Archive for August, 2008

Chief Justice appoints Judge Doughlas M. George as chief regional circuit judge for Cumberland Region. Judge Paul Braden named Vice Chief ..

Wednesday, August 20th, 2008

 

Aug. 20, 2008 

FRANKFORT, Ky. — Chief Justice of Kentucky John D. Minton Jr. has appointed Circuit Court Judge Doughlas M. George of Springfield to the post of chief regional circuit judge for the Cumberland Region, which is comprised of 23 counties in southeastern Kentucky.

Judge George, whose appointment was effective July 1, succeeds Judge Roderick Messer as chief regional circuit judge. Judge Messer retired June 30 to become a senior judge. As chief regional circuit judge, Judge George serves in an administrative capacity. His responsibilities include assigning special judges to serve in cases when presiding judges certify that a special judge is needed.

The Cumberland Region covers 10 judicial circuits and consists of Adair, Bell, Casey, Clay, Clinton, Cumberland, Green, Harlan, Jackson, Knox, Laurel, Leslie, Lincoln, Marion, McCreary, Monroe, Pulaski, Rockcastle, Russell, Taylor, Washington, Wayne and Whitley counties.

Judge George is a circuit judge for Kentucky’s 11th Judicial Circuit, which is comprised of Green, Marion, Taylor and Washington counties. He has served as circuit judge for the 11th Judicial Circuit since January 1998. He is also chief circuit judge for the four-county circuit. Judge George served 14 years as a District Court judge prior to joining the circuit bench.       

Chief Justice Minton appointed Circuit Judge Paul E. Braden, who serves McCreary and Whitley counties, as vice chief regional circuit judge for the Cumberland Region.

 

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GIRLS GONE WILD FOUNDER FILES LAWSUIT – CLAIMS HE WAS FORCED TO PAY PRESIDING JUDGE SMOAK’S FORMER LAW PARTNERS MILLIONS IN RANSOM FOR HIS FREEDOM.

Tuesday, August 19th, 2008

‘Panama City declared war on the Constitution, and today we’re fighting back on behalf of all Americans.’

 

LOS ANGELES, Aug 19, 2008 /PRNewswire via COMTEX/ — Joe Francis, founder and CEO of Mantra Films, Inc., filed suit today in Los Angeles Superior Court, alleging that a federal judge worked in cahoots with opposing attorneys to extort a ransom for Francis’ release from a Panama City, Florida jail cell.

 

Today’s filing grows out of a 2003 First Amendment battle Francis and his company fought with Panama City officials. Mantra Films is best known for the Girls Gone Wild lifestyle brand, an American pop culture phenomenon. In town to produce a show about the wild antics of college coeds at Panama City’s traditional spring break debauch, Francis and his team were falsely accused of illegal activity.

 

Court documents filed today allege a Bay County courthouse cabal imprisoned Francis illegally through shady backroom deals stemming from a civil lawsuit filed by several coeds who were filmed. Illegally imprisoned for almost a year without bail, Francis was forced to pay presiding Judge Richard Smoak’s former law partners millions in ransom for his freedom.

 

Francis brings this legal action to set aside the settlement agreement coerced by duress and the improper conduct of the women, their parents, and their attorneys. Francis has also filed separate actions demanding over $300,000,000 million in damages for the illegal conduct of Bay County officials.

 

“Panama City officials began their persecution of Joe Francis with open deception, continued with perjury, and concluded with illegal imprisonment,” said Robert E. Barnes, attorney for Francis. “That may be what counts for justice in Panama City, but it’s not American justice.”

 

Francis sent an email to millions of supporters today to enlist them in this important First Amendment battle. On a video message posted to his personal Web site,

http://www.MeetJoeFrancis.com he thanked his supporters and said: “We’re fighting back against judicial and government corruption. If this can happen to me, it can happen to you.”

 

About Mantra Films, Inc.

 

Mantra Films, Inc. develops and distributes lifestyle entertainment to audiences worldwide through home video, television, live events, wireless, Internet, SVOD, and Pay Per View distribution channels. The company is a leader in the direct response marketing and membership segments and owns and operates its own production facilities, call center and fulfillment operation. The company was founded in 1997 and has four facilities in Los Angeles, headquartered in Santa Monica.

 

About Bernhoft Law

 

Bernhoft Law is one of the nation’s leading boutique law firms specializing in complex litigation in federal criminal and civil courts, and international asset fraud recovery. Robert Bernhoft and Robert Barnes of the firm obtained felony acquittals for the actor Wesley Snipes. Mr. Bernhoft also previously obtained acquittals on all felony counts for former IRS investigator Joe Banister (a trial memorialized in Pulitzer Prize winning author David Cay Johnston’s “Perfectly Legal”). They are also known for their precedent-setting representation of consumer advocate and presidential candidate Ralph Nader. Bernhoft Law has offices in Milwaukee, Wisconsin and Los Angeles, California.  

 

Butler County Sheriff Transports Wrong Man from California – Why can’t they ever listen to a suspect?

Tuesday, August 19th, 2008

 

By Stan Billingsley                                                     August 19, 2008

 

Butler County Sheriff Joe Gaddie and Deputy Mitchell Russ drove to California recently and picked up a “fugitive” who was wanted in Kentucky.  The man told the Sheriff that it was impossible for their to be any charges in Kentucky because he had never been in Kentucky.

 

The Sheriff, following a practice we see all to often, ignored the protestations of his “fugitive” and drove him back to Butler County in Western Kentucky. Of course the Sheriff and his Deputy stopped along the way to

 

Only upon his delivery to Jailer Terry Fugate, was the error discovered.  The Jailer checked the mug shot of the real fugitive and looked at  the innocent Joe Oros and readily discovered the Sheriff had the wrong man.

 

The Sheriff in another act that we see all too often, after driving 4,100 miles with Oros refused to drive him to the nearest airport in Nashville because “he didn’t have a transportation order”, so the Jailer sent his Deputy Rocky Tyree to drive the innocent man 85 miles to Nashville.

 

The county did have the good sense to buy the man a new suit of clothes, put him up in a motel overnight and then gave him a plane ticket.  Of course the County is preparing for the lawsuit.

 

I have always been amazed by the penchant for many police officers to ignore any statements made by a suspect.   There must be some lead residue in their badges that affect their ability to every listen to a suspect.   One would think that you would take a picture of your suspect before driving over 2,000 miles to pick him up.

 

As a former District Judge, I have had to write many court orders directing a Sheriff to do what good sense and decency otherwise required him to do.  Thank goodness the Jailer had some common sense.

 

I have often asked myself, “Why would he run for the office of Sheriff if he didn’t want to do what a Sheriff is supposed to do?”

 

BEST BOOK AND MOVIE PLOT I HAVE SEEN IN YEARS

Monday, August 18th, 2008

By Stan Billingsley

The following news story was published in the Courier-Journal on Aug. 17, 2008:

Anchorage, Alaska  HAND, ARM IN GLACIER LINKED TO MISSING MERCHANT MARINE
 Nine years of sleuthing, DNA science and cutting-edge forensic techniques have put a name to a mummified hand and arm found in an Alaska glacier. 
The remains belong to Francis Joseph Van Zandt, a 36 year old merchant marine from Roanoke, VA. who was on a plane rumored to contain a cargo of gold when it smashed into the side of a mountain 60 years ago.” 

 I am struck with the realization that this is a story outline that would make a great mystery novel and movie.  It has forensics, DNA, science, human interest, scenic Alaska, dangerous glaciers, a lost airplane, and a missing cargo of GOLD.   I don’t see anything about sex in the news story, but don’t worry, any semi-skilled author could invent that by the second sentence.

QUESTIONS RAISED: 

Why would a cargo of gold be transported across Alaska in 1948? 

What was a sailor doing on an airplane?

 Where had the sailor’s last ship come from? 

Was there any Japanese gold missing from WWII? 

Who were the other parties on the plane? 

Why did the plane go down.  

Did the pilot survive and take the gold?  Who conducted the search…why was it called off? 

 Did any of the searchers buy a condo at Trump Tower?  Couldn’t you measure the average speed of the glacier, then deduct that creepage for 60 years and have a pretty good idea where the gold laden plane crashed?


What happened to the sweet small town girl who waited all those years for Francis Van Zandt to come home?
 
 

 

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Feds seek new rules to widen role of local police in domestic spying

Monday, August 18th, 2008

 

by Spencer S. Hsu and Carrie Johnson – Aug. 16, 2008  Washington Post

 

WASHINGTON – The Justice Department has proposed a new domestic-spying measure that would make it easier for state and local police to collect intelligence about Americans, share the sensitive data with federal agencies and retain it for at least 10 years.

 

The proposed changes would revise the federal government’s rules for police intelligence gathering for the first time since 1993 and would apply to any of the nation’s 18,000 state and local police agencies that receive roughly $1.6 billion each year in federal grants.

Quietly unveiled last month, the proposal is part of a flurry of domestic-intelligence changes issued and planned by the Bush administration in its waning months. They include a recent executive order that guides the reorganization of federal spy agencies and a pending Justice Department overhaul of FBI procedures for gathering intelligence and investigating terrorism cases within U.S. borders.

Taken together, critics in Congress and elsewhere say, the moves are intended to lock in policies for Bush’s successor and to enshrine controversial post-9/11 approaches that some say have fed the greatest expansion of executive authority since the Watergate era.

Supporters say the measures simply codify existing counterterrorism practices and policies that are endorsed by lawmakers and independent experts such as the 9/11 Commission. They say the measures preserve civil liberties and are subject to internal oversight.

 

White House spokesman Tony Fratto said the administration agrees that it needs to do everything possible to prevent unwarranted encroachments on civil liberties, adding that it succeeds the overwhelming majority of the time.

 

Bush homeland-security adviser Kenneth Wainstein said, “This is a continuum that started back on 9/11 to reform law enforcement and the intelligence community to focus on the terrorism threat.”

 

Under the Justice Department proposal for state and local police, published for public comment July 31, law enforcement agencies would be allowed to target groups as well as individuals, and to launch a criminal intelligence investigation based on the suspicion that a target is engaged in terrorism or providing material support to terrorists. They also could share results with a constellation of federal law-enforcement and intelligence agencies, and others in many cases.

 

Criminal-intelligence data starts with sources as basic as public records and the Internet but also includes law-enforcement databases, confidential and undercover sources, and active surveillance.

 

Jim McMahon, deputy executive director of the International Association of Chiefs of Police, said the proposed changes “catch up with reality” in that those who investigate crimes such as money laundering, drug trafficking and document fraud are best positioned to detect terrorists. He said the rule maintains the key requirement that police demonstrate a “reasonable suspicion” that a target is involved in a crime before collecting intelligence.

 

“It moves what the rules were from 1993 to the new world we live in, but it maintains civil liberties,” McMahon said.

 

However, Michael German, policy counsel for the American Civil Liberties Union, said the proposed rule may be misunderstood as permitting police to collect intelligence even when no underlying crime is suspected, such as when a person gives money to a charity that independently gives money to a group later designated a terrorist organization.

The rule also would allow criminal-intelligence assessments to be shared outside designated channels whenever doing so may avoid danger to life or property – not only when such danger is “imminent,” as is now required, German said.

 

On the day the police proposal was put forward, the White House announced it had updated Reagan-era operating guidelines for the U.S. intelligence community. The revised Executive Order 12333 established guidelines for overseas spying and called for better sharing of information with local law enforcement. It directed the CIA and other spy agencies to “provide specialized equipment, technical knowledge or assistance of expert personnel” to support state and local authorities.

 

And last week, Attorney General Michael Mukasey said that the Justice Department will release new guidelines within weeks to streamline and unify FBI investigations of criminal law enforcement matters and national security threats. The changes will clarify what tools agents can employ and whose approval they must obtain.

The recent moves continue a steady expansion of the intelligence role of U.S. law enforcement, breaking down a wall erected after congressional hearings in 1976 to rein in such activity.

 

The push to transform FBI and police intelligence operations has triggered wider debate over who will be targeted, what will be done with the information collected and who will oversee such activities.

 

Security analysts faulted U.S. authorities after the 2001 terrorist attacks, saying the FBI was not combating terrorist plots before they were carried out and needed to proactively use intelligence. In the years since, civil liberties groups and some members of Congress have criticized the administration for unilaterally expanding surveillance and moving too fast to share sensitive information without safeguards.

 

Critics say pre-emptive law enforcement in the absence of a crime can violate the Constitution and due process. They cite the administration’s long-running warrantless-surveillance program, which was set up outside the courts, and the FBI’s acknowledgement that it abused its intelligence-gathering privileges in hundreds of cases by using inadequately documented administrative orders to obtain telephone, e-mail, financial and other personal records of U.S. citizens without warrants.

 

Former Justice Department official Jamie Gorelick said the new FBI guidelines on their own do not raise alarms. But, to emphasize that the policies would require close oversight, she cited the recent disclosure that undercover Maryland State Police agents spied on death-penalty opponents and antiwar groups in 2005 and 2006.

German, an FBI agent for 16 years, said easing limits on intelligence gathering would lead to abuses against peaceful political dissenters.

 

In addition to the Maryland case, he pointed to reports in the past six years that undercover New York police officers infiltrated protest groups before the 2004 Republican National Convention; that California state agents eavesdropped on peace, animal-rights and labor activists; and that Denver police spied on Amnesty International and others before being discovered.

 

Civil-liberties groups also have warned that forthcoming Justice Department rules for the FBI may permit the use of terrorist profiles that could single out religious or ethnic groups such as Muslims or Arabs for investigation.

 

Mukasey said the changes will give the next president “some of the tools necessary to keep us safe” and will not alter Justice rules that prohibit investigations based on a person’s race, religion or speech.

 

He said the new guidelines will make it easier for the FBI to use informants, conduct physical and photographic surveillance, and share data in intelligence cases, on the grounds that doing so should be no harder than in investigations of ordinary crimes.

Rep. Bennie Thompson, D-Miss., chairman of the House Homeland Security Committee, said that updating police intelligence rules is a move “in the right direction. However, the vagueness of the provisions giving broad access to criminal intelligence to undefined agencies … is very troubling.”

New Law allows crimes committed by U.S. Soldiers while on duty to be prosecuted in Civilian Courts instead of Military Courts.

Monday, August 18th, 2008

 By CHELSEA J. CARTER – Association Press
IRVINE, Calif. (AP) — A former Marine sergeant facing the first federal civilian prosecution of a military member accused of a war crime says there is much more at stake than his claim of innocence on charges that he killed unarmed detainees in Fallujah, Iraq.
In the view of Jose Luis Nazario Jr., U.S. troops may begin to question whether they will be prosecuted by civilians for doing what their military superiors taught them to do in battle.
Nazario is the first military service member who has completed his duty to be brought to trial under a law that allows the government to prosecute defense contractors, military dependents and those no longer in the military who commit crimes outside the United States.
“They train us, and they expect us to rely back on that training. Then when we use that training, they prosecute us for it?” Nazario said during an interview Saturday with The Associated Press.
“I didn’t do anything wrong. I don’t think I should be the first tried like this,” said Nazario, whose trial begins Tuesday in Riverside, east of Los Angeles.
If Nazario, 28, is convicted of voluntary manslaughter, some predict damaging consequences on the battlefield.
“This boils down to one thing in my mind: Are we going to allow civilian juries to Monday-morning-quarterback military decisions?” said Nazario’s attorney, Kevin McDermott.
Others say the law closes a loophole that allowed former military service members to slip beyond the reach of prosecution. Once they complete their terms, troops cannot be prosecuted in military court.
Scott Silliman, a law professor and executive director of the Center on Law, Ethics and National Security at Duke University, says it has little to do with questioning military decisions and everything to do with whether a service member committed a crime.
“From a legal point of view, there is no difference in law between war and peace,” he said.
The Military Extraterritorial Jurisdiction Act law was written in 2000 and amended in 2004 primarily to prosecute civilian contractors who commit crimes while working for the U.S. overseas. One of the authors contends prosecuting former military personnel was “not the motivation.”
“I don’t fault the Department of Justice for using what legal authority they have if a clear criminal act has been committed. But I do think that it would be preferable for crimes committed on active duty be prosecuted by court martial rather than in civilian courts,” said Sen. Jeff Sessions, R-Ala.
“I think maybe what it says is we need to rethink the question of military personnel who are subject to prosecution.”
Telephone messages for a spokesman in the U.S. attorney’s office in Los Angeles seeking comment were not returned.
Nazario, of Riverside, is charged with one count of voluntary manslaughter on suspicion of killing or causing others to kill four unarmed detainees in November 2004 in Fallujah, during some of the fiercest fighting of the war. He also faces one count of assault with a deadly weapon and one count of discharging a firearm during a crime of violence.
If convicted of all charges, he could face more than 10 years in prison.
The case came to light in 2006, when Nazario’s former squadmate, Sgt. Ryan Weemer, volunteered details to a U.S. Secret Service job interviewer during a lie-detector screening that included a question about the most serious crime he ever committed. Weemer was ordered this month to stand trial in military court on charges of unpremeditated murder and dereliction of duty in the killing of an unarmed detainee in Fallujah. He has pleaded not guilty.
According to a Naval Criminal Investigative Service criminal complaint, several Marines allege Nazario shot two Iraqi men who had been detained while his squad searched a house. The complaint claims four Iraqi men were killed during the action.
The complaint states the squad had been taking fire from the house. After the troops entered the building and captured the insurgents, Nazario placed a call on his radio.
“Nazario said that he was asked, ‘Are they dead yet?’” the complaint states. When Nazario responded that that the captives were still alive, he was allegedly told by the Marine on the radio to “make it happen.”
Nazario later received the Navy-Marine Corps Commendation Medal with a ‘V’ for valor for combat and leadership in Fallujah.
Though Nazario and his attorneys declined to discuss the facts of the case with the AP, the former Marine has always maintained his innocence.
After leaving the military, Nazario worked as an officer with the Riverside Police Department and was close to completing his one-year probation. He said he knew nothing of the investigation until he was arrested Aug. 7, 2007, after being called into the watch commander’s office to sign a performance review.
He said he was leaning forward to sign when he was grabbed from behind by his fellow officers, told he had been charged with a war crime and was turned over to Navy investigators waiting in a nearby room. Because he had not completed probation, the police department fired him.
Since then, he said, has been unable to find work.
“You’re supposed to be innocent until proven guilty,” he said. “I’ve put in applications everywhere for everything. But nobody wants to hire you if you have been indicted.”
Without income, Nazario said, he has been forced to move in with his parents in New York. He and his wife resorted to selling some of their household goods, such as electronics equipment, to a pawn shop.
His wife, once a stay-at-home mother to their 2-year-old son, has gone to work as a customer service receptionist, he said. She will be unable to attend his trial.
“She has to work. We need the money,” he said, his eyes reddening as he blinked away tears.
Nazario said he has no regrets about being a Marine, only regrets about what has happened since.
“My faith in the system is shaken. There’s no doubt about that,” he said.
One of Nazario’s defense attorneys, Doug Applegate, said he believes that ultimately the former Marine will be acquitted because of lack of evidence.
“There are no bodies, no forensic evidence, no crime scene and no identities,” he said.
It is unclear what, if anything, Marines being subpoenaed to testify will say about the events in the house in Fallujah.
Another Marine, Sgt. Jermaine Nelson, 26, of New York is slated to be court-martialed in December on charges of unpremeditated murder and dereliction of duty for his role in the deaths.
Although he has not entered a plea in military court, Nelson’s attorney has said his client is innocent.
Nelson and Weemer were jailed in June for contempt of court for refusing to testify against Nazario before a federal grand jury believed to be investigating the case. Both were released July 3 and returned to Camp Pendleton.
 

U.S. Supreme Court Endangers Americans Arrested Abroad by ignoring Constitution’s Supremacy Clause

Monday, August 18th, 2008

 

“the Constitution’s supremacy clause says that “all treaties … which shall be made … under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby.”

 

August 17, 2008

Tuesday’s execution of Jose Medellin, a Mexican citizen who was convicted of the 1993 rape and murder of two girls in Texas, ended the life of a vicious criminal. But it also flouted a treaty signed by the U.S. that will now offer less protection to Americans arrested and imprisoned abroad — unless Congress acts.

Medellin was one of 51 Mexican nationals on death row in the United States who weren’t informed upon their arrest of their right to meet with consular officials from their home country, a violation of the Vienna Convention on Consular Relations ratified by the U.S. in 1969. In 2004, in a lawsuit brought by Mexico, the International Court of Justice ruled for the prisoners and directed the U.S. “to provide by means of its own choosing, review and reconsideration of the convictions and sentences of the Mexican nationals.”

President Bush, who ironically was a strong supporter of capital punishment as governor of Texas, responded by essentially ordering Texas prosecutors to reopen Medellin’s case and others affected by the ruling. Predictably, Texas and its courts refused, and in March, the U.S. Supreme Court ruled that Bush lacked the “unilateral authority” to force state officials to comply with a treaty.

As a matter of constitutional law, that was correct. But then Chief Justice John G. Roberts Jr. and the rest of the majority made an error of their own, holding that the Vienna Convention was not “self-executing” and could be implemented only through additional legislation. As Justice Stephen G. Breyer pointed out in a persuasive dissent, the Constitution’s supremacy clause says that “all treaties … which shall be made … under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby.” Alas, Breyer’s view did not prevail, and Medellin is likely to be only the first of the Mexican prisoners to be executed.

It’s tempting, especially when the focus is on a killer like Medellin, to assume that no harm is done by the court’s misreading of this country’s treaty obligations. But, as former U.S. diplomat Jeffrey Davidow argued in a recent opinion article in The Times, thousands of U.S. citizens are jailed abroad every year and depend on U.S. consular officials to inform them of their rights and act as intermediaries. If U.S. officials don’t feel obliged to honor the treaty, why should foreign jailers?

After the Supreme Court’s ruling, the only realistic hope for foreign death row inmates who were denied their rights — including 28 in California — is for Congress to pass the sort of legislation Roberts described in his majority opinion. Last month, legislation was introduced that would give effect to the World Court’s decision. Bush should lobby Congress for its enactment with the same vigor with which he took on the courts of Texas.

Court of Appeals upholds contempt citation for fletcher administration corrections commissioner who refused to honor judges order to produce inmate for consideration of probation

Saturday, August 16th, 2008

aUG. 15, 2008

In 2007, Corrections Commissioner John Rees was found in contempt of court for refusing to deliver a youthful offender inmate to the Courtroom of Jefferson Circuit Judge Judith McDonald-Burkman.  
 

Even though clearly ordered to present the inmate to the court, Rees unilaterally determined that the court order was void and that he could ignore it with impunity.
Rees, apparently acting on questionable legal advice, felt that since the inmate was a violent offender, he was not eligible for probation consideration.  
 

The Judge sought to reconsider probation due to her interpretation of the law regarding sentencing options for youthful offenders.   Commissioner Rees took the position that” the Circuit Court order was “void” since the violent offender statute applied and denied jurisdiction to the Circuit Court”.
 

on August 15th.   the Court of Appeals ruled that Commissioner Rees was in contempt of court, that he should have obeyed the legitimate orders of the Jefferson Circuit Court. 
 

The Court of Appeals in a decision written by Judge Taylor, which was joined in by Judges Clayton and Moore, ruled that the law regarding youthful offender sentencing indeed made them eligible for consideration for probation as an exception to the violent offender mandatory sentencing law.
 

The court stated:
 

“We believe KRS 640.030 was intended to create an exception for youthful offenders to the general sentencing guidelines. Thus, Ottman’s status as a youthful offender made him eligible for probation at the time of his resentencing hearing under KRS 640.030.”
 

Commissioner Rees was ordered to pay a fine of $500 and to pay attorney fees necessitated by his failure to obey a legitimate court order.
LawReader comment:
wE WOULD ADVISE ANY ADMINISTRATOR TO COMPLY WITH COURT ORDERS.  THERE ARE PRECIOUS LITTLE OCCASIONS WHEN ANYONE MAY IGNORE A COURT ORDER WITHOUT SOMETHING BAD HAPPENING AS A RESULT.
IT WOULD HAVE BEEN EASY FOR THE COMMISSIONER TO APPEAR IN THE JEFFERSON CIRCUIT COURT AND RAISE HIS LEGAL ISSUES WITHOUT COMMITTING A CONTEMPT ON THE COURT.  
yOU SHOULD FOLLOW COURT ORDERS.  IF YOU DISAGREE WITH A COURT ORDER, APPEAL IT.
The following synopsis of the case is published by LawReader.com.  Every week a detailed synopsis of every Ky. appellate decision is posted.
   NOT TO BE PUBLISHED
Appeal from  JEFFERSON  Circuit Court Judge  JUDITH E. MCDONALD-BURKMAN
 REES (JOHN)
 VS.
 OTTMAN (DANIEL), ET AL.
OPINION AFFIRMIN TAYLOR (PRESIDING JUDGE) CLAYTON (CONCURS) AND MOORE (CONCURS)
BEFORE: FORMTEXT CLAYTON, MOORE, AND TAYLOR, JUDGES.
 TAYLOR, JUDGE: John Rees bring this appeal from a July 18, 2007, Order of the Jefferson Circuit Court finding Rees in contempt. We affirm.
Ottman subsequently filed a motion for shock probation, and on June 6, 2007, the trial court entered an order granting that motion. However, on the following day, the court set aside the order expressing concern that Ottman was considered a violent offender under KRS 439.3401 and, therefore, ineligible for probation or shock probation.1 After further consideration, the court reinstated Ottman’s shock probation by order entered June 19, 2007.
 Rees, who is Commissioner of the Department of Corrections, then sent a letter to the trial court on June 21, 2007, stating again his belief that Ottman was ineligible for shock probation under the law of Kentucky. Rees further stated that he would not release Ottman despite the trial court’s order of June 19, 2007.
Upon receipt of the letter from Rees, the circuit judge immediately ordered that Ottman be transported to a hearing in circuit court on June 25, 2007.
At the hearing, the court ordered his release from custody.
 Upon Ottman’s motion for Rees to show cause why he should not be held in contempt, the trial court conducted a contempt hearing on July 13, 2007.
 At the conclusion, the court found Rees in contempt of court for refusing to obey the June 19, 2007, order and fined him $500 plus the costs of Ottman’s counsel.
Rees’s motion to alter, amend, or vacate was denied by the court. This appeal follows.
 Rees contends that he cannot be found in contempt for failing to follow the court’s June 19, 2007, order because the order was void. Specifically, Rees alleges that
the trial court’s June 19, 2007, order was void because the court lacked jurisdiction to grant Ottman shock probation.
 For the reasons hereinafter stated, we disagree.
 Generally, a void judgment has no effect and may be disregarded. Gullet v. Gullet, 992 S.W.2d 866 (Ky.App. 1999).
 And, it is well-established that a person may not be held in contempt for failure to comply with a void order.Davis v. City of Bowling Green, 289 S.W.2d 506 (Ky. 1956).
 KRS 439.265(4) provides that a violent offender may not receive shock probation. Rees correctly points out that Ottman was classified as a violent offender under KRS 439.3401(1)(c) due to his conviction for first-degree assault causing serious injury. We, however, do not believe that KRS 439.265(4) is controlling.
 We are of the opinion that Ottman was eligible to receive probation and shock probation under KRS 640.030. KRS 640.030 governs the sentencing of youthful offenders who have been convicted or plead guilty to a felony offense.
 KRS 640.030(2) provides in relevant part:
 If an individual sentenced as a youthful offender attains the age of eighteen (18) prior to the expiration of his sentence, and has not been probated or released on parole, that individual shall be returned to the sentencing court.
 At that time, the sentencing court shall make one (1) of the following determinations:
 (a) Whether the youthful offender shall be placed on probation or conditional discharge;…
 We believe KRS 640.030 was intended to create an exception for youthful offenders to the general sentencing guidelines.
 Thus, Ottman’s status as a youthful offender made him eligible for probation at the time of his resentencing hearing under KRS 640.030.
As Ottman was eligible for probation under KRS 640.030, we believe he was clearly eligible for shock probation under the statute Cf. Porter v. Com., 869 S.W.2d 48 (Ky.App. 1993)(holding that KRS 532.045 which prohibits “probation” should be interpreted as also prohibiting shock probation).
 Thus, we believe that KRS 640.030(2) entitles Ottman to be considered for shock probation.
In sum, we hold that the circuit court acted within its jurisdiction and that the order reinstating Ottman’s shock probation was not void.
  As a result, Rees was properly held in contempt for his intentional and willful refusal to obey the court’s order.
 For the foregoing reasons, the Order of the Jefferson Circuit Court is affirmed.
 
ALL CONCUR.
 
BRIEF FOR APPELLANT:
Jeff Middendorf
Justice and Public Safety Cabinet
Office of Legal Services
Frankfort, Kentucky
BRIEF FOR APPELLEES:
Michael L. Goodwin
Louisville, Kentucky
 

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Former Circuit Judge Michael O’Connell to be named Interim County Attorney for Jefferson County

Friday, August 15th, 2008

August 15, 2008

The office of Louisvlle Mayor Jerry Abramson announced today that former Jefferson Circuit Court Judge Michael O’Connell will be named interim Jefferson County attorney today.  O’Connell replaces Irv Maze who was appointed to the Circuit Court.

Attorney Steve Romines scores Million Dollar verdict in false arrest of his client, Maria DeCamillis Raque, by Strathmoor Village policeman.

Friday, August 15th, 2008

August 15, 2008

A Federal jury award Ms. Raque $1 million dollars in punitive damages this week.


Raque testified that Officer Wilder pepper sprayed her, threw her to the ground, knocked her against his cruiser, then falsely charged her with resisting arrest. Officer Wilder claimed Raque hindered his investigation by telling the children to go inside before he was done talking to them.
The testimony alleged that the police were called out on a complaint that children were playing hide and seek in the neighborhood.  Another officer who arrived on the scene did not support the arrest.  The officer James Wilder had a long history of problems as a police officer, but his record was not checked by Strathmoor Village a sixth class city in Jefferson County.


U.S. District Judge Simpson, apparently citing CR 404B, did not allow introduction of the officers prior disciplinary record. LawReader has been informed that Officer Wilder had been fired from every police job he had held, and may have had as many as 50 complaints filed against him.

A civil claim against the city for negligent hiring, was bifurcated from the false arrest claim.

The City made an offer of settlement of $50,000 before the trial, and indicated they would go no higher.  Romines rejected the low ball offer. 

Romines, in a LawReader interview, said that one phone call by Strathmore Village officials would have revealed the troubled history of Officer Wilder.


Wilder was suspended after the incident and later fired. The city’s police chief said later that Wilder had used “very poor judgment” and could have avoided the altercation by having “simply withdrawn from the situation.”

Romines, a graduate of the Univ. of Louisville College of Law has been in practice in Louisville for fifteen years.

U.S. Attorney General says violation of Civil Service law is not a criminal violation…others disagree

Thursday, August 14th, 2008

August 12, 2008

Kathy’s US Politics Blog By Kathy Gill, About.com  and other sources

Critics of the Attorney General’s decision not to prosecute or punish Justice Department officials for using politics to hire and deny promotions to Democrats, say that his policy sets precedent for Partisanship in DOJ appointments.  The Civil Service Code was passed to outlaw the “spoils system” in the making of Federal appointments. Attorney General Michael Mukasey on Tuesday rejected prosecuting former Justice Department employees who improperly used political litmus tests in hiring decisions, saying he had already taken strong internal steps in response to a “painful” episode.
Two recent reports from the Justice Department inspector general and its ethics office found that about a half-dozen Justice officials — all but one now gone — systematically rejected candidates with liberal backgrounds for what were supposed to be nonpolitical jobs and sought out conservative Republicans.
Dismissals rejected
Attorney General Michael Mukasey has declined to prosecute Bush Administration appointees who used political party affiliation and public policy litmus tests when hiring civil servants. In an intriguing bit of Orwellian-speak, Mukasey told an American Bar Association audience that “not every wrong, or even every violation of the law, is a crime.” Funny, the Merriam-Webster dictionary contradicts the AG, stating that a crime is (emphasis added) “an act or the commission of an act that is forbidden or the omission of a duty that is commanded by a public law and that makes the offender liable to punishment by that law.”

And the hiring practices were a clear violation of the law, as the DOJ’s internal investigation reported last month.

Mukasey also suggested that failure to penalize the officials who broke the law is an illustration of the adage that “two wrongs do not make a right.”

While I think that Monica Goodling is the wrong lens through which to view this mess (as most media are doing), the law that was broken dates to the 1870s. A reminder, Mr. Attorney General: the law broken — what you described as “only violations of the civil service laws” — was designed specifically to keep the “spoils system” out of the day-to-day running of the government.

Breaking this law is not a trivial matter, like jay walking. Civil servants are supposed to be judged on merit, not politics. What of their derailed careers?

The NY Times reports that Beth Slavet, former chairman of the Merit Systems Protection Board, believes an independent review is called for. “Someone needs to clean up this mess that the Justice Department created, and I don’t think what Mukasey is doing goes far enough,” she said.

There has been an exodus of political appointees from the DOJ, not the least being former AG Gonzales, as the result of this, and other, DOJ atrocities under this Administration. When nominated as the new AG, Mukasey was hailed by many as someone who would return integrity to the nation’s top office of law enforcement. His announcement today suggests that faith was a case of misplaced hope.

In a speech Tuesday to the American Bar Association in New York, Mukasey acknowledged that some critics have called on the Justice Department to take what he called “more drastic steps” in dealing with the scandal, including prosecuting those at fault and firing those hired through flawed procedures.
“Where there is enough evidence to charge someone with a crime, we vigorously prosecute,” he said. “But not every wrong, or even every violation of the law, is a crime,” he said. As the inspector general’s report acknowledged, the hiring violations were such a case, because the wrongdoing violated civil service law, but not criminal law, he said.
Mukasey also said it would be unfair, and possibly illegal, for the department to go back and reassign or dismiss those lawyers and other employees who were hired in part because they were seen as trusted conservatives. “Two wrongs do not make a right,” he said.
Sen. Leahy not pleased
In response, Senate Judiciary Committee Chairman Patrick Leahy said that Mukasey “seems intent on insulating this administration from accountability.”
The Vermont Democrat said that Mukasey’s remarks Tuesday “appear premature based on the facts and evidence that congressional investigators and the inspector general have uncovered so far” in the hiring scandal. “We must continue to pursue the truth and facts, and hold any wrongdoers accountable,” Leahy said.
The inspector general is expected to issue at least two additional reports on the politicization of the Justice Department, including his findings on the firings of nine U.S. attorneys in late 2006 under then-Attorney General Alberto Gonzales. The controversies prompted Gonzales’ resignation last year.
The federal government makes a distinction between “career” and “political” appointees, and it’s a violation of civil service laws and Justice Department policy to hire career employees on the basis of political affiliation or allegiance.
Bar groups could act
Separately, an official in the Justice Department’s Office of Professional Responsibility said the unit has notified bar associations of its misconduct findings against five lawyers singled out in reports thus far. The bar groups could initiate their own disciplinary proceedings against the lawyers, who include former Justice Department White House liaison Monica Goodling, former attorney general chief of staff Kyle Sampson and former deputy attorney general chief of staff Michael Elston.
Meanwhile, a federal grand jury in Washington is examining whether former civil rights division chief Bradley Schlozman misled Congress last year in testimony about hiring and voter fraud issues. And internal watchdogs are probing whether former lawyers in the White House counsel’s office offered misleading accounts about the reasons for the dismissal of former Arkansas U.S. attorney Bud Cummins.
The inspector general is expected to issue at least two additional reports on the politicization of the Justice Department, including his findings on the firings of nine U.S. attorneys in late 2006 under then-Attorney General Alberto Gonzales. The controversies prompted Gonzales’ resignation last year.
The federal government makes a distinction between “career” and “political” appointees, and it’s a violation of civil service laws and Justice Department policy to hire career employees on the basis of political affiliation or allegiance.
Bar groups could act
Separately, an official in the Justice Department’s Office of Professional Responsibility said the unit has notified bar associations of its misconduct findings against five lawyers singled out in reports thus far. The bar groups could initiate their own disciplinary proceedings against the lawyers, who include former Justice Department White House liaison Monica Goodling, former attorney general chief of staff Kyle Sampson and former deputy attorney general chief of staff Michael Elston.
Meanwhile, a federal grand jury in Washington is examining whether former civil rights division chief Bradley Schlozman misled Congress last year in testimony about hiring and voter fraud issues. And internal watchdogs are probing whether former lawyers in the White House counsel’s office offered misleading accounts about the reasons for the dismissal of former Arkansas U.S. attorney Bud Cummins
  

 

Attorney Gate Update: Hiring Laws Were Broken, Far and Wide
Tuesday July 29, 2008
In late 2006, the Department of Justice fired eight US Attorneys, mid-term and without cause. A just-released internal DOJ report describes an agency that operated with widespread illegal hiring practices, not only in US Attorneys appointments but also with Immigration Judges. And a second report finds the same pattern of behavior in the Department’s Honors and Summer Intern programs.

The first report states: “Kyle Sampson, Jan Williams, and Monica Goodling each violated Department of Justice policy and federal law.” And although the report found that neither Executive Office for Immigration Review (EOIR) Director Rooney nor Deputy Director Ohlson violated federal law or department policy, “we believe that Rooney and Ohlson had sufficient evidence for them to have realized that political or ideological affiliations played a role in the selection process, and we believe that they should have brought this issue to the attention of senior leaders at the Department.”

In addition, investigators found that Executive Office for United States Attorneys (EOUSA) Deputy Director John Nowacki knew that Goodling improperly “[took] political considerations into account in detailee hiring” and then “concealed this knowledge” from other Department officials. Moreover, EOUSA Director Battle “should have raised concerns about Goodling’s actions” after learning that she took sexual orientation into account when denying an extension to an Assistant US Attorney.

However, Goodlng, who graduated from a small Christian college in 1995 and Pat Robertson’s Regent University School of Law in 1999, is being presented as the mastermind (scapegoat?) in press reports. For example, the Washington Post report describes her as “maneuvering around senior officials who outranked her, including the department’s second-in-command.” However, as the report made clear (above), she operated with the full knowledge of a superior.

Goodlng’s title: Counsel to the Attorney General and White House Liaison, Department of Justice. The second in command, Deputy Attorney General Paul McNulty, resigned in May 2007.

Sampson, chief of staff for Attorney General Alberto Gonzales, also “engaged in misconduct by systematically involving politics in the hiring of immigration judges.”

A year ago, the NYTimes called on Congress to impeach Gonzales due to the controversy over US Attorney firings. Gonzales subsequently resigned in August 2007.

Background
The Office of Professional Responsibility (OPR) and the Office of the Inspector General (OIG) began their joint investigation in March 2007.

The Office of the Attorney General is a relatively small one; the DOJ report states than in fiscal 2006 there were only 25 employees. Most of the attorneys working for DOJ do so in a non-political capacity (Schedule A positions). Schedule C appointments are “commonly referred to as political appointments.” The report clearly differentiates between the two:

It is not improper to consider political affiliations when hiring for political positions. However, both Department policy and federal law prohibit discrimination in hiring for Department career positions on the basis of political affiliations…The use of political affiliation as a criterion for considering applicants for career attorney appointments or details may violate several prohibited personnel practices…Our investigation demonstrated that Goodling sometimes used for career applicants the same political screening techniques she employed in considering applicants for political positions. In addition, she used for candidates who were interested in any position, whether career or political, the same political screening she used for applicants who applied solely for political positions, and some of these candidates were placed in career positions.

Report Summary: The Women
On May 23, 2007, Goodling testified before the U.S. House of Representatives Committee on the Judiciary under to a grant of immunity. She worked for the Republican National Committee (RNC) from 1999 to February 2002. From February 2002 to August 2004 she worked in the DOJ Office of Public Affairs as Senior Counsel, Deputy Director, and finally Principal Deputy Director. Six months as a Special Assistant United States Attorney followed, then nine months at the Equal Opportunity office. In October 2005, she moved to the Office of the Attorney General.

Susan Richmond, one of Goodling’s predecessors, “used political affiliations to make decisions on detailee candidates to the ODAG.” Moreover, Jan Williams, also a predecessor, “participated in those decisions when she worked in the White House Presidential Personnel Office.” From May 2003 to March 2005, Richmond was the Department’s White House Liaison. From November 2001 to March 2005, Williams was the Deputy Associate Director in the Presidential Personnel Office; her direct supervisor was Sampson.

Report Summary: The Men
The report found that EOUSA Deputy Director Nowacki improperly “used political or ideological affiliations when assessing waiver requests from interim U.S. Attorneys in at least three cases, which violated Department policy and federal law, and also constituted misconduct.”

Sampson graduated from Brigham Young University in 1993 and from the University of Chicago Law School in 1996. He practiced law for a short while before taking a position as counsel to the U.S. Senate Committee on the Judiciary. In 2001, he became the Special Assistant to the President and Associate Director for Presidential Personnel, focusing on DOJ. In August 2003, Sampson moved from the White House to the DOJ, serving as counsel to AG Ashcroft and then chief-of-staff to AG Gonzales.

In addition, Sampson implemented “significant changes” to the process of hiring Immigration Judges after he became Counselor to the AG in 2003; he “implemented a hiring process for IJs that treated the positions as political appointments.” In testimony before Congress and the investigators, Sampson insisted that he believed these appointments were “not subject to civil service laws.” He said he had received direction from the Office of Legal Counsel, but the investigators “did not find evidence to support Sampson’s claim that he received such advice from OLC.”

Sampson approved judges favored by Karl Rove and the White House, but the political nature of his selection process meant delays in filling vacancies, “which increased the burden on the immigration courts that were already experiencing an increased workload.”

Honors Program and Interns, Too
In a separate report released Friday, investigators note that “in 2006 the Screening Committee inappropriately used political and ideological considerations to deselect many [Honors Program and Summer Intern] candidates.” Specifically, “two members of the 2006 Screening Committee, Esther Slater McDonald and Michael Elston, took political or ideological affiliations into account in deselecting candidates in violation of Department policy and federal law.”

Both have resigned and are thus safe from any disciplinary action.

The moral of this story: Break federal hiring laws? Escape punishment, just quit.

What are “prohibited personnel practices?”
Twelve prohibited personnel practices, including reprisal for whistleblowing, are defined by law at
§ 2302(b) of title 5 of the United States Code (U.S.C.). A personnel action (such as an appointment, promotion, reassignment, or suspension) may need to be involved for a prohibited personnel practice to occur. Generally stated, § 2302(b) provides that a federal employee authorized to take, direct others to take, recommend or approve any personnel action may not:
(1) discriminate against an employee or applicant based on race, color, religion, sex, national origin, age, handicapping condition, marital status, or political affiliation;
(2) solicit or consider employment recommendations based on factors other than personal knowledge or records of job-related abilities or characteristics;
(3) coerce the political activity of any person;
(4) deceive or willfully obstruct anyone from competing for employment;
(5) influence anyone to withdraw from competition for any position so as to improve or injure the employment prospects of any other person;
(6) give an unauthorized preference or advantage to anyone so as to improve or injure the employment prospects of any particular employee or applicant;
(7) engage in nepotism (i.e., hire, promote, or advocate the hiring or promotion of relatives);
(8) engage in reprisal for whistleblowing – i.e., take, fail to take, or threaten to take or fail to take a personnel action with respect to any employee or applicant because of any disclosure of information by the employee or applicant that he or she reasonably believes evidences a violation of a law, rule or regulation; gross mismanagement; gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety (if such disclosure is not barred by law and such information is not specifically required by Executive Order to be kept secret in the interest of national defense or the conduct of foreign affairs – if so restricted by law or Executive Order, the disclosure is only protected if made to the Special Counsel, the Inspector General, or comparable agency official);
(9) take, fail to take, or threaten to take or fail to take a personnel action against an employee or applicant for exercising an appeal, complaint, or grievance right; testifying for or assisting another in exercising such a right; cooperating with or disclosing information to the Special Counsel or to an Inspector General; or refusing to obey an order that would require the individual to violate a law;
(10) discriminate based on personal conduct which is not adverse to the on-the-job performance of an employee, applicant, or others; or
(11) take or fail to take, recommend, or approve a personnel action if taking or failing to take such an action would violate a veterans’ preference requirement; and
(12) take or fail to take a personnel action, if taking or failing to take action would violate any law, rule or regulation implementing or directly concerning merit system principles at 5 U.S.C. § 2301.
U.S. CODE:
5 USC Sec. 2301                                             01/03/2007
    TITLE 5 – GOVERNMENT ORGANIZATION AND EMPLOYEES
    PART III – EMPLOYEES
    Subpart A – General Provisions
    CHAPTER 23 – MERIT SYSTEM PRINCIPLES
    Sec. 2301. Merit system principles
 (2) All employees and applicants for employment should receive       fair and equitable treatment in all aspects of personnel  management without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, or handicapping condition, and with proper regard for their privacy and constitutional rights. Investigation and Prosecution Division (IPD). After a thorough initial examination, the CEU refers matters indicating a potentially valid claim (under the laws enforced by the OSC) to one of four field offices in the IPD. The field offices are located in Washington, D.C., Dallas, Texas, the San Francisco Bay Area, and Detroit, Michigan. The IPD then conducts investigations to review pertinent records, and to interview complainants and witnesses with knowledge of the matters alleged. Matters not resolved during the investigative phase will undergo legal review and analysis to determine whether the IPD inquiry has established a violation of law, rule or regulation, and whether the matter warrants corrective action, disciplinary action, or both. Complainants will continue to receive 60-day status notices while matters are pending in the IPDAdditional resources:

Kentucky Judicial Filings for this November’s Elections

Thursday, August 14th, 2008

The Secretary of State reports the following Judicial Filings for this November’s Election.


 SUPREME COURT FILINGS

LOUISVILLE
James M. “Jim” Shake
Supreme Court District Nonpartisan  
  Lisabeth Hughes Abramson 4 th Supreme Court District Nonpartisan
LEXINGTON
  Mary C. Noble 5 th Supreme Court District Nonpartisan

Ct. of Appeals Denice Clayton – Louisville – unopposed

 

CIRCUIT COURT FILINGS

Listings under this category:
Show 

Listings per Page

Name Circuit District Type Division Party Affiliation
 
  Charlie Cunningham 30 th Judicial Circuit 4th Nonpartisan
  Louie Guenthner 30 th Judicial Circuit 4th Nonpartisan
  W. Douglas Kemper 30 th Judicial Circuit 4th Nonpartisan
 
Withdrawn Candidates
 
  N. George Shunnarah 30 th Judicial Circuit 4th Nonpartisan
  Olu A. Stevens 30 th Judicial Circuit 4th Nonpartisan
  Robert “Bob” Silverthorn 30 th Judicial Circuit 4th Nonpartisan

DISTRICT COURT FILINGS

Name District District Type Division Party Affiliation
 
  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
  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
  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
  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
  Henria Bailey-Lewis 41 st Judicial District 2nd Nonpartisan
  John T. Aubrey 41 st Judicial District 2nd Nonpartisan
 
Withdrawn Candidates
 
  Keith Johnson 16 th Judicial District 4th Nonpartisan
  Anne Dedman Watkins 30 th Judicial District 16th Nonpartisan
  Benjamin Francis Wyman 30 th Judicial District 16th Nonpartisan
  Josephine Layne Buckner 30 th Judicial District 16th Nonpartisan
  Linda Y. Atkins 30 th Judicial District 16th Nonpartisan
  Matthew H. Welch 30 th Judicial District 16th Nonpartisan
  Pat Mulvihill 30 th Judicial District 16th Nonpartisan
  Stephanie Pearce Burke 30 th Judicial District 16th Nonpartisan
 

Jefferson County Attorney Irv Maze appointed Circuit Judge by Gov. Steve Beshear

Thursday, August 14th, 2008

  It was announced  August 14, 2008 that Irv Maze had been appointed by Gov. Steve Beshear to fill the vacancy created on the Jefferson Circuit Court of Judge Montano.

Louisville Mayor Jerry Abramson expects to announce soon the appointment of an interim county attorney, spokesman Chris Poynter said.

Boone Circuit Judge Tony Frohich to present portraits of all prior Circuit Judges to serve in Boone County

Thursday, August 14th, 2008

Boone Circuit Judge Tony Frohlich has spent hundreds of hours accumlating the portraits of all of the prior Circuit Court Judges in Boone County.   He will present these portraits next month.  He has donated the cost of having these portraits produced and prepared for presentation. 

Mark your calendar for this historic event.   Other courts should see what Judge Frohlich has done, and do the same for their judicial districts.

On Thursday, September 18, 2008 at 5:30 p.m. in Courtroom 4B of the Boone County Justice Center, 6025 Rogers Lane, Burlington, Kentucky there will be an unveiling ceremony for the portraits of the deceased judges of the Boone Circuit Court.  The ceremony will include a short biography of each judge.  The judges to be honored are as follows:

                                                                              YEARS            HOME
NAME                                          SERVED        COUNTY

Carey L. Clarke
1805-1808
Scott
John Monroe
1808-1810
Fayette
William Warren
1811-1811
Scott
Benjamin Johnson
1812-1816
Fayette
John Trimble
1817-1824
Harrison
Henry O. Brown
1825-1846
Harrison
James Pryor
1846-1856
Kenton
Elijah Frank Nuttall
1856-1862
Henry
George Canning Drane
1862-1868
Franklin
William S. Pryor
1868-1871
Henry
George Canning Drane
1871-1871
Franklin
Patrick Upshaw Major
1871-1874
Franklin
George Canning Drane
1874-1881
Franklin
Patrick Upshaw Major
1881-1887
Franklin
Warren Monfort
1887-1892
Owen
John W. Greene
1892-1901
Owen
John Maurice Lassing
1901-1906
Boone
Benjamen Franklin Menefee
1906-1907
Grant
James William Cammack, Sr.
1907-1916
Owen
Sidney Gaines
1916-1928
Boone
James G. Vallandingham
1928-1940
Owen
Ward Yager
1940-1967
Gallatin
James R. Ford, Jr.
1967-1973
Owen
Sam Neace
1974-1992
Boone

The public is invited. 

American Bar Association Weighs In On Access To Courts For Military Personnel, Federal Judicial Nomination Process And International Criminal Court

Wednesday, August 13th, 2008

The American Bar Association’s House of Delegates approved recommendations relating to expanding military members’ access to the courts, encouraging bipartisan commissions to evaluate prospective judicial candidates and urging the U.S. government to expand its interaction with the International Criminal Court.

 

New York (Vocus/PRWEB ) August 13, 2008 — The American Bar Association’s House of Delegates approved recommendations relating to expanding military members’ access to the courts, encouraging bipartisan commissions to evaluate prospective judicial candidates and urging the U.S. government to expand its interaction with the International Criminal Court. The House, the ABA’s policy-making body, met during the final two days of the Association’s Annual Meeting in New York City.

 

The mission of the Justice Department is the evenhanded application of the Constitution enacted under it. That mission has to start with the evenhanded application of the laws within our department.

 

Also during the House session, Judge Patricia Wald received the ABA Medal for 2008, the association’s highest honor. Wald represented the United States on the International Criminal Tribunal for the former Yugoslavia, and was the first woman judge on the U.S. Court of Appeals for the District of Columbia. The ABA Award is presented only in years in which a single individual has rendered exceptionally distinguished service to the cause of American jurisprudence.

Attorney General Michael Mukasey, an ex officio member of the ABA, addressed the policy-making body today. In his remarks, he talked about professionalism in the Justice Department in light of the recent inspector general’s report on hiring practices of the department. Mukasey stated, “The mission of the Justice Department is the evenhanded application of the Constitution enacted under it. That mission has to start with the evenhanded application of the laws within our department.”

The 555-member House considered some four dozen recommendations. During its debate, the House approved a recommendation urging Congress to overrule the Feres Doctrine, which denies military members access to the courts when they are victims of wrongful government conduct. The recommendation called for the exception that limits access to courts to apply to conduct that occurs only during combatant activities rather than “during time of war.”

To counter what incoming ABA President H. Thomas Wells Jr. says is a confirmation process for federal judges that “too often involves lengthy, partisan conflict and delay,” the House adopted a recommendation (118) to encourage senators and delegates in each state to establish bipartisan commissions to evaluate the qualifications of prospective candidates for nomination to U.S. district and courts of appeals, and to recommend possible nominees.

Additionally, the House of Delegates adopted proposals to:

Urge the U.S. government to expand and broaden its involvement with the International Criminal Court to enhance the international rule of law. (Recommendation 108A)

Advance efforts to ban law enforcement’s use of racial and ethnic profiling. (Recommendation 104C)

Advocate that trial judges sensitize jurors to the possibility of error when defendants are identified by eyewitnesses of a different race. (Recommendation 104D)

Encourage medical personnel to report non-injury hospital events to evaluate whether hospital procedures should be modified to improve patient safety. (Recommendation 115)

Press the U.S. government to allow clinicians to provide medications to the partners of patients whom they are treating for sexually transmitted diseases without prior examination of the partners. (Recommendation 116A)

A full listing of the recommendations with action can be accessed here.

The House of Delegates includes members from state and local bar associations around the country, ABA affiliates and ABA entities.

With more than 413,000 members, the American Bar Association is the largest voluntary professional membership organization in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.

 

Governor Beshear Appoints Elizabeth Goodman District Judge for the 22nd Judicial District, Division 4 in Fayette County

Wednesday, August 13th, 2008

 

 

FRANKFORT, Ky. – Governor Steve Beshear has appointed the Honorable Elizabeth “Julie” Muth Goodman to the office of District Judge for the 22nd Judicial District, Division 4.

Goodman, of Lexington, is currently an attorney in private practice. She received her Juris Doctorate from the University of Kentucky College of Law. This appointment shall serve until the general election on Nov. 4, 2008.

 

Va. Court Grants First-Ever “Writ of Actual Innocence” Writ allows introduction of evidence of actual innocence after expiration of appeal time.

Wednesday, August 13th, 2008

By Maria Glod Washington Post  August 13, 2008

A Virginia man found guilty of illegally possessing a gun is the first person exonerated by a 2004 state law that allows convicts to try to prove their innocence by presenting new, non-DNA evidence to a court.
The Virginia Court of Appeals yesterday granted a “Writ of Actual Innocence” to Darrell A Copeland, 20. The court found that the weapon Copeland had when he was arrested in November 2006 in Chesapeake was a gas gun, not an actual firearm.
Copeland is among 130 convicts who have gone to court asserting their innocence under that state law, which allows a person to present any sort of evidence, court officials said. Five of those cases are pending and 124 have been denied.
Kathleen A. Ortiz, Chesapeake public defender and Copeland’s attorney, said the case shows the value in allowing felons a forum to present newly discovered evidence. She noted that the Virginia attorney general’s office supported Copeland’s request to have the charges thrown out.
“I consider it a victory because it does show that the process works,” Ortiz said. “I hope it does not take a concession of error every time for a writ to be successful.”
Virginia had long barred the introduction of new evidence more than three weeks after sentencing, but in 2001, the General Assembly began changing the law after some high-profile exonerations in the state and across the country.
A 2001 law gave inmates the right to ask for DNA tests at any time. The following year, Virginia voters approved a constitutional amendment that allows felons to present that scientific evidence to the Virginia Supreme Court. The 2004 law expanded the rule to allow inmates to submit new, non-DNA evidence such as fingerprints, ballistics, witnesses or recanted testimony.
Virginia is also reviewing DNA evidence in criminal files from the 1970s and 1980s. The review, launched in 2005, is intended to uncover any wrongful convictions.
Copeland, who had a robbery conviction as a juvenile, was arrested Nov. 26, 2006, after a crash that followed a police chase, according to court documents. After the crash, Copeland reached under the seat of the vehicle and refused to move his hands until officers threatened to use pepper spray on him. Police later found what appeared to be a semiautomatic pistol.
 

At Copeland’s trial, a trooper testified that the gun was an unloaded pistol, according to court documents. Analysis later showed that the gun was a “replica pistol . . . not a functional firearm.”
The writ means that Copeland will be released from state prison, where he was serving five years on the gun charge.
But Copeland’s legal troubles are not over. He admitted in federal court to participating in multiple robberies of 7-Eleven stores and pleaded guilty to robbery and carjacking. He will be moved to federal prison to serve a 10-year sentence.
Virginia Attorney General Bob McDonnell supported the court’s decision to grant the writ, spokesman Tucker Martin said.
“While serving in the Virginia General Assembly, the attorney general supported the legislation that created the current Writ of Actual Innocence,” Martin said. “The court’s decision today demonstrates that the criminal justice system works. This law has made the system even stronger.”

Online pleadings in Fen Phen Civil Case related proceedings.

Tuesday, August 12th, 2008

The following resources are available online:

 

This lawsuit alleges that four attorneys breached their fiduciary and ethical duties to 440 former clients by failing to disclose material information about the settlement they entered into on their clients’ behalf and by failing to properly distribute client funds. Clients were paid $74 million from a $200 million settlement.

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The U.S. Courts Problem with “partisan” expert witnesses. Is “hot tubbing” the answer?

Tuesday, August 12th, 2008

Free Internet Press   Aug. 12, 2008

 

Hot Tubbing: “…also called concurrent evidence, experts are still chosen by the parties, but they testify together at trial  – discussing the case, asking each other questions, responding to inquiries from the judge and the lawyers, finding common ground and sharpening the open issues. “

 

Judge Denver D. Dillard was trying to decide whether a slow-witted Iowa man accused of acting as a drug mule was competent to stand trial. But the conclusions of the two psychologists who gave expert testimony in the case, Judge Dillard said, were “polar opposites”.

 

One expert, who had been testifying for defendants for 20 years, said the accused, Timothy M. Wilkins, was mentally retarded, had a verbal I.Q. of 58 and did not understand the proceedings.

 

The prosecution expert, who had testified for the state more than 200 times, said that Wilkins’ verbal I.Q. was 88, far above the usual cutoffs for mental retardation, and that he was competent to stand trial.

 

Judge Dillard, of the Johnson County District Court in Iowa City, did what American judges and juries often do after hearing from dueling experts: he threw up his hands. The two experts were biased in favor of the parties who employed them, said the judge, and they had given predictable testimony.

 

“The two sides have canceled each other out,” the judge wrote in 2005, refusing either expert’s conclusion and complaining that “no funding mechanism” existed for him to appoint an expert.

 

In most of the rest of the world, expert witnesses are selected by judges and are meant to be neutral and independent. Many foreign lawyers have long questioned the American practice of allowing the parties to present testimony from experts they have chosen and paid.

 

The European judge who visits the United States experiences “something bordering on disbelief when he discovers that we extend the sphere of partisan control to the selection and preparation of experts,” John H. Langbein, a law professor at Yale, wrote in a classic article in the University of Chicago Law Review more than 20 years ago.

 

Partisan experts do appear in court in other common-law nations, including Canada, Singapore and New Zealand; but the United States amplifies their power by using juries in civil cases, a practice most of the common-law world has rejected.

 

Juries often find it hard to evaluate expert testimony on complex scientific matters, many lawyers say, and they tend to make decisions based on the expert’s demeanor, credentials and ability to present difficult information without condescension. An appealingly folksy expert, lawyers say, can have an outsize effect in a jury trial.

 

Some major common-law countries are turning away from partisan experts. England and Australia have both adopted aggressive measures in recent years to address biased expert testimony.

 

Both sides in Wilkins’ case said the American approach to expert testimony was problematic.

 

“One’s biased for the defense,” said Rockne O. Cole, Wilkins’ lawyer. “The other’s biased for the state. I think it’s who’s signing their paycheck.”

Anne M. Lahey, an assistant prosecutor in Johnson County, Iowa, largely agreed. “They’re usually offsetting as far as their opinions are concerned,” she said of expert testimony.

 

Judge Dillard ruled that Wilkins was not competent to stand trial, a decision an appeals court reversed last year, though it accepted the judge’s conclusion that the experts had canceled each other out. Since it is the defense’s burden to prove incompetence, the appeals court said, the tie went to the state. The case against Wilkins was dismissed in October for reasons unrelated to his competency, said Janet M. Lyness, the prosecutor in Johnson County. A confidential informant crucial to the case against Wilkins could not be found, she said.

 

Dr. Frank Gersh, the defense expert in the case, did not respond to a request for comment; but Dr. Leonard Welsh, the psychologist who testified for the state, said he sometimes found his work compromising.

 

“After you come out of court,” said Dr. Welsh, “you feel like you need a shower. They’re asking you to be certain of things you can’t be certain of.”

 

He might have preferred a new way of hearing expert testimony that Australian lawyers call hot tubbing.

 

In that procedure, also called concurrent evidence, experts are still chosen by the parties, but they testify together at trial  – discussing the case, asking each other questions, responding to inquiries from the judge and the lawyers, finding common ground and sharpening the open issues.

 

In the Wilkins case, by contrast, the two experts “did not exchange information,” the Court of Appeals for Iowa noted in its decision last year.

 

Australian judges have embraced hot tubbing. “You can feel the release of the tension which normally infects the evidence-gathering process,” Justice Peter McClellan of the Land and Environmental Court of New South Wales said in a speech on the practice. “Not confined to answering the question of the advocates,” he added, experts “are able to more effectively respond to the views of the other expert or experts.”

 

In a dispute over the boundary of an Australian wine region, for instance, “there were lots of hot tubs – marketers, historians, viniculturalists,” said Gary Edmond, a law professor at the University of New South Wales in Sydney.

 

Joe S. Cecil, an authority on expert testimony at the Federal Judicial Center, a research and education agency in Washington, said hot tubbing might represent the best solution yet to the problem of bias in expert testimony.

 

“Assuming the judge has an active interest in ferreting out the truth and the experts are candid, I prefer the hot-tubbing option,” said Cecil. “But those are two bold assumptions, and the procedure drives the attorneys nuts.”

 

Professor Edmond said hot tubbing in Australia had drawbacks and was “based on a simplistic model of expertise.”

 

“Judges think that if we could just have a place in the adversarial trial that was a little less adversarial and a little more scientific, everything would be fine,” said Professor Edmond. “But science can be very acrimonious.”

 

England has also recently instituted what Adrian Zuckerman, the author of a 2006 treatise there, called “radical measures” to address “the culture of confrontation that permeated the use of experts in litigation.” The measures included placing experts under the complete control of the court, requiring a single expert in many cases and encouraging cooperation among experts when the parties retain more than one. Experts are required to sign a statement saying their duty is to the court and not to the party paying their bills.

There are no signs of similar changes in the United States. “The American tendency is strictly the party-appointed expert,” said James Maxeiner, a professor of comparative law at the University of Baltimore. “There is this proprietary interest lawyers here have over lawsuits.”

American lawyers often interview many potential expert witnesses in search of ones who will bolster their case and then work closely with them in framing their testimony to be accessible and helpful. At a minimum, the process results in carefully tailored testimony. Some critics say it can also produce bias and ethical compromises.

 

“To put it bluntly, in many professions, service as an expert witness is not considered honest work,” Samuel R. Gross, a law professor at the University of Michigan, wrote in the Wisconsin Law Review. “The contempt of lawyers and judges for experts is famous. They regularly describe expert witnesses as prostitutes.”

 

Melvin Belli, the famed trial lawyer, endorsed this view. “If I got myself an impartial witness,” he once said, “I’d think I was wasting my money.”

 

The United States Supreme Court has expressed concerns about expert testimony, but it has addressed bias only indirectly, by requiring lower courts to tighten standards of admissibility and to reject what some call “junk science.”

 

Trials in the United States routinely feature expert testimony, and there is a thriving litigation-support industry matching experts and lawyers. Expert witnesses in major cases often charge $500 to $1,000 an hour. More than 40 percent of all experts, according to a 2002 study of federal civil trials by the Federal Judicial Center, give medical testimony. Economists and engineers also appear frequently as expert witnesses.

Judges and lawyers agreed, in separate surveys conducted by the center in 1998 and 1999, that the biggest problem with expert testimony was that “experts abandon objectivity and become advocates for the side that hires them.”

 

American judges are generally free to appoint their own experts, but they seldom do.

Oscar G. Chase, a law professor at New York University and an editor of the textbook “Civil Litigation in Comparative Context,” said there was a reason for that.

“Many judges, if not most, have been trial lawyers, and they are suspicious that any expert is truly neutral,” Professor Chase said “The virtue of our system is that it allows people to sort of balance things out.”

 

Indeed, said Jennifer L. Mnookin, a law professor at the University of California, Los Angeles, who recently wrote about expert testimony in the Brooklyn Law Review, “neutrals risk being a sort of false cure” because “there are often cases where there are genuine disagreements.”

 

The future, Professor Mnookin said, may belong to Australia. “Hot tubbing,” she said, “is much more interesting than neutral experts.”

 

Collateral Source Rule – No reduction of plaintiff’s medical bills if the premiums (or medicare) was paid by plaintiff – No windfall for tort defendant

Monday, August 11th, 2008

Defendant not allowed to benefit from Plaintiff’s insurance coverage

 

Baptist Healthcare Systems, Inc. v. Miller, 177 S.W.3d 676 (KY, 2005)
 

Medicare benefits are governed by the collateral source rule and are treated the same as other types of medical insurance
 

“[c]ollateral source benefits may relate to the plaintiff’s need to recover damages from the wrongdoer, but they have no bearing on the plaintiff’s right to recover such damages.”
 

“It is improper to reduce a plaintiff’s damages by payments for medical treatment under a health insurance policy if the premiums were paid by the plaintiff or a third party other than the tortfeasor.”

 

 

  At the conclusion of the trial, the jury returned a verdict in favor of Ms. Miller and awarded damages of $154,000. But the jury also found that Ms. Miller was 35 percent comparatively negligent, and reduced the verdict from $154,000 to $100,100. In its motion for directed verdict, Central Baptist sought to limit Ms. Miller’s recovery of medical expenses only to those that are actually paid or payable, but to exclude contractual allowances imposed by payors. Central Baptist reasoned that it should not be held liable for medical charges that were neither paid nor able to be collected. The trial court delayed ruling on the motion until a verdict was rendered. The trial court overruled the motion to limit damages on the grounds that considering the equities and Central Baptist’s negligence, the windfall, if any, should go to the injured party, Ms. Miller. The Court of Appeals affirmed, and this Court granted discretionary review.
…Central Baptist’s second argument is that the trial court should have granted a directed verdict on the issue of Ms. Miller’s medical expenses. Central Baptist seeks to limit Ms. Miller’s recovery to the amount actually paid or the amount actually collectable as a matter of law. It asserts that this is not a collateral source issue; rather it claims that the amount of alleged damages for which there is no obligation to pay is not a valid item to be submitted to the jury and awarded as damages.
The jury awarded Ms. Miller $34,000 for medical expenses reduced to $22,100 by a 35 percent fault apportionment. She had sought $40,922.08 in medical expenses. The sum of $31,840 was billed by the doctor, but he received only $3,356.38 from Medicare. Central Baptist claims that Ms. Miller was only responsible for paying $3,356.38 (the amount actually paid by Medicare), and the remaining $28,483.80 was classified as a Medicare adjustment or Medicare write off. Central Baptist claims that the Medicare adjustment was Ms. Miller’s windfall.
        It is improper to reduce a plaintiff’s damages by payments for medical treatment under a health insurance policy if the premiums were paid by the plaintiff or a third party other than the tortfeasor.15 The collateral source rule, as this rule is commonly known, allows the plaintiff to (1) seek recovery for the reasonable value of medical services for an injury, and (2) seek recovery for the reasonable value of medical services without consideration of insurance payments made to the injured party.16 The collateral source rule has long
Page 683
been followed in Kentucky.17 Medicare benefits are governed by the collateral source rule and are treated the same as other types of medical insurance.18
        In O’Bryan v. Hedgespeth, we stated that “[c]ollateral source benefits may relate to the plaintiff’s need to recover damages from the wrongdoer, but they have no bearing on the plaintiff’s right to recover such damages.”19 We held in O’Bryan that a liability insurance company should not receive a windfall for benefits the plaintiff is entitled to. We reasoned that because the insured procured a policy and paid the premiums that the benefits, including a windfall, inured to them.20 The recent Court of Appeals decision in Schwartz v. Hasty reiterates the reasoning in favor of providing an injured party with any windfall associated with collateral source payments.21
        First, the wrongdoer should not receive a benefit by being relieved of payment for damages because the injured party had the foresight to obtain insurance.
Second, as between the injured party and the tortfeasor, any so-called windfall by allowing a double recovery should accrue to the less culpable injured party rather than relieving the tortfeasor of full responsibility for his wrongdoing.
Third, unless the tortfeasor is required to pay the full extent of the damages caused, the deterrent purposes of tort liability will be undermined.22
        Along with the considerations underlying granting any windfall to the injured party is the fact that Ms. Miller paid her premiums and deserves all appropriate benefits.
Moreover, it is absurd to suggest that the tortfeasor should receive a benefit from a contractual arrangement between Medicare and the health care provider. Simply because Medicare contracted with Ms. Miller’s physician to provide care at a rate
Page 684
below usual fees does not relieve a tortfeasor from negligence or the duty to pay the reasonable value of Ms. Miller’s medical expenses. Therefore, we hold that evidence of collateral source payments or contractual allowances was properly withheld from the jury and her award of medical expenses was proper.
 

 

COOPER, Justice, dissenting in part.
 

   In Our Lady of Mercy Hospital v. McIntosh, the Court held that there could be no offset for those portions of the plaintiff’s hospital and medical bills that were actually paid by Medicare, perceiving that the plaintiff had paid a premium for those benefits. 461 S.W.2d 377, at 379.
 

[McIntosh assumed the patient had paid something for the Medicare coverage. Id. at 379. In fact, hospital care, "Medicare Part A," which was the medical expense at issue in McIntosh, is available to social security and railroad retirement recipients without payment of premiums. 42 C.F.R. § 406.6(a); 70C Am.Jur.2d Social Security and Medicare, § 2046. While premiums are charged for "Medicare Part B," which includes physician's bills, Part B is also funded partially by federal income and excise taxes imposed on every employed individual (through FICA withholding) and every employer in the United States, including, presumably, Central Baptist. 26 U.S.C. § 1401(b), 3101(b), 3111(b)
Thus, it is arguable that there should be no collateral-source liability at all with respect to Medicare payments. Burke Enterprises, Inc. v. Mitchell, 700 S.W.2d 789, 796 (Ky.1985) ("There is a sharp distinction between collateral source benefits and payments by another person also charged with liability for the injury which is the subject matter of the lawsuit."); Restatement (Second) of the Law of Torts § 920A(1). If Miller can assert entitlement to the collateral source rule on the basis of having paid premiums for Medicare Part B coverage, Central Baptist can assert a defense to collateral source liability for having contributed to providing those benefits by payment of excise taxes because of its status as an employer. See Hardaway Mgmt. Co. v. Southerland, 977 S.W.2d 910, 918 (Ky.1998) ("The logic behind [the collateral source] rule is that there is no reason why a wrongdoer should receive the benefit of insurance obtained by the injured party for his own protection. . . . Of course, that logic does not apply here, where the wrongdoer, Hardaway, also obtained the insurance which paid the workers’ compensation benefits to Southerland.”).]
        Daugherty v. Daugherty, 609 S.W.2d 127, 128 (Ky.1980), we held that medical bills incurred by the plaintiff for treatment at a military hospital were both provable and collectable, even though not payable by her because of her father’s status as a military servicemember.
        The case at bar is similar to those involving Medicare and welfare funds. Although movant’s father was not required to pay premiums in order to qualify for medical treatment at a military hospital, the coverage was nonetheless a direct benefit of his military service.
        Id. at 128. In other words, the plaintiff’s father “paid” for the treatment by serving in the military. Rayfield v. Lawrence, 253 F.2d 209, 213-14 (4th Cir.1958). The same reasoning applies when an employee’s medical bills or lost wages are paid by the employer’s insurance carrier as a fringe benefit of the employment. Burke Enterprises, 700 S.W.2d at 796; Hellmueller Baking Co. v. Risen, 295 Ky. 273, 174 S.W.2d 134, 136 (1943).
        All of these cases rightly hold that the tortfeasor is not entitled to the benefit of the injured party’s bargain when the injured party has purchased, either in cash
Page 689
or in services, payment of medical bills actually incurred and either paid or owing. That is the nature of the “collateral source rule,” as defined by these cases. It is an exception to the “strong public policy in this Commonwealth against double recovery.” Hardaway, 977 S.W.2d at 918. Otherwise, “[t]he object of compensatory damages is to make the injured party whole to the extent that it is possible to measure his injury in terms of money. The object is not to place the plaintiff in a better position than he would have been had the wrong not been done.” Ky. Cent. Ins. Co. v. Schneider, 15 S.W.3d 373, 374 (Ky.2000) (internal citations omitted). “The purpose of compensatory tort damages is to compensate; it is not the purpose of such damages to punish defendants or bestow a windfall upon plaintiffs.” Peterson v. Lou Bachrodt Chevrolet Co., 76 Ill.2d 353, 29 Ill.Dec. 444, 392 N.E.2d 1, 5 (1979). Nevertheless, the majority opinion in the case sub judice allows Miller to prove and collect medical expenses that were never incurred by her, were never owed by Medicare or any other entity, and payment for which was never expected by the medical providers. The majority purports to justify this result by substituting “reasonable value” for “expenses incurred” as the measure of damages. Ante, at 682. However, when a sum certain has been paid for services, the “reasonable value” cannot exceed the amount paid.
        When the plaintiff seeks to recover for expenditures made or liability incurred to third persons for services rendered, normally the amount recovered is the reasonable value of the services rather than the amount paid or charged. If, however, the injured person paid less than the exchange rate, he can recover no more than the amount paid, except when the low rate was intended as a gift to him.
        Restatement (Second) of Torts § 911 cmt. h (1979). Hanif v. Housing Auth., 200 Cal.App.3d 635, 246 Cal.Rptr. 192, 195-96 (1988) (“`Reasonable value’ is a term of limitation, not of aggrandizement. . . . [A] plaintiff is entitled to recover up to, and no more than, the actual amount expended or incurred for past medical services so long as that amount is reasonable.”); Goble v. Frohman, 901 So.2d 830, 835 (Fla.2005) (“[R]ecovery for medical expenses [is limited] to the amount of medical expenses that he actually was obligated to pay.”).
        The better-reasoned opinions of jurisdictions that have addressed this issue hold that the collateral source rule does not apply to this kind of phantom expense that was never incurred.
        If Plaintiff could recover these fees without a showing of personal liability, she would reap a windfall recovery at the expense of the taxpayers, who made her Medicaid benefits possible. The collateral source rule does not apply because Plaintiff did not incur the Medicaid discount.
        McAmis v. Wallace, 980 F.Supp. 181, 185 (W.D.Va.1997). (Like Medicare providers, Medicaid providers are required to accept the Medicaid payment as payment in full. 42 C.F.R. § 447.15. Thus, cases addressing the issue in the context of Medicaid “charges” versus actual payments are equally relevant to this issue.) See also Hanif, 246 Cal.Rptr. at 197 (limiting plaintiff’s collateral-source recovery of medical expenses to $19,317, amount actually paid by Medi-Cal, not “reasonable value” of $31,618); Coop. Leasing, Inc. v. Johnson, 872 So.2d 956, 958 (Fla.Ct.App.2004) (limiting collateral-source recovery to $13,461 paid by Medicare, not $56,950.70 billed by medical providers: “[T]he reasonable value of medical services is limited to the amount accepted as payment in full for
Page 690
medical services.”); Dyet v. McKinley, 139 Idaho 526, 81 P.3d 1236, 1239 (2003) (“[T]he [Medicare] write-off . . . is not an item of damages for which plaintiff may recover because plaintiff has incurred no liability therefore.”); Rose, 113 P.3d at 248 (amount of Medicare write-off must be credited against award for medical expenses, particularly where the Medicare provider was also the malpractice defendant); Bates v. Hogg, 22 Kan.App.2d 702, 921 P.2d 249, 253 (1996)
(“[T]he collateral source rule is not applicable under these circumstances. . . . . [A] medical provider, by agreement and contract, may not charge Medicaid patients for the difference between their [sic] customary charge and the amount paid by Medicaid.
Therefore, the amount allowed by Medicaid becomes the amount due and is the `customary charge’ under the circumstances we have before us.”); Kastick v. U Haul Co. of W. Mich., 292 A.D.2d 797, 740 N.Y.S.2d 167, 169 (2002) (“[Medicare] write-off . . . is not an item of damages for which the plaintiff may recover because plaintiff has incurred no liability therefor.”); Moorhead v. Crozer Chester Med. Ctr., 564 Pa. 156, 765 A.2d 786, 789-90 (2001) (limiting plaintiff’s recovery to Medicare payment of $12,167.40, not “reasonable value” of $108,668.31:
“[W]here, as here, the exact amount of expenses has been established by contract and those expenses have been satisfied, there is no longer any issue as to the amount of expenses for which the plaintiff will be liable. In the latter case, the injured party should be limited to recovering the amount paid for the medical services. . . . [W]e find that the collateral source rule is inapplicable to the additional amount of $96,500.91.”).