Archive for January, 2009

Governor Beshear orders unprecedented total callup of Kentucky National Guard

Saturday, January 31st, 2009

Saturday, January 31, 2009   

FRANKFORT, KY. – Governor Steve Beshear today directed Kentucky’s Adjutant General, Maj. Gen. Edward W. Tonini, to order the unprecedented activation of all Kentucky Army National Guard units, along with selected portions of the Kentucky Air National Guard. The activation is in response to the devastating winter storms that rendered more than a half million Kentuckians without electric power and has paralyzed most of Western Kentucky. 

“This is the largest state callup of Kentucky National Guard forces in the history of the Commonwealth,” said Gov. Beshear, “It represents the strongest possible effort to relieve human suffering and ensure the safety and well-being of our citizens.” 

The activation will place an additional 3,000 Soldiers and Airmen into the effort to address the needs of the people of the Commonwealth during this winter storm. Prior to today the Kentucky National Guard had 1,600 Citizen-Soldiers supporting the relief effort. The total number of troops on duty will be 4,600 by the end of today. This activation exceeds troop levels for the 1997 flood (1,600 troops) and Kentucky’s support of recovery efforts following Hurricane Katrina in 2005 (approximately 2,000). 

“We are now in the process of notifying these newly activated Guard soldiers and Airmen,” said Maj. Gen. Tonini. “They have been instructed to report to their home armories and bases as soon as possible.” 

This activation does not include Guard members who are college students or who have not completed basic training. 



“To effectively coordinate this massive Army and Air National Guard effort, we have established Joint Task Force Kentucky to command and control five subordinate task forces arrayed across the Commonwealth,” said Maj. Gen. Tonini. “Joint Task Force Kentucky will be commanded by Brig. Gen. Lonnie Culver who previously served as deputy commander of a similar task force on the Mississippi gulf coast during Hurricane Katrina recovery operations. Gen. Culver is now responsible for ensuring the unity of effort between Guard unit commanders and state and local emergency management officials as we work together across the state to assess needs and prioritize use of manpower and equipment resources. “ 

“This mission is nothing new to the Kentucky National Guard,” Tonini added. “We have come to the aid of our fellow Kentuckians on a regular basis for more than two hundred years. What is different today is the scope of this disaster. We are committed to the safety and well-being of our neighbors and we will be on duty until the job is done.” 


An immediate priority has been placed on assisting in the restoration of electric power to water plants, communications facilities and homes. Troops are currently clearing routes for emergency response vehicles as well as helping utility crews gain access to damaged power transmission lines. 

Establishment of shelters and points of distribution for essential supplies are also prime missions for Guard Soldiers and Airmen. 

Weather permitting, National Guard helicopters will continue to conduct overflights for the Kentucky Transportation Cabinet over roads that are impassable. Additionally, two helicopters have been assigned to provide support to utility companies to identify damaged power transmission lines. 


In an expanded mission for the Kentucky National Guard, troops are now teaming up with local emergency management agencies, fire departments, rescue squads, law enforcement agencies and volunteers to conduct “wellness checks” for all households in Kentucky’s 120 counties. 

Troops have been instructed to attach green tape on the mail boxes or other locations visible from the road indicating that residents have sufficient food, power, water or communications. Red tape will be used to indicate homes where shortfalls exist. 

Houses marked with red tape will be reported to local emergency operations centers and will be placed on a list to be resurveyed for on-going support based on county capabilities. 

“We are fortunate to have the Air Guard’s 123rd Special Tactics Squadron in this effort” said Maj. Gen. Tonini. “Their expertise in search and rescue, coupled with their access to snowmobiles and all-terrain vehicles, makes them valuable members of this task force.” 

Members of the Kentucky Air National Guard have already been on site in Western Kentucky for several days working alongside Army Guard Soldiers in distributing supplies and equipment to local citizens. 



- Assist Kentucky Department of Transportation (DOT) in clearing roadways 

- Transporting medical and dialysis patients to hospitals 

- Deliver cots to affected areas from partner agencies to affected areas 

- Transport food and bottled water to affected areas on request 

- Provide power generation to critical facilities throughout the state 


- Joint Incident Site Communications Capability (JISCC) with crew deployed to the Benton, Ky. area providing satellite and radio-based communications support to local authorities 

- Provided satellite phones to areas in Western Kentucky 

- Provide National Guard Mobile Command Post to Greenville, Ky. 

- Additionally, six (6) Regional Emergency Response Network (RERN) vehicles from the Florida National Guard are now supporting Kentucky relief efforts. The self-contained, mobile RERN systems combine cellular phone, radio and satellite communications technologies to provide emergency responders with the full spectrum of communication capabilities. 

See attached graphic illustrutating areas of responsibility for Task Force Kentucky. 

For more information on the Kentucky National Guard and the Department of Military Affairs, visit:  


The Exclusionary Rule is being eliminated and nothing is being offered as a replacement for prosecutorial or police misconduct.

Saturday, January 31st, 2009

Editorial by LawReader Senior Editor Stan Billingsley     Jan. 30, 2009 

A LawReader study reveals that prosecutorial misconduct is rarely sanctioned orpunished in Kentucky.   While the appellate courts frequently consider the issue, and often find that in fact the prosecutor did violate a rule or practice, the error is overlooked due to an increasingly broad interpretation of the harmless error rule.  

One example is a prohibition against the prosecutor making a closing argument in which he/she makes a “send a message” argument to the jury. The Court of Appeals has strongly lectured the bar that it is improper for the prosecutor to make an argument to the effect that the jury should send a message to lawbreakers that that crime will not be tolerated in their community.  The Court has said that such an argument encourages the jury to ignore the instructions and their duty to focus on the pending case, and to become crime fighters.  Under such a theory the jury’s duty to be a fact finder is minimized, and their duty to be crime fighters is enlarged.  That is close to allowing a committee made up of Mothers Against Drunk Driving (MADD) being appointed as jurors in all DUI cases.  

The courts have not been consistent in their “send a message” rulings.  One prosecutor who used this argument in 2007 was mentioned by a panel of the Court of Appeals and the verdict was reversed and sent back for a new trial, yet three months later another panel of the Court of Appeals found such an argument to be merely a Harmless Error.  In a number of rulings subsequent to the one reversal, the Court of Appeals and the Ky. Supreme Court have found other “send a message” arguments to be Harmless Error.

The court in Clark v. Commonwealth of Kentucky, 833 S.W.2d 793 (Ky. 12/19/1991)  said:

“…prosecutors have “the responsibility to [prosecute] according to the principle that one accused of a crime is entitled to a fair and impartial trial.”


That responsibility is abused when they make arguments that appear calculated to skate as close as possible to the edge of arguments previously condemned by this Court. Such gamesmanship does not do justice, and always flirts with a fall through thin ice into the icy waters of reversal for prosecutorial misconduct.

This principle mentioned in Clark is increasingly ignored.  The LawReader study  (SUPREME COURT STUDY 2007) of the Ky. Supreme Court, authored by former law school professor Martin Huelsman, suggests that the Ky. Supreme Court is more cautious in applying the harmless error rule than is the Ky. Ct. of Appeals.  While this rule has its rightful place, everytime this rule is used one should look at it closely to see if the rule is reasonably applied or is it just giving the prosecutor a free pass that will only encourage more bad conduct in the future by other prosecutors. 
While some may argue that prosecutors are advocates for the state, that argument fails to acknowledge that prosecutors have a dual role.  That dual role has been cited by the courts and goes:

“A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.” – - Official Commentary to SCR 3.130(3.8) Supreme Court 1989.”
Some years ago I attended a seminar at the Harvard Law School on Theories of Jurisprudence.  One theory that was popular in Nazi Germany was the idea that it wasn’t all that bad to convict an innocent person, since doing so would demonstrate the power of the state and scare the hell out of potential lawbreakers.  That theory appears close to the “actual innocence is no defense” theory credited to Justice Scalia.

The only tool that we have every seen used against a prosecutor who has violated the rules of procedure is the Exclusionary Rule.  Under this rule if evidence is improperly obtained, it cannot be used at trial of the defendant.   Conservative jurists have attacked the Exclusionary Rule for the last 40 years so that today it is rarely enforced, and exceptions such as the Harmless Error rule have taken precedence.  It can safely be said that the actual use of the Exclusionary Rule to suppress evidence is only applied in the most egregious cases.

Other nations rely on other ways to deter police wrongdoing directly, including professional discipline, civil lawsuits and criminal prosecution.  These enforcement options could be used in the United States, but rarely are.  We know of no instances of professional discipline of a prosecutor for violating the rules by the Kentucky Bar Association, and the structure of the Unified Prosecutorial System has never been used to sanction a prosecutor.

Since the local prosecutor is in charge of all prosecutions, there is little chance that under our current system that they will consider prosecuting themselves anytime soon.

The use of civil sanctions against a prosecutor is limited by our rules of sovereign immunity.  Likewise civil suits against police officers are rarely filed, and rarely successful.

Therefore, the tools used by other nations in lieu of the Exculpatory Rule are inhibited by our judicial structure.

There are numerous cases exposed over the last decade in which prosecutors or police have falsified evidence, withheld exculpatory evidence, or threatened and intimidated witnesses to offer evidence that massages the facts to fit the Government’s case.  Yet where are the sanctions imposed on the prosecutor or police official who violates the rules of the game?   We have never seen a case where a prosecutor was removed from office for misconduct.

Judges who step out of line are subject to sanction by the Judicial Conduct Commission.  There is no such body that reviews the conduct of prosecutors and issues sanctions.

We have seen the legislature impose more and more mandatory sentences on offenses. This has worked to allow prosecutors to pile up charges against defendants and then plea bargain them down.  Any practitioner of criminal law will be able to cite instances where their clients where intimidated to plead guilty due to the piling up of charges against defendants, and even threats to prosecute the defendants friends and family members.  

The cost of a criminal trial can in itself be a prosecutorial tool, and more than a few allegations of financial ruin to a defendant have been alleged against prosecutors.

 These practices result in “sentencing”, being done by prosecutors and not by judges or juries.

 We suggest that we now have three possible results in any criminal charge:

 1. Guilty 

 2. Innocent

 3. Plead guilty due to plea bargaining intimidation.

While the first two results give the public some reliable indication of actual guilt or innocence, the third result leaves some degree of doubt about the actual guilt of the defendant.  Was the defendant actually guilty or was he protecting his family from financial ruin or prosecution?  Was the defendant actually guilty or was he merely intimidated by threats of a extremely long prison sentence, and only plead guilty to minimize his risks of incarceration.  

Since the Exculpatory Rule is being progressively eliminated as a tool to enforce the proper use of the rules and to protect constitutional rights, what will replace it?

We suggest that one solution is for the legislature to create a Prosecutors Conduct Commission.  This legislation should require the adoption of a Code of Conduct for Prosecutors.  (The Federal Courts have such a code, but most states including Kentucky do not.) Judges have a Code of Conduct, why don’t prosecutors?  Such a Commission could follow the makeup of the Judicial Conduct Commission and should include prosecutors, citizen members and defense lawyers.

We forbid judges from publicly praising themselves for their lengthy sentences and their anti-crime stance.   On the other hand, prosecutors are posting web sites in which they publish the pictures of people they have convicted and seek praise for all the scalps they have obtained.   While a web site boasting of all the scalps earned by a prosecutor may be explained by their role as an advocate, it does great violence to their duty to also be “ministers of justice” as required by SCR 3.130(3.8).

The current direction we are taking is that prosecutorial power are increasingly overcoming constitutional rights, overcoming the rules of procedure and the rules of evidence.  The long term effect of this unlimited power by prosecutors is that prosecutorial and police power are replacing judges and jury trials. Is this really where we want to go?

This problem could be alleviated by the Appellate Courts being more careful in the application of the Harmless Error rule.  The Appellate Courts in practice rarely mention the name of the prosecutor who violates a rule of procedure. While this is not a solution to the problem, it is one small step that could and should be taken by the Appellate Courts.  We also suggest that the Appellate Courts could refer egregious violations of defendants rights to the KBA for review.  

Another step that would be dramatic, is to remove the cloak of sovereign immunity from prosecutors and police who violate the rules, withhold evidence, file charges without probable cause, or threaten financial ruin to defenses who refuse to plead.

Another step that could be adopted is to allow a process where a person who is acquitted of criminal charges can seek compensation for his legal defense expenses.  This could be accomplished by allowing such compensation to be paid by the Crime Victims – Board of Claims agencys.

The following article is excerpted from New York Times article by Adam Liptak -  Jan. 30, 2009

The Endangered Exculpatory Rule.

This month, Chief Justice Roberts, writing for the majority in Herring v. United States, a 5-to-4 decision, took a big step toward the goal he had discussed a quarter-century before. Taking aim at one of the towering legacies of the Warren Court, its landmark 1961 decision applying the exclusionary rule to the states, the chief justice’s majority opinion established for the first time that unlawful police conduct should not require the suppression of evidence if all that was involved was isolated carelessness. That was a significant step in itself. More important yet, it suggested that the exclusionary rule itself might be at risk.

The Herring decision “jumped a firewall,” said Kent Scheidegger, the general counsel of the Criminal Justice Legal Foundation, a victims’ rights group. “I think Herring may be setting the stage for the Holy Grail,” he wrote on the group’s blog, referring to the overruling of Mapp v. Ohio, the 1961 Warren Court decision.

Justice Samuel A. Alito Jr. joined the Herring decision and has been a reliable vote for narrowing the protections afforded criminal defendants since he joined the court in 2006. In applying for a job in the Reagan Justice Department in 1985, he wrote that his interest in the law had been “motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure,” religious freedom and voting rights.

“With Alito’s replacement of O’Connor,” said Craig M. Bradley, a law professor at Indiana University, “suddenly now they have four votes for sure and possibly five for the elimination of the exclusionary rule.”

The four certain votes, in the opinion of Professor Bradley and other legal scholars, are Chief Justice Roberts, Justice Alito, Justice Antonin Scalia and Justice Clarence Thomas, who is also an alumnus of the Reagan administration.

The fate of the rule seems to turn on the views of Justice Anthony M. Kennedy, who has sent mixed signals on the question. As in so many areas of the law, there are indications that the court’s liberal and conservative wings are eagerly courting him. They are also no doubt looking for the case that, with Justice Kennedy’s vote, will settle the issue once and for all.

The United States takes a distinctive approach to the exclusionary rule, requiring automatic suppression of physical evidence in some kinds of cases. That means, in theory at least, that relatively minor police misconduct can result in the suppression of conclusive evidence of terrible crimes.

Other nations balance the two interests case by case or rely on other ways to deter police wrongdoing directly, including professional discipline, civil lawsuits and criminal prosecution.

The Herring decision can be read broadly or narrowly, and its fate in the lower courts is unclear. The conduct at issue in the case — in which an Alabama man, Bennie D. Herring, was arrested on officers’ mistaken belief that he was subject to an outstanding arrest warrant — was sloppy recordkeeping in a police database rather than a mistake by an officer on the scene. Since the misconduct at issue in Herring was, in the legal jargon, “attenuated from the arrest,” the decision may apply only to a limited number of cases.

But the balance of the opinion is studded with sweeping suggestions that all sorts of police carelessness should not require, in Chief Justice Roberts’s words, that juries be barred from “considering all the evidence.”

A broad reading of the decision by the lower courts, Professor Bradley said, means “the death of the exclusionary rule as a practical matter.”


Law firms consider getting rid of “billable hours” fee system

Saturday, January 31st, 2009

Law firms will have to overhaul compensation structures to bill for “something other than taking a long time to do something”.   Law Firms are running out of hours they can bill.  Are lawyers really working 12 hours a day every weekday of the year?


JONATHAN D. GLATER   New York Times – January 29, 2009

Lawyers are having trouble defending the most basic yardstick of the legal business — the billable hour.


Clients have complained for years that the practice of billing for each hour worked can encourage law firms to prolong a client’s problem rather than solve it. But the rough economic climate is making clients more demanding, leading many law firms to rethink their business model.


“This is the time to get rid of the billable hour,” said Evan R. Chesler, presiding partner at Cravath, Swaine & Moore in New York, one of a number of large firms whose most senior lawyers bill more than $800 an hour.


“Clients are concerned about the budgets, more so than perhaps a year or two ago,” he added, with a lawyer’s gift for understatement.


Big law firms are worried about their budgets, too. Deals are drying up, and only the bankruptcy business is thriving. Two top firms, Heller Ehrman and Thelen, have collapsed in recent months. Others have laid off lawyers and staff. So cost-conscious clients may now be able to sway long reluctant partners to accept alternatives.


The evidence of a shift away from billable hours is, for now, anecdotal, as few surveys exist. But partners at a half-dozen other big bellwether firms and lawyers at corporations, who sometimes engage outside counsel, say they are more often seeing different pay arrangements.


Mr. Chesler, who is an advocate of the new billing practices, said that instead of paying for hours worked, more clients are paying Cravath flat fees for handling transactions and success fees for positive outcomes, as well as payments for meeting other benchmarks. He said that such arrangements were still a relatively small part of his firm’s total business, but declined to discuss billable rates and prices in detail.


The system of billing by the hour has been firmly in place since the 1960s; keeping track of time spent provided a rationale for the amount charged. In earlier, perhaps more trusting times, firms stated a price “for services rendered,” without explanation.

But one has only to eavesdrop on a table of law associates comparing their workloads to get a sense of how entrenched the billable hour is, creating a pecking order among lawyers, identifying the best as the busiest and the most costly.


With a sigh that is simultaneously proud and pained, lawyers will talk about charging clients for 3,000 or more hours in a year — a figure that means a lawyer spent about 12 hours a day of every weekday drafting motions or contracts and reviewing other lawyers’ motions and contracts.


“Does this make any sense?” said David B. Wilkins, professor of legal ethics and director of the program on the legal profession at Harvard. “It makes as much sense as any other kind of effort to measure your value by some kind of objective, extrinsic measure. Which is not much.”


To be sure, lawyers may be talking a good game but secretly hoping that the economy will bounce back and everything will return to normal, said Frederick J. Krebs, president of the Association of Corporate Counsel, whose members work in the legal departments of corporations and other organizations. He said that lawyers cheerfully lamented the bad incentives created by billable time for years, even as they grew rich from the practice.

“I like to paraphrase Churchill,” Mr. Krebs said. “In all these conversations, never has so little been accomplished by so many for so long. It just hasn’t happened.”


But the crashing economy may achieve what client complaints could not, Mr. Krebs added. “We may well be at a tipping point here.”


Greed may also encourage lawyers to change their payment plans. Law firms are running out of hours that they can bill in a year, said Scott F. Turow, best-selling author of legal thrillers and a partner at Sonnenschein Nath & Rosenthal in Chicago.


“Firms are approaching the limit of how hard they can ask lawyers to work,” he wrote, in an e-mail response to a reporter’s query. “Without alternative billing schemes, lawyers will not be able to maintain the rapid escalation in incomes that big firms have seen.”

A recent study released last year by the Association of Corporate Counsel showed a rise in the number of companies paying by the hour — but that covered the spring and summer, before the worst of the downturn.


Many smaller firms and solo practitioners have long offered to perform services, like mortgage closings, for flat fees. Plaintiff lawyers also often work on a contingency basis, receiving a percentage of any awards.


“What we do in our business litigation is charge clients some kind of monthly retainer, which gets credited against an eventual recovery,” said John G. Balestriere, a partner at Balestriere Lanza, a Manhattan firm with five lawyers. “It’s a lot easier for us to tell a client, ‘We want to do this, we want to push for summary judgment,’ ” he said, and so avoid a lengthy, costly trial.


When not paid by the hour, lawyers’ approach to their work changes, said Carl A. Leonard, a former chairman of Morrison & Foerster who is now a senior consultant at Hildebrandt International, which advises professional services firms.


In one case, he said, Morrison & Foerster negotiated a fixed fee for defending a company in court, covering work up to the point of a motion for summary judgment.


On top of the fee, if the case settled for less than what the company feared having to pay if it lost in court, the law firm got a percentage of the amount saved. The arrangement made sense when the goal was to resolve the dispute quickly, Mr. Leonard said.

Lawyers on the case negotiated a settlement for much less than the client’s worst-case number, Mr. Leonard said. “The effective hourly rate was something like 150 percent of our hourly rates,” he added. “We made money, the client was happy.”


In litigation, firms that charge by the hour can suffer if they are too successful and end a lawsuit — and the stream of payments from continuing work — too quickly. One law firm that recently collapsed, Heller Ehrman, was hurt in part because a number of cases had settled.


That collapse highlights the risk to law firms experimenting with other payment arrangements: If lawyers set too low a price, they lose money. Many lawyers may not be good enough businessmen to pick the right price, said Mr. Krebs, of the Association of Corporate Counsel.


“The difficulty is, we don’t really know what it costs us to do something,” he said. But the biggest stumbling block to alternative fee structures may be the managing partners at law firms, who will have to overhaul compensation structures to reward partners and associates for something other than taking a long time to do something.


“I don’t think law firms have completely come to grips with that issue,” said J. Stephen Poor, managing partner at Seyfarth Shaw in Chicago. “But they need to start coming to grips with it very quickly.”

Pulaski County to break ground for new Judicial Center FEb. 2nd.

Friday, January 30th, 2009
FRANKFORT, Ky. — The public is invited to a groundbreaking ceremony for the planned Pulaski County Judicial Center on Monday, Feb. 2, at 1:30 p.m. The event will take place at the construction site at 52 Public Square in downtown Somerset.

The Kentucky General Assembly authorized the Pulaski County project in 2005 and approved its funding in 2006. The total project cost is $22.4 million. The building will be approximately 78,000 square feet and is expected to be completed in October 2010.

New judicial centers often replace older, vastly inadequate facilities, greatly increasing the efficiency of services and public flow, said Garlan VanHook, executive officer of the Department of Facilities for the Administrative Office of the Courts.

Judge rules that men who didn’t register for draft can hold federal jobs

Tuesday, January 27th, 2009

January 27, 2009
   By Jonathan Saltzman,  Boston Globe Staff
A federal judge in Boston has declared unconstitutional a 1985 law by Congress that bars people from most federal employment if they knowingly failed to register for the draft.
US District Court Judge Douglas P. Woodlock, siding with four men fired by the federal government because they failed to register years earlier, said the law violates a constitutional provision barring the legislative branch from punishing people without a trial.
“I conclude that no circumstances exist that would permit Congress, in contravention of the Constitution’s Bill of Attainder Clause, to prohibit nonregistered males age twenty-six and older from federal agency employment for their lifetimes without judicial decisionmaking,” Woodlock said in a 32-page decision.
The four men, residents of Massachusetts, California, Michigan, and Washington, D.C., want to be rehired and compensated for lost wages. They had worked for agencies ranging from the IRS to the Federal Deposit Insurance Corporation.
“There’s already a criminal statute that says if you don’t register with the Selective Service if you’re required to, you can be indicted, you get a trial, and there’s a punishment for committing a crime,” said the civil rights lawyer for the four men, Harvey Schwartz of Boston. “What you shouldn’t do is have the legislative branch say, ‘You get no trial, you have no opportunity to put up a defense, and here’s how you’re punished.’ “
Schwartz said the statute of limitations for charging someone with a felony for failing to register for the draft had lapsed for all four men. He said at least one of the men was unaware that he had to register more than 20 years ago because he was homeless at the time and was never notified of the requirement.
Woodlock, an appointee of the Reagan administration, plans to hold a hearing Feb. 6 to discuss what happens with the lawsuit. Schwartz said he will seek to have Woodlock certify the suit as a class-action claim on behalf of thousands of other federal employees fired under the same statute.
Schwartz said it is highly unusual for a federal trial judge to declare a law unconstitutional.
“The usual course, when you’re challenging the constitutionality of a federal law, is you lose in the trial court, you might win or lose in the appeals court, and the final decision gets made by the Supreme Court,” Schwartz said. “It’s a big deal for a judge to tell Congress that you violated the Constitution.”
Officials from the Justice Department, which is defending the government in the suit, were not immediately available to comment on the ruling.

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Man Attacks His Lawyer In Court With Feces – He never saw it coming.

Tuesday, January 27th, 2009

January 27, 2009 


SAN DIEGOA mistrial was declared Monday when a home-invasion robbery suspect smeared human feces on his attorney’s face then threw more at the jury. 

Weusi McGowan, 37, was upset because San Diego Superior Court Judge Jeffrey Fraser refused to remove Deputy Alternate Public Defender Jeffrey Martin from the case, prosecutor Christopher Lawson said. 

At the mid-morning break, McGowan produced a plastic baggie filled with fecal matter and spread it on Martin’s hair and face, then flung the excrement toward the jury box, hitting the briefcase of juror No. 9 but missing the juror himself. 

“That juror didn’t even see it coming,” Lawson said. 

The prosecutor said the defendant was compliant after the outburst and was taken into custody without further incident. 

After lunch, Fraser dismissed the jury, telling them McGowan would have to get a new lawyer and that his trial would be delayed. 

The judge scheduled a status conference for Feb. 9 and raised the defendant’s bail from $250,000 to $1 million, finding he is a danger to the community. 

Lawson said McGowan originally became upset last week when he claimed one of the jurors saw him in shackles as he entered the courtroom. Fraser dismissed all jurors who saw the defendant in shackles, the prosecutor said. 

“The judge had been very fair,” Lawson said. “All jurors who saw it were dismissed.” 

Fraser had also denied McGowan’s attempt to represent himself, saying the request was untimely, Lawson said. 

The prosecutor said the defendant had previously wiped human feces on himself and was examined by doctors to ensure he was mentally competent to stand trial. 

McGowan is charged with kidnapping for robbery, assault with a deadly weapon and other counts and could face assault charges in connection with the attack on his attorney and jury, Lawson said. 

The prosecutor said the defendant hit a man with a rock in a sock as the victim came out of his home to investigate a commotion on Oct. 17, 2007. 

McGowan allegedly ransacked the man’s apartment then stole some of the victim’s belongings and took off in the victim’s car. 

He was arrested 20 minutes later, Lawson said. 

U.S. Supreme Court upholds pat down search merely on belief suspect is armed and dangerous

Monday, January 26th, 2009

• Arizona v. Johnson (pdf), a win for police on the Fourth Amendment issue of whether a pat-down search is permissible when the officer has reason to believe a suspect is armed and dangerous, but no cause to believe a crime has been or is being committed

No. 07–1122. Argued December 9, 2008—Decided January 26, 2009
In Terry v. Ohio, 392 U. S. 1, this Court held that a “stop and frisk”may be conducted without violating the Fourth Amendment’s ban onunreasonable searches and seizures if two conditions are met. First, the investigatory stop (temporary detention) must be lawful, a requirement met in an on-the-street encounter when a police officer reasonably suspects that the person apprehended is committing or has committed a crime. Second, to proceed from a stop to a frisk(patdown for weapons), the officer must reasonably suspect that theperson stopped is armed and dangerous. For the duration of a traffic stop, the Court recently confirmed, a police officer effectively seizes “everyone in the vehicle,” the driver and all passengers. Brendlin v. California, 551 U. S. 249, 255. While patrolling near a Tucson neighborhood associated with theCrips gang, police officers serving on Arizona’s gang task forcestopped an automobile for a vehicular infraction warranting a citation. At the time of the stop, the officers had no reason to suspect the car’s occupants of criminal activity. Officer Trevizo attended to respondent Johnson, the back-seat passenger, whose behavior andclothing caused Trevizo to question him. After learning that Johnson was from a town with a Crips gang and had been in prison, Trevizo asked him get out of the car in order to question him further, out ofthe hearing of the front-seat passenger, about his gang affiliation.Because she suspected that he was armed, she patted him down forsafety when he exited the car. During the patdown, she felt the butt of a gun. At that point, Johnson began to struggle, and Trevizo handcuffed him. Johnson was charged with, inter alia, possession of a weapon by a prohibited possessor. The trial court denied his motion to suppress the evidence, concluding that the stop was lawful andthat Trevizo had cause to suspect Johnson was armed and dangerous. 2 Johnson was convicted. The Arizona Court of Appeals reversed. While recognizing that Johnson was lawfully seized, the court foundthat, prior to the frisk, the detention had evolved into a consensualconversation about his gang affiliation. Trevizo, the court therefore concluded, had no right to pat Johnson down even if she had reason to suspect he was armed and dangerous. The Arizona Supreme Court denied review.
Held: Officer Trevizo’s patdown of Johnson did not violate the FourthAmendment’s prohibition on unreasonable searches and seizures. Pp. 5–9.
(a) Terry established that, in an investigatory stop based on reasonably grounded suspicion of criminal activity, the police must bepositioned to act instantly if they have reasonable cause to suspect that the persons temporarily detained are armed and dangerous. 392
U. S., at 24. Because a limited search of outer clothing for weaponsserves to protect both the officer and the public, a patdown is constitutional. Id., at 23–24, 27, 30–31. Traffic stops, which “resemble, induration and atmosphere, the kind of brief detention authorized in Terry,” Berkemer v. McCarty, 468 U. S. 420, 439, n. 29, are “especiallyfraught with danger to police officers,” Michigan v. Long, 463 U. S. 1032, 1047, who may minimize the risk of harm by exercising “ ‘unquestioned command of the situation,’ ” Maryland v. Wilson, 519 U. S. 408, 414. Three decisions cumulatively portray Terry’s application in a traffic-stop setting. In Pennsylvania v. Mimms, 434 U. S. 106 (per curiam), the Court held that “once a motor vehicle has been lawfullydetained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment,” id., at 111, n. 6, because the government’s “legitimate and weighty” interest in officer safety outweighs the “de minimis” additional intrusion of requiring a driver, already lawfully stopped, to exit the vehicle, id., at 110–111. Citing Terry, the Court further held that a driver, once outside the stopped vehicle, may be patted down for weapons if the officer reasonably concludes that the driver might bearmed and dangerous. 434 U. S., at 112. Wilson, 519 U. S., at 413, held that the Mimms rule applies to passengers as well as drivers,based on “the same weighty interest in officer safety.” Brendlin, 551
U. S., at 263, held that a passenger is seized, just as the driver is, “from the moment [a car stopped by the police comes] to a halt on theside of the road.” A passenger’s motivation to use violence during the stop to prevent apprehension for a crime more grave than a trafficviolation is just as great as that of the driver. 519 U. S., at 414. And as “the passengers are already stopped by virtue of the stop of thevehicle,” id., at 413–414, “the additional intrusion on the passenger is minimal,” id., at 415. Pp. 5–7.

(b) The Arizona Court of Appeals recognized that, initially, Johnson was lawfully detained incident to the legitimate stop of the vehicle in which he was a passenger, but concluded that once Officer Trevizo began questioning him on a matter unrelated to the traffic stop, patdown authority ceased to exist, absent reasonable suspicion thatJohnson had engaged, or was about to engage, in criminal activity.The court portrayed the interrogation as consensual, and, Johnson emphasizes, Trevizo testified that Johnson could have refused to exit the vehicle and to submit to the patdown. But Trevizo also testified that she never advised Johnson he did not have to answer her questions or otherwise cooperate with her. A lawful roadside stop beginswhen a vehicle is pulled over for investigation of a traffic violation.The temporary seizure of driver and passengers ordinarily continues,and remains reasonable, for the duration of the stop. Normally, thestop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave. An officer’s inquiries into matters unrelated to the justification for the traffic stop do not convert the encounter into something other than a lawful seizure, so long as the inquiries do not measurably extend thestop’s duration. See Muehler v. Mena, 544 U. S. 93, 100–101. A reasonable passenger would understand that during the time a car islawfully stopped, he or she is not free to terminate the encounterwith the police and move about at will. Nothing occurred in this casethat would have conveyed to Johnson that, prior to the frisk, the traffic stop had ended or that he was otherwise free “to depart without police permission.” Brendlin, 551 U. S., at 257. Trevizo was not required by the Fourth Amendment to give Johnson an opportunity to depart without first ensuring that, in so doing, she was not permitting a dangerous person to get behind her. Pp. 7–9.
217 Ariz. 58, 170 P. 3d 667, reversed and remanded.
GINSBURG, J., delivered the opinion for a unanimous Court

Supreme Court Upholds Prosecutorial Immunity for Official Actions

Monday, January 26th, 2009

• Van de Kamp v. Goldstein (pdf), a strong endorsement of prosecutorial immunity from liability for official actions.

Cite as: 555 U. S. ____ (2009)


No. 07–854. Argued November 5, 2008—Decided January 26, 2009
Respondent Goldstein was released from a California prison after hefiled a successful federal habeas petition alleging that his murder conviction depended, in critical part, on the false testimony of a jailhouse informant (Fink), who had received reduced sentences for providing prosecutors with favorable testimony in other cases; that prosecutors knew, but failed to give his attorney, this potential impeachment information; and that, among other things, that failure had led to his erroneous conviction. Once released, Goldstein filed this suit under 42 U. S. C. §1983, asserting the prosecution violatedits constitutional duty to communicate impeachment information, see Giglio v. United States, 405 U. S. 150, 154, due to the failure of petitioners, supervisory prosecutors, to properly train or supervise prosecutors or to establish an information system containing potential impeachment material about informants. Claiming absolute immunity, petitioners asked the District Court to dismiss the complaint, but thecourt declined, finding that the conduct was “administrative,” not“prosecutorial,” and hence fell outside the scope of an absolute immunity claim. The Ninth Circuit, on interlocutory appeal, affirmed.
Held: Petitioners are entitled to absolute immunity in respect to Goldstein’s supervision, training, and information-system management claims. Pp. 3–12.
(a) Prosecutors are absolutely immune from liability in §1983 suitsbrought against prosecutorial actions that are “intimately associatedwith the judicial phase of the criminal process,” Imbler v. Pachtman, 424 U. S. 409, 428, 430, because of “concern that harassment by unfounded litigation” could both “cause a deflection of the prosecutor’s energies from his public duties” and lead him to “shade his decisions instead of exercising the independence of judgment required by his public trust,” id., at 423. However, absolute immunity may not applywhen a prosecutor is not acting as “an officer of the court,” but is instead engaged in, say, investigative or administrative tasks. Id., at 431, n. 33. To decide whether absolute immunity attaches to a particular prosecutorial activity, one must take account of Imbler’s “functional” considerations. The fact that one constitutional duty in Imbler was positive (the duty to supply “information relevant to thedefense”) rather than negative (the duty not to “use . . . perjured testimony”) was not critical to the finding of absolute immunity. Pp. 3–
(b) Although Goldstein challenges administrative procedures, they are procedures that are directly connected with a trial’s conduct. A prosecutor’s error in a specific criminal trial constitutes an essentialelement of the plaintiff’s claim. The obligations here are thus unlike administrative duties concerning, e.g., workplace hiring. Moreover, they necessarily require legal knowledge and the exercise of relateddiscretion, e.g., in determining what information should be includedin training, supervision, or information-system management. Given these features, absolute immunity must follow. Pp. 6–12.
(1) Had Goldstein brought a suit directly attacking supervisory prosecutors’ actions related to an individual trial, instead of one involving administration, all the prosecutors would have enjoyed absolute immunity under Imbler. Their behavior, individually or separately, would have involved “[p]reparation . . . for . . . trial,” 424 U. S.,at 431, n. 33, and would have been “intimately associated with the judicial phase of the criminal process,” id., at 430. The only difference between Imbler and the hypothetical, i.e., that a supervisor or colleague might be liable instead of the trial prosecutor, is not critical. Pp. 7–8.
(2) Just as supervisory prosecutors are immune in a suit directly attacking their actions in an individual trial, they are immune here. The fact that the office’s general supervision and training methodsare at issue is not a critical difference for present purposes. The relevant management tasks concern how and when to make impeachment information available at trial, and, thus, are directly connectedwith a prosecutor’s basic trial advocacy duties. In terms of Imbler’s functional concerns, a suit claiming that a supervisor made a mistakedirectly related to a particular trial and one claiming that a supervisor trained and supervised inadequately seem very much alike. The type of “faulty training” claim here rests in part on a consequent error by an individual prosecutor in the midst of trial. If, as Imbler says, the threat of damages liability for such an error could lead a trial prosecutor to take account of that risk when making trialrelated decisions, so, too, could the threat of more widespread liabil ity throughout the office lead both that prosecutor and other office prosecutors to take account of such a risk. Because better training or supervision might prevent most prosecutorial errors at trial, permission to bring suit here would grant criminal defendants permission tobring claims for other trial-related training or supervisory failings. Further, such suits could “pose substantial danger of liability even tothe honest prosecutor.” Imbler, 425 U. S., at 425. And defendingprosecutorial decisions, often years later, could impose “unique and intolerable burdens upon a prosecutor responsible annually for hundreds of indictments and trials.” Id., at 425–426. Permitting this suit to go forward would also create practical anomalies. A trial prosecutor would remain immune for intentional misconduct, whileher supervisor might be liable for negligent training or supervision. And the ease with which a plaintiff could restyle a complaint charging trial failure to one charging a training or supervision failure would eviscerate Imbler. Pp. 8–11.
(3) The differences between an information management system and training or supervision do not require a different outcome, for the critical element of any information system is the information it contains. Deciding what to include and what not to include is little different from making similar decisions regarding training, for it requires knowledge of the law. Moreover, were this claim allowed, a court would have to review the office’s legal judgments, not simply about whether to have an information system but also about what kind of system is appropriate, and whether an appropriate systemwould have included Giglio-related information about one particular kind of informant. Such decisions—whether made before or duringtrial—are “intimately associated with the judicial phase of the criminal process,” Imbler, supra, at 430, and all Imbler’s functional considerations apply. Pp. 11–12.
481 F. 3d 1170, reversed and remanded.
BREYER, J., delivered the opinion for a unanimous Court

U.S. Supreme Court protects employees who report sexual discrimination claims under Title VII retaliation rules

Monday, January 26th, 2009

Jan. 26, 2009 

Employees who cooperate with an internal investigation of sexual harassment are protected from retaliation under Title VII of the Civil Rights Act, the Supreme Court held Monday. 

The case—see: Crawford v. Metropolitan Government of Nashville and Davidson Cty.- involved a school system employee who alleges she was terminated because she agreed to be interviewed about allegations of sexual harassment made by several employees against a director. The school system took no action against the director, but fired Ms. Crawford, alleging embezzlement and drug use, in early 2003. 

Ms. Crawford denied the charges and filed suit under Title VII, but a U.S. district court and a three-judge panel of the U.S. 6th Circuit Court of Appeals granted the school system summary judgment on the basis that Ms. Crawford had not initiated any complaint before the internal investigation. After the appeals court’s 2006 decision, Ms. Crawford appealed to the high court, which heard oral arguments in the case last October. 

A unanimous Supreme Court reversed the appeals court. Associate Justice David Souter wrote for the court: “If it were clear law that an employee who reported discrimination in answering an employer’s questions could be penalized with no remedy, prudent employees would have good reason to keep quiet about Title VII offenses against themselves or against others.” Associate Justices Samuel Alito and Clarence Thomas filed a concurring opinion. 


Proposed Video Lottery Terminals may not generate the same revenue as real Slot Machines

Sunday, January 25th, 2009

   Proposed Video Lottery Terminals may not generate the same revenue as real Slot Machines –may not be the answer
By LawReader senior editor stan billingsley jan. 24, 2009
House Speaker Greg Stumbo has introduced House Bill 158 to allow video terminal gambling at state race tracks.  These may not be as popular as real slot machines in a casino format placed at locations which will draw traffic.

Representative Arnold Simpson of Covington has suggested that the provision of this bill to limit their placement only at race tracks is not to his liking and he wishes to permit the construction of a casino in the Covington area on the River in order to entice out of state customers from Cincinnati, Ohio.

The full text of Stumbo’s pending bill may be read at: Stumbo Bill

    The Video Lottery Terminals, proposed in HB 158,  appear to be based on a lottery system where each player at a terminal plays against other players then in the casino and also playing.  This means that the jackpots are based on a different scheme than regular slot machines.   We have seen such a system in a casino in Florida and were of the opinion that they weren’t as popular with the customers as regular slot machines. It this is true in Kentucky, then the Video Terminal aspect of the Stumbo bill may not generate the income predicted for casinos with real slot machines.

Video Lottery Terminal or VLT is a gaming machine that allows gamblers to bet on the outcome of a video game.
A VLT is similar to a slot machine, except that it is connected to a centralized computer system that determines the outcome of each wager using a random number generator. Although the outcome of each wager is random, VLT operators are able to program in advance the total amount and number of payouts that its central computer system will allow at its connected VLTs. In this manner, VLTs can be thought of as computerized scratch-off lottery tickets.
The payouts offered by VLTs are invariably poor. For example, in Las Vegas most slot machines offer a theoretical payout of approximately 98 cents for every dollar they take in (98%). By contrast, Canadian VLTs pay out 74% of their intake, on average. In Saskatchewan, the VLTs pay out 93% of total cash in.
Most US jurisdictions do not allow VLTs and those that do have attracted the same criticism the Canadian provinces have. However, some non-players have expressed tolerance for the machines.
In certain jurisdictions, VLTs are known as Video Gaming Devices (VGD) or Video Slot Machines. Most VLTs are multi-game devices, allowing the players to select, from an on-screen menu, the game(s) they wish to play. They are also known as poker machines and fruit machines in some areas.
   If the Kentucky Legislature is serious about raising revenue then it is within their power to simply adopt legislation authorizing casino type gambling and avoid the Video Terminal concept.

    Greg Stumbo, while Attorney General, issued a legal opinion that opines that a constitutional amendment is not necessary to authorize gambling in Kentucky.   This opinion is based on a decision of the states highest court and is detailed in the following article.  We believe that Stumbo had it right the first time and is making a mistake by seeking approval of VLT’s instead of going for slot machines and a traditional casino format.  

The following article discusses Stumbo’s previous AG’s opinion, which shows a strong legal basis for the legislature to be able to introduce Casino style gambling without trying to shoehorn  VLT’s into the “lottery” exception.

His AG opinion is based on the premises that the 1891 constitutional prohibition “against gambling” in Kentucky was only targeted at “lotteries” and all current prohibitions against gambling are statutory in nature.  Therefore the Legislature may authorize casinos if they chose to do so.

There is case law that supports the conclusion that Kentucky does not need a Constitutional Amendment to permit the licensing of Casino Gambling
By LawReader Senior Editor Stan Billingsley – Feb. 7, 2008
Gov. Beshear made his support for a constitutional referendum to allow casino gambling a mainstay of his successful campaign for Governor in 2007.  That issue as advanced by Gov. Beshear is based on the assumption that a constitutional amendment is necessary to permit the legislature to authorize and license casino gambling in Kentucky.
The belief that a constitutional amendment is required is based on an interpretation of Section 226 of the Ky. Constitution which has language that from l891 until l992 prohibited the establishment of “lotteries” in Kentucky.  In l992 the public adopted a constitutional amendment that permits a state operated lottery.
Section 226 of the Kentucky constitution did not outlaw other forms of gambling in the 1891 section or in the amended section adopted in l995.
There is no specific provision of the Ky. Constitution that prohibits gambling in general, or that specifically prohibits other types of gambling including casino type gambling. 
If gambling was prohibited by the constitution we would ask, how is it that pari-mutual betting has been historically allowed?  The obvious answer is that pari-mutual betting at race tracks is a statutory creation and that casino gambling can also be authorized by an act of the legislature.
In fact the legislature has through the adoption of KRS Chapter 528 outlawed many forms of gambling.  These statutory enactments can just as easily be amended by the legislature to permit casino style gambling.
The statutes that outlaw casino style gambling are found at:
KRS 528.010 Definitions for chapter.
KRS 528.020 Promoting gambling in the first degree.
KRS 528.030 Promoting gambling in the second degree.
KRS 528.040 Conspiracy to promote gambling.
KRS 528.070 Permitting gambling.
KRS 528.080 Possession of gambling device.
Conclusion: Since the legislature can regulate gambling under its police powers, it can authorize gambling under the same authority.
   In 2005, then Attorney General Greg Stumbo was asked by State Senator Ed Worley (D)-Richmond to review this very issue.
That opinion has been largely neglected, we believe, because the public perception, which was wrong, strongly concluded that the constitution clearly prohibited casino gambling.  It one takes the time to actually read Section 226, that conclusion is debunked.
Perhaps it is time to pull up that AG opinion (OAG 05-003) and really read what it says.
We have done so, and we find the arguments persuasive, and well founded in the law.
The opinion notes that when the l891 constitution was adopted that many forms of gambling were occurring throughout Kentucky.  There was however a long history of abusive lottery schemes in which the prize was often not given out even though the members of the public had bought a lottery ticket.  These abusive unregulated lottery schemes were the target of Section 226.  
The opinion concludes, “The framers of the Constitution clearly rejected the inclusion of other forms of gaming within the prohibition of “lotteries”, as defined above, when Ky. Const. Section 226 was passed. Hence, “lotteries” are constitutionally distinct from other forms of gambling.”
The opinion cites a ruling of the old Court of Appeals (then the highest court in Kentucky) handed down in l931 which demonstrates that the prohibition of other forms of gambling were considered by the Constitutional Convention of l891 and rejected. In that opinion the court upheld the legality of pari-mutual betting on horse races and found it was one of the other forms of gambling not prohibited by Section 226:
Opinion OAG 05-003:  “The legal issue of the scope of the prohibition in Section 226 was not squarely presented to Kentucky’s Court of Appeals until 1931 in the case of Commonwealth v. Kentucky Jockey Club, Inc., 238 Ky 739, 38 SW2d 987 (1931).
The Court drew directly upon the Debates of the Constitutional Convention and found:
At the time section 226 was being considered in the convention that framed the Constitution, an amendment was proposed forbidding every species of gambling. Volume 1. Debates of Constitutional Convention p.1172. The delegate who proposed the amendment was asked whether his proposition embraced the prohibition of betting upon the speed of horses, to which he responded that it was his purpose to forbid all species of gambling and all games of chance in every conceivable form. He argued that all gambling was equally wrong, and that it was unfair to denounce gambling in the form of a lottery and to countenance it in other forms, such as betting upon horse races, and the like. The delegate from Lexington argued that it was not the appropriate place to deal with pooling privileges upon race courses, and other forms of gambling, because lotteries theretofore had been licensed by the Legislature, and the object of the pending section was not to deal with any other species of gambling, but to prohibit the Legislature from granting licenses to lotteries. The amendment was rejected, thus indicating that it was the intention of the Convention not to include in section 226 anything but lotteries of the type familiar at the time.” Id. at 993. “
     The Attorney General’s Opinion makes a compelling and we think convincing argument that the state is not prohibited by any constitutional provision of the current constitution from adopting legislation permitted the licensing and regulation of casino gambling in the Commonwealth of Kentucky.
     David Williams, Majority Leader of the Kentucky State Senate is against a referendum to allow the public consider casino gambling. He says he will not prevent a vote on the issue but suggests that the issue will not garner enough votes in the senate.
That may well be the case.   Such opposition would almost surely derail any attempts at statutory legislation to allow casino gambling.  Nevertherless, the issue we address is that the legislature could remedy the current revenue shortfall by adoption of such legislation and permit this new form of revenue to begin rolling in during the next fiscal year.
(Below we provide a news article providing a synopsis of  OAG 05-003, and below that is a full text of OAG 05-003, and below that are the current provisions of KRS Chapter 528 that demonstrate the only laws that prohibit the establishment of casino gambling.)
News Article from March 21, 2005:
Attorney General Stumbo Finds Legislature Can Expand Gambling in Kentucky Without a Constitutional Amendment
FRANKFORT, KY (March 21, 2005) – Attorney General Greg Stumbo today released the (see below), requested by State Senator Ed Worley (D-Richmond.)
Worley requested the Attorney General’s opinion on the following question: Within the Constitution of Kentucky, are there limitations or prohibitions on the authority of the General Assembly to enact statutory language authorizing the expansion of gambling in Kentucky?
In his response, Attorney General Stumbo cited Section 226(3) of the Kentucky Constitution which prohibits the General Assembly from sanctioning a “lottery”, but stated that there is no constitutional prohibition which limits the General Assembly from authorizing and regulating other forms of gambling.
In his opinion request, Worley also asked Stumbo if the Kentucky Constitution distinguished between the forms of expanded gambling which would restrict the General Assembly from expanding gambling into any specific areas. Stumbo’s opinion states that only lotteries are a prohibited form of gambling under the Kentucky Constitution.
Language from the Debates of the Constitutional Convention of 1890, and later court cases, clearly indicates that horse racing and other forms of gambling are not unconstitutional, Stumbo found.
Four prior opinions of the Office of the Attorney General interpret the prohibitions placed on “lotteries”, “gift enterprises” and “schemes for similar purpose” to include other types of gambling. However, Attorney General Stumbo said, “It was time for a fresh and reasoned review of case law and the origins of gambling restrictions upheld in our Constitution in light of the questions posed by Senator Worley. To the extent that past opinions of this Office are in conflict with this opinion, they are overruled.”
“There are a lot of questions as to the Constitutional restrictions,” said Senator Worley. “I posed the question to the Attorney General from an informational standpoint. I believe that all of the members of the General Assembly, as well as the public, need to have an understanding as to what our Constitution permits so we can make a decision on how we want to proceed on this issue.”

Attorney General’s Opinion issued in 2005 by then A.G. Greg Stumbo
OAG 05-003
March 21, 2005
Subject: Constitutional limits upon the authority of the General Assembly to pass statutes which expand gambling in Kentucky.
Requested by: Mr. Ed Worley, State Senator, 34th Senatorial District
Written by: Robert S. Jones, Assistant Attorney General
Syllabus: Section 226(3) of the Kentucky Constitution prohibits “lotteries” or “schemes” which distribute money or other things of value purely by chance among persons who have paid for the chance to share in the distribution. Other forms of gambling were intentionally excluded from this prohibition.
Statutes construed: Ky. Const. Section 226(3)
OAGs cited: 80-409, 92-127, 93-58, 99-8
Opinion of the Attorney General
Senator Ed Worley requests the Attorney General’s opinion on the following questions:
1) Within the Constitution of Kentucky, are there limitations or prohibitions on the authority of the General Assembly to enact statutory language authorizing the expansion of gambling in Kentucky?
Answer: Qualified Yes. Ky. Const. Section 226(3) would prohibit the General Assembly from sanctioning a “lottery”, defined as a species of gambling, and described as a scheme for the distribution of prizes or things of value, purely by lot or by chance, among persons who have paid, or agree to pay, a valuable consideration, for the chance to share in the distribution, except as specifically authorized by Ky. Const. Section 226(1) and (2). There is no constitutional prohibition which limits the General Assembly from authorizing and regulating other forms of gambling.
2) Further, does the Kentucky Constitution distinguish between the forms of expanded gambling to restrict the General Assembly in any specific area of such expansion?
Answer: Yes. The framers of the Constitution clearly rejected the inclusion of other forms of gaming within the prohibition of “lotteries”, as defined above, when Ky. Const. Section 226 was passed. Hence, “lotteries” are constitutionally distinct from other forms of gambling.
These questions touch directly upon issues addressed by four prior opinions of the Office of the Attorney General, 80-409, 92-127, 93-058 & 99-8, which interpret the prohibition Ky. Const. Section 226(3) places upon “lotteries”, “gift enterprises”, and “schemes for similar purpose”. Because those opinions differ materially as to the breath of this constitutional limitation upon the General Assembly’s authority to enact various gambling laws, analysis of inconsistent opinions of past Attorneys General is of no benefit. Instead, a fresh and reasoned review of the origins of Section 226(3) and the case law which interprets the section is necessary to answer the questions posed.
The history of Section 226 of the Kentucky Constitution

Historically, the prohibition of lotteries was seen as ethically and morally distinct from other forms of gambling. In 1850 the U.S. Supreme Court wrote:
Experience has shown that the common forms of gambling are comparatively innocuous when placed in contrast with the widespread pestilence of lotteries. The former are confined to a few persons and places, but the lottery infests the whole community; it enters every dwelling; it reaches every class; it preys upon the hard earnings of the poor; it plunders the ignorant and simple.”
Phalen v. Virginia, 8 Howard 163, 12 L Ed 1030, 1033 (1850).
Thirty years later, the Court reflected on that statement and said:
They [lotteries] are a species of gambling, and wrong in their influences. They disturb the checks and balances of a well-ordered community. Society built on such a foundation would almost of necessity bring forth a population of speculators and gamblers, living on the expectation of what, ‘by the casting of lots, or by lot, chance, or otherwise,’ might be ‘awarded’ to them from the accumulations of others.
Stone v. Mississippi, 101 US 814, 818, 25 L Ed 1079 (1880).
In the early 1890s, when the current Kentucky Constitution was drafted and adopted, it is clear that the drafter’s understanding of a lottery was a system in which players wager that a particular number will be selected in a random drawing. At the time it was still the practice of the Commonwealth “to grant privilege to certain gentlemen to raise money by lottery…” This authority was conferred by the “act of 1838, and the amendatory act of 1869.”
Commonwealth v. Douglas, 100 Ky. 116, 24 S.W. 233 (1893).
In Douglas, supra, the Court of Appeals of Kentucky considered a challenge under the “contracts clause” of the U.S. Constitution to Section 226 of the newly written Kentucky Constitution by those who had purchased licenses to operate lotteries. The breath of the prohibition was not in question since the license holders clearly operated “lotteries” as the term was contemplated in the law of the time; however, language within the opinion provides a contemporaneous view of the people and practices Section 226 was intended to address:
We have, for instance, at this day, men confined in the state penitentiary for setting up and carrying on gambling shops whose tendencies are not much more demoralizing, if any, than the licensed lottery operator, who goes free under the protection of the law. Id. at 234.
Hence, the operation of “gambling shops” was seen as distinct from the gaming operated by the licensed lottery operator.
The legal issue of the scope of the prohibition in Section 226 was not squarely presented to Kentucky’s Court of Appeals until 1931 in the case of Commonwealth v. Kentucky Jockey Club, Inc., 238 Ky 739, 38 SW2d 987 (1931).
The Court drew directly upon the Debates of the Constitutional Convention and found:
At the time section 226 was being considered in the convention that framed the Constitution, an amendment was proposed forbidding every species of gambling. Volume 1. Debates of Constitutional Convention p.1172. The delegate who proposed the amendment was asked whether his proposition embraced the prohibition of betting upon the speed of horses, to which he responded that it was his purpose to forbid all species of gambling and all games of chance in every conceivable form. He argued that all gambling was equally wrong, and that it was unfair to denounce gambling in the form of a lottery and to countenance it in other forms, such as betting upon horse races, and the like. The delegate from Lexington argued that it was not the appropriate place to deal with pooling privileges upon race courses, and other forms of gambling, because lotteries theretofore had been licensed by the Legislature, and the object of the pending section was not to deal with any other species of gambling, but to prohibit the Legislature from granting licenses to lotteries. The amendment was rejected, thus indicating that it was the intention of the Convention not to include in section 226 anything but lotteries of the type familiar at the time.” Id. at 993.
The Court approached the issue by adopting a textbook definition of “lottery”:
A lottery, it is said, is a species of gambling, described as a scheme for the distribution of prizes or things of value, by lot or by chance, among persons who have paid, or agree to pay, a valuable consideration, for the chance to share in the distribution… Id. at 992.
Consequently, the Court refused to strike down laws allowing pari-mutuel betting on horse races. In doing so the parameters of legislative authority were delineated as follows:
That all forms of gambling are evil and characterized by vicious tendencies does not alter the fact of the individuality of each type. We are unable… to declare that the section of the Constitution condemning lotteries was understood by the people who adopted it as itself outlawing betting upon horse races, by the pari-mutual system, or the other forms of betting. It was then understood, as has been the accepted opinion, that the subjects of betting and gaming were within the absolute control of the police power, possessed by the legislature. It is the duty and function of the legislature to discern and correct evils, and evils within that power are not limited to some definite injury to public safety or morals, but embrace the removal of obstacles to a greater public welfare. (emphasis added)
Id. at 994.
Subsequent Case law
Since the Kentucky Jockey Club opinion, Kentucky’s highest court has addressed questions compelling it to define “lottery” under Section 226 on four occasions. In two of those cases, Worden v. City of Louisville, 279 Ky. 712, 131 S.W.2d 923 (1939), and Commonwealth v. Malco-Memphis Theatres, Inc., 293 Ky. 531, 169 S.W.2d 596 (1943), the court faced factual situations which clearly implicated the conduct of a “lottery” as that term was traditionally defined. The Worden opinion addresses a tailor shop which provided chances to win a weekly drawing. The Malco-Memphis Theatres case dealt with a ticket drawing to win a prize. In both, the court relied on the definition of a “lottery” identified in the Kentucky Jockey Club opinion and held the practices violated the law. In fact, the defense in Malco-Memphis Theatres conceded the drawings were lotteries, and argued instead that the participants had not paid consideration to enter insofar as the cost of the tickets did not exceed the normal cost for services.
The most recent case to address the lottery provision within Section 226 is Otto v. Kosofsky, Ky., 476 S.W.2d 626 (1971). That opinion addressed the constitutionality of a statute known as the “Bingo Licensing Act.” The court found that bingo fit the traditional definition of a “lottery” as envisioned by the drafters. But, despite the basic holding which reiterated the definition of lottery as “consisting of a scheme for distribution of prizes or things of value purely by lot or chance,” the opinion also cites to an ambiguous quote from A. B. Long Music Company v. Commonwealth, Ky., 429 S.W.2d 391 (1968), which could be interpreted as defining a “lottery” more broadly. A. B. Long Music Company is the sole opinion in the line of Kentucky precedent on the issue which suggests that the term “lottery” might be interpreted as a generic term which extended beyond the intention expressed by the drafters of the Constitution.
In A. B. Long Music Company, supra, the Commonwealth had impounded pinball machines pursuant to KRS 436.280. Impoundment was the enforcement mechanism for KRS 436.230 which prohibited “setting up, keeping, managing, operating or conducting a keno bank, faro bank or other machine or contrivance used in betting.” These statutes clearly authorized the actions taken by the Commonwealth and ultimately constitute the legal basis for the decision. Nevertheless, in dicta, the court addressed the definition of the word “lottery” as used within Section 226. Citing to a number of out of state cases, the court referenced the fact that bingo, beano, keno and lotto are simply variations upon the same game which fall under the generic term “lottery.” Indeed, this is true, but this fact is not relevant to the determination that the pinball machines were a “machine or contrivance used in betting” thereby supporting the State enforcement action under KRS Chapter 436.
Since the A. B. Long Music Company opinion fails to account for existing legal precedent surrounding Section 226, the only wisdom which should be drawn from the opinion is that regardless of its name, if the game meets the traditional test of a “lottery”, as bingo, beano, keno and lotto do, then those games would be forbidden under Section 226 as “similar schemes.” It is this language which the Otto, supra, opinion draws upon in finding that the Bingo Licensing Act was unconstitutional, and not the language which addresses the possibility that the term “lottery” may encompass a meaning beyond that intended by the framers of the Constitution.
Although more than 65 years have passed since the Kentucky Jockey Club, Inc. opinion was entered, it still provides the most thoughtful and relevant analysis of the questions at hand. Case law on the issue since that time, and up to the most recent published decision in 1971, has continued to recognize that the prohibition of “lotteries” under Section 226(3) of the Kentucky Constitution applies only to that subcategory of gaming traditionally identified as “lotteries”. Such “lotteries” are generally characterized by the purchase of a card or ticket which entitles the holder to a prize should, purely by chance or lot, the numbers, letters, or symbols on the ticket match a winning combination. These types of games are known by many names, bingo, beano, keno and lotto, as well as in slang references such as “numbers games”, yet they each carry the recognizable indicia of a “lottery” and therefore fall within the prohibition in Section 226(3).
Opinions of past Attorneys General have attempted to define “lottery” by analyzing the nature of “chance” employed by various games by weighing the relative significance of skill or luck necessary to win. However, the case law is clear; to be a “lottery” the winner must be chosen “purely by chance.” Other OAG opinions have questioned whether the traditional definition of a “lottery” will be sufficient the carry out the intention of the framers as new games are invented using new technology. Yet, this has not been a problem over the past 113 years. Moreover, the debates between the framers of the Constitution lay bare their intention to address a specific and easily identifiable problem, the sale of lottery licenses, when they drafted Section 226. They were aware that existing statutory laws made other types of gambling illegal when they rejected the amendment offered to broaden the lottery prohibition to all forms of gambling. It is therefore reasonable to conclude the framers of the Constitution were confident gambling would continue to be effectively regulated by statute, and further that statutory law, which is inherently more flexible than the dictates of a constitution, was the best way to regulate other forms of gambling in the future.
To the extent that past OAG opinions are in conflict with this opinion they are overruled.


Livingston, Carlisle and Trigg Counties will open new courthouses in the next 18 months.

Sunday, January 25th, 2009

The new $6.8 million Livingston County Justice Center is expected to open Feb. 2 to replace a facility built in 1845, one of the oldest in the state.

The $10.5 million Trigg County Judicial Center is expected to open in June after two years of construction on the site of the demolished old courthouse.
Carlisle County expects to have a new courthouse by summer 2010, replacing a building that burned down in December 2007.

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Kentucky Court of Appeals issues 24 important decisions on Jan. 23.

Saturday, January 24th, 2009

LawReader subscribers may view these decisions with synopsis at: COURT OF APPEALS DECISIONS FOR JAN. 23, 2009   – Non-subscribers may sign up at:  SIGN UP – PRICING
inadequate findings of fact to support child visitation limitation-physical health of parent can be considered
release of 911 call on open records request
child custody presumption – court can consider smoking around child by parent in determining best interest of child
alj is finder of facts-substantial evidence supports finding
11.42 motion
worker’s compensation-appellant died and attorney did not inform court-jurisdiction of court of appeals when action  is abated by death of party- procedure for revival of claim-dismissal of Boards order        
appeal improper as appellee was not party to underlying civil action
harmless error regarding statement by judge and deputy
review standard for restitution order of trial court
probable cause to make traffic stop of suspect      
jurisdiction for custody and visitation may be different than jurisdiction for child support – the theory of ‘divisible divorce’
60.02 motion-11.42 motion-recusal of judge-error for court to allow prosecutor to be witness-evidentiary hearing required on remand
unprofessional conduct by attorneys in briefs- trafficking in drugs includes exchange without monetary consideration



Friday, January 23rd, 2009

Jan. 23, 2009
The Court of Appeals in a Madison County case  (Joshua Spivey v. Commonwealth) sent a warning about unprofessional and inappropriate language in appellate briefs submitted in the  case.  The appellate decision was issued on Jan. 23, 2009. It is posted as Case No. 16 on LawReader. Members can access the case at:  COURT OF APPEALS DECISIONS FOR JAN. 23, 2009 .

The opinion was authored by Chief Court of Appeals Judge Sara Combs. Judge Wine concurred, and Senior Judge Buckingham concurred only in the result.
The court was upset over the unnecessary language in which the attorneys critized the other.
The opinion didn’t specify which attorney said what, but they listed the names of the attorneys at the end of the opinion as follows:

Gene Lewter
Department of Public Advocacy
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky    (The Attorney General does not usually write briefs and his name is included due to his status as the Attorney General.)
James C. Maxson
Assistant Attorney General
Frankfort, Kentucky
Chief Judge Sara Combs wrote:
“The briefs of both counsel contain numerous examples of unprofessional and inappropriate language; in some instances, counsel engaged in personal attacks on one another.
In another, a crude parody involving opposing counsel’s name was inserted. In one instance, counsel referred to an opposing argument as “silly.”
One of the briefs also contains unnecessary and extraneous attempts at metaphors that do not constitute arguments of law.
Sarcastic language and insidious innuendoes have no place in any legal document – be it briefs of counsel or opinions of a court. Since both sides have acted in pari delicto, we have declined to strike the briefs or to protract this appeal by ordering the filing of new briefs that conform with the basic tenets of professionalism.
However, we trust that future admonition along these lines will never again be necessary”

Popular Louisville attorney Margaret “Maggie” Keane, has won election as Vice-President of the Kentucky Bar Association.

Friday, January 23rd, 2009

Results certified this week show that Keane beat Manchester lawyer Scott Madden in the race for vice president by a vote of 2,400 to 2,084.  The election places Keane in line to be the next President of the KBA.

Madden an attorney from Manchester, Kentucky, made an impressive run for the office considering the advantage shared by lawyers from large law firms and large cities.
Keane’s candidacy drew attention after attorney Ann Oldfather, her adversary in a strip-search case involving a Bullitt County McDonald’s restaurant, sent a letter to about 600 lawyers last month. It alleged that Keane knowingly misled the court in that case when she said all documents concerning prior strip searches at McDonald’s stores had been turned over to the plaintiff’s legal team.
Keane declined to respond at the time, other than to note that the trial judge in the case summarily denied Oldfather’s motions for sanctions against Keane and other lawyers for McDonald’s.  Several prominent attorneys came to the defense of Keane and pointed out in letters to the editor of the Courier Journal that the trial court had also heard claims against Oldfather about withholding of discovery.  The court refused to find that either party had withheld discovery.

Ky. Supreme Court releases 36 important decisions for January.

Thursday, January 22nd, 2009

If you aren’t staying current in Kentucky appellate court rulings you will quickly fall behind on the state of the law.

The Kentucky Supreme Court issued 36 important rulings on Jan. 22, 2009.
The following LawReader keywords show the diversity of these decisions.

Three kba attorney discipline rulings

no attorney fee for collecting unpaid worker’s compensation award

no offset to employer for pension benefits received by disabled worker who took early retirement     
Worker’s compensation claim denied- video surveillance upheld
worker’s compensation-harmful changes from work-related injury-physicians use of legal terms does not determine legal effect-work related trauma-preexisting condition  aroused

worker’s compensation- employer has burden to prove defenses to liability-worker entitled to be compensated for entire impairment caused by injury
interlocutory appeal from condemnation action

duty of trustee-notice to beneficiaries- not court’s duty to rewrite statute – a trustee has a duty to inform contingent beneficiaries of their potential interests – late notice better than no notice   

right of warning order attorney to be awarded a fee even against indigent-court’s duty to award fee and assist in collection

duty to warn independent contractors of asbestos exposure- clarification of prior rulings-slip and fall theories not adopted-summary judgment

contested annexation  city of prospect vs. louisville metro government
subrogation rights- duty not to interfere with insurer’s ability to protect itself – statute of limitations- insurer may not avoid policy if insured fails to bring suit

wrongful discharge claims re: union organizing activities preempted from state action by NLRA   

columbus day legal holiday –fact that courts stay open does not affect tolling of appeal time on legal holiday

arbitration agreement must require arbitration in Kentucky – interlocutory relief allowed when court has no jurisdiction to enforce out of state arbitration award

trial procedural errors –separation of trials-404-B testimony harmless error-jury strikes-failure to object

opening the door- commonwealth withholding of discovery –serious physical injury proven by medical records-

closing argument-send a message-palpable error-bifurcated trial requires restatement of objection at each portion of trial to preserve error-pfo conviction reversed

amendment of indictment improper in this case

combination instruction-proof of impairment in driving under the influence
jurisdiction of supreme court to hear commuted death sentence – 11.42 appeal procedure after direct appeal – definition of Rule- Retroactive application of rules

reading from citation-narration of video tape-playing two video tapes of chase not cumulative-definition of reasonable doubt   

exception to miranda- prosecutorial misconduct-proportionality of 50 year sentence – proof allowed in guilt phase vs. sentencing phase-inference allowed in pfo finding

error for police officer to interpret audio tape for jury when he was not party to call

judges contact with juror –hearsay not error as it was merely cumulative –duty to advise court of action requested when making an objection
court adopts old chief rule – defendant has right to stipulate to prior felony and commonwealth may not provide details of prior offense

double jeopardy –jury instructions unclear

when jeopardy attaches – double jeopardy-mistrial standards-palpable error review

continuance-palpable error review

double jeopardy of acts of sexual abuse – intent may be inferred

Members may access these cases at: KY. SUPREME COURT DECISIONS FOR JANUARY 22, 2009   

Non-members may sign up and access all decisions and synopsis go to: SIGN UP – PRICING 

Ky. Ct. of Appeals Overrules Seizure of Internet Gambling Domains

Wednesday, January 21st, 2009

Details have emerged on the ruling handed down late Tuesday by the Kentucky Court of Appeals which overturned a decision by the Franklin Circuit Court to seize and possibly confiscate 141 online gambling domains belonging to owners throughout the world.
The Interactive Media Entertainment and Gaming Association (iMEGA), one of the main challengers to the Kentucky state government’s “unprecedented attempt to interfere with the freedom of the Internet”, has issued a statement giving details of the findings of the panel of three Appellate judges who considered the case.
In a 2-to-1 majority opinion, the court ruled against Judge Thomas D. Wingate (No. 2008-CA-002000-OA), by blocking the seizure orders issued by the Franklin circuit court judge for the domain names, all related to Internet gambling (Commonwealth of Kentucky, Franklin Circuit Court, Division II, 08-CI-1409).
Judge Michelle M. Keller, in her majority opinion, found that Internet domain names for online gambling Web sites were not illegal “gambling devices” by Kentucky law, as had been claimed by attorneys representing the Commonwealth, in their attempt to seize control of the names from their owners. Judge Keller stated that while the Kentucky legislature could have chosen to include Internet domain names in its gambling devices law, it had not, therefore the Commonwealth could not rightfully proceed with its forfeiture action.

“Regardless of our view as the advisability of regulating or crimininalizing Internet gambling sites, the General Assembly has not seen fit to amend KRS 528.010(4) so as to bring domain names within the definition of gambling devices,” the judge found. “Neither we, nor the Justice Cabinet, are free to add to the statutory definition. If domain names cannot be considered gambling devices, Chapter 528 simply does not give the circuit court jurisdiction over them.
“It stretches credulity to conclude that a series of numbers, or Internet address, can be said to constitute a “machine or any mechanical or other device…designed and manufactured primarily for use in connection with gambling,” Judge Keller wrote. “We are thus convinced that the trial court clearly erred in concluding that the domain names can be construed to be gambling devices.”
Judge Jeff S. Taylor, also writing for the majority, added that the Commonwealth could not seek a civil forfeiture based on a criminal statute when there had been no criminal proceeding. Since there had been no criminal proceeding or conviction against any of the Internet domain name owners, the Commonwealth could not take control of their property.
Judge Michael Caperton, in his dissenting opinion, wrote that the Internet domain names were one part of a larger mechanism for gambling, which included computers and Internet service, and thus, in his opinion, met the definition of a “gambling device” under Kentucky law.
“This decision confirms why we went the way we did with this suit,” said Jon L. Fleischaker, attorney for iMEGA and managing partner at Dinsmore & Shohl in Louisville. “We knew when we brought this to the Court of Appeals, that we would get justice for iMEGA and the domain names in Kentucky.”
Fleischaker had argued in a December 12, 2008 hearing before the Court of Appeals that the Internet domain names were no more than “billboards” for the Web sites, and not mechanisms for gambling. Fleischaker had also argued that the Commonwealth’s attorneys could not try to fashion a civil law remedy with a criminal statue to justify the seizure of the domain names.
“We are very happy with the court’s ruling today,” said Joe Brennan Jr., chairman of iMEGA, an Internet trade association in Washington, DC. “The judges clearly agreed with our interpretation of the law, and thankfully, this reverses what would have been a terrible precedent for our country and the Internet.”
The Court in its decision declined to review additional arguments submitted by the Interactive Gaming Council (IGC) and attorneys representing, also seeking to have the domain name seizures blocked.
“We are humbled by this decision and by the overwhelming support received from Internet businesses and free speech organizations everywhere,” said Jeff Ifrah, an attorney acting as part of a team representing the Interactive Gaming Council. “The Court of Appeals has now corrected a fundamental misunderstanding by the trial judge in this proceeding of the nature of the Internet and the legality of online poker in Kentucky. This is a very important decision for anyone doing business on the Internet.”
John Pappas, Executive Director of the Poker Players Alliance said: “This is a tremendous victory for Internet freedom and the rights of Kentucky residents who enjoy playing online poker.
“We are pleased that the appeals court has forcefully reversed Judge Wingate’s earlier ruling and confirmed many of the arguments that have been raised in opposition to the seizure effort. The Court of Appeals has agreed with the PPA’s position that Judge Wingate did not have jurisdiction to issue the order that he entered against these domains and that Secretary Brown has no legitimate right to deprive the citizens of Kentucky of the legal right to play poker online.”
Jay Blanton, a spokesman for Kentucky Governor Steve Beshear, said the state did not receive the ruling until late Tuesday. “We want to take some time to review it. No decision has yet been made on whether to appeal it to the state Supreme Court,” Blanton said.
Rich Muny, Kentucky state director for the Poker Players Alliance, said he hoped Beshear and Justice Cabinet Secretary Brown “will abandon this misguided effort and focus new energies into regulation and taxation of Internet poker.”
He added: “Rather than spending hard-to-find dollars on this case, the governor could actually turn this into a much-needed new revenue stream for the commonwealth.”
Beshear campaigned in 2007 to expand gambling in the state by opening casinos, but he contended that some of the most popular online gambling sites are bad for the state.

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Supreme Court lets the Child Online Porn Protection Act die quietly.

Wednesday, January 21st, 2009

 A 13-year legal drive to shield children from pornography on the Internet ended in defeat today when the Supreme Court let the Child Online Protection Act die quietly.

The measure, which never went into effect, made it a crime to put sexually explicit material on a website for commercial gain unless the sponsor used some means, such as requiring a credit card, to keep out minors.

It was repeatedly blocked from taking effect on free-speech grounds by judges, including by the Supreme Court in 2004. The justices had also voided an earlier, even broader law passed in 1996 that prohibited “indecency” on the Web.

The outcome preserves the Web as a wide-open forum for free expression. It also leaves to parents the duty to install software filters if they wish to block pornography on their home computers.

The judges in Philadelphia who struck down the law last year called these filters an “equally effective” means of protecting children from pornography on the Web.

The American Civil Liberties Union said the challenged law would crimp free speech on the Web for adults and would not shield children, because at least half of the sexually explicit websites are outside the United States.

The Supreme Court considered the appeal in two closed-door meetings in recent weeks and said today it had been turned down without comment. The case was Mukasey vs. ACLU.

Supreme Court rules Saucier Government Offiical qualified immunity test not mandatory in every case

Wednesday, January 21st, 2009

Jan. 21, 2009

The US Supreme Court Wednesday ruled unanimously in Pearson v. Callahan that the test for whether a government official is entitled to qualified immunity, established by the Court in 2001 in Saucier v. Katz, is no longer mandatory in every case.


Under Saucier, a judge first had to decide whether a government official’s action violated the Constitution and only if there was a violation, then whether the constitutional right was “clearly established” at the time of the violation.


In this case, police officers entered respondents’ home without a warrant and conducted a search that respondents allege was in violation of the Fourth Amendment. In his opinion for the Court, Justice Samuel Alito wrote:


We now hold that the Saucier procedure should not be regarded as an inflexible requirement and that petitioners are entitled to qualified immunity on the ground that it was not clearly established at the time of the search that their conduct was unconstitutional.


The ruling overturns the decision of the US Court of Appeals for the Tenth Circuit, which held that petitioners were not entitled to qualified immunity.

Supreme Court Sides With Student in Sex-Bias Case – Title IX does not bar Section 1983 claims

Wednesday, January 21st, 2009


The U.S. Supreme Court ruled unanimously Wednesday Jan. 21, 2009 that Title IX does not bar victims of sex discrimination in schools from pursuing claims under an older federal civil rights law.


The decision is a victory for the parents of a Massachusetts student who claimed that school officials failed to adequately respond to sexual harassment of their daughter—then in kindergarten—by a 3rd-grade boy on her bus.


The parents may now pursue a claim under the federal statute known as Section 1983, a Reconstruction-era law that allows plaintiffs to sue any individual who violates their civil rights under color of law. In some cases, the statute may offer wider protections than Title IX of the Education Amendments of 1972, which bars sex discrimination.

No. 07–1125




[January 21, 2009]                               
                                                     To read full text go to: decision

No. 07–1125. Argued December 2, 2008—Decided January 21, 2009
Petitioners filed suit against respondents, the local school district’s governing board and superintendent, alleging that their response to allegations of sexual harassment of petitioners’ daughter by an olderstudent was inadequate, raising claims under, inter alia, Title IX of the Education Amendments of 1972, 20 U. S. C. §1681(a), and 42
U. S. C. §1983 for violation of the Equal Protection Clause of theFourteenth Amendment. Among its rulings, the District Court dis-missed the §1983 claim. The First Circuit affirmed, holding that,under this Court’s precedents, Title IX’s implied private remedy wassufficiently comprehensive to preclude the use of §1983 to advanceconstitutional claims.
1. Title IX does not preclude a §1983 action alleging unconstitu-tional gender discrimination in schools. Pp. 4–12.
(a) In Middlesex County Sewerage Authority v. National Sea Clammers Assn., 453 U. S. 1; Smith v. Robinson, 468 U. S. 992; and Rancho Palos Verdes v. Abrams, 544 U. S. 113, this Court found that particular statutory enactments precluded §1983 claims where it wasestablished that Congress intended the statute’s remedial scheme to“be the exclusive avenue through which a plaintiff may assert [such] claims,” Smith, supra, at 1009. In determining whether Congress in-tended for a subsequent statute to preclude the enforcement of a fed-eral right under §1983, the Court has placed primary emphasis onthe nature and extent of that statute’s remedial scheme. See Sea Clammers, 453 U. S., at 20. Where the §1983 claim alleges a consti-tutional violation, a lack of congressional intent to preclude may alsobe inferred from a comparison of the rights and protections of the

other statute and those existing under the Constitution. Pp. 4–7.
(b) In the absence of a comprehensive remedial scheme compara-ble to those at issue in Sea Clammers, Smith, and Rancho Palos Verdes, and in light of the divergent coverage of Title IX and the Equal Protection Clause, it must be concluded that Title IX was not meant to be an exclusive mechanism for addressing gender discrimi-nation in schools, or a substitute for §1983 suits as a means of enforc-ing constitutional rights. Pp. 7–12.
(i) Title IX’s only express enforcement mechanism, 20 U. S. C. §1682, is an administrative procedure resulting in the withdrawal of federal funding from noncompliant institutions. This Court has also recognized an implied private right of action, Cannon v. University of Chicago, 441 U. S. 677, 717, for which both injunctive relief and damages are available, Franklin v. Gwinnett County Public Schools, 503 U. S. 60, 76. These remedies stand in stark contrast to the “un-usually elaborate,” “carefully tailored,” and “restrictive” enforcementschemes of the statutes in Sea Clammers, Smith, and Rancho Palos Verdes. Unlike those statutes, Title IX has no administrative ex-haustion requirement and no notice provisions. Plaintiffs can file di-rectly in court under its implied private right of action and can obtainthe full range of remedies. Accordingly, parallel and concurrent§1983 claims will neither circumvent required procedures nor allowaccess to new remedies. Moreover, under Rancho Palos Verdes, “[t]heprovision of an express, private means of redress in the statute itself” is a key consideration in determining congressional intent, and “the existence of a more restrictive private remedy for statutory violationshas been the dividing line between those cases in which . . . an action would lie under §1983 and those in which we have held that it would not.” 544 U. S., at 121. Title IX contains no express private remedy, much less a more restrictive one. Pp. 7–9.
(ii) Because Title IX’s protections are narrower in some re-spects and broader in others than those guaranteed under the Equal Protection Clause, the Court cannot agree with the First Circuit thatCongress saw Title IX as the sole means of correcting unconstitu-tional gender discrimination in schools. Title IX reaches institutions and programs that receive federal funds, 20 U. S. C. §1681(a), whichmay include nonpublic institutions, §1681(c), but it has consistentlybeen interpreted as not authorizing suit against school officials, teachers, and other individuals. Moreover, while the constitutional provision reaches only state actors, §1983 equal protection claims may be brought against individuals as well as state entities. West v. Atkins, 487 U. S. 42, 48–51. And Title IX exempts from its restric-tions several activities that may be challenged on constitutional grounds. See, e.g., §1681(a)(5). Even where particular activities and

particular defendants are subject to both Title IX and the Equal Pro-tection Clause, the standards for establishing liability may not bewholly congruent. Compare Gebser v. Lago Vista Independent School Dist., 524 U. S. 274, 290, with Monell v. New York City Dept. of Social Servs., 436 U. S. 658, 694. Pp. 9–11.(iii) The Court’s conclusion is consistent with Title IX’s contextand history. Because the Congress that enacted Title IX authorized the Attorney General to intervene in private suits alleging sex dis-crimination violative of the Equal Protection Clause, 42 U. S. C.§2000h–2, Congress must have explicitly envisioned that privateplaintiffs would bring constitutional claims to challenge gender dis-crimination via §1983. Moreover, Title IX was modeled after Title VI of the Civil Rights Act of 1964, Cannon, supra, at 694–695, and, at the time of Title IX’s 1972 enactment, the lower courts routinely in-terpreted Title VI to allow for parallel and concurrent §1983 claims.Absent contrary evidence, it follows that Congress intended Title IXto be interpreted similarly to allow for parallel and concurrent §1983claims. Pp. 11–12. 2. As neither of the courts below addressed the merits of petition-ers’ constitutional claims or even the sufficiency of their pleadings,this Court will not do so in the first instance here. Pp. 12–13. 504 F. 3d 165, reversed and remanded. ALITO, J., delivered the opinion for a unanimous Court.

Chief Justice Roberts Messes Up Presidential Oath…

Tuesday, January 20th, 2009


WASHINGTON  — Barack Obama took the 35-word oath of office Tuesday to become the United States’ 44th president — even if he may have been led to utter the historic words in the wrong order.
Obama was sworn in by Supreme Court Chief Justice John Roberts, resting his left hand on Abraham Lincoln’s Bible and raising his right hand to deliver the words that formally made him the successor to former president George W. Bush.
But things didn’t go exactly as planned for the swearing-in of the country’s first African-American commander-in-chief.
Under the gaze of more than two million crowded onto Washington’s National Mall and millions more around the world, Obama said: “I, Barack Hussein Obama, do solemnly swear that I will execute the office of president of the United States faithfully, and will to the best of my ability, preserve, protect, and defend the constitution of the United States.
“So help me God.”
As specified in the US Constitution, the word “faithfully” precedes the phrase “execute the office,” but the chief justice, in his first presidential inauguration, read that part of the oath incorrectly.
Obama paused, apparently realizing something was wrong, and after an awkward moment Roberts repeated himself, but the chief justice stumbled again. Obama eventually recited the line as Roberts originally said it.
Huge crowds watching the historic proceedings one mile (kilometer) down the National Mall on a jumbo TV screen groaned loudly after Roberts’ gaffe.
Obama was among 22 Democrats in the US Senate to vote against Roberts in his Supreme Court confirmation hearing.
In Obama’s first luncheon as president, the affable Roberts appeared to apologize, prompting laughter and a handshake from Obama.
Jeffrey Rosen, a US constitutional law expert and professor at George Washington University in Washington, said stumbling over the oath has “no impact. News flash: He’s president.”
Rosen pointed to the 20th amendment of the US Constitution, which provides that the president and vice president’s term begins at noon on January 20th.

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