Archive for November, 2008

Mark Hebert of WHAS TV names Ct. of Appeals Judge Jeff Taylor as serial ethics complaint filer

Sunday, November 30th, 2008

Hebert reported on his blog:

“A Kentucky Court of Appeals judge is apparently behind both of the recent complaints filed against democratic state lawmakers Joey Pendleton and Tom Burch. 

According to sources familiar with the case, Jeffrey Taylor of Owensboro was the appelate judge who filed the complaint with the Legislative Branch Ethics Commission, alleging Rep. Burch had improperly written a letter to the judges who were considering a child custody case involving one of Burch’s constituents. Burch denies trying to use his legislative influence to affect a court case but the ethics panel has launched a full scale investigation. 

Judge Taylor is also a member of the Murray St. University Board of Regents and is believed to be the regent who asked the Attorney General’s Office to investigate Sen. Pendleton for alleged double-dipping. The Republican Party of Kentucky claims Pendleton had been receiving pay for legislative work while he was a full time staff member at MSU. Pendleton says he’s done nothing wrong and he was recently reelected.
Judge Taylor did not return messages left at his home and office. “ 


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Kentucky Court of Appeals Releases 20 decisions this week

Saturday, November 29th, 2008

LawReader Subscribers can read keywords, synopsis and full text by going to  COURT OF APPEALS DECISIONS FOR NOV. 28, 2008   


Non-subscribers can sign up at: SIGN UP – PRICING for Lawreader
Important topics discussed this week:

Child custody procedures-statutory findings of best interests – paternity – CIVIL ARSON CASE – EVIDENCE OF INSURANCE – RELEASE AND RECORDING OF LIENS-PERFECTION – child support when earnings are in excess of guidelines-expert’s valuation error – clean hands doctrine – omission of findings on material element- survey – chain of title – grandparents have standing to contest adoption of grandchild- use of special judge – two roadblock cases- BATSON RULE APPLIED – SUFFICIENT RACE NUETRAL REASON FOR JUROR STIKE BY COMMONWEALTH NOT GIVEN- burglary definition of premises vs. structure

Tests of the Intoxilyzer DUI Breath Test machine yields troubling results

Friday, November 28th, 2008


Nov. 28, 2008   Based on a Cincinnati Enquirer article

Ohio State officials plan to supply police agencies with the Intoxilyzer 8000, replacing the mishmash of different models of breath-test machines now used in Ohio and to centralize maintenance and record-keeping.

The issue has become a touchy subject in Columbus in recent weeks.

State legislators and a judge’s association have asked the state to hold off buying the machines from CMI Inc. in Owensboro, Ky., until legal challenges around the country are resolved and the equipment’s reliability is proven.

The Ohio Association of Criminal Defense Lawyers joined in, saying it wants committees set up to test the science and make sure drunk-driving suspects don’t wind up with a raw deal.

A decision on whether the project is put on hold could come before Christmas.

Breath tests by opponents to the Intoxilyzer 8000 has raised some doubts about the effectiveness of the machine.  Kentucky uses a version of the same machine, and is styled tine Intoxilyzer 5000.

Testers claimed that the intensity and duration of the breath sample had a direct effect on the results, thereby allowing the same person to produce different results within minutes of the first test.  In one test the difference was .009%

Two separate blows – one with a long breath, another shorter – produced different results: 0.06 for the long one, 0.051 the second time.

The machine showed similar variations in five other tests.

Jeff Meadows, a West Chester, Ohio  attorney, who defends drunk drivers, says that’s the same problem with breath-test machines now in use.  He said, ““Why would the state spend $6.5 million … if they are not buying an instrument that is much better than what’s currently being used?” asked Meadows. “When was the last time someone replaced a dishwasher that wasn’t broken?”

Al Staubus, a longtime faculty member at the Ohio State University College of Pharmacy and an expert on alcohol breath-testing machines, administered the tests on Lyons and his friends.

He has criticized the Ohio Department of Health’s recommendation to buy the Intoxilyzer 8000, saying the variations, among other things, make the machine unreliable. But that can be fixed, he said.

Longer breaths come from deeper in the lungs and contain more heat. So, the hotter the breath, the higher the alcohol concentration, Staubus said.

The Intoxilyzer 8000 is unique because officers can plug it into the cruiser’s cigarette lighter and use it on the road.

That saves the time it takes police to shuttle drunk-driving suspects back to the police station for a test with current equipment, Ward said.


Ky. Supreme Court issues 39 opinions. Nineteen to be published.

Thursday, November 27th, 2008

Ky. Supreme Court issues 39 opinions. Nineteen to be published.


 LawReader subscribers can read the keywords, full synopsis and full text of each case by going to KY. SUPREME COURT DECISIONS FOR NOVEMBER 2008 . nON MEMBERS MAY SIGN UP ONLINE AT SIGN UP – PRICING for lawreader


Nine KBA discipline rulings.  Several Death Penalty reviews.  Reversal on child competence ruling. Medical Malpractice award upheld. Several Whistleblower rulings. Sup. Ct. upholds trial judge Stan Billingsley and overrules  Ct. of Appeals on restrictions in chain of title ruling. 


Also cases on Voir Dire, failure to  strike juror for cause, discussion of Allocution, Corum Nobis, several cases of prosecutorial misconduct, Juvenile not subject to statute on Violent Offender denial of probation, Reversal in Search and Seizure when police did not have sufficient grounds for search, Miranda Rights, Procedure for Court to approve funding for mental competency evaluation, Kidnapping exemptions, Double Jeopardy, Reversal on competency of child witness, Jurisdictional question re: Court of Appeals, Death Penalty upheld, five Worker’s Compensation rulings.  Statute of limitations for reopening Worker’s Compensation claim &. Loaned Servant Doctrine.

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Jeffersonville, Ind. Attn. Karl Truman to Appeal Riverboat Casino Jones Act Ruling

Wednesday, November 26th, 2008

Nov. 26, 2008

The Indiana Court of Appeals has rejected a former casino dealer’s attempt to seek compensation under federal maritime law for alleged injuries she suffered while working aboard the Harrison County riverboat near Louisville.

The court said the dealer doesn’t qualify as a maritime worker, and therefore isn’t entitled to enhanced  coverage under the Jones Act,  because the Riverboat Casino  where she dealt cards is primarily used for gambling, not navigation.

Conder may still be entitled to state workman’s compensation benefits for serious medical complications that her lawyers said stemmed from flea bites she received while dealing poker.Karl Truman of Jeffersonville, Conder’s lawyer, said he will appeal the ruling and is willing to go as far as the U.S. Supreme Court.

“It seems the (appeals) court relied heavily on what Caesars said their intent was with the boat,” Truman said.

Harrison County health department records showed the casino had battled a flea infestation during the time Conder said she was bitten. Her lawyers asserted that the casino had been negligent for failing to maintain a seaworthy vessel as required by the Jones Act.

The 1920 law was enacted to ensure that maritime workers were fairly compensated for injuries while facing the heightened risks posed by serving aboard ships and towboats.

A year ago, Harrison Circuit Judge H. Lloyd “Tad” Whitis ruled that Conder was a Jones Act seaman and therefore was eligible for the far more generous compensation for medical expenses and lost wages than is usual under workman’s compensation.

Casino lawyers responded by appealing the Jones Act portion of the ruling to the Indiana Court of Appeals.

Chief Justice John G. Baker wrote for the appeals court and cited a 7th U.S. Circuit Court of Appeals ruling that said a casino boat that was indefinitely moored no longer qualified as a vessel in navigation.

Conder is not “the type of employee that the Jones Act is intended to cover and protect,” Baker wrote.  Conder’s lawyer, Truman said federal appeals courts have been split on what types of workers the Jones Act covers, making the issue worthy of U.S. Supreme Court review.

New Jersey Sup. Ct. Rejects Tropicana Casino Appeal

Tuesday, November 25th, 2008

 Nov. 25, 2008 – Columbia Sussex of Kenton County, owner of the Tropicana Casino in Atlantic City, lost their gaming license after the commission objected to actions taken by President William Yung III.


The company appealed the Commission’s ruling to the New Jersey Supreme Court and cited numerous changes including the firing of William Yung in an effort to obtain restoration of their gaming license.
In its decision on Tuesday,  the New Jersey Supreme Court ruled unanimously that the former owners of the Tropicana Casino and Resort “lacked financial integrity and responsibility, as well as business ability,” and deserved to be stripped of their casino license.


The unusually quick decision, coming just eight days after the high court heard oral arguments in the case, clears the way for a state-appointed trustee to sell the troubled gambling hall in a bankruptcy court auction.
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Yung when President of the company cut nearly 1,000 casino jobs, leading to problems with cleanliness, service, and compliance with state gambling regulations. Among complaints by customers were infestations of bedbugs and roaches in hotel rooms, filthy floors, and dust so thick on drapes and TV screens that guests could write their name in it.


“The massive staff layoffs, the turnover in senior management accompanied by their replacement with personnel with less extensive casino management experience, the cleanliness crisis experienced in the late winter-spring 2007, the regulatory violations directly related to inadequate staffing, and the failure to recognize the immediate need for a conforming independent audit committee, and the intransigence in adopting a conforming committee, all attest to the ultimate conclusion that the Tropicana AC license should not have been renewed,” the court wrote.



The decision removes the main obstacle to Stein’s efforts to find a new owner for the Tropicana, as required by law. He has selected Baltimore-based Cordish Company as a potential purchaser for the casino in a bankruptcy court auction.

Gov.’s Criminal Justice Reform Commission Issues Preliminary Report

Tuesday, November 25th, 2008

Nov. 25, 2008 – FRANKFORT — A panel of experts is giving Gov. Steve Beshear more than 50 ideas for cutting the state’s swollen prison and jail population.

One of the ideas could be controversial, such as reducing the charge for possession of less than an ounce of cocaine from a felony to a misdemeanor.

The Kentucky Criminal Justice Council debated the proposals Monday, rejected a few and agreed to hand Beshear its final report Dec. 1. Beshear will use the report as he drafts his criminal-justice legislative package for the 2009 General Assembly.

The council comprises police, prosecutors, defense lawyers, court officials, Justice Cabinet administrators and state lawmakers.

Their proposals include:

â–  Reduce the criminal charge for possession of small amounts of illegal drugs from a felony to a misdemeanor.

■ Rewrite the law regarding drug trafficking within 1,000 yards of a school — a serious crime — so that it applies only to dealers trying to sell drugs to students, not to dealers with adult customers who happen to be in the general vicinity of a campus.

â–  Establish different levels of drug trafficking based on the quantity sold, with lesser penalties for low-level sales.

â–  Expand the use of home incarceration and electronic monitoring.

â–  Provide substance-abuse, education and job-training programs in all county jails that hold state inmates, and create re-entry programs that ease newly released felons back into society from jail or prison.

â–  Set a statute of limitations on less-serious felonies so they cannot be prosecuted after five to 10 years. Kentucky is one of a few states with no statute of limitations on felonies.

â–  Raise the felony theft level to $500 from $300, where it has been for many years.

â–  Offer more medical and geriatric parole to ailing and older inmates, who are expensive to care for and no longer pose a threat to public safety.

â–  Reduce various aspects of the persistent-felony offender statute, which requires longer sentences for criminals repeatedly convicted of felonies


KBA Board Gives Bar President Barbara Bonar 15 days to respond to a Ethics report and opinion prepared by Robert F. Houlihan, Jr..

Tuesday, November 25th, 2008

Nov. 25, 2008


Houlihan was asked by the KBA board to investigate whether Bonar abused her power in removing four members from the associations ethics committee before their terms expired and whether she was candid with the board about the reasons for the removals according to board members who were cited as sources by the Louisville Courier-Journal.


There is no procedure for removal of a sitting KBA president, but the Board is of the opinion that if asked to step down, Bonar would comply.  If she steps down Bruce Davis, the KBA vice-president would serve the balance of her one year term.


Thomas Clay of Louisville represents Bonar.  He did not respond to press enquiries.  The investigation by the KBA board is separate from another investigation regarding Bonar which arose out of findings by Senior Statute Circuit Judge McGinnis regarding a fee dispute with Cincinnati Attorney Stan Chesley

Gov. Beshear extends hand to Sen. Williams and Republican legislators

Sunday, November 23rd, 2008

Campaigns are over; working across party lines must begin

By Governor Steve Beshear   Nov. 22, 2008
To many people, it must have been a remarkable picture.
After months of bitter and often rancorous campaigning, President-elect Barack Obama sat next to Sen. John McCain for a meeting a few days ago. It wasn’t just a photo opportunity. They talked at length about how they could reach across party lines to discuss — and move forward on — some of the nation’s most challenging issues.

If they can do this on a national level, why can’t we do it in Kentucky?

The truth is: We can and we must. At a defining hour in our nation’s history, and in the history of Kentucky, we need the same kind of bipartisan spirit. Quite simply, we need to work together — without respect to partisanship, without concern about parties, without a desire to posture and score political points.

People expect us to do so. They need us to do it.

In recent weeks, however, it has been suggested by some of my colleagues that such resolve is not possible. My colleagues, particularly Republican leaders in the state Senate, have criticized the fact that I campaigned hard for Democrats in the elections that just ended earlier this month. They say that such campaigning threatens the ability to work together on issues.

That’s narrow-minded thinking. We just experienced a hard-fought election. That’s our system. Now, let’s close the book on the politics, set aside the partisan rhetoric and acrimony and adopt a spirit of collaboration and unselfish thinking as we act to confront the monumental economic challenges before us.

I don’t agree with our state’s senior U.S. Senator, Mitch McConnell, on a lot of things. We have sincere and profound differences on real issues. But he was right the other day when he said on the floor of the Senate that the time for campaigns is over. The time for bipartisanship and working together is upon us.

I take him at his word that if the President-elect governs from the center, there will be opportunities to work together on our economy, on education and on making health care more affordable to Americans.

We should follow the same path in Kentucky.

Don’t misunderstand me. There’s a place for politics. The collision of ideas and personalities that occurs during a campaign is like a big physics experiment that — when it works — produces the best leaders and focuses them on the most pressing problems.

But this centuries-old system of selecting our leaders features a time for politics and a time for policy.

The system works best when — after the heat and pernicious attacks of the campaign are over — people of opposing philosophical bent can work together for the good of the state. I have campaigned in the past for people who I thought would help me advance an agenda for Kentucky. I will do so again in the future. I assume my Republican Senate colleagues will do the same.

Some people have debated the meaning of the recent elections. At their most fundamental level, the results of November’s elections meant this: Families are hurting, and they’re looking for leaders bold enough, courageous enough and committed enough to help them.

Consider what is at stake: on Friday, an independent group of economists, who work outside state government, projected that the state’s deficit for this budget year will run into the several hundred millions of dollars.

What does that mean? It means that over the next few weeks, as Governor, I must develop a plan to address the shortfall. As a state, we can’t have a deficit. Our budget must balance. And, just as families are balancing their budgets at kitchen tables and in living rooms, we will make tough choices about priorities.

We will have to cut spending significantly to balance our books, just as families cut spending to live within their means. However, we will have to find a balance — we cannot eliminate vital services. We will have to be creative. We will have to be smart. We will have to be strategic.

But above all, this effort will require elected leaders, on both sides of the aisle and from all different perspectives, to move past elections and self-interest and put their faith in our collective future as a Commonwealth.

As your Governor, I’m willing to sit down anytime, anywhere, any place with my colleagues, regardless of ideology or party, to come together on how we move forward. I hope that my colleagues across the aisle want to do the same thing.

We can’t and we won’t agree on everything, even when it comes to the financial crisis confronting us. There will have to be compromise — on both sides.

I want Kentucky to succeed. I want Kentucky to be a better place for our children and their children. And despite our profound differences at times on matters of policy and politics, I hope my colleagues — all of them — want the same thing.

It was written recently of the new President and the new Congress that they did not get to choose the page on which they would write their chapter in the history books.

That is right. As elected officials, we don’t choose the time in which we serve. But we can choose how we will lead.

The time for partisanship is over.

The time for leading is now.

Let us resolve, together, to lead our state for the benefit of its people.

Steve Beshear is Governor of Kentucky.

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Gov. reveals 50% increase in budget deficit – Plans special session

Friday, November 21st, 2008

Nov. 22

FRANKFORT —The state’s projected budget shortfall has been upgraded in predictions by economists to $456.1 million. That represents a 5.1 percent decline in the $8.9 billion of revenue that was expected in the current budget.


The group of economists, known as the Consensus Forecasting Group, also projected a $104.7 million shortfall in the Road Fund on Friday. That is a decline of nearly 8 percent from expected revenue receipts.


 Gov. Steve Beshear warned that the blooming financial crisis may bring tax increases, layoffs and cuts to education and social services programs.

That represents about a 5.1 percent decline in the $8.9 billion of revenue that was expected.


The  governor said a special legislative session is likely in January to deal with the shortfall for this fiscal year, which ends June 30.


Lawmakers will return to Frankfort for four days in early January for an organizational session to select their leaders and then return Feb. 3 for 26 days of making law.

Williams said the House and Senate budget committees could work in January on the budget and all lawmakers could consider their work in February, avoiding a costly special session.


Governor Beshear said he is looking at a special session because only a majority of votes would be needed in each chamber to approve revenue measures in it, whereas, 60 percent of the votes in each chamber would be needed for such action in a 30-day regular session.

But Beshear said he would be willing to negotiate on the issue


However, Republican Senate President David Williams of Burkesville said no special lawmaking session is needed and challenged Beshear’s authority to address the crisis.

State law appears to give a governor the power to reduce expenses only when a shortfall is 5 percent or less of expected revenue.
Beshear said he disagreed with Williams’ contention and hopes to have a plan by early December to address the shortfall.


Williams told reporters Friday that he is willing to consider Beshear’s plan to increase the tax.


Williams said he hopes Beshear meets with legislative leaders instead of “running all over the state to tout a plan.”


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Angry Bengals Fan?? Arrested by FBI over bomb threat on Paul Brown Stadium

Friday, November 21st, 2008


CINCINNATI — FBI officials said Friday they arrested a man who allegedly threatened to blow up Paul Brown Stadium, other area landmarks and the Denver International Airport.

Frederick Purvis, 42, of Hamilton, Ohio, is accused of sending e-mails to two local media outlets and to the FBI threatening the football stadium, four bridges over the Ohio River, the Cincinnati/Northern Kentucky International Airport, and an Indiana casino, FBI spokesman Mike Brooks said.

FBI officials said Purvis was charged with making e-mail threats to blow up the Denver airport. The other threats are cited in the federal complaint filed against him.


Court of Appeals releases l3 decisions Nov. 21 – LawReader provides keywords and synopsis for each decision.

Friday, November 21st, 2008


 LawReader subscribers can access this material at:


Non-subscribers can sign up for only $34.95 a month, at  SIGN UP – PRICING for lawreader,  and in addition to Weekly Decisions you will have access to all LawReader resources.

Topics discussed by Court of Appeals in decisions handed down on Nov. 21, 2008:

mediation settlement-mutual mistake standards

notice to attorney general –appeal of administrative agency ruling

bad faith settlement practices act does not apply to the insured

pardon powers of governor – discretion

11.42 motion – judges demeanor did not affect guilty plea

throwing rock into house is not a trespass   

State court allows online law school grad to take bar exam – Requirement for graduation from accredited law school being reviewed by ABA

Friday, November 21st, 2008


Nov. 21, 2008



The state supreme court has ordered that a graduate of an online law school be allowed to take the bar exam.

Ross Mitchell of West Newton sued the Board of Bar Examiners for preventing him from taking the exam because he does not have a degree from a law school accredited by the American Bar Association.

Mitchell, a computer systems and management consultant who has lived in Massachusetts since 1981, took his classes through Concord Law School, which is part of the Kaplan online university.

He is licensed to practice law in California, the only state that has accepted candidates from online schools, and in March he was among the first four Concord graduates admitted to argue before the Supreme Court.

In a 6-1 decision released Thursday, the

Supreme Judicial Court

opened the door to Mitchell and other graduates of online law schools, but noted that the exception is limited to those with strong records in competitive programs.

The court cited Mitchell’s “exemplary degree of success” and his acceptance to the California bar.

“Of great importance, the record reveals that Mitchell achieved an exemplary degree of success as a law student,” the court said. “Thus, he won ‘outstanding achievement’ awards in three of his first year courses, an award for best oral advocate and best brief in his moot court exercise in the third year, and over-all academic honors in all four of his law school years, graduating with highest honors and as valedictorian of his class.”


The court said it would not be fair to deny Mitchell the chance to take the bar exam while the American Bar Association is reconsidering whether to accredit online schools.


The court said granting Mitchell a waiver to take the exam  “is based wholly on the particular circumstances presented in his individual case. … We are not suggesting that we have decided to accept graduation from an online law school as meeting the educational requirement for taking the Massachusetts bar examination.”

Justice Roderick Ireland dissented, saying the court should wait until the bar association has made its decision.


Governor Beshear unveils state’s first-ever comprehensive energy plan

Thursday, November 20th, 2008


Plan strives for 20 percent cut in greenhouse gas emissions; increased coal research; and creation of 40,000 jobs in the energy sector


FRANKFORT, Ky. – Proclaiming Kentucky’s place as a national leader, Gov. Steve Beshear was joined today by Energy and Environment Cabinet Sec. Len Peters as he unveiled the state’s first-ever comprehensive energy plan, which calls for significant reductions in greenhouse gas emissions while creating some 40,000 jobs tied to energy production and conservation between now and 2025.


“Kentucky can be a national leader in energy technology and production,” Gov. Beshear said in unveiling his nearly 150-page plan, titled “Intelligent Energy Choices for Kentucky’s Future.” “We can help the country move toward greater energy self-reliance. I intend to put us on such a path.”


Toward that end, Gov. Beshear said the new energy plan builds on the efforts of state legislators – such as Rep. Rocky Adkins and Sen. Robert Stivers – who in recent years have crafted legislation designed to invest more in technology, research and energy production. Beshear said the plan, which he charged Sec. Peters to develop when he established the Energy and Environment Cabinet and appointed him secretary, is a framework for future initiatives as well as more discussion. The plan centers on seven primary strategies:


Improve the energy efficiency of Kentucky’s homes, buildings, industries and transportation fleet;


Increase Kentucky’s use of renewable energy;

Sustainably grow Kentucky’s production of biofuels;

Develop a coal-to-liquids industry in Kentucky to replace petroleum-based liquids;

Implement a major and comprehensive effort to increase gas, including coal-to-gas in Kentucky;


Initiate aggressive carbon capture/sequestration projects for coal-generated electricity in Kentucky; and


Examine the use of nuclear power for electricity generation in Kentucky.

Specifically, the plan calls for a 20 percent reduction from 1990 levels in greenhouse gas emissions by 2025. Moreover, that is a 50 percent reduction from emission levels if Kentucky continues on its current pace of electricity and energy production, a pace that would require a dramatic increase in both production and demand.

While coal and other fossil fuels must and will remain central to the state’s energy production needs, the plan calls for diversification, conservation and efficiency to reduce demand, and an increasing reliance on renewable and alternative sources. Beshear said these are critically important steps that must be undertaken for Kentucky’s economic, energy and environmental success and security.


An element of that diversification effort is to explore the potential of nuclear power, already utilized in a majority of states, including some bordering Kentucky.

Significantly, the plan proposes the creation of Kentucky’s first Renewable and Efficiency Portfolio Standard (REPS) to promote greater energy efficiency, conservation and use of renewable resources. In addition, the plan calls for the creation of an Alternative Transportation Fuel Standard (ATFS) that will help Kentucky transition away from dependence on foreign petroleum.


By 2025, the plan for the REPS contemplates that 25 percent of Kentucky’s energy needs should be provided by greater efficiency, conservation and use of renewable and alternative energy sources, such as wind and solar power and biofuels.

Those percentages are largely in line with the energy plan being proposed by President-elect Barack Obama, who has pledged to make energy a centerpiece of his administration.


“The choice we face is to take no action and see large price increases in energy with limited economic security,” Gov. Beshear said, “or to take prudent actions now for a better chance at smaller price increases, as well as increased economic security.”

Another pillar of the plan is greatly expanded research into carbon capture and sequestration, as well as the development of a large coal-to-liquids industry. The plan proposes a goal of 50 million tons of coal used per year to produce 4 billion gallons of liquid fuel per year by 2025.


In addition, by 2025, the plan proposes that Kentucky evaluate and deploy technologies for carbon management for use in 50 percent of coal-based energy applications.

Taken together, these initiatives – among others – can lead to the creation of 30,000 to 40,000 new Kentucky jobs “as a result of a booming diversified energy sector,” Gov. Beshear said.


As the economy for both the state and nation faces huge challenges, Beshear said Kentucky’s emergence as a leader in energy is a critically important economic strategy.

The state faces a projected shortfall in this budget year of some $300 million, according to internal estimates. The Consensus Forecasting Group, a team of outside, independent economists expected to issue a formal report on Nov. 21, has said that shortfall could be even worse.


Gov. Beshear said that in both the short-and-long-term, energy can and must play an important role in helping the economy recover at both the state and national levels.

“For Kentucky to be a national leader, we must fully integrate the development of our energy resources with our mission to protect the environment,” he said. “The seven strategies, when implemented, will restructure our energy portfolio so that we can use energy in its broadest sense – as a tool for economic development and preserving our environment – which Kentucky desperately needs.”


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Gov. Beshear Proposes State Pension Board Changes

Thursday, November 20th, 2008

Nov. 20, 2008 


FRANKFORT — Gov. Steve Beshear recommended on Thursday adding more people with investment experience to the boards governing the state’s pension systems and regulation tweaks that would allow the state to diversify its investment portfolios.

The move came after an independent report found that the state’s  pension systems — the Kentucky Teachers’ Retirement System and the Kentucky Retirement System — had lost $5 billion over the past 10 years because the pensions did not diversify its investments. The systems relied too heavily on investments in U.S. stock, said the report by Hammond Associates, a Missouri consulting firm.


The state has been working to fix its ailing pension funds. The Kentucky retirement system — which includes most state and county employees — has more than 300,000 employees. The state teachers pension system covers roughly 115,000 employees. The pensions face a potential $28 billion shortfall or unfunded liability. That means that both systems have money to cover current retirees but could fall short in future decades.

Beshear made a series of recommendations to help diversify portfolio investments including:


Adding four investment experts to the investment committee for each of the two pension boards


Requiring all public pension board members to receive education on investment practices

Reviewing regulations that may limit where the pension system can invest its money

The systems will undergo a study to determine the best allocation of the pension system’s money immediately, according to a release from the governor’s office.


Beshear also announced the appointment Wednesday of Henry Clay Owen, a retired long-term treasurer of the University of Kentucky.


Texas Prosecutor behaves strangely after obtaining indictments for Vice President Cheney and former Attn. General Alberto Gonzales

Thursday, November 20th, 2008

Nov. 20, 2008 

RAYMONDVILLE, Texas — A Texas judge has set a Friday arraignment for Vice President Dick Cheney, former U.S. Attorney General Alberto Gonzales and others named in indictments accusing them of responsibility for prisoner abuse in a federal detention center.
Cheney, Gonzales and the others will not be arrested, and do not need to appear in person at the arraignment, Presiding Judge Manuel Banales said.
In the latest bizarre development in the case, the lame-duck prosecutor who won the indictments was a no-show in court Wednesday. The judge ordered Texas Rangers to go to Willacy County District Attorney Juan Guerra’s house, check on his well-being and order him to court on Friday.
Half of the eight high-profile indictments returned Monday by a Willacy County grand jury are tied to privately run federal detention centers in the sparsely populated South Texas county. The other half target judges and special prosecutors who played a role in an earlier investigation of Guerra.
One indictment charges Cheney and Gonzales with engaging in organized criminal activity. It alleges that the men neglected federal prisoners and are responsible for assaults in the facilities.
The grand jury accused Cheney of a conflict of interest because of his influence over the county’s federal immigrant detention center and his substantial holdings in the Vanguard Group, which invests in private prison companies.
The indictment accuses Gonzales of stopping an investigation into abuses at the federal detention center.
An attorney for the private prison operator The GEO Group filed motions accusing Guerra of “prosecutorial vindictiveness.”

Case from the past…interesting dissent re: search and seizure exceptions

Wednesday, November 19th, 2008

We ran across this case from a Dissent by Justice Osborne dated 1972.  It discusses the length that courts are taking to apply exceptions to search and seizure rules.


Com., Dept. of Public Safety v. Hayden, 484 S.W.2d 97 (Ky., 1972)

OSBORNE, Justice dissenting:
“Many thoughtful persons are concerned with what appears to be a headlong rush into a police state. While some courts still appear to be upholding fundamental constitutional rights, it would appear that others are ignoring them altogether. This past week the Supreme Court of the United States struck down the practice of federal agents’ tapping telephone wires. This would appear to be a good sign and in line with the philosophy laid down by the Supreme Court many years ago Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 296 L.Ed. 746.
In this case the Supreme Court held a defendant in a criminal prosecution for failure to pay import duties on goods shipped into the United States could not be forced to produce incriminating papers, for to do so would violate his rights under the 5th Amendment. While the Supreme Court has set this tone, lower federal courts and many of the state courts seem to be driving hard in the other direction. For the student who is interested in just how far matters have gone, see the
Page 101
American Law Reports, Later Case Service Supplement, 25 ALR 1370–1379, where the following cases appear:
‘Physical examination of defendant, and removal of narcotics from his rectum, involved no violation of privilege against self-incrimination, was not unreasonable reasonable search and seizure, and did not deny due process. Blackford v. U.S. (C.A.9, Cal.), 247 F.2d 745.
Self-incrimination privilege is limited to giving of oral testimony, and is not violated by use of urine specimen, in criminal prosecution, to show whether defendant was under influence of alcohol at the time specimen was given. U.S. v. Nesmith (D.C.Dist.Colo.) 121 F.Supp. 758.
Accused in rape case was not forced to give incriminating evidence against himself when blood sample, tissue scrapings, and saliva samples were taken and used in evidence. Brent v. White (D.C.La.) 276 F.Supp. 386.
Admission in sodomy prosecution of evidence of smears and slides taken from defendant’s genitals did not violate defendant’s immunity to self-incrimination or right as against unreasonable search and seizure. People v. Morgan, 146 Cal.App.2d 722, 304 P.2d 138.
In narcotics prosecution, evidence established that heroin capsules which accused spat out when police officer seized him by the throat were not obtained as result of unreasonable search and seizure in violation of accused’s privacy, due process, and self-incrimination rights. People v. Sanches, 189 Cal.App.2d 720, 11 Cal.Rptr. 407.’”

Minnesota Congresswoman who called for the press to investigate Congress to expose the members who were “un-American” was re-elected

Wednesday, November 19th, 2008

We didn’t see the election results on TV regarding Michele M. Bachmann,the Minnesota Congresswoman who called for the press to investigate Congress to expose the members who were “un-American”.    Her controversial comments made on MSNBC’s Chris Matthews show resulted in $1 million dollars in campaign contributions being made to her opponent Elwyn Tinklenberg within the following three days.
Her own party reacted to her comments by cutting off funding for her race.  Regardless, of these efforts she was reelected by a margin of 3% over Tinklenberg.   She received 46.4% of the vote and Tinklenberg receiving 43.4%, with Independent Bob Anderson receiving 10%.

Chief Justice addresses Legislative Committee re: problems facing the Judiciary

Tuesday, November 18th, 2008

On Tuesday, Nov. 18, Chief Justice of Kentucky John D. Minton Jr. lead the entire Supreme Court to a meeting of the Interim Joint Committee on the Judiciary in Frankfort.  He discussed the problems of the Judiciary in facing a fast growing caseload at a time of less money being available to the Judiciary to handle the problem The Chief Justice predicted that the judicial system would be facing a shortfall in revenue approaching $38 million dollars by the end of the current fiscal year. 

Justices Cunningham, Noble, Abramson, Schroeder, Scott, and Venters accompanied the Chief Justice in support of his report to the Legislative Committee.  Their attendance helped to emphasize the seriousness of the funding problems facing the Judicial Branch of Ky. State Government. 

In response to a question from Rep. Greg Stumbo regarding the number of judges in the Senior Judge program, Minton replied that until the  end of the time period in which judges may elect to enter the Senior Judge program (Jan. 31, 2009) he will not know for sure, since judges don’t have to declare their intention until January, but he opined that the number of active Senior Judges could reach 90 judges.  The Legislature in its last session refused to extend the Senior Judge program past Jan. of 2009, and as a result a number of judges who likely would have remained on the bench, have taken advantage of the enhanced retirement benefits available to Senior Judge participants. Stivers suggested that the Chief Justice could alleviate some of the budget shortfall problem by taking his time in appointing judges to fill the vacancies created by retiring judges.  Sen. Stivers said that he had heard the rumor from lawyers that the CJ would be allowing retiring judges to remain in their offices during their five year commitment to the Senior Judge program.  Minton said, tonque-in-cheek, that he was “surprised that lawyers would create  rumors.” Minton said that one of his challenges as Chief Justice was to “address the caseload backlog”.  He said that with the Senior Judges available, he would be able to eliminate the backlog within the next five years.  He indicated that the court caseload had grown by 40,000 cases over the last year and the Judicial Branch now handled 1.23 million cases a year.

Some legislators expressed concern about the use of Trial Commissioners in counties which had a resident judge. It appears that the failure of the Legislature to extend the Senior Judge program past Jan. has made their problems greater as it has made it financially attractive for a great number of judges to retire early in order to enter the Senior Judge program before it expires.  Any judge who is admitted to the program prior to Jan. 31, 2009 remains in the program, after that date no one will be eligible to enter the program.  

The Chief Justice indicated that he might be using Senior Judges to work on judicial projects such as the development of an E-filing system to allow lawsuits and pleadings to be filed electronically.  E-filing is becoming very popular and is being used in some Federal Courts. 
 Sen. Clark asked about the potential of increasing the collection of fines and court costs.  Minton indicated that data about outstanding warrants and unpaid costs were now digitized and available online, and that this would help solve the problems in dealing in a timely manner with warrants and court costs.
 Sen Jack Westwood spoke in favor of drug treatment and rehabilitation in lieu of incarceration.
  Sen. Webb spoke out against the practice of felony cases being mediated. She also spoke out against the use of Senior Judges on the Court of Appeals panels, and suggested they should only be used to help out in trial courts.  Minton made no response to those opinions.Several legislators expressed their support for drug courts.  

LRC article:

State lawmakers today considered the possible effect of a projected $37.8 million shortfall in state court funding in 2011, including less money for personnel and court programs. 


“This looming deficit means we must greatly reduce expenditures, or increase appropriations, or face significant reductions in services to the people of the Commonwealth when citizen demands on the Justice system are greater than they have ever been in the history of the Commonwealth,” Kentucky Supreme Court Chief Justice John Minton told the Interim Joint Committee on Judiciary. 


Since about 88 percent of the budget of the courts is personnel costs, Minton said the Court of Justice has eliminated 73 positions–mostly through retirements or other attrition. Only those jobs deemed “critical” will be filled, he said, including positions in drug court, pretrial services and court designated worker programs. 


“As we see it, the continued vitality of statewide services like these have a significant impact on the reduction of inmate populations in county jails and state corrections facilities,” said Minton. 


Other cost savings have come from what Minton called the Court of Justice’s enthusiasm to “do a new thing.” What are new are a felony mediation program that allows cases to be settled more quickly, an e-pay system that lets individuals pay court costs and fees by credit and debit card in at least 27 counties so far and an e-warrants program–now in five counties–that expedites the signing or recall of warrants by judges. 


Rep. Robin Webb, D-Grayson, the first Vice Chair on the House Appropriations and Revenue Committee, explained that a nearly $38 million deficit will be hard to overcome. She said it also makes the chance to expand drug court—which she supports–“bleak.” But Minton, a former drug court judge, spoke strongly in favor of the expansion. 


“I think it is one of the tools that we have where if we do it effectively, it does have ramifications beyond us. We collect more child support, we (collect) more taxes, we keep more people out of jail if we effectively do what drug court does,” said Minton. “You’ll find in me a great supporter of drug court.” 


A high rate of new cases in the court system concerned some lawmakers. With new trial court cases increasing at a rate of about 40,000 per year, Sen. Dan Seum, R-Louisville, said perhaps law enforcement needs to focus more on violent crime. 


“It’s been my concern that the system’s been somewhat upside down, that we haven’t prioritized violent crime,” said Seum. “With all these unfunded mandates, we’re breeding a lot of contempt out there. A lot of people realize that they don’t have to adhere to the law anymore because the court system’s full.” 


Action taken by the Court of Justice to implement its current budget, passed during the 2008 Regular Session, has included enhanced pay for deputy court clerks, an increase in civil filing fees, steps to collect uncollected court costs and discouraging diversion programs that generate revenue outside the state court system, said Minton. He said he looks forward to working with the General Assembly in the future. 


“As our presence here today should demonstrate, this Court of Justice is committed to promoting and enhancing constructive relationships between the Court of Justice and the General Assembly,” he said. “And I hope (this) is evidence of that commitment to you.” 

Tuesday, November 18th, 2008