/01 – 05/13

47.6
42.8
Obama +4.8
Quinnipiac 05/08 – 05/12
1475 RV
47
40
Obama +7.0
Gallup Tracking 05/08 – 05/12
4371 RV
47
44
Obama +3.0
Rasmussen Tracking 05/10 – 05/13
1600 LV
47
46
Obama +1.0
ABC News/Wash Post 05/08 – 05/11
1122 A
51
44
Obama +7.0
LA Times/Bloomberg 05/01 – 05/08
1986 RV
46
40
Obama +6.0

More Polling Data | Chart | News

General Election: McCain vs. Clinton

Poll
Date
Sample
Clinton (D)
McCain (R)
Spread
RCP Average
05/01 – 05/12

47.6
42.8
Clinton +4.8
Quinnipiac 05/08 – 05/12
1475 RV
46
41
Clinton +5.0
Gallup Tracking 05/08 – 05/12
4371 RV
49
44
Clinton +5.0
Rasmussen Tracking 05/09 – 05/12
1600 LV
47
45
Clinton +2.0
ABC News/Wash Post 05/08 – 05/11
1122 A
49
46
Clinton +3.0
LA Times/Bloomberg 05/01 – 05/08
1986 RV
47
38
Clinton +9.0

More Polling Data | Chart | News