Archive for June, 2008

Judges 64 pages of instructions could explain why Fen Phen jury goes into the sixth day of deliberation

Monday, June 30th, 2008

The Jury in the Fen Phen trial in Covington begins their sixth day of deliberation on Tuesday July 1st.
The Fen Phen jury has asked the trial Judge one question.    This question gives some insight into the 64 pages of instructions, and may show why the 12 member jury appears to be having difficulty reaching a verdict..
The Jury asked:
“In a class action, prior to court ordered fees, is it legal to take attorneys’ fees on the common settlement fund once claimants have been settled and paid?” the jurors asked.
U.S. District Judge William Bertelsman sent the jurors a note back saying their question could be answered in the jury instructions.
The note referred jurors to two sections of the 64 pages of instructions.
Those instructions state a judge could approve taking fees off the top of the settlement but only after he was informed of the fee contracts the lawyers had with each individual client.
The judge who presided over the settlement, Joseph “Jay” Bamberger, testified at the trial he wasn’t told of the fee contracts.
The instructions also stated the clients should be given the option to object to any additional lawyer fees, something that didn’t happen, prosecutors contended at the trial.
The following language in one of the instructions indicates the difficulty the jury may have in finding criminality of the attorneys actions.
“Not telling the judge of contract fees or giving clients an opportunity to object may be a violation of court rules, but not necessarily a crime…”
If found guilty, each faces up to 20 years in prison and forfeiture of $65 million

Mississippi Supreme Court is ignoring juries: Victims losing 100 percent of appeals?

Sunday, June 29th, 2008

Alex A. Alston Jr.     Special to The Clarion-Ledger    June 29, 2008Mississippi Supreme Court Chief Justice Jim Smith, speaking recently to various business groups, stated emphatically that the court strives to be fair and impartial to large corporations and insurance companies. That is commendable.
But what about the victims of corporate fraud and negligence? Can this Supreme Court be fair to them? Apparently not.

If you are a victim of personal injury, malpractice or corporate fraud, you have almost no chance of having a jury verdict in your favor affirmed by the state Supreme Court.

In the past, the Supreme Court rarely overturned a jury verdict, especially if it was based on a dispute over a factual issue. That day is gone. During the past 4 1/2 years, according to my research, an astonishing 88 percent of all jury verdicts in favor of the wronged victims have been reversed by the state Supreme Court.
But what about the jury trials won by defendants, in which the victim takes an appeal to correct an error? Here, again, the numbers are staggering.

Over the same 4 1/2-year-period, a plaintiff’s success rate in reversing a jury verdict for the defendant is an astonishing zero.

The defendant corporation, hospital, or insurance company prevailed in 100 percent of these cases. It is difficult to imagine victims of negligence and fraud losing 100 percent of the time, but that is the way it is in the state Supreme Court in a plaintiff’s appeal.

The U.S. Chamber of Commerce and insurance companies should be ecstatic over this state of affairs. Think of the money it saves the insurance companies not to pay a claim, knowing they are safe with the state Supreme Court.

But the U.S. Chamber of Commerce, a lobbying arm of Big Business which pours millions into judicial campaigns, is still not satisfied. In a recent 37-page report, entitled Lawsuit Climate 2008, the Chamber ranks Mississippi as the 48th worst legal climate in the nation.

Therefore, one can expect the Chamber and its powerful allies to pour millions more into the judicial campaigns of our Supreme Court justices coming up for election in November to close any chance of victory for a poor maimed victim who has successfully worked his way through the judicial system to the Supreme Court. It is only then that these powerful entities will have a complete victory over anyone bold enough to think he has a claim for negligence or fraud.

How can it be that during the last 4 1/2 years powerful corporations, hospitals, and insurance companies have prevailed in the state Supreme Court in nearly every case? Can an injured plaintiff ever be right?

Perhaps it is because we elect our Supreme Court justices. In the 2002 election, insurance companies, large corporations, and doctors poured millions of dollars into the campaign coffers of most of the justices. One of the new judges that year alone received over a million dollars from these sources.

Can anyone truly doubt that judges will, either consciously or unconsciously, favor those who have contributed substantially to their campaigns.

In the upcoming election, large corporations, which statistically are more likely to be named as defendants, will not forget those justices who ruled in their favor against an injured or defrauded plaintiff, and no doubt substantial contributions will flow to these faithful.

Is there anything we can do? Yes, we can get involved in the election.
Beware of any judge running on a campaign that he or she is going to “slam the jailhouse door on criminals” or is going to be “tough on crime.” As Luther Munford stated in his May 24 guest column (“The Mississippi Supreme Court already is ‘tough on crime’”), “the court already has that one covered” with the Supreme Court affirming 93 percent of all criminal cases.

But you should know that the Supreme Court has nothing to do with locking up criminals. That is the job of the prosecutors and lower court judges.
The sole purpose of the Supreme Court is to determine whether the defendant received a fair and impartial trial in the lower courts.

In the past, the Supreme Court has held the moral high ground by overturning convictions based on torture, violations of the Constitution and due process, thus saving many an innocent defendant from the noose.

Somehow the court seems to have lost its way. If the percentage of affirmance on criminal appeals creeps any higher from the 93 percent we have today, there would be no need for a supreme court. A clerk could simply rubber stamp all guilty verdicts “affirmed.”

Voters should be wary of Supreme Court candidates who insist that they have been especially fair to large corporations and insurance companies.

These are the justices who are now making it almost impossible for a victim to prevail in the Supreme Court, even after a jury verdict is rendered in the victim’s favor.

Probably the best indication of how a Supreme Court justice will rule is the source of the political contributions he or she receives.

One can find contribution lists in the office of the secretary of state and on its Web site.

If powerful corporations and insurance companies have financed a justice’s campaign, you would not be far off in guessing that his or her rulings will most likely be in favor of his donors.

If, on the other hand, the donors contributing are from plaintiff groups, one could reasonably guess that the judge would have inclinations in that direction.
Mississippians should not have to be concerned about whether contributions to a judge will cause that judge to rule a certain way.

He takes an oath to be fair and impartial to all regardless of the parties’ status and he should simply follow the law. Nothing short of that is acceptable.

Our entire judicial system is built on a “rule of law.” In other words, it makes no difference whether you are a prince or a pauper, the law must be precisely the same for all.

A court that substitutes its opinion for that of a jury, or simply decides a case for the benefit of a favored party, tears the basic fabric of our judicial system to shreds. If the rule of law is not followed, the entire foundation of our judicial system is undermined.

The public has a right to expect the Supreme Court to follow the rule of law and decide the cases before it fairly and impartially without favor to any party regardless of status, race, creed or color.

Elections are just around the corner. Four of the sitting Supreme Court justices have qualified to run.

Should we not demand that each of them follow the rule of law?
Certainly it is a fair question to ask why 88 percent of the time, the court reverses a jury verdict for a plaintiff and substitutes its own opinion, and why, in 100 percent of the cases involving an injured victim’s appeals from a jury verdict in favor of a defendant, the court finds for the wealthy or powerful defendant.

Our court must be more than a rubber stamp for the rich and powerful.
Shouldn’t we expect that and more?

Jackson attorney Alex A. Alston Jr. has litigated hundreds of cases, primarily for defendant corporations, over the past 44 years, including scores of cases argued before the Mississippi Supreme Court, the 5th U.S. Circuit Court of Appeals and other circuits, and the U.S. Supreme Court. He has served as president of the Mississippi Bar and has taught and written extensively on issues of trial advocacy. He is the co-author of an upcoming book, Immune to Prosecution: The Long Road to Justice in Mississippi.

Fen Phen jury quits for weekend, to return Monday

Friday, June 27th, 2008

The Fen Phen jury adjourned for the weekend without returning a verdict in the case of three Lexington-area lawyers accused of taking millions from their former clients in a diet-drug settlement. 

The jury, which began deliberations on Tuesday, asked U.S. District Judge William Bertelsman on Friday a technical question about when it was appropriate for attorneys to take fees in a class-action settlement. It was the first time in two days the jury had asked a question. On Tuesday, they asked for office supplies and to view a video deposition. 

The question about attorney fees came shortly before noon Friday but was answered after lunch. After discussions between prosecutors and several objections by defense attorneys, Bertelsman directed the jury to look at two previously given instructions. 

One instruction on Kentucky court rules says when an attorney takes more money in fees than the contract with the client says they should receive, a hearing should be held and the plaintiffs should be notified of the hearing. 

The three attorneys had the fees approved by the judge, but they never notified their clients that they were taking more in fees than what their contracts said they should receive. Deliberations will continue Monday. 

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What could the Fen Phen jury be arguing about? A theory you may not have heard of could provide an explanation.

Friday, June 27th, 2008


(This speculative article is posted at 1:43 p.m. on June 27, 2008 before the jury verdict has been announced.)


It is risky writing a speculative theory about a jury verdict, minutes (??) (days??) before it is issued.  But we take risks, and sometime get it right. 


You may have heard a lot about how much money the Fen Phen lawyers got. There may be a bit of deception there.  This deception has been created by the claims of the victims attorney, Angela Ford.  She argued in court that the attorneys were not entitled to be credited with court costs and attorney fees.


Cases in which disgorgement of attorney fees have been ordered have almost universally held that only the ill gotten portion of an attorney’s gains is subject to disgorgement.  That means that they were entitled to $60 million in attorney fees and only the excess over $60 million can be seized under the disgorgement theory.


The theory the jury may be arguing about and which has caused them to go into the 4th. day of deliberations may be an analysis of where the money actually went.


The settlement was for $200,000,000.  About $70 million was distributed to the clients. 


$200 million – minus $74 million leaves $126 million

The attorneys had two different fee contracts but we will round those off to being 30% contingent fee contract.  That means that if you take the attorney fees off the top, then the attorneys were entitled to receive $60 million in attorney fees.


Subtract the $60 million of the contingent fee contracts  from $130 million and that leaves $66 million,

Of the $66 million there is $20 million in the Charitable Trust which the civil court has seized,


Subtract the charitable trust funds on hand and that leaves $46 million to be explained.

The Angela Ford theory holds that her clients don’t have to pay for any court costs incurred in the original settlement.


The following charges can be argued to be credited as court costs and paid by the victims.
One expert was paid $20 million, another $5 million, a consultant $2 million and then there was the master who evaluated each claimants case, and we believe he was paid $1 to $2 million.  The work of the consultants got the original best offer from around $50 million ( we seem to have read that somewhere) and their efforts got the settlement raised to $200 million.  So it is not as if they didn’t add value to the claim.  They added between $100 million and $150 million to the value of the final settlement.


So take $46 million and deduct the “costs” paid to others ($29 million), and that leaves $17 million.

The civil trial pleadings allege that Attorney Gallion paid his law firm $12 million to settle his firms claim for fees.

This is hard to justify as that $12 million would appear to have to come from his 30% contingent fee

So it is possible that a jury is trying to make sense of why Cunningham and Mills are being prosecuted largely on the basis of the $12 million Gallion paid his law partners.  Neither Cunningham or Mills benefited from that payment.

So out of the remaining $17 million we deduct Gallion’s payment to his firm of $12 million and that leaves  only $5 million remaining to be explained.

It is possible that in a $200 million dollar case that out of pocket expenses travel, printing, etc. could have totaled $5 million.


This explains how this case could possible be viewed by the jurors.  It is possible to argue that this criminal case is only about the $12 million dollar payment to Gallion’s firm.  That would raise a strong defense argument for Mills and Cunningham.

If that is the case, then it may explain why the jury is taking so long to use that flip chart and calculator that they asked the judge to let them take to the jury room.

You and the jury have heard claims that the attorneys overpaid themselves $90 million, or $60 million, or whatever, but there are pleadings filed by Angela Ford which suggest that the attorneys were only paid a 30% contingent fee (except for the $12 million payment to Gallion’s law firm partners).  The rest of the money can be argued to have gone to costs.

We don’t defend this expenditure of money, but we can imagine that if a jury started out believing the attorneys had paid themselves excess fees of $90 million and then the facts presented bring that down to only $12 million paid to one of the three….then this might provide some explanation as to why the jury in now deliberating into the fourth day on a case that the media and Angela Ford has lead the public to believe is an open and shut case.

In any event, we may  all hear the jury verdict soon, …but  then there is a real possibility that this could be a hung jury.


Friday, June 27th, 2008

June 27, 2008

Brief summaries of the rulings from the leading cases before the Supreme Court in its just-ended term:
Ruled that Americans have a right to own guns for self-defense and hunting. It was the justices’ first major pronouncement on gun rights in history. The 5-4 ruling struck down the District of Columbia’s 32-year-old ban on handguns as incompatible with gun rights under the Second Amendment. The decision went further than even the Bush administration wanted, but probably leaves most firearms laws intact. Within two days, lawsuit were filed in San Francisco and Chicago challenging similar handgun bans.
The court had not conclusively interpreted the amendment since its ratification in 1791. The amendment reads: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” The basic issue for the justices was whether the amendment protects an individual’s right to own guns no matter what, or whether that right is somehow tied to service in a state militia.
Writing for the majority, Justice Antonin Scalia said an individual right to bear arms is supported by “the historical narrative” both before and after the amendment was adopted. The Constitution does not permit “the absolute prohibition of handguns held and used for self-defense in the home,” Scalia said. The court also struck down Washington’s requirement that firearms be equipped with trigger locks or kept disassembled, but left intact the licensing of guns. Joining Scalia were Chief Justice John Roberts and Justices Samuel Alito, Anthony Kennedy and Clarence Thomas. (District of Columbia v. Heller, 07-290)
Outlawed executions for the nonlethal rape of a child. By a 5-4 vote, the court said a Louisiana law allowing the death penalty to be imposed in cases of child rape violates the Constitution’s ban on cruel and unusual punishment. Four other states — Montana, Oklahoma and South Carolina and Texas — had allowed for the execution of a child rapist. But no state has executed a convict in 44 years for a crime that did not also include a killing.
“The death penalty is not a proportional punishment for the rape of a child,” Kennedy wrote for the court. The decision bans executions for non-lethal crimes, except for federal crimes such as treason and espionage. (Kennedy v. Louisiana, 07-343)
Found that foreign terrorism suspects held at Guantanamo Bay have rights under the Constitution to challenge their detention in U.S. civilian courts. In a 5-4 ruling, the majority also noted that the system the administration put in place to classify suspects as enemy combatants and review those decisions is inadequate.
The court has ruled twice previously that people held at Guantanamo without charges can go into civilian courts to ask that the government justify their continued detention. Each time, the administration and Congress, then controlled by Republicans, changed the law to try to close the courthouse doors to the detainees. The White House maintains that detainees have no rights and contends its classification and review process is a sufficient substitute for civilian court hearings.
“The laws and Constitution are designed to survive, and remain in force, in extraordinary times,” Kennedy wrote in the court’s opinion. In dissent, Roberts criticized his colleagues for striking down what he called “the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.” (Boumediene v. Bush, 06-1195, Al-Odah v. U.S., 06-1196)
Ruled 7-2 that federal judges can impose shorter sentences than under federal sentencing guidelines for crimes related to crack cocaine, making those sentences more equal to those for crimes involving powder cocaine. Justices upheld more lenient sentences imposed by judges who rejected federal sentencing guidelines as too harsh. (Kimbrough v. U.S., 06-6330)
Ruled 7-2 to uphold the most common method of capital punishment used across the United States. The justices said the three-drug mix of lethal-injection drugs used by Kentucky and most other states does not constitute cruel and unusual punishment. The ruling cleared the way for a resumption of executions nationwide. (Baze v. Rees, 07-5439)
Said states can require would-be voters to produce photo identification without violating their constitutional rights. The 6-3 ruling validated Republican-inspired voter ID laws. Democrats and civil rights groups had argued that laws requiring voters to produce photo identification in order to cast ballots violate the Constitution. The court disagreed, upholding Indiana’s strict photo ID requirement.
Opponents had argued that the Indiana law could deter poor, elderly and minority voters from casting ballots. Its backers said the photo ID law was needed to deter electoral fraud. The justices agreed that states can take such steps to protect “the integrity and reliability of the electoral process,” as long as they don’t impose “excessively burdensome requirements” on any class of voters.
More than 20 states require some form of identification at the polls. The opinion came a week before Indiana’s presidential primary. (Crawford v. Marion County Election Board, 07-21, Indiana Democratic Party v. Rokita, 07-25)
Ruled 7-2 that the government can criminalize an individual’s promotion of child pornography, whether or not he actually possesses it. Opponents had said the law could apply to mainstream movies like “Titanic,” which depict adolescent sex. And a federal appeals court had struck down the portion of the federal law pertaining to promotion of child pornography. But Scalia, writing for the court, said such concerns are unfounded. He also wrote that First Amendment protections do not apply to “offers to provide or requests to obtain child pornography.” (U.S. v. Williams, 06-694)
Found that President Bush overstepped his authority when he ordered a Texas court to reopen the case of a Mexican on death row for rape and murder. The case mixed presidential power, international relations and the death penalty. Bush was in the unusual position of siding with death row prisoner Jose Ernesto Medellin, a Mexican citizen whom police prevented from consulting with Mexican diplomats, as provided by international treaty.
An international court ruled in 2004 that the convictions of Medellin and 50 other Mexicans on death row around the United States violated the 1963 Vienna Convention, which provides that people arrested abroad should have access to their home country’s consular officials. The International Court of Justice, also known as the world court, said the Mexican prisoners should have new court hearings to determine whether the violation affected their cases.
Bush, who oversaw 152 executions as Texas governor, disagreed with the decision. But he said it must be carried out by state courts because the United States had agreed to abide by the world court’s rulings in such cases. The administration argued that the president’s declaration is reason enough for Texas to grant Medellin a new hearing. Roberts, writing for the 6-3 majority, disagreed. Roberts said the international court decision cannot be forced upon the states. (Medellin v. Texas, 06-984)
Sided, in a 5-3 decision split along conservative-liberal lines, with the administration to make it harder for investors to sue businesses that play secondary roles in schemes by publicly traded corporations to manipulate their stock prices. For investors targeting Wall Street banks in the Enron scandal, the decision casts doubts on their lawsuit seeking monetary damages. (Stoneridge Investment v. Scientific-Atlanta, 06-43)
Sent a message to prosecutors and judges that it will cast a skeptical eye on the exclusion of blacks from juries. The justices, by a 7-2 vote, threw out a death sentence and murder conviction because a Louisiana prosecutor kept blacks off the jury in a trial he called his “O.J. Simpson case.” While the high court has ruled previously that jurors cannot be excused solely because of their race, the practice has continued, often with the approval of judges. The court’s March 19 ruling indicates judges should be less accepting of prosecutors’ explanations.
The justices said state prosecutor Jim Williams improperly excluded blacks from the jury that convicted Allen Snyder of killing his estranged wife’s companion. Snyder was sentenced to death by an all-white jury, and claimed he did not get a fair trial because the prosecutor improperly dismissed prospective black jurors and compared the defendant to O.J. Simpson.
Alito, writing for the majority, said the trial judge should have blocked Williams from barring a black juror. Alito’s opinion made no mention of Simpson. (Snyder v. Louisiana, 06-10119)
Ruled that states can continue to give special tax breaks on bonds that fund hospitals, schools, roads and other services. The justices ruled 7-2 that states can exempt interest on their bonds from taxation, even while taxing residents for interest on bonds from other states. More than 40 states have systems upheld by the court in the ruling in favor of Kentucky. (Department of Revenue of Kentucky v. Davis, 06-666)
Unanimously sided with individual 401(k) retirement account holders, allowing them to sue under the Employee Retirement Income Security Act to recover losses. Justice John Paul Stevens’ opinion affirms participants’ ability to engage plan administrators for breaching their fiduciary duties. (LaRue v. DeWolff, Boberg & Associates Inc; and DeWolff, Boberg & Associates Inc., Employees’ Savings Plan)
Slashed the punitive damages Exxon Mobil must pay victims of the nation’s worst oil spill. The justices cut the $2.5 billion punitive damages award in the 1989 Exxon Valdez disaster to $500 million.
A federal appeals court had already cut in half the $5 billion punitive damages award that a jury decided Exxon Mobil should pay for the spill that dumped 11 million gallons of oil into Prince William Sound and fouled more than 1,200 miles of Alaskan coastline.
Justice David Souter wrote in the 5-3 opinion that punitive damages may not exceed what the company already paid to compensate victims for economic losses. Alito took no part in the case because he owns ExxonMobil stock. (Exxon Shipping Co. v. Baker

The U.S. Supreme Court handed the business sector a mix of wins and losses in the 2007-2008 term ending Friday, but when business did win, it won big.

Just this week, the justices handed out one of the year’s most important business victories in a 5-3 ruling that ordered a $2 billion reduction in punitive damages against Exxon Mobil Corp. (XOM) for the 1989 Exxon Valdez oil spill in Alaska. Although the case dealt with obscure maritime laws, numerous legal experts expect the court’s holding – which limited punitive damages against the oil giant to no more than actual damages – will spill over into state courts, the primary venue for punitive damages against companies.

Two other major victories largely preserved the status quo for corporations. In May, the high court upheld the ability of state and localities to offer tax exemptions on local municipal bonds, a ruling that allowed the massive municipal bond market to remain unchanged. And in January, the justices said federal securities laws limit the ability of defrauded shareholders to sue third parties such as accountants, vendors, lawyer and advisors. The securities ruling, known as Stoneridge, closed the door to a new legal theory that could have allowed more lawsuits after companies reveal securities fraud.

Business also scored wins in its ongoing effort to restrict state-level lawsuits because of pre-emption by parallel federal laws. Meanwhile, the U.S. Chamber of Commerce counted seven cases as losses to business, including five cases that favored workers in employment law-related disputes and two cases that make it easier for companies to be sued.

Exxon Valdez Opinion On Damages May Have Broad Impact
The Exxon Valdez damages case eventually could prove to be one of the biggest business cases in recent years, said Mark Levy, who heads Kilpatrick Stockton LLP’s Supreme Court and appellate practice. “It’s potentially a very significant decision,” Levy said. “Right off the bat, there’s reason to think state courts will pay attention to it and it will be influential on constitutional issues.”

Corporate groups consider reducing punitive damages awards one of their top priorities. Chamber President Tom Donohue earlier this week hailed the Exxon Mobil decision, calling it “good news for companies concerned about reining in excessive punitive damages.”

The Supreme Court since 2003 has issued three rulings that place new restrictions on punitive damages awards. The one-to-one ratio spelled out in the Exxon Mobil case, which for now is limited to maritime laws, eventually could narrow the court’s broader holding that a single-digit ratio of actual damages to punitive damages is the constitutional limit.

Losses Center On Employment Disputes
Although business suffered several losses on employment law, the impact of those losses may be minimal. Miguel Estrada, part of Gibson Dunn & Crutcher’s constitutional law practice, said the employment-law losses “at the end of the day didn’t amount to very much.” Estrada spoke at a Chamber briefing on Supreme Court cases.

Of those decisions, the Supreme Court made it easier for workers to bring age- discrimination and retaliation claims against their employers. The court also in two opinions ruled favorably for workers bringing lawsuits in employment- benefits disputes.

One loss that didn’t receive much attention but could prove significant for business is a case called Bridge v. Phoenix Bond.

In this appeal, the high court made it easier to bring private civil lawsuits under the Racketeer Influenced and Corrupt Organizations Act, a federal law passed to combat organized crime. The RICO laws increasingly have been used to sue corporations with claims that can lead to triple damages awards.

Court Bars State-Level Lawsuits In Pre-Emption Rulings
The Supreme Court heard several cases on whether federal statutes prevent the use of state laws to sue companies. This area of the law, known as pre-emption, is one business counts as important in its bid to limit lawsuits against it.

“Pre-emption is probably the single most important recurring issue on the court’s docket,” Levy said.

This year’s major pre-emption case ruling came in Riegel v. Medtronic (MDT), where the high court ruled 8-1 that federal medical-device regulations prevent patients from bringing state product-liability lawsuits unless a company violated U.S. Food and Drug Administration regulations.

The court heard three additional pre-emption matters, limiting Maine’s attempt to regulate mail order tobacco sales and restricting a state agency’s authority to act on arbitration provisions in a contract. The Supreme Court deadlocked 4-4 on the third matter, a state-level lawsuit involving Pfizer Inc.’s (PFE) Warner- Lambert unit that was at tension with FDA drug oversight.

In recent years, the Supreme Court has devoted more of its docket to business cases, and the 2007-2008 term was no exception. The Chamber said about 40% of the docket dealt with cases important to companies, which is similar to the prior term and up from 31% two years ago.

Gov. Beshear’s call for Special Session successful as State Pension Bill passes

Friday, June 27th, 2008

 June 27, 2008

 The Ky. Senate quickly approved a bill Friday morning, that will change the state’s underfunded pension system.  Gov. Beshear said in Williamstown thursday that this bill shows he and the legislature can work together for the betterment of the state.


House Speaker Jody Richards promptly signed the bill and sent it to Gov. Beshear for his signature.


The bill  raises the age and length of service for future workers in order to qualify for pension benefits.


It also requires current and future state workers to pay one percent  more of their salaries for their retirement health insurance, and sets limits of 1.5 percent to the cost of living increase for employees’ pensions.  Current law allows for up to 5 percent cost of living boosts based on inflation.   This new bill will affect current retirees who may be pinched as inflation continues to grow more than 1.5% per year.

Justice Antonin Scalia: Al Gore to blame for 2000 US election mess

Friday, June 27th, 2008

By Toby Harnden  London Telegraph  June 27, 2008

The 2000 presidential election debacle was the fault of Al Gore, who should have followed Richard Nixon’s 1960 example and conceded without legal action, according to the Supreme Court’s leading conservative judge.

“Richard Nixon, when he lost to [John F.] Kennedy thought that the election had been stolen in Chicago, which was very likely true with the system at the time,” Justice Antonin Scalia told The Telegraph.

“But he did not even think about bringing a court challenge. That was his prerogative. So you know if you don’t like it, don’t blame it on me.

“I didn’t bring it into the courts. Mr Gore brought it into the courts.

“So if you don’t like the courts getting involved talk to Mr Gore.”

Justice Scalia insisted that his controversial decision, along with four other justices, to stop votes being recounted in Florida because the method was unconstitutional and it was too late to consider other options was “absolutely right”.

He was speaking during an interview about his book Making the Case: The Art of Persuading Judges.

A strict “textualist”, he rejects the notion of a “living constitution”, arguing instead that the original intentions of its framers should be closely adhered to.

Once a voice in the wilderness, Justice Scalia now often finds himself in a narrow majority on the Supreme Court, such as in a landmark gun control case in which he wrote for the 5-4 majority that the framers of the constitution believed in individual gun rights.

In December 2000, seven of the nine Supreme Court justices ruled that the recount method was unfair but only five, including Justice Scalia, decided that another recount was impractical and George W. Bush should therefore become president.

The 2000 election, in which Mr Bush eventually prevailed in pivotal Florida by just 537 votes, remains a potent source of discontent for Democrats. Last month, Howard Dean, chairman of the Democratic National Committee, said that the election had been stolen by “five intellectually bankrupt judges”.

In 1960, Mr Kennedy won Illinois by just 8,858 votes and there were also allegations of voter fraud in Texas, where he won by 46,257 votes. If Mr Nixon had won both states he would have reached the White House eight years before he beat Hubert Humphrey in 1968.

Mr Kennedy’s Illinois victory came from Chicago’s Cook County, where he won by a stunning 450,000 votes.

There have long been allegations that Mayor Richard Daley, a Kennedy ally, and his Chicago Democratic “machine” engaged in large-scale electoral fraud.

Mr Nixon conceded the election to Mr Kennedy rather than going to the courts.

Justice Scalia, a conservative justice who was appointed to America’s highest court by President Ronald Reagan in 1986, said he and the other justices had no option but to intervene once Mr Gore sought to overcome Mr Bush via the lower courts.

He said that he “of course” regretted that the Supreme Court had become involved. “But I don’t know how we could have avoided it. Could we have declined to accept the case on the basis that it wasn’t important enough?

“And you know bear in mind that the issue wasn’t whether or not the election was going to be decided by a court or not. It was whether it was going to be decided by the Florida court or by the United States Supreme Court, for a federal election.

“So I have no regrets about taking the case and I think our decision in the case was absolutely right. But if you ask me ‘Am I sorry it all happened?’ Of course I am sorry it happened there was no way that we were going to come out of it smelling like a rose.

“I mean, one side or the other was going to feel that was a politicised decision but that goes with the territory.”

He flatly denied there was any “partisan prejudice” involved in the 5-4 ruling, adding that “if you want to look for partisan decisions” then they could be found in the Florida supreme court’s rulings.

Justice Scalia said he thought that the United States was “over-lawed”, leading to too many lawyers in the country.

“I don’t think our legal system should be that complex. I think that any system that requires that many of the country’s best minds, and they are the best minds, is too complex.

“If you look at the figures, where does the top of the class in college go to? It goes into law. They don’t go into teaching. Now I love the law, there is nothing I would rather do but it doesn’t produce anything.”

John Minton Jr. sworn in as Ky. Chief Justice

Friday, June 27th, 2008

FRANKFORT, Ky. (June 27, 2008) –John D. Minton Jr. Was sworn in as chief justice of the Kentucky Supreme Court during a formal investiture service at 11 a.m. EDT, Friday, June 27, in the Supreme Court Courtroom at the Capitol. Chief Justice Joseph E. Lambert, who retires June 27 after 10 years as chief justice and 22 years as a justice, will administer the oath of office. 


Minton was elected to the Supreme Court of Kentucky in November 2006 to represent the 2nd Supreme Court District. He had been appointed to the high court on July 24, 2006, to fill a vacancy.  His career on the bench began in 1992 as a circuit judge for the 8th Judicial Circuit, and he later served on the Kentucky Court of Appeals. 


Before his election to the Circuit Court bench, Minton practiced law in Bowling Green for nearly 15 years. He earned a bachelor’s degree with honors in history and English from Western Kentucky University in 1974 and a law degree from the University of Kentucky College of Law in 1977. 


Speaker Richards: Chief Justice Minton Wins Big in Meeting with Legislators

Thursday, June 26th, 2008

June 26, 2008

In a LawReader  interview,  Speaker Jody Richards reported that John Minton, Jr.  who will become Chief Justice on Friday, did himself and the courts a lot of good in meetings with legislators this week.  The Speaker said, “… a crisis has been avoided”. 

He said that Minton impressed the legislators and created a good deal of good will.

The Herald-Leader reports that the new chief justice of the Kentucky Supreme Court will comply with a legislative budget mandate to spend $13.7 million the next two years on pay raises for deputy court clerks.
John D. Minton Jr told a legislative panel Thursday that he plans to review the $562 million judicial budget for potential money to provide pay raises for other non-elected court employees.
That would cost $11.1 million.
“The unfortunate — and I trust unintended — consequence of the salary improvement targeted solely for deputy clerks is that it leaves out in the cold 1,700 other non-elected Court of Justice employees in courthouses all across the Commonwealth,” Minton told lawmakers.
The creation of separate pay scales for similar workers will cause “internal damage to the collegial nature of our work” on a “seismic” scale, he said.
Minton’s move pleased House budget committee chairman Harry Moberly Jr., D-Richmond, who said a possible constitutional confrontation has been avoided.
Moberly and several other members of the committee were cordial to Minton but had harsh words for outgoing Chief Justice Joseph E. Lambert and for Jason Nemes, director of the Administrative Office of the Courts, who they said ignored their budget mandates.
Lambert and Nemes were not at the committee meeting.
Told that Nemes was with his family at Disney World in Florida, Moberly said, “When he gets back, we hope he’s not in Disney World around here.”
Earlier this year, the Court of Justice ignored the recently passed state budget and provided “pay equity” raises for the judicial branch’s non-elected employees making less than $60,000 a year. That amounted to a flat $500 increase at a cost of $6.5 million over the next two years. Also, the courts allocated an additional $8.4 million for pay raises in fiscal year 2010.
They said it could strain relations between the legislative and judicial branches and have a negative effect on future budget requests from the judicial branch.

Under the budget approved by the legislature, which Minton will follow, deputy clerks with annual pay below $53,604 will get a 7 percent increase. Those paid less than $21,924 will get a 22.83 percent hike.
In his inaugural testimony Thursday before the House budget committee, Minton said he would “address first the elephant in the room” — raises for deputy clerks.
Minton said he wanted “to make clear my commitment to return to the day of wholesome cooperation.” with the legislature.
Minton said he will meet Monday in Bowling Green with leadership of the circuit court clerks to help him come up with the best way to implement the salary increase for deputy clerks.
He said complex issues abound, including balancing the needs of circuit clerks in rural areas, who typically are concerned about higher salaries to retain employees, with those in urban areas, who need better salaries to help recruit employees.
Concerning legislators’ disdain for Nemes, Minton said he would not fire him.
“I don’t know how I could have made this transition without Jason Nemes’ help,” Minton said. “We would be at a great loss without him.”
Earlier this year, the state Senate declined to confirm Nemes’ appointment as director of the Administrative Office of the Courts. However, Lambert simply reappointed him to the position.

Supreme Court strikes ‘Millionaires’ Amendment’ Exception from Campaign Finance Rules

Thursday, June 26th, 2008




Justice Samuel Alito wrote that the Supreme Court has “never upheld the constitutionality of a law that imposes different contribution limits for candidates who are competing against each other.”



The Supreme Court today struck down the so-called Millionaires’ Amendment on Thursday as unconstitutional in a 5-4 decision, dealing a blow to candidates facing wealthy opponents.

The decision overturns a provision in campaign finance law that helped candidates facing self-funded opponents by loosening restrictions on their fundraising limits. Once a House candidate contributed $350,000 of his or her own money to a campaign, the amendment allowed opponents to receive three times as much as otherwise would be allowed from individual contributors. A similar dynamic applied to Senate candidates.

Political party committees, which operate under restrictions regarding how much money they can spend on behalf of congressional candidates, were able to donate unlimited funds to those facing opponents who invoked the amendment.

Justice Samuel Alito, writing for the majority, ruled that the amendment was a violation of the First Amendment. He wrote that the Supreme Court has “never upheld the constitutionality of a law that imposes different contribution limits for candidates who are competing against each other.”

Wrote Alito: “While [the Bipartisan Campaign Reform Act] does not impose a cap on a candidate’s expenditure of personal funds, it imposes an unprecedented penalty on any candidate who robustly exercises that First Amendment right, requiring him to choose between the right to engage in unfettered political speech and subjection to discriminatory fundraising limitations. The burden is not justified by any governmental interest in eliminating corruption or the perception of corruption.”

Alito was joined in the majority by Chief Justice John Roberts and Justices Clarence Thomas, Antonin Scalia and Anthony Kennedy.

The election law provision was challenged by Jack Davis, a millionaire businessman who ran as the Democratic nominee against then-NRCC chairman Tom Reynolds (R-N.Y.) over the last two election cycles. Reynolds spent over $5 million to defeat him in what was a closely contested 2006 campaign. Davis is running again for the Democratic nomination — and already his primary opponent, Iraq war veteran Jonathan Powers, cited the Supreme Court decision and Davis’ deep pockets in a fundraising appeal Thursday afternoon.

The decision follows last year’s Supreme Court ruling that overturned a part of the McCain-Feingold campaign finance reform law that prevented issue-based groups from advertising within a certain timeframe before an election.

“It’s one more chink in the armor. The court has been taking a dim view a lot of the campaign finance restrictions in the law,” said Democratic attorney Stan Brand. “They blew away the rationale that it’s Congress’ right to level the playing field.”

Sen. Russ Feingold (D-Wis.) issued a statement arguing that the bulk of the law remains intact. “The Supreme Court decision today on the millionaire’s amendment has no impact on the central component of McCain-Feingold, which is the soft money ban,” he wrote. “That soft money ban, which the Supreme Court has upheld, remains intact. It has revolutionized political fundraising in this country. I opposed the Millionaires’ Amendment in its initial form and I never believed it was a core component of campaign finance reform.”

The Millionaires’ Amendment has traditionally benefited sitting members of Congress, who normally hold sizable fundraising advantages over their opponents.

The law is unlikely to have a significant political impact in individual campaigns. Self-funded candidates, in general, already have poor political track records.

But it will have an immediate effect on several high-profile congressional races that involve candidates that have poured in millions of their own money.

For example, Rep. Kirsten Gillibrand (D-N.Y.) had been able to fundraise with fewer restrictions against Republican Sandy Treadwell, a multimillionaire who already has poured in nearly $1 million of his own money. Now she will have to abide by the normal fundraising limits. 

Other candidates that have triggered the Millionaires’ Amendment include Republican Chris Hackett, running in a competitive race against freshman Rep. Christopher P. Carney (D-Pa.), and GOP businessman Mike Erickson, running for the open seat of retiring Rep. Darlene Hooley (D-Ore.). Both have each already spent more than $790,000 of their own money in the primaries alone.

U.S. Sup. Ct. Limits Wrongdoing by Forfeiture Doctrine and upholds Right to Confront Witness

Thursday, June 26th, 2008

Case: Giles v. California, 07-6053. Issue: Does the wrongdoing by forfeiture doctrine apply to statements made by a murder victim before her death? Holding: No. The doctrine only applies if the defendant murdered the victim with the intent to prevent her from testifying.

by David Ziemer June 26, 2008  Wisconsin Law Journal

Mark D. Jensen, convicted earlier this year of murdering his wife in 1998, may have to be retried.
On June 25, the U.S. Supreme Court issued its long-awaited decision in Giles v. California. The high court rejected the State of California’s theory that the defendant, by killing the witness, waived his right to question her. The majority found that theory was contrary to the common law embodied in the Confrontation Clause.
Speaking for the majority, Justice Antonin Scalia wrote, “American courts never – prior to 1985 – invoked forfeiture outside the context of deliberate witness tampering.”
In Jensen’s case, the Wisconsin Supreme Court adopted the same theory as California had.
Stephen Glynn, of Glynn, Fitzgerald & Albee, S.C., one of Jensen’s attorneys, hailed the Supreme Court’s ruling in Giles.
“The majority opinion could have been taken straight out of my partner, Craig Albee’s, brief in the Jensen case,” he stated.
Giles Decision
In the California case, Dwayne Giles was charged with murdering Brenda Avie, his ex-girlfriend. Over his objection, the trial court admitted into evidence statements that Avie had given to police three weeks earlier, while the officer was investigating a domestic violence incident.
The jury found Giles guilty, and the California Supreme Court affirmed his conviction.
The state courts concluded that Giles forfeited his right to confront Avie, because his criminal act of murdering her made Avie unable to testify.
In an opinion by Justice Antonin Scalia, the U.S. Supreme Court reversed, holding that the forfeiture by wrongdoing doctrine only applies when the defendant made a witness unavailable with the intent of doing so.
Reviewing the history of the doctrine, the court traced its roots to the 1666 decision in Lord Morley’s Case, 6 How. St. Tr. 769 (H.L. 1666). In Lord Morley’s Case, the court held that, because the defendant procured the detention of a witness, the witness’ previously testimony given at a coroner’s inquest could be read to the jury.
In contrast, the court noted King v. Woodcock, 1 Leach 500, (1789). Woodcock was accused of murdering his wife, who gave a statement after the beating, but before her death, accusing her husband of the murder.
The court held that the statement could not be admitted at Woodcock’s trial, unless the victim was under the apprehension of death when she made the statement.
The court also cited an 1858 treatise on the doctrine, stating that the forfeiture rule applied only when a witness “had been kept out of the way by the prisoner, or by some one on the prisoner’s behalf, in order to prevent him from giving evidence against him.” E. Powell, The Practice of the Law of Evidence 166 (1st ed. 1858) (emphasis added by court).
Distilling these and other authorities, the court concluded that, at common law, the forfeiture by wrongdoing doctrine was limited to conduct designed to prevent a witness from testifying.
Justice Scalia wrote, “The absence of a forfeiture rule covering this sort of conduct would create an intolerable incentive for defendants to bribe, intimidate, or even kill witnesses against them. There is nothing mysterious about courts’ refusal to carry the rationale further. The notion that judges may strip the defendant of a right that the Constitution deems essential to a fair trial, on the basis of a prior judicial assessment that the defendant is guilty as charged, does not sit well with the right to trial by jury. It is akin, one might say, to ‘dispensing with jury trial because a defendant is obviously guilty.’ (cite omitted)(emphasis in original).”
The court remanded the case to the trial court to consider evidence of the defendant’s intent in killing his wife on remand.
Ramifications for Jensen
That decision may have ramifications for Mark D. Jensen, who was convicted of murdering his wife, Julie.
The circuit court refused to admit into evidence a letter that Julie had written, which stated that she feared Mark was going to murder her.
However, the Wisconsin Supreme Court reversed. State v. Jensen, 2007 WI 26, 299 Wis.2d 267, 727 N.W.2d 518.
The state high court wrote, “The Defendant, regardless of whether he intended to prevent the witness from testifying against him or not, would benefit through his own wrongdoing if such a witness’s statements could not be used against him, which the rule of forfeiture, based on principle of equity, does not permit.” Jensen, 727 N.W.2d at 534-35.
On remand to the circuit court, the evidence was admitted and Jensen was convicted. He has since appealed.
Applying Giles
Stating there is no basis to distinguish the two cases, Glynn said that the only argument would be that Julie’s statements constituted dying declarations. However, he said that argument was undermined by the Giles opinion, too.
“The [c]ourt cited with approval 5 or 6 cases in which a stronger argument could made that the statements at issue were dying declarations, than in the Jensen case, and yet were found inadmissible under the Confrontation Clause, “ he observed.
Despite the similarities between Jensen and Giles, attorney Robert J. Jambois, who prosecuted the Jensen case, does not expect the conviction will be reversed.
In an interview, Jambois said the cases are distinguishable, because the Jensen case did not involve a typical domestic abuse situation.
Usually, he noted, when a woman is murdered by her spouse, it is a crime of passion.
Frequently, alcohol is involved. In contrast, “Here, there was cold, calculated, prolonged planning to achieve the objective.”
Jambois also stated that the purpose of the crime was to prevent Julie from seeking a divorce. “He wanted to preserve the entire marital estate for him alone.”
The Wisconsin Department of Justice did not return calls for comment.
In an interview with the Milwaukee Journal-Sentinel shortly after Jensen was convicted, Marguerite Moeller, the assistant attorney general who argued the case in the Wisconsin Supreme Court, said that, if the U.S. Supreme Court were to rule in Giles favor, Jensen would have a good chance at a new trial.
Likely to be at the center of the arguments in the Jensen case if it goes to the Wisconsin Court of Appeals will be one paragraph in the Giles opinion discussing domestic violence.
That paragraph states in relevant part, “Acts of domestic violence often are intended to dissuade a victim from resorting to outside help, and include conduct designed to prevent testimony to police officers or cooperation in criminal prosecutions. Where such an abusive relationship culminates in murder, the evidence may support a finding that the crime expressed the intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution — rendering her prior statements admissible under the forfeiture doctrine. Earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify.”
In the Giles case, the Supreme Court remanded for consideration of Giles’ intent, in light of this paragraph.
Similarly, in Jensen’s case, interpretation of this paragraph will determine whether Julie’s statements would have been admissible, even if the Wisconsin courts had employed the proper legal test.
Glynn said it was unfortunate, though, that the Giles opinion was not released before the Wisconsin Supreme Court election, in which the Jensen case was a campaign issue.
“It is unfortunate that it is too late to vindicate the position of Justice Butler, who was the only justice on the Wisconsin Supreme Court who recognized that the broad forfeiture by wrongdoing doctrine adopted by the majority had no basis,” he said

American Idol will hold auditions in Louisville – This could be your one shot at fame…

Thursday, June 26th, 2008

This could be your chance to get out of that dull law office job. 



City officials in Louisville say the show American Idol will hold two auditions here. 

The first will be held July 18-21 at Freedom Hall. The second will be at Churchill Downs from Sept. 4-8. 

A spokesman for Mayor Jerry Abramson told The Courier-Journal that auditions for the show are expected to attract thousands to the city and bring it national exposure. 

Spokesman Chris Poynter says the city lobbied for the show and said one episode draws a larger audience than the Kentucky Derby. 

Synopsis for Sup. Ct. Gun Rights Ruling on 2nd Amend.

Thursday, June 26th, 2008


certiorari to the united states court of appeals for the district of columbia circuit

No. 07-290. Argued March 18, 2008–Decided June 26, 2008

District of Columbia law bans handgun possession by making it a crime to carry an unregistered firearm and prohibiting the registration of handguns; provides separately that no person may carry an unlicensed handgun, but authorizes the police chief to issue 1-year licenses; and requires residents to keep lawfully owned firearms unloaded and dissembled or bound by a trigger lock or similar device. Respondent Heller, a D. C. special policeman, applied to register a handgun he wished to keep at home, but the District refused. He filed this suit seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on handgun registration, the licensing requirement insofar as it prohibits carrying an unlicensed firearm in the home, and the trigger-lock requirement insofar as it prohibits the use of functional firearms in the home. The District Court dismissed the suit, but the D. C. Circuit reversed, holding that the Second Amendment protects an individual’s right to possess firearms and that the city’s total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right.
     1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2-53.
          (a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2-22.
          (b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22-28.
           (c) The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment. Pp. 28-30.
          (d) The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30-32.
          (e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion. Pp. 32-47.
          (f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542, 553, nor Presser v. Illinois, 116 U. S. 252, 264-265, refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47-54.
     2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose:  For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54-56.
     3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition–in the place where the importance of the lawful defense of self, family, and property is most acute–would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56-64.
478 F. 3d 370, affirmed.
     Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, and Alito, JJ., joined. Stevens, J., filed a dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined

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Fen Phen Jury in third day of deliberations. Does this indicate trouble with the Government case?

Thursday, June 26th, 2008

 Thursday June 26, 2006


The federal Fen Phen jury adjourned Wednesay after a full day of deliberation.  On Tuesday they considered the case for 6-1/2 hours..


It is often said that a quick jury is a prosecution jury and a long jury indicates a problem with the prosecution’s case.  This may indicate that someone is holding out.  This would seem to indicate that the jury does not consider this to be an open and shut case.  But then we have seen cases when guilt was quickly agreed to but the delay was an argument on the penalty…so wait we must.


Scalia Writes Gun Rights Decision Outlawing Ban of Handguns

Thursday, June 26th, 2008

LawReader:  Court ruling to allow most existing gun laws to continue in force. Regulation re: mentally ill and felons and laws forbidding the carrying of firearms in sensitive places such as schools and government buildings upheld.  The NRA will file lawsuits to flesh out this ruling. 


Washington Post – June 26, 2008


WASHINGTON — The Supreme Court ruled Thursday that Americans have a right to own guns for self-defense and hunting, the justices’ first major pronouncement on gun rights in U.S. history.


The court’s 5-4 ruling struck down the District of Columbia’s 32-year-old ban on handguns as incompatible with gun rights under the Second Amendment. The decision went further than even the Bush administration wanted, but probably leaves most firearms laws intact.


The court had not conclusively interpreted the Second Amendment since its ratification in 1791. The amendment reads: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

The basic issue for the justices was whether the amendment protects an individual’s right to own guns no matter what, or whether that right is somehow tied to service in a state militia.


Writing for the majority, Justice Antonin Scalia said that an individual right to bear arms is supported by “the historical narrative” both before and after the Second Amendment was adopted.


The Constitution does not permit “the absolute prohibition of handguns held and used for self-defense in the home,” Scalia said. The court also struck down Washington’s requirement that firearms be equipped with trigger locks or kept disassembled, but left intact the licensing of guns.


In a dissent he summarized from the bench, Justice John Paul Stevens wrote that the majority “would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons.”

He said such evidence “is nowhere to be found.”


Justice Stephen Breyer wrote a separate dissent in which he said, “In my view, there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas.”

Joining Scalia were Chief Justice John Roberts and Justices Samuel Alito, Anthony Kennedy and Clarence Thomas. The other dissenters were Justices Ruth Bader Ginsburg and David Souter.


Gun rights supporters hailed the decision. “I consider this the opening salvo in a step-by-step process of providing relief for law-abiding Americans everywhere that have been deprived of this freedom,” said Wayne LaPierre, executive vice president of the National Rifle Association.


The NRA will file lawsuits in San Francisco, Chicago and several of its suburbs challenging handgun restrictions there based on Thursday’s outcome.

The capital’s gun law was among the nation’s strictest.


Dick Anthony Heller, 66, an armed security guard, sued the District after it rejected his application to keep a handgun at his home for protection in the same Capitol Hill neighborhood as the court.


The U.S. Court of Appeals for the District of Columbia ruled in Heller’s favor and struck down Washington’s handgun ban, saying the Constitution guarantees Americans the right to own guns and that a total prohibition on handguns is not compatible with that right.

The issue caused a split within the Bush administration. Vice President Dick Cheney supported the appeals court ruling, but others in the administration feared it could lead to the undoing of other gun regulations, including a federal law restricting sales of machine guns. Other laws keep felons from buying guns and provide for an instant background check.


Scalia said nothing in Thursday’s ruling should “cast doubt on long-standing prohibitions on the possession of firearms by felons or the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.”


In a concluding paragraph to the his 64-page opinion, Scalia said the justices in the majority “are aware of the problem of handgun violence in this country” and believe the Constitution “leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns.”


The law adopted by Washington’s city council in 1976 bars residents from owning handguns unless they had one before the law took effect. Shotguns and rifles may be kept in homes, if they are registered, kept unloaded and either disassembled or equipped with trigger locks.


Opponents of the law have said it prevents residents from defending themselves. The Washington government says no one would be prosecuted for a gun law violation in cases of self-defense.


When is the word “shall” permissive instead of mandatory?

Wednesday, June 25th, 2008

When is the word “shall” permissive instead of mandatory?

The Kentucky Courts in a long line of cases have defined the word “‘SHALL” as used in contracts and statutes as being a mandatory duty.  One of our sharp-eyed LawReader para legals asks us why in Ratliff v. Phillips, 746 S.W.2d 405 (Ky., 1988) and Evangelical Lutheran Good Samaritan Society, Inc. v. Albert Oil Company, Inc., 969 S.W.2d 691 (KY, 1998) the court found that the word was merely suggestive?  
We feel obligated to seek an answer for this interesting question:

The Ratliff case holds: “In summary and notwithstanding use of the word “shall,” we believe the Legislature intended the time requirement of KRS 100.263 to be directory rather than mandatory. Webster County v. Vaughn, Ky., 365 S.W.2d 109 (1962).”

The Evangelical case cited the Ratliff decision and said that in that instance the ruling: “turned on the absence of any statutory language establishing the consequences of the failure to act by the Board. In this case, the language directing the recommendation “shall be final and effective” is present in the statute”
 “The statute in question says that the fiscal court or legislative body shall take final action and the words are clearly mandatory in nature.”
The following case explains the exception is allowed when trying to interpret Legislative Intent:
Hart v. Central City, 289 Ky. 431 (KY, 1942)
 “the general rule of interpretation of the word (Lewis’ Sutherland on Statutory Construction, Section 640) except there should be added that “the construction of mandatory words as directory and directory words as mandatory should not be lightly adopted.” Crawford, Statutory Construction, Section 262. It is always a question of legislative intent. And in ascertaining that intent the entire statute must be considered. The whole scheme established by this statute is to require the improvements to be made at the expense of abutting property, with certain exceptions. The liability of the City for the cost where those excepted conditions exist is made manifest by the use of the word “shall.”

Respected former legislator, Gross Clay Lindsay passed away. Helped write criminal code.

Wednesday, June 25th, 2008

This message was sent today to all Legislators: 

It is with the utmost sadness and shock that I must report to you that former Representative Gross Clay Lindsay passed away either last night or early this morning. 


Representative Lindsay was a longtime member of the Kentucky House of Representatives and an active force behind the creation of the state’s criminal statutes and modern system of justice.  A Democrat from Henderson, Gross entered the General Assembly in 1970 after being elected to represent the state’s 11th House District. He quickly earned a reputation as a lawmaker with a keen understanding of the state’s legal system. 


In 1972 he was appointed to the Kentucky Penal Code Study Commission. That same year he was the primary sponsor of legislation passed into law that proposed updating the state’s criminal laws with a new penal code.  Gross also played a major role in establishing our modern court system. He was active in the effort that allowed voters to approve a constitutional amendment on modernizing the court system in 1975. After voters ratified the amendment, he served on the Interim Special Committee on the Implementation of the Judicial Article and helped create Kentucky’s four-tier court system which replaced a proliferation of quarterly, county, police and justice of the peace courts with district courts. The modern system has been credited with improving efficiency and removing backroom politics from the courts. 


Gross also actively worked to improve the state’s justice system as a member of the Kentucky Crime Commission’s Executive Committee.  He was appointed chairman of the Governor’s Special Committee on Off Track Betting by Gov. Wendell Ford in 1974.   His gubernatorial appointments also included spots on the Special Advisory Commission on County Government in 1976, the County Statutes Revision Commission in 1977, and the Local Government Statute Revision Commission in 1978. 


Gross gave up his seat in the House of Representatives in 1980. Though he decided to take a break from serving as a lawmaker, he remained close to the legislature throughout much of the 1980s. In 1982, he accepted a position as general counsel for the House Majority Floor Leader. 


Gross served as the Legislative Research Commission’s counsel and presented LRC’s case to the Kentucky Supreme Court in the landmark LRC v. Brown case. That case resulted in a 1984 ruling from the court on the separation of powers between the executive and legislative branches of government.  Part of the ruling in that case determined that legislative staffing through the LRC was in fact constitutional.


Gross was also an active member of the Special Commission on Constitutional Review, a panel that in 1987 called for an overhaul of the Kentucky Constitution, which at the time was nearly a century old. 


Gross returned as a member of the House of Representatives in 1993. In 1998, he was recognized as one of the top ten most effective House members in a survey conducted by the Kentucky Center for Public Issues. 


Perhaps one of his biggest impacts on the General Assembly was made in the years after he was appointed chairman of the House Judiciary Committee in 1999. In addition to keeping close watch over the movement of criminal justice bills through the House, he was known for using his chairmanship to put the brakes on bills that could have unintended consequences overlooked by others.  Simply put, no one ran a committee like Gross.


In the 2001 legislative session, Gross was active in efforts to pass legislation that placed a constitutional amendment before voters to ensure the constitutionality of family courts and allow the state to expand its use of them. 




As a veteran lawmaker, Gross was regarded by his peers in the House and legislative staff as the chamber’s unofficial parliamentarian, the person members turn to for authoritative interpretations of the rules that govern the chamber. 



I just talked with Gross on Monday.  He was in great spirits…his old self…I can’t believe he’s gone.

 In the late 70s, there was actually a Gross Lindsay Fan Club, with real membership cards and everything.  Many on staff at the time were card-carrying members of the club.  The membership card included a handsome photo of Gross along with the motto…”It’s Great to be Gross.”  Knowing Gross, and from all appearances, it truly was.


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U.S. Sup. Ct. reduces Exxon Valdez award by 2.2 billion – Punitive damages can’t exceed compensatory damages in this case

Wednesday, June 25th, 2008

By Mark H. Anderson    June 25, 2008

This ruling was based on Maritime Law and does not necessarily apply to general damages law, however, Justice Ruth Bader Ginsburg, in her dissent, expressed concern the one-to-one restriction could later be reflected in a broader punitive-damages ruling by the court


WASHINGTON -(Dow Jones)- The U.S. Supreme Court Wednesday said punitive damages are allowed in a lawsuit over the 1989 Valdez oil spill, but by a 5-3 vote ordered lower courts to reduce the $2.5 billion award to no more than $ 507.5 million.

Justice David Souter, in the court’s majority opinion, said the punitive- damages award should be brought into line with compensatory damages calculations made by lower courts earlier in the litigation.


“The award here should be limited to an amount equal to compensatory damages,” Souter wrote, adding the high court ruling endorses a $507.5 million amount calculated by a federal trial judge in 2002. “Our explanation of the upper limit confirms that the one-to-one ratio is not too low,” Souter added.


The high court otherwise split 4-4 on whether maritime laws allow Exxon to be punished for the actions of the oil tanker’s captain, who created one of the largest environmental incidents in U.S. history. But a majority also concluded that federal environmental laws, which were also at issue in the appeal, don’t bar punitive damages against the oil giant.

This split vote occurred because Justice Samuel Alito, who has a sizable investment in Exxon Mobil stock, was recused from the case. The decision adds to other recent examples where stock-related recusals have limited the court’s ability to resolve an appeal. Alito in 2007 voted with the majority to limit punitive damages in a case involving Altria Group Inc.’s (MO) Philip Morris unit, but it isn’t clear how his participation might have altered the Exxon Mobil case.


The high court ruling threw out the $2.5 billion damages award, previously upheld by the 9th U.S. Circuit Court of Appeals in San Francisco in 2006. The case now goes back to lower courts so a new punitive-damages award that does not exceed $507.5 million can be determined, the opinion said.


Exxon Mobil, in a statement, said the Valdez oil spill is an accident the ” corporation deeply regrets” and that after taking responsibility for the spill it “spent over $3.4 billion as a result of the accident, including compensatory payments, cleanup payments, settlements and fines.”


“I am extremely disappointed with today’s decision by the U.S. Supreme Court,” Alaska Gov. Sarah Palin said. “While the decision brings some degree of closure to Alaskans suffering from 19 years of litigation and delay, the Court gutted the jury’s decision on punitive damages.”


Business groups, which count reducing punitive-damages awards as a top priority, reacted positively to the opinion. Robin Conrad, head of the U.S. Chamber of Commerce’s litigation arm, said that although the ruling is limited to maritime disputes, it could ultimately lead to tighter restrictions on punitive damages. “Limiting punitive damages to no more than the amount of a compensatory award will go a long way in cabining unpredictable punitive damages,” Conrad said.


Justice Ruth Bader Ginsburg, in her dissent, expressed concern the one-to-one restriction could later be reflected in a broader punitive-damages ruling by the court. Currently, Supreme Court precedent – beyond maritime law – generally limits punitive damages to single-digit ratios. “On next opportunity, will the court rule, definitively, that one-to-one is the ceiling due process requires in all of the states?” Ginsburg wrote.

Chief Justice John Roberts Jr. and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas joined Souter in the majority holding limiting the punitive damages under maritime law.


Justices John Paul Stevens, Ginsburg and Stephen Breyer dissented, saying the court went too far in restricting punitive damages to a one-to-one ratio with compensatory damages.


“The punitive-damages award before us already represents a 50% reduction from the amount that the District Court strongly believed was appropriate. I would uphold it,” Justice Breyer wrote in his dissent. Justices Stevens and Ginsburg also wrote dissenting opinions separately that explained their reasoning for rejecting the court’s limitation of the damages.


Exxon Mobil could not immediately be reached for comment.

The Exxon Valdez spilled millions of gallons of oil into Alaska’s Prince William Sound almost 19 years ago in one of the largest environmental accidents in U.S. history. The company has paid over $3.4 billion in remediation, fines, compensation and other costs.

The case before the court was brought separately by a class of 32,677 fishermen and other interests that had business disrupted by the oil spill. The case has been in litigation for 13 years, a timeframe in which the plaintiffs allege 20% of those eligible for damages have died.


Exxon Mobil had attacked the award on several fronts, arguing that maritime law doesn’t allow punitive-damages awards and that the federal Clean Water Act, which guided more than $900 million in sanctions and fines related to the spill, also bars the punitive-damages award. Neither argument appeared likely to prevail in the eventual Supreme Court ruling.


The lawsuit before the court began in 1994, almost five years after the Valdez supertanker dumped 258,000 barrels of oil into the Prince William Sound. After a lengthy trial, a jury awarded those harmed by the spill $287 million in compensatory damages and $5 billion in punitive damages.


The Ninth Circuit first ruled in the case in 2001 when it upheld damages against Exxon Mobil but ordered the trial court to reduce the award. A second appeal to the Ninth Circuit was decided in 2006 that upheld the $2.5 billion in punitive damages.

The case is Exxon Shipping Co. and Exxon Mobil Corp. v. Baker, 07-219.



This case will be posted shortly at Latest Slip Opinions



Tuesday, June 24th, 2008

LawReader has received a report that a  Kentucky attorney against whom an ethics violation has been filed received a call Thursday June 19, from a Cincinnati Television station making an inquiry about a pending complaint against him.  Subsequently he received an inquiry from a newspaper that serves Northern Kentucky regarding the complaint.  Neither the TV station nor the newspaper would run the story, apparently showing more responsibility then the leaker.  

This is the alleged to be the second time this particular attorney has been the subject of confidential KBA discipline information being distributed or leaked to the press improperly. 

We will not disclose his name, as we believe that  he is entitled to confidentiality until his case is heard. 
We believe the following Supreme Court Rule mandates confidentiality of Inquiry Commission  Investigations documents until such time as the attorney has had a hearing.

SCR 3.690 Commission records confidential

The files and records of the Commission shall be deemed confidential and shall not be disclosed except in furtherance of the duties of the Commission, as set forth at SCR 3.650, or of the Board, or upon request of the member affected, or as directed by the Supreme Court of Kentucky. This rule specifically excludes from confidentiality information provided by a member to the Commission as a part of a member’s application for relief from the requirements of these rules.

If the rule mandates confidentiality then why was this attorney singled out for a leak? Who singled him out for a leak?  Does the leaker have anything to do officially with the KBA?  We don’t know the answer to these questions and the KBA has not responded to our request for information.  We are hopeful that they will take this leak as seriously as we do at LawReader.  Every step should be taken to locate the source of the leak and anyone involved should be recused from participating in any formal proceedings regarding this attorney. 

The appearance  that there is some degree of bias existing on the Inquiry Commission, or by someone who was entrusted with the complaint documents is certainly raised by this leak.
Maybe these records shouldn’t be confidential.  The current Fen Phen trial in Federal Court in Covington might well have been prevented had the KBA informed the Fen Phen class action judge that they had received complaints from one of the Fen Phen attorney’s clients regarding fee issues. 

We certainly see the justification for a practice where a Judge sitting on a case in which fees must be set by the court, to be informed of any pending complaints against the attorney in that case.  Such a practice might have saved the profession the embarrassment of the Fen Phen disaster. 

But until such time that the confidentiality of ethics proceedings is changed by a rule of the Supreme Court, the current rules should be followed


Tuesday, June 24th, 2008

JUSTICE GRAVES ISSUES STINGING CONCURRING OPINION IN W/C CASE….Judge Thompson indentifies the problem Former Supreme Court Justice Graves who was categorized as one of the more Conservative Justices on the Ky. Supreme Court until his retirement at the end of 2006, has continued to serve as a Senior Status Judge working on the Court of Appeals. On June 20, 2008 he issued a concurring opinion, that sounds more like a dissent. In any event, we enjoy his pithy language, and his concern for the common working man. In the same case, Judge Kelly Thompson issued a unabashed dissent, and expresses the harshness of giving the Admin. Law Judge in a Worker’s Comp. case so much discretion. You may find these cases interesting. NO. 2007-CA-002609-WC CLARENCE HICKS APPELLANT v. WORKERS’ COMPENSATION BOARD ACTION NO. WC-06-78469 R & J WELL SERVICE; HON. CHRIS DAVIS, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD APPELLEES GRAVES, SENIOR JUDGE, CONCURRING: I concur with the majority solely because my oath requires that I follow the law, regardless of how unfairly it treats the working wounded who continue to serve their employer. The existing Kentucky Workers’ Compensation Act has been applied in accordance with the statute; however, I write separately because the result reached by the ALJ is inconsistent not only with the humanitarian purpose of Workers’ Compensation law but also with moral principles. In an employment relationship there is an underlying element of natural justice. When an injured worker is forced to forego necessary curative medical treatment for an on the job injury, he is submitting to a forced wrong, against which justice cries out in protest. Many fact finders would decide this case differently because they would be able to articulate the infinite variations in gradation of physical injury to the back. That is, the indirect effects of injury have various degrees of gravity -depending on an individual’s recuperative powers. Clarence Hicks is being penalized because he has continued to labor even though he had an active disability. King Draco, with his vast array of multitudinous machinations, could not have devised a more cruel or more harsh result. He would be proud of the result in this case. Had the Kentucky Workers’ Compensation Act existed in earlier times, Richard the Lionhearted would never have dared risk having a heavy male knight injure his back at the expense of a royal treasury, nor would Columbus or Pizarro have dared the slippery footing of the Santa Maria or the slopes of Mexico. It would not have been worth it. When soldiers are injured in the line of duty they are given a medal, usually a Purple Heart. Were Clarence Hicks given an award, it would be a Dunce’s cap with the inscription, “Denied a remedy because I am an expendable American worker.” THOMPSON, JUDGE, DISSENTING: I must respectfully dissent. I agree with Judge Graves’ eloquent expression of the injustice of a denial of benefits in this case but differ with the majority’s conclusion that Kentucky’s Workers’ Compensation law requires such a result. Mr. Hicks withstood the rigors of heavy manual labor while working for R & J from 1994 thru 2006. In 2001, he began to experience physical symptoms of a gradual wear and tear type injury to his back and eventually an MRI revealed a bulging disc. Despite his condition, Hicks continued to work for his employer well in excess of forty hours per week until August 18, 2006, the date of the injury. The ALJ has ruled that Mr. Hicks was temporarily totally disabled with an inconsistent finding of no disability. Now, Mr. Hicks has no health insurance to pay for his surgery because he was injured at work. The ALJ relied heavily on the testimony of Dr. Jenkinson who performed an independent medical examination at R & J’s request. His opinion was that Hicks had only degenerative changes and, contrary to the opinions of Drs. Potter, Bean, Templin, and Best, opined that Hicks had a 0% impairment rating. In view of the medical opinions in disagreement with Dr. Jenkinson’s opinion, the result of the MRI, and the recommendation by Dr. Bean that Hicks undergo surgery to treat his herniated disc, it defies common sense to rely exclusively on Dr. Jenkinson’s opinion. I believe this case is an example of the “substantial evidence” test taken to the extreme. The majority’s unbending adherence to the deference owed the ALJ in fact finding matters reduce the test to a mere “scintilla of evidence” test. The MRI revealed that Hicks has a bulging disc and will undergo surgery. He has engaged in heavy labor for the past fourteen years yet Dr. Jenkinson rendered the subjective diagnosis that Hicks is a malingerer. The objective facts simply do not support Dr. Jenkinson’s subjective diagnosis. It is not mere coincidence that the only physician who gave a 0% impairment rating was the employer’s independent medical evaluator.I would reverse and remand this case to the ALJ for an award of benefits.

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