Archive for January, 2009

The Inauguration- A Celebration of Democracy – We wish that Bert Combs and Ned Breathitt could have been here….

Tuesday, January 20th, 2009

By Stan Billingsley Jan. 20, 2009

Today we celebrate a rite of Democracy, the peaceful exchange of national leadership.

All Americans can take pride in this event.   We do have one regret however, and that is that Gov. Bert Combs and Gov. Edward T. “Ned” Breathitt were not here to witness the inauguration of Barack Obama.

Any who are old enough to remember recall the events that started with the Public Accommodations Executive Order by Bert Combs, and the first Civil Rights Bill in the South passed by Gov. Ned Breathitt in l966.

We recall the political risks they each took in providing moral leadership on the issue of Civil Rights.  One who is old enough to have been a witness to those turbulent times will note today the progress this country has made.

I remember the story when the first black law student was admitted to the University of Kentucky College of Law.  He was asked to sit in the back row of his classroom at the old Lafferty Hall.  Ned Breathitt stood up and lead most of the class in moving their seats to the back of the room to sit with him.

Bert and Ned were not the only heroes in this struggle but they were the first Kentuckians in high office to turn rhetoric into action.  This day is a tribute to generations of leaders and citizens who risked their political fortunes, their personal safety, ridicule and censure in doing the right thing.  Every once in a while progress is made, and things go right, today is such a day.All Americans and all citizens of the world should and I believe most will, wish President Barack Obama well.  Bert and Ned would be very happy.

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Failure to report to jail is not violent crime

Tuesday, January 20th, 2009

by David Ziemer  Wisconsin Law Journal January 19, 2009

A mere failure to report to jail is not a  “violent felony” under the Armed Career Criminal Act (ACCA), according to the nation’s highest court.


The U.S. Supreme Court on Jan. 13 unanimously held that the 15-year minimum for defendants convicted of felon in possession of a firearm is not triggered by a prior conviction for failure to report to custody, in contrast to escape from custody.


However, even though the opinion reverses a Seventh Circuit precedent, intervening precedent from the Seventh Circuit had already gutted that precedent.


The case arose when Deondery Chambers pleaded guilty to felon in possession of a firearm in Illinois federal court. A defendant with three prior violent felonies or serious drug offenses is a career criminal subject to the 15-year minimum.


Chambers had a prior conviction in Illinois state court for failure to report to jail. Whether that conviction counted as a violent felony determined whether the mandatory minimum applied.


Both the district court and the Seventh Circuit held that the conviction is a violent felony.

U.S. v. Chambers, 473 F.3d 724 (7th Cir. 2007).


But the Supreme Court granted review and reversed, in an opinion by Justice Stephen G. Breyer. The court concluded that the framework it adopted last year in Begay v. U.S, 128 S.Ct. 1581 (2008), required that failure to report not be counted as a violent felony under the ACCA.


In Begay, the court held that a felony conviction for operating a motor vehicle while intoxicated is not a “violent felony” for two reasons: it was not similar to the ACCA’s list of enumerated violent felonies — burglary, arson, extortion, and crimes involving the use of explosives; and it did not involve purposeful, violent, and aggressive conduct.

Applying Begay, the Supreme Court held that failure to report to jail was not a violent felony for the same reasons.


Justice Breyer wrote, “The behavior that likely underlies a failure to report would seem less likely to involve a risk of physical harm than the less passive, more aggressive behavior underlying an escape from custody.


“Conceptually speaking, the crime amounts to a form of inaction, a far cry from the ‘purposeful, “violent,” and “aggressive” conduct’ potentially at issue when an offender uses explosives against property, commits arson, burgles a dwelling or residence, or engages in certain forms of extortion,” Breyer added.


To support its holding, the court extensively cited a November 2008 report by the U.S. Sentencing Commission that found that, of 160 instances of failure to report in 2006 and 2007, none involved violence during either the commission of the offense or recapture.

Justice Samuel A. Alito wrote a concurrence, joined by Justice Clarence H. Thomas, agreeing with the result, but criticizing the approach adopted in Begay as divorced from the statutory text.


“Today’s decision, for example, turns on little more than a statistical analysis of a research report prepared by the United States Sentencing Commission,” Alito wrote.


Case analysis


As noted, the court’s opinion reverses Seventh Circuit precedent, but that precedent had already been questioned by the appeals court itself since Begay was decided.

On Sept. 9, 2008, the Seventh Circuit decided U.S. v. Templeton, No. 07-2949, which involved a defendant who had a prior conviction for failing to report to a Wisconsin jail in violation of Wis. Stat. 946.425.


Citing Begay (and that the Supreme Court had also accepted review in Chambers), the court acknowledged, “Begay … shows that this court’s approach in Chambers and earlier cases was incomplete, because we did not ask whether escapes and failures to return are sufficiently similar to the listed offenses.”


The court concluded in Templeton, “A walkaway is not a crime of violence under Begay.

Nor is a simple failure to report to custody.”


So, the Supreme Court’s opinion affirms what the Seventh Circuit had already concluded — its own opinion in this case was incorrect.


Nevertheless, that doesn’t render the opinion superfluous, according to Marquette University Law Professor Michael O’Hear.


Chambers differs significantly from Begay, O’Hear said, because of the court’s reliance on statistical data that failure to report is not likely to result in violence.


In Begay, no such data was available. While there are statistics on drunken driving arrests, and drunken driving accidents, no one knows how many people drive drunk every year without incident.


In contrast, here, there was good data available how often violence results when people are arrested after failing to report to custody. “Where there is such data, courts must evaluate the risk to determine whether the offense is a crime of violence,” O’Hear said.

However, O’Hear acknowledged the case could be an outlier, just because the data available in this case will frequently not be available, in which case only Begay will provide guidance for lower courts.


O’Hear also noted that the majority seemed to take the exact approach that Justice Antonin Scalia advocated in Begay, but which the majority rejected — that the relevant issue is whether the crime has a level of dangerousness equal to or greater than burglary

Rev. Martin Luther King’s “I have a dream” speech remembered

Monday, January 19th, 2009

Today we remember the great speech given by Rev. Martin Luther King on the steps of the Lincoln Memorial in 1963.

Tomorrow, 45 years after this speech, we celebrate an event that suggests many of the dreams of Dr. King have been achieved.

Dr. Martin Luther King:

Five score years ago, a great American, in whose symbolic shadow we stand, signed the Emancipation Proclamation. This momentous decree came as a great beacon light of hope to millions of Negro slaves who had been seared in the flames of withering injustice. It came as a joyous daybreak to end the long night of captivity.

But one hundred years later, we must face the tragic fact that the Negro is still languishing in the corners of American society and finds himself an exile in his own land. So we have come here today to dramatize an appalling condition.

In a sense we have come to our nation’s capital to cash a check. When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note
was a promise that all men would be guaranteed the unalienable rights of life, liberty, and the pursuit of happiness.

It is obvious today that America has defaulted on this promissory note insofar as her citizens of color are concerned. Instead of honoring this sacred obligation, America has given the Negro people a bad check–a check which has come back marked “insufficient funds.”
But we refuse to believe that the bank of justice is bankrupt. We refuse to believe that there are insufficient funds in the great vaults of opportunity of this nation. So we have come to cash this check–a check that will give us upon demand the riches of freedom and the security of justice. We have also come to this hallowed spot
to remind America of the fierce urgency of now. This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism. Now is the time to make real the promises of democracy. Now is the time to rise from the dark and desolate valley of segregation to the sunlit path of racial justice. Now is the time
to open the doors of opportunity to all of God’s children. Now is the time to lift our nation from the quicksands of racial injustice to the solid rock of brotherhood.

It would be fatal for the nation to overlook the urgency of the moment and to underestimate the determination of the Negro. This sweltering summer of the Negro’s legitimate discontent will not pass until there is an invigorating autumn of freedom and equality.

Nineteen sixty-three is not an end, but a beginning. Those who hope that the Negro needed to blow off steam and will now be content will have a rude awakening if the nation returns to business as usual.

There will be neither rest nor tranquility in America until the Negro is granted his citizenship rights. The whirlwinds of revolt will continue to shake the foundation of our nation until the bright day of justice emerges.

But there is something that I must say to my people who stand on thewarm threshold which leads into the palace of justice. In the process of gaining our rightful place we must not be guilty of wrongful deeds. Let us not seek to satisfy our thirst for freedom by drinking from the
cup of bitterness and hatred.

We must forever conduct our struggle on the high plane of dignity and discipline. Again and again we must rise to the majestic heights of meeting physical force with soul force. The marvelous new militancy which has engulfed the Negro community must not lead us to a distrust of all white people, for many of our white brothers, as evidenced by
their presence here today, have come to realize that their destiny is tied up with our destiny and their freedom is inextricably bound to our freedom. We can not walk alone.

And as we walk, we must make the pledge that we shall march ahead. We cannot turn back. There are those who are asking the devotees of civil rights, “when will you be satisfied?” We can never be satisfied as long as the Negro is the victim of unspeakable horrors of police brutality.

We can never be satisfied as long as our bodies, heavy
with the fatigue of travel, cannot gain lodging in the motels of the highways and the hotels of the cities.

We cannot be satisfied as long as the Negro’s basic mobility is from a smaller ghetto to a larger
one. We can never be satisfied as long as a Negro in Mississippi cannot vote and a Negro in New York believes he has nothing for which to vote. No, no, we are not satisfied, and we will not be satisfied until justice rolls down like waters and righteousness like a mighty

I am not unmindful that some of you have come here out of great trials and tribulations. Some of you have come fresh from narrow cells. Some of you have come from areas where your quest for freedom left you battered by the storms of persecution and staggered by the winds of police brutality. You have been the veterans of creative suffering. Continue to work with the faith that unearned suffering is

Go back to Mississippi, go back to Alabama, go back to South Carolina, go back to Georgia, go back to Louisiana, go back to the slums and ghettos of our northern cities, knowing that somehow this situation can and will be changed. Let us not wallow in the valley of

I say to you today, my friends, that in spite of the difficulties and frustrations of the moment I still have a dream. It is a dream deeply rooted in the American dream.

I have a dream that one day this nation will rise up and live out the true meaning of its creed–”We hold these these truths to be self evident, that all men are created equal.”

I have a dream that one day on the red hills of Georgia the sons of former slaves and the sons of former slaveowners will be able to sit down together at the table of brotherhood.

I have a dream that one day even the state of Mississippi, a desert state sweltering with the heat of injustice and oppression, will be transformed into an oasis of freedom and justice.

I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.

I have a dream today.

I have a dream that one day the state of Alabama, whose governor’s lips are presently dripping with the words of interposition and nullification, will be transformed into a situation where little black boys and black girls will be able to join hands with little white boys and white girls and walk together as sisters and brothers.

I have a dream today.

I have a dream that one day every valley shall be exalted, every hill and mountain shall be made low, and rough places will be made plains, and the crooked places will be made straight, and the glory of the Lord shall be revealed, and all flesh shall see it together.

This is our hope. This is the faith with which I return to the south. With this faith we will be able to hew out of the mountain of despair a stone of hope. With this faith will be able to transform the jangling discords of our nation into a beautiful symphony of brotherhood. With this faith we will be able to work together, to pray together, to struggle together, to go to jail together, to stand
up for freedom together, knowing that we will be free one day.

This will be the day when all of God’s children will be able to sing with a new meaning “My country ’tis of thee, sweet land of liberty, of thee I sing. Land where my fathers died, land of the pilgrim’s pride, from every mountainside, let freedom ring.”

And if America is to be a great nation this must come true. So let freedom ring from the prodigious hilltops of New Hampshire. Let freedom ring from the mighty mountains of New York. Let freedom ring from the heightening Alleghenies of Pennsylvania.

Let freedom ring from the snowcapped Rockies of Colorado.

Let freedom ring from the curvaceous peaks of California.

But not only that–let freedom ring from Stone Mountain in Georgia.

Let freedom ring from Lookout Mountain of Tennessee.

Let freedom ring from every hill and molehill of Mississippi. From every mountainside, let freedom ring.

When we let freedom ring, when we let it ring from every village and every hamlet, from every state and every city, we will be able to speed up that day when all of God’s children, black men and white men, Jews and gentiles, Protestants and Catholics, will be able to join
hands and sing in the words of the old Negro spiritual,

“Free at last! Free at last! Thank God Almighty, we are free at last!”

Two Lexington Police officers have filed an unusual civil lawsuit. They have apparently overlooked the Kentucky “Firemans rule” which applies to Police Officers

Sunday, January 18th, 2009

Officer Randall Combs claims in his lawsuit that he injured his shoulder, and Officer Derrick Wallace says he dislocated his thumb in a scuffle with Daniel Lee Billings on Dec. 20. 2007. Wallace and Combs were two of several officers dispatched to break up an unruly holiday party at the Crowne Plaza-Campbell House in Lexington.

According to police reports, police tried to arrest Billings’ wife, Kathy Lee, after she had refused to leave and screamed loudly. Billings tried to intercede and allegedly fought with police.

Officers restrained Billings, but he continued to jerk his head around, banging it on the pavement, according to police. Wallace placed his hand under Billings’ head to protect it, and he dislocated his thumb.

The officers will have to explain the testimony of a witness who the Herald-Leader  interviewed in 2007 that said that the defendant Billings was hogtied and that police continued hitting after he was restrained.

A witness told the Herald-Leader in 2007 that Billings was hogtied and police continued hitting after he was restrained.  Rowena Collins told the Herald-Leader she saw an officer “taking both hands and hitting him in the back of the head as hard as he could possibly hit him. That’s probably how he hurt his hand.”

The civil claim appears to be on very thin ice in suing someone they arrested and the business that requested their help. 

LawReader suggests that the Police Officers are unaware of a published Court of Appeals ruling from 1984 which applies the Fireman’s Rule to Police Officers. The Fireman’s Rule is a public policy statement wherein the courts have determined that public safety would be damaged if a person who called a fireman (or policeman) for assistance would be risking a lawsuit in the event that the fireman was injured in the performance of his job.  There are a few exceptions to the Fireman’s Rule, but this case has summary judgment written all over it, certainly for the hotel.

See:  Fletcher v. Illinois Cent. Gulf R. Co., 679 S.W.2d 240 (Ky. App., 1984)
“… appellant contends that the court erred in applying the “fireman’s rule” because he is a police officer. We disagree.
Our highest court has never had occasion in a published opinion to resolve the issue of whether our “fireman’s rule” applies to police officers. Other jurisdictions which adhere to the rule, however, do apply it to police officers. See Annot., 86 A.L.R.2d 1205 (1962). Moreover, the public policy considerations expressed in Buren, supra, which motivated our court to adopt the “fireman’s rule” in the first place also apply to police officers. Thus, there is simply no valid basis for us to conclude that the “fireman’s rule” does not apply to police officers. Hence, we decline to do so.
        Next, appellant argues that the public policy considerations which prompted our court to adopt the “fireman’s rule” are illogical and invalid. We disagree.
Our highest court succinctly summarized the “fireman’s rule” in Buren, supra, as follows:
Suffice it to say that as a general rule the owner or occupant is not liable for having negligently created the condition necessitating the fireman’s presence (that is, the fire itself), but may be liable for failure to warn of unusual or hidden hazards, for actively negligent conduct and, in some jurisdictions, for statutory violations “creating undue risks of injury beyond those inevitably involved in fire fighting.”
 The public policy considerations which motivated our court to adopt the rule are summarized in the following paragraph from its opinion:
        It is our opinion that the principle of assumed risk is applicable, at least in spirit if the label be considered in some respects inappropriate. That the fireman is duty bound to assume the risk because he is being paid to do so does not make it any the less voluntary.
Except for unusual hazards known to the property owner or occupant but unknown to him, the trained fire fighter is equally cognizant of and better able to evaluate the unpredictable dangers involved. When he arrives on the scene the field is his.
The owner has no power to direct or control his actions. He may not order him to stay outside, or to stay off the roof, or to wear a gas mask, or to limit his actions to shooting water into the building from a safe position outside.
To hold the owner responsible while denying him any right or discretion to say what the fireman shall or shall not do would not consist with what this court believes to be the fundamental law of liability by reason of negligence.
Having bound his hands, the law cannot justly inflict upon him the consequences of what he might otherwise have been able to prevent. See Suttie v. Sun Oil Co., 15 Pa.Dist. & Co.R. 3. Nor can a jury be permitted to do so.
It is not fairly a question of fact, and this is true whether the claim is  based on common law or statutory negligence.”

Maggard v. Conagra Foods, Inc., 168 S.W.3d 425 (KY, 2005) 


“We first agree with the trial court that this case was suitable for application of the Firefighter’s Rule. The Kentucky Supreme Court succinctly stated that the purpose of the policy was to encourage owners, occupiers, and others similarly situated, in a situation where it is important to call a public protection agency to do so free of any concern that they may encounter legal liability based on their negligence in creating the risk. Sallee v. GTE South, Inc., 839 S.W.2d 277, 279 (Ky.1992). We find this particularly apt under the facts of this case. An employer or premises owner should not be deterred from calling for medical assistance for fear that they may be held liable for any injury occurring in the process of transporting the patient. 

        In Kentucky, the Firefighter’s Rule has been applied to other professionals besides firefighters. Fletcher v. Illinois Central Gulf Railroad Co., 679 S.W.2d 240 (Ky.App.1984), this Court extended the rule to a police officer. This Court stated that the public policy considerations which motivated adoption of the Firefighter’s Rule also applied to police officers. Id. at 242. In Sallee, 839 S.W.2d at 279, the 

Page 428 

Supreme Court applied the rule to a fire department paramedic. The Court explained that one of the prongs of the Firefighter’s Rule is the involvement of “public employees (firefighters, police officers, and the like) who, as an incident of their occupation, come to a given location to engage a specific risk[.]” Id. at 279 (emphasis added.)” 



U.S. Supreme Court to Review Strip-Searches of Students

Sunday, January 18th, 2009


The Supreme Court has agreed to hear a case involving the strip-search of a middle school student by school officials looking for over-the-counter and prescription drugs.


The strip-search case has attracted attention in education law circles.


In July, the 9th Circuit court ruled that a strip-search of an 8th grader by school authorities looking for prescription-strength Ibuprofen pills violated the student’s rights under the Fourth Amendment.


A panel of the court ruled 8-3 on July 11 that officials at an Arizona middle school “acted contrary to all reason and common sense as they trampled over” the privacy interests of Savana Redding. By a vote of 6-5, the panel held that the assistant principal who ordered the strip-search was not entitled to qualified immunity from liability in the student’s lawsuit.


Ms. Redding was searched in 2003 as part of an investigation into the possession of over-the-counter and prescription medications by students at Safford Middle School in the Safford school district.


After receiving a report that Ms. Redding, who was 13 at the time, had been distributing Ibuprofen pills to fellow students, school officials searched the girl’s backpack, then asked a female administrative assistant to go through her clothing. Ms. Redding had to remove her pants, lift the waist band of her underpants, and lift her shirt and pull out her bra band, according to court papers. No contraband was found.


Ms. Redding and her parents challenged the school officials’ actions as a violation of her Fourth Amendment right against unreasonable searches. They lost before a federal district court and before an initial three-judge panel of the 9th Circuit court. But the 9th Circuit granted a review by a larger panel of judges.


In that decision , the 9th Circuit majority said the strip search was “excessively intrusive,” especially considering that school officials were relying on an uncorroborated tip from another student who had been caught in possession of the pills.


The court further said it should have been clear to the school officials under the U.S. Supreme Court’s 1985 decision in New Jersey v. T.L.O. that the strip-search was unreasonable, and thus an assistant principal who ordered the search did not merit qualified immunity.


In T.L.O., the Supreme Court upheld the search of a student’s purse for contraband and found that school searches are justified by a “reasonable suspicion” that laws or school rules were violated. Under the ruling, schools must show that a search was reasonable at its inception and in scope.

“The guidance provided by T.L.O. should have been clear to the school officials, who undertook the professional obligation to balance properly the order of the school with the individual liberties of the students who enter the school,” the court said.


The school district’s appeal of that decision in Safford Unified School District v. Redding  (Case No. 08-479) was also supported by national school groups. The NSBA and the AASA called for the Supreme Court to provide greater guidance to school administrators about the legality of student searches.


The 9th Circuit court’s ruling “unfairly places school officials in the position of being sued and held personally responsible for good faith decisions intended to protect the health and safety of students entrusted to their care and tutelage,” the education groups said.


The justices indicated that both cases will likely be heard in their April argument session, with decisions expected by the end of the court’s term in June.

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U.S. Supreme Court to Weigh IDEA and tuition for private schooling of special education students

Sunday, January 18th, 2009


The U.S. Supreme Court this week agreed to hear an important case involving special education.

In this special education case, the justices will return to an issue they deadlocked over in their last term: whether parents in a special education dispute with a school district may be reimbursed for “unilaterally” placing their child in a private school when that child has never received special education services from the district.

With Justice Anthony M. Kennedy recusing himself for undisclosed reasons, the other justices tied 4-4 in a case in 2007 over whether the federal Individuals with Disabilities Education Act permitted a New York City father to win repayment of private school tuition for a child with disabilities who had never enrolled in the city’s school system. The tie in Board of Education of New York City v. Tom F. upheld the tuition reimbursement in that case, but set no national precedent.

The new case, which presumably does not present any barrier to Justice Kennedy’s participation, is from the Forest Grove district in Oregon. The school system is appealing a federal appeals court ruling in favor of parents who sent their son to a private school for children with behavioral and emotional problems some two years after the district’s evaluation had determined the boy was ineligible for special education.

The district re-evaluated the student and determined that he had attention deficit hyperactivity disorder, but that it wasn’t affecting his educational progress. The parents appealed to a hearing officer, who ruled they should be reimbursed for the private residential program where they had enrolled their son, for which monthly tuition was more than $5,000.

A federal district court reversed the hearing officer, but a panel of the U.S. Court of Appeals for the 9th Circuit held 2-1 that the parents were entitled to reimbursement. The IDEA says that such tuition reimbursements for such unilateral private school placements were available only to students “who previously received special education and related services.” The appeals court held that that language did not “create a categorical bar to recovery of private school reimbursement for all other students.”

The district’s appeal in Forest Grove School District v. T.A. (Case No. 08-305) was joined in a friend-of-the-court brief filed by the National School Boards Association, the American Association of School Administrators, and the National Association of State Directors of Special Education. They argued that the 9th Circuit court’s decision would increase the costs of special education by encouraging parents to avoid the process of working with a district to devise an individualized education program, or IEP, for a student with disabilities.


“The 9th Circuit’s decision allows those parents to treat the IEP process as a potential lottery ticket to a government-funded private school education,” the school groups said.

Ct. of Appeals issues 45 important cases. Nine rulings involving Family Court continues trend of reversals and remands.

Saturday, January 17th, 2009

The Kentucky Court of Appeals issued an unusual number of cases involving Family Courts this week, and most of them were remands and reversals. This negative review of Family Court rulings continues a trend we have noticed for a number of months.

If you practice in this area of the law, you should be aware of the many errors the Appellate Courts are finding with issues regarding martial property distribution, awards of maintenance, child support and child custody.

In one ruling the Ct. of Appeals reversed a child support ruling and held that the Family Court’s apparent use of the “share the wealth” method of determining child support was improper.  This week the Ct. of Appeals issued nine rulings involving the Family Court.

The court also issued two important rulings regarding Arbitration contracts.

In one important civil case, the Court ruling that the American Legion was not liable for a Dram Shop claim as they were not in the business of selling alcohol.

On January 16th, the Court of Appeals released 45 cases, seven of which are to be published.  LawReader subscribers can read a full synopsis of each case by going to COURT OF APPEALS DECISIONS FOR JAN. 16, 2009  . 

 Non-subscribers can sign up for LawReader by going to SIGN UP – PRICING .

U.S. Supreme Court Justices by 5-4 vote, say Search conducted on basis of false report about an outstanding warrant is valid

Wednesday, January 14th, 2009

Exclusionary Rule and requirement for Probable Cause for Search take another hit.


Evidence Obtained don Is Valid Despite Police Error


“When police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search, rather than systemic error or reckless disregard of constitutional requirements, the exclusionary rule does not apply.”


By DAVID STOUT The New York Times Published: January 14, 2009
WASHINGTON — The Supreme Court on Wednesday upheld the conviction of an Alabama man on drug and weapons charges, emphasizing that the exclusionary rule, which generally bars prosecutors from using evidence obtained by the police through improper searches, is far from absolute.


In a 5-to-4 opinion, the court upheld the federal conviction of Bennie Dean Herring, who from the court records appears to have been very unlucky as well as felonious in his conduct. In upholding the conviction, the court’s majority came to a conclusion that will most likely please those who complain about criminals going free on “technicalities.”


Mr. Herring had gone to the Coffee County, Ala., sheriff’s department on July 7, 2004, to retrieve something from his truck, which had been impounded. “Herring was no stranger to law enforcement,” as Chief Justice John G. Roberts Jr. observed dryly in his opinion for the court.


And he was no stranger to Mark Anderson, an investigator for the sheriff’s department, who asked a Coffee County clerk if there were any outstanding warrants for Mr. Herring.

No, Mr. Anderson was told. So he asked the clerk to check with her counterpart in neighboring Dale County, who turned up a warrant against Mr. Herring for failing to appear in court on a felony charge.


Mr. Anderson and a deputy following Mr. Herring as he left the impound lot pulled him over and arrested him. A search turned up methamphetamine in his pocket and a pistol, which Mr. Herring could not legally possess because of an earlier felony conviction, in his truck.


Within minutes, however, the Dale County clerk discovered that the warrant against Mr. Herring had been withdrawn five months earlier and had been left in the computer system by mistake. The clerk immediately called Mr. Anderson, but Mr. Herring had already been taken into custody.


Was Mr. Herring entitled to go free because the officers lacked probable cause and there was no dispute that both the arrest and subsequent search were unconstitutional? No, the Supreme Court ruled.


“When police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search, rather than systemic error or reckless disregard of constitutional requirements, the exclusionary rule does not apply,” Chief Justice Roberts wrote in an opinion joined by Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr.


Deciding when to throw out evidence under the exclusionary rule is a balancing act, the majority said. Is the official misconduct serious enough that the evidence should be disallowed to deter future misconduct, even if criminals sometimes go free?

Not in Mr. Herring’s case, the majority ruled, upholding findings by a federal district court and the United States Court of Appeals for the 11th Circuit.


Justices Ruth Bader Ginsburg, John Paul Stevens, David H. Souter and Stephen G. Breyer dissented. “In my view, the court’s opinion underestimates the need for a forceful exclusionary rule and the gravity of recordkeeping errors in the law enforcement,” Justice Ginsburg wrote.


U.S. Supreme Court uphold Ky. Retirement System re: calculation of benefits

Wednesday, January 14th, 2009


                                             Cite as: 554 U. S. ____ (2008)




No. 06–1037. Argued January 9, 2008—Decided June 19, 2008

Kentucky permits “hazardous position” workers, e.g., policemen, to receive
normal retirement benefits after working either 20 years or 5 years and attaining age 55 and pays “disability retirement” benefits to workers meeting specified requirements.

Kentucky’s “Plan” calculates normal retirement benefits based on actual years of service.

The Plan calculates disability benefits by adding to an employee’s actual years of service the number of years that the employee would have had to continue working in order to become eligible for normal retirement benefits, adding no more than the number of years the employee had previously worked. Charles Lickteig, who continued working after becoming eligible for retirement at age 55, became disabled and retired at age 61. He filed an age discrimination complaint with respondent (EEOC) after the Plan based his pension on his actual years of service without imputing any additional years.

The EEOC filed suit against Kentucky and others (collectively Kentucky), arguing that the Plan failed to impute years solely because Lickteig became disabled after age 55.

The District Court granted Kentucky summary judgment, holding that the EEOC could not establish age discrimination, but the Sixth Circuit ultimately reversed on the ground that the Plan violated the Age Discrimination in Employment Act of 1967 (ADEA).

Held: Kentucky’s system does not discriminate against workers who
become disabled after becoming eligible for retirement based on age.
Pp. 4–14.

(a) The ADEA forbids an employer to “discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U. S. C. §623(a)(1) (emphasis added). A plaintiff claiming age-related “disparate treatment” (i.e., intentional discrimination) must prove that age “actually motivated the employer’s decision.” Hazen Paper Co. v.
Biggins, 507 U. S. 604, 610 (emphasis added).

In Hazen Paper, the Court found that, without evidence of intent, a dismissal based on
pension status was not a dismissal “because . . . of age,” id., at 611– 612, noting that, though pension status depended upon years of service, and years of service typically go hand in hand with age, the two concepts are “analytically distinct,” id., at 611. And the dismissal at issue there, if based purely on pension status, would not embody the
evils prompting the ADEA: It was not based on a “prohibited stereotype” of older workers, did not produce any “attendant stigma” to those workers, and was not “the result of an inaccurate and denigrating generalization about age.” Id., at 612.

 However, the Court noted that discrimination based on pension status could violate the ADEA if pension status was a “proxy for age.” Id., at 613. Pp. 4–6.

(b) Applying Hazen Paper, the circumstances here, taken together,
show that the differences in treatment in this particular instance
were not “actually motivated” by age.
(1) Age and pension status remain
“analytically distinct” concepts.
(2) Here, several background
circumstances eliminate the possibility that pension status serves as
a “proxy for age.” Rather than an individual employment decision, at
issue here are complex systemwide rules involving not wages, but
pensions—a benefit the ADEA treats somewhat more flexibly and leniently
in respect to age. Further, Congress has otherwise approved
programs, such as Social Security Disability Insurance, that calculate
disability benefits using a formula that expressly takes account of
(3) The disparity here has a clear non-age-related rationale.
The Plan’s disability rules track Kentucky’s “normal retirement”
rules by imputing only those additional years of service needed to
bring the disabled worker’s total to 20 or to the number of years that
the individual would have worked had he worked to age 55. Thus,
the disability rules’ purpose is to treat a disabled worker as though
he had become disabled after, rather than before, he had become eligible
for “normal retirement” benefits. Age factors into the disability
calculation only because the normal retirement rules themselves
permissibly consider age. The Plan simply seeks to treat disabled
employees as if they had worked until the point at which they would
be eligible for a normal pension. Thus, the disparity turns upon pension
eligibility and nothing more. (4) Although the Plan placed an
older worker at a disadvantage here, in other cases, the rules can
work to the advantage of older workers, who may get a bigger boost
of imputed years than younger workers. (5) Kentucky’s system does
not rely on the sorts of stereotypical assumptions, e.g., the work capacity
pacity of “older” workers relative to “younger” workers, that the
ADEA sought to eradicate.

The Plan’s “assumptions” that no disabled worker would have continued to work beyond the point at which he was both disabled and pension eligible do not involve age related
stereotypes, but apply equally to all workers regardless of age.
(6) The nature of the Plan’s eligibility requirements means that,
unless Kentucky were severely to cut the benefits to disabled workers
who are not yet pension eligible, it would have to increase the benefits
available to disabled, pension-eligible workers, while lacking any
clear criteria for determining how many extra years to impute for
those already 55 or older. The difficulty of finding a remedy that can
both correct the disparity and achieve the Plan’s legitimate objective—
providing each disabled worker with a sufficient retirement
benefit—further suggests that this objective, not age, “actually motivated”
the Plan.

The Court’s opinion in no way unsettles the rule that a statute or
policy that facially discriminates based on age suffices to show disparate
treatment under the ADEA. The Court is dealing with the quite
special case of differential treatment based on pension status, where
pension status—with the explicit blessing of the ADEA—itself turns,
in part, on age.

 Further, the rule for dealing with this sort of case is clear:

Where an employer adopts a pension plan that includes age as
a factor, and that employer then treats employees differently based
on pension status, a plaintiff, to state a claim under the ADEA, must
adduce sufficient evidence to show that the differential treatment
was “actually motivated” by age, not pension status. Pp. 6–11.
(c) The Federal Government’s additional arguments are rejected.

Since Hazen Paper provides the relevant precedent here, an ADEA
amendment made in light of Public Employees Retirement System of
Ohio v. Betts, 492 U. S. 158, is beside the point. And a contrary interpretation
contained in an EEOC regulation and its compliance manual does not lead to a different conclusion. Pp. 11–13. 467 F. 3d 571, reversed.

BREYER, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and STEVENS, SOUTER, and THOMAS, JJ., joined.

KENNEDY, J., filed a dissenting opinion, in which SCALIA, GINSBURG, and ALITO, JJ., joined. Cite as: 554 U. S. ____ (2008) 1

U.S. Supreme Court Hears Three Cases Re: Defendant’s Rights

Wednesday, January 14th, 2009


 January 13, 2009


The U.S. Supreme Court heard three arguments on Tuesday, all concerning what criminal defendants can expect from their lawyers.


The first and liveliest considered a decision of the Louisiana Supreme Court, Montejo v. Louisiana, No. 07-1529,  that a letter elicited by the police from a murder defendant was admissible as evidence even though a local judge had by then appointed a lawyer to represent him.


Earlier decisions by the United States Supreme Court have said the police may not initiate questioning after defendants have hired or asked for lawyers. But the Louisiana Supreme Court said the local judge’s action was not by itself enough, because the defendant had not also said that he accepted the appointment of the lawyer.


Academic commentators and some justices have described the state of the law on when the police are free to question people who have or want lawyers as murky, difficult and in places counterintuitive. But the affirmative-acceptance requirement did not seem to strike several justices on Tuesday as an improvement.


A second case argued Tuesday was , Vermont v. Brillon, No. 08-88.


In March, the Vermont Supreme Court ruled that a three-year delay in bringing Michael Brillon to trial, for domestic assault as a habitual offender, had violated his constitutional right to a speedy trial, notwithstanding that the delays in the case had been caused by Mr. Brillon or his appointed lawyers.


The general rule is that the right to a speedy trial does not apply to self-inflicted delays. The State Supreme Court acknowledged that, but it said the inaction of assigned counsel should count against the state and not the defendant. That proposition, if applied to overburdened and underfinanced public defender offices around the nation, could indeed have broad consequences.


In the third case argued Tuesday, Knowles v. Mirzayance, No. 07-1315, the defendant accused his former lawyer of having failed to present what he said was his only viable defense after his conviction of first-degree murder: that of not guilty by reason of insanity.


California state courts ruled that the lawyer’s choice was a reasonable one, but the United States Court of Appeals for the Ninth Circuit, in San Francisco, disagreed.



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Wednesday, January 14th, 2009


House Judiciary Committee Chairman John Conyers issued a report Tuesday documenting what he says are extraordinary claims of executive power during President George W. Bush’s eight years in office. Conyers said disturbing evidence his committee has gathered begs for an independent criminal investigation into controversial and possibly illegal policies sanctioned by the White House, including torture, and domestic surveillance, and the politicization of the Department of Justice.

The scathing 486-page report (click to read full report) is the clearest sign yet that the 111th Congress plans to probe the depths of the Bush administration’s most controversial policies.


The report is aimed at providing lawmakers in Congress the documentary evidence needed to support a bill that would authorize a full investigation of the findings of the Judiciary Committee.

The report, “Reining in the Imperial Presidency: Lessons and Recommendations Relating to the presidency of George W. Bush,” contains 47 separate recommendations that includes continued investigations into the Bush administration’s “excesses and abuses”, a blue ribbon commission to fully investigate administration activities, and independent criminal probes.


Conyers has been one of the fiercest critics of the Bush administration’s extraordinary claims of executive powers. His committee has probed numerous scandals that unfolded over the years, including the politicization of the Department of Justice, the leak of covert CIA operative Valerie Plame Wilson, and prewar Iraq intelligence.

Conyers call for a full investigation is not mirrored by Barack Obama the President-Elect, who is occupied with other issues.
On Sunday, Obama signaled in an interview on ABC’s “This Week With George Stephanopoulus,” that he will not likely recommend that his Justice Department launch a criminal probe into the Bush administration’s past practices, particularly policies that authorized torture.

Obama told Stephanopolous that he held “a belief that we need to look forward as opposed to looking backward.”

On Tuesday, a federal judge ruled that the Bush administration must turn to President-elect Barack Obama’s staff documents it has been withholding from Congress related to the White House’s role in the firing of the nine U.S. Attorneys.

Conyers’ committee has been pursuing testimony and documents from White House Chief of Staff Josh Bolten and former White House Counsel Harriet Miers about their involvement in the decision to fire the federal prosecutors. President George W. Bush has asserted executive privilege in blocking Bolten and Miers, who were both subpoenaed, from testifying before Congress. Last week, a new set of House rules were passed that revived subpoenas issued during the 110th Congress. In addition to Miers, Conyers’ committee subpoenaed former White House political adviser Karl Rove.

Conyers said unanswered questions revolving around the U.S. Attorney firings, such as the individual responsible for creating the list of federal prosecutors to fire, calls for aggressive an investigation. He said other matters that still need to be investigated by Congress and perhaps a criminal probe include whether any laws were broken as a result of the administration’s authorization that tactics such as waterboarding could be used to interrogate suspected terrorists, extraordinary rendition, and domestic surveillance.

Additionally, Conyers wants to find out “to what extent were President Bush and Vice President Cheney involved in the outing of Valerie Plame Wilson and its aftermath.”

Conyers subpoenaed documents last year related to the Plame leak, including testimony Bush and Cheney gave to Fitzgerald, but the Justice Department refused to turn over the materials.
Conyers said: “Given that so many significant questions remain unanswered relating to these core constitutional and legal matters, many of which implicate basic premises of our national honor, it seems clear that our country cannot simply move on. As easy or convenient as it would be to turn the page, our Nation’s respect for the rule of law and its role as a moral leader in the world demand that we finally and without obstruction conduct and complete these inquiries. This can and should be done without rancor or partisanship.”



Tuesday, January 13th, 2009

President Bush has until 1:00 P.M. Tuesday Jan. 20th, to issue pardons and grant immunity.

Some 23 Bush administration officials have received advice that they should be careful about traveling in most European countries due to the possibility they could be arrested for violation of the Geneva Convention.    Several officials from other countries have already been arrested and imprisoned in the Hague.

While a Presidential pardon is not likely to be binding on the World Court, it does highlight the pressure on the Bush White House to take ever effort to pass out immunities from prosecution which would prevent future prosecutions of CIA, Justice and other officials who may have had a hand in torture and other activities defined as war crimes under U.S. law.

The White House will surprise no-one if they pardon Vice President Cheney and Scooter Libby over the Valerie Plame CIA agent disclosure scandal.  While Libby had his sentence set aside, he still stands convicted of a felony, and would benefit for a pardon.

Cheney recently appeared on television and virtually confessed to having approved torture techniques.  That sounds like a man who is pretty sure he has nothing to fear from future prosecution….could that be due to his confidence that a pardon is imminent?

When you consider the claims of illegal wire-tapping by the NSA, and other agencies, then the list of potential applicants for pardons grows larger.

Perhaps Bush will grant a blanket pardon as did Gov. Ernie Fletcher.  There is legal authority for a blanket pardon, such as was granted to the draft evaders who fled the Viet Nam War and moved to Canada and Europe.

After eight years of criticism of President Clinton for his last minute pardons, it will be interesting to see if the White House has a change of heart and sees the wisdom of last minute pardons to protect their minions.

We suspect that the White House may be transporting a truck full of pardon forms to the Oval Office and buying ink by the barrel in anticipation of last minute activity by W.

U.S. Justice Dept. is looking for lawyers.

Tuesday, January 13th, 2009

The Justice Dept. has vacancies for lawyers.


If you wish to be considered for a position as a lawyer for the Justice Department you should check out their web site at:

All Department organizations advertise their vacancies for experienced attorneys on this web site. You may search the vacancies by hiring component, geographic locale, and/or practice area. Typically, opportunities located outside the Washington, DC area are with one of the United States Attorneys’ Offices, the Executive Office for Immigration Review, or the U.S. Trustee Program. The Federal Bureau of Prisons, Civil Division, and Environment Division may also have opportunities in their smaller regional offices. To see where Department offices are located, please consult the geographic areas of assignment section of our web page at, for more information. 

If you are interested in any of these positions, please follow the application instructions listed in the vacancy announcement and apply directly to the hiring organization. If you are interested in working for an organization that does not currently have a vacancy, you may submit a resume and cover letter describing your interest and highlighting your relevant experience to that organization. Please consult the Experienced Attorney Hiring Contacts,, that lists organizations that accept unsolicited resumes. Smaller organizations hiring very few attorneys that do not wish to receive unsolicited resumes do not list a hiring contact. For additional information about experienced attorney hiring, please visit oarm/arm/eap.htm, or call 202-514-3396 (24-hour voice message), TDD number 202-616-2113. 



Special Election called for Bowling Green state senate seat.

Tuesday, January 13th, 2009

Tuesday, State Senate President David Williams called for the Special Election to be held on Tuesday, February 10, to fill the vacancy in the 32nd Senate District, as result of the election of former Senator Brett Gutherie to Congress in the 2nd District.

The 32nd Senate District in Western Kentucky comprises of Warren and Butler Counties.


Warren and Butler County Democrats have nominated Bowling Green Attorney Mike Reynolds for the Senate seat.   Reynolds is 61 years-old, and has been very active in Warren County civic and community affairs.

The Republicans nominated J. Marshall Hughes. Hughes is 66.  His name recognition may be high due to his extensive advertising on television for his law firm Hughes & Coleman.

Hughes was a non-appointed advisor to former Gov. Ernie Fletcher.  His wife, Judith, is the Republican Chairman of the 2nd Congressional District.

How to apply for an appointment to a Kentucky Board or Commission

Tuesday, January 13th, 2009


Want to be considered for a Gubernatorial appointment to a Board or Commission?


You can visit the state web site which provides the application forms and a list of the Boards and Commissions to which appointments are made.


To access this web site go to:


In considering your application, the Office of the Governor may ask you to provide more information.
Application (14KB PDF)
Application for Community College Boards (20KB PDF)
Application for University and Postsecondary Education Boards (20KB PDF)
Applications should be completed and returned to:
Virginia Woodward, Executive Director
Boards and Commissions
Office of the Governor
700 Capitol Avenue, Suite 132
Frankfort, KY 40601

Fax: (502) 564-0437
For a complete listing of the boards and commissions, click here

Trial lawyers group ask Obama to stay Bush rules which will limit product liability claims

Tuesday, January 13th, 2009

By Chris Rizo  Madison St. Clair Record -   Jan. 12, 2009

WASHINGTON – A leading national group of trial lawyers Monday called on President-elect Barack Obama to repeal a bevy of regulations that limit corporate liability.

The American Association for Justice said the regulations backed by the Bush administration fetter individuals’ access to the courts.

“We look forward to the Obama administration reaffirming the importance of a civil justice system that complements strong regulations,” said AAJ Senior Vice President for Public Affairs Linda Lipsen. “The efforts to give negligent corporations complete immunity, escape accountability, and leave Americans without any recourse has gone too far and must be reversed.”

The Washington-based group said seven executive agencies have recently issued more than 54 regulations with language that preempts state tort claims.

The Administrative Procedure Act allows any new presidential administration to stay any final rules that have been put forth 60 days prior to the start of a new administration.

The American Association for Justice says it wants Obama to take full advantage of the law to “restore the traditional balance between federal regulation and state-based consumer protections and ensure injured Americans have access to the courts when injured by negligence or misconduct.”

Among other steps, the trial lawyers’ lobby is asking the Obama administration to stay immediately non-final or recently completed rules. If the agency decides to issue a new final rule, AAJ said the rule should deny any attempt to preempt state tort law.

The group also wants the U.S. Food and Drug Administration to open a rulemaking proceeding to “reinstate congressional intent” regarding the ability of consumers to hold medical device manufacturers accountable for their injuries, even from FDA-approved devices.

The group decried specifically the 2008 case of Riegel v. Medtronic, where the U.S. Supreme Court held that federal law bans lawsuits filed against manufacturers of products approved by the U.S. Food and Drug Administration.

The justices ruled 8-1 to deny monetary damages to a New York man who sustained injury after an FDA-approved balloon catheter manufactured by Medtronic Inc. burst during his coronary angioplasty procedure.

Travis Akin, executive director of Illinois Lawsuit Abuse Watch, said he is not at all surprised that the plaintiffs’ bar is making early and bold demands on Obama, who takes office Jan. 20.

“They want to get in on the ground floor and they want to make sure their agenda is at the top of the list,” Akin told Legal Newsline.

As for the AAJ’s request for the Obama administration to broaden liability rules, Akin said the trial lawyers’ group wants to help its members generate more tort cases.

“All this is designed to do is create additional lawsuits,” Akin said, noting that Illinois courtrooms are already overburdened with frivolous lawsuits.

“What is going to happen is those individuals with legitimate claims are going to have to wait even longer for the justice they need,” he added.

Amazing way to find specific word in long document..try this and you’ll love it.

Monday, January 12th, 2009

Have you ever been confronted with a long document …say 80 pages long…and you want to find the reference in the document to a specific term or name such as  “immunity”?  Well our friends at Microsoft have anticipated the utility of a tool that allows you to apply a mini-search engine to a long document, and quickly find any word in that document. 

Instead of reading the whole 80 pages, just try this kick trick.  This will save you countess hours of tedious reading. 

This is really easy to learn. 

When you have a document on your computer screen, do this:

on your keyboard click  “CTRL” ( also known as “control”) and “f” …both keys as the same time  A screen box will automatically appear on your screen. 

then enter in box the term you are looking  for (such as “immunity”) … and then click “find next and  your computer will instantly search the page and jump to the place in the long document that mentions the search word of “immunity 

You  can often see the search term highlighted, but you can also close the search term box, and the word “immunity” will be highlighted for you.   then see if that is the sentence you are looking for. If not just open the box again and click  “find next” and it will jump to the next sentence that uses your search term. 

This works throughout LawReader and in your word processor.  REMEMBER,   CLICK THE “CONTROL” ORCTRL” key on your keyboard, at the same time you CLICK THE LETTER “F”.
 After that everything is pretty intuitive.   Practice it three times and you will never forget this useful procedure.

US Supreme Court Asks DOJ To Weigh In On Cablevision’s New DVR

Monday, January 12th, 2009

January 12, 2009

In an important case for the entertainment industry, the U.S. Supreme Court asked the Justice Department Monday to weigh in on whether the court should consider a legal challenge to a next-generation digital video recorder planned by Cablevision Systems Corp. (CVC).


Major television networks and Hollywood studios are suing to stop Cablevision’s remote-storage DVR, a new service the company plans to offer this year.


Cablevision won a key ruling from a federal appeals court in Philadelphia last summer that gave the company the green light to move forward with its technology.


The networks and studios want the Supreme Court to consider the case and overturn that lower-court ruling. They argue that Cablevision’s service violates federal copyright laws.

On Monday, the justices asked the U.S. solicitor general, the federal government’s lawyer at the Supreme Court, to file a legal brief expressing the government’s opinion on whether the high court should take up the case.


The new DVR  service would, for the first time, allow customers to record and store television shows on central computer servers maintained by Cablevision instead of having to record them on expensive DVR cable boxes installed in their homes.

Cablevision says the system would allow it to provide DVR services at lower costs, which could lead to a rise in new subscribers to the technology.


DVR systems are popular with consumers because the technology allows viewers to watch programs whenever they choose and to skip commercials while they do so.


Among those suing to block Cablevision’s service are General Electric Co.’s ( GE) NBC; CBS Corp. (CBS); Walt Disney Co.’s (DIS) ABC; and News Corp.’s (NWS) Twentieth Century Fox.


Leading music companies, publishing organizations and professional sports leagues all filed friend-of-the-court briefs supporting the television networks.


The case is Cable News Network Inc. v. CSC Holdings Inc., 08-448.

What to do with Rodger? The law regarding cremains.

Monday, January 12th, 2009
What to do with Rodger?  The law regarding cremains.  

By Stan Billingsley                                                                     Jan. 12, 2009

This week I received a package that I mistook for a belated Christmas gift.  My wife carried the package into my office and said here’s something “from your nephew Pat”.

A few hours later when I got around to opening the package (probably a Fruit Cake or a basket of Fruit I was thinking)  I found a silver heart shaped metallic box.  For some reason it occurred to me that this must be a gift of expensive chocolates.   Great, I love chocolate!

The silver container was about four inches long and four inches wide.   I tried to find a way to open it but after a few minutes of failing to find the secret to opening this container, I gave up (thank goodness!).

I rummaged through the shipping package and discovered a note.  The package was not from my nephew Pat, it was from my sister-in-law Pat, and the note explained that the silver box contained the cremated remains of my brother Rodger who died just before Christmas. (She called them “cremains”.)  I then remembered that my sister-in-law had mentioned that she would be sending the cremains.  The mind has a strange way of ignoring information one does not know how to handle I suppose.

My first thought was relief that I had failed to discover the secret on how to open the container.  That would have presented issues I was not ready to deal with.

My brother Rodger was two years older then me at the time of his death due to a heart attack.  He was a Viet Nam veteran, and lived in Wyoming.  He had no children but had the good fortune of remaining married to the same remarkable woman for 41 years.

This experience is a novel one to me.  What does one do with the cremains of a loved one?   At the moment I have placed Rodger on a book shelf.   Should I leave him there or should I find some more creative and appropriate disposition for Rodger?

We all have seen movies and television programs of people dealing with cremains and most of them have a humorous scene where the remains accidentally are spilled, dropped or whatever.   Other representations have the loyal survivor spreading their loved ones cremains on a beautiful beach or at the scene of some event that was of importance and meaning to the deceased.  Over the years, and largely due to the fact he lived in Wyoming and I live in Kentucky, we did not see each other often.  I am confronted with the issue that I should have known more about him, and admit a sense of guilt that I failed to stay closer to him. I am therefore left without a great deal of knowledge about any events that were of great interest and meaning to him.

Being a lawyer, it occurred to me that I should start my search for an answer to this question by researching the law to see what I was legally entitled to do with Rodger.

I conducted a search of the Kentucky Revised Statutes and found no guidance there.  There are laws about the “improper” disposition of remains, but no real prohibitions about tossing ashes into the wind or waters of the Commonwealth.  I found one case from 1947 that said my brother Rodger was entitled to a “Christian burial”. Just what, I wonder, is a “Christian burial”?  I’m pretty sure Rodger was a Christian. (This is one case ruling that the atheists have apparently overlooked).  He had a certain Zen like approach to life and pretty much did what he wanted throughout his life. While I don’t think he ever studied the Torah he might have taken up the Jewish faith. I am pretty sure that he wasn’t a Muslim.  But why did the highest court in Kentucky specify that he was entitled to a “Christian burial”?   Are Jewish, Buddist or Muslim burials that much different or unworthy of recognition by the courts?   Rodger had a proper “funeral” ceremony, and the local chapter of the American Legion was there, fired a salute and gave his widow an American flag.  The proper prayers were said, announcements were printed, a notice is the local paper was published, and friends and loved ones gathered.  Donations to his favorite charity were made. Flowers were sent.  Does that satisfy the courts? KRS 525.120 (1)  says it is illegal to do anything that would “outrage ordinary family sensibilities”.  What does that mean?   I can imagine that some solutions I might come up with to this question might outrage some family members and might be found acceptable by others.  However, there is no statute that specifically says Rodger has to be placed in the ground.KRS 381.700 says that as a property owner, one must “properly care” for any burial grounds.  If I place him in the back yard can I be cited for a violation of the law if I don’t keep the yard mowed?  (I do mow my yard regularly. Well to be truthful, I pay someone to mow my yard regularly.)  I searched under the title Public Health, and couldn’t find a relevant statute. I searched under Occupations and Professions and found only licensing requirements for undertakers. In checking the case law for reference to the word “funeral” I found 954 cases which discuss funeral expenses, rights to make funeral decisions, operation of funeral homes rights of ex-wives, etc. but no limitations on the handling of cremains.  The courts and the legislature have pretty much left the decision to me to decide what to do with Rodger. No one else is charged with the responsibility to relieve me of this decision (and no one is standing in line to relieve me of this responsibility).  I am not yet ready to make a decision, but I know that I have a great responsibility to do the right thing.  For the moment I will leave Rodger in the silver box on my book shelf until a better solution occurs to me.  Perhaps it is not a bad thing that I may be spending some time with Rodger in my home to make up for all those years when we were so far apart.  One thing I know about Rodger, is that he would love all this.Authorities:
  Terrill’s Adm’R v. Davis, 303 Ky. 758 (KY, 1947)
Dead Bodies. — A person is entitled to a Christian burial and it cannot be delayed to determine upon whom legal obligation to proceed with burial rests most heavily, and undertaker should not be compelled to await an adjustment of any dispute that might arise.
KRS 381.700 Care of burial grounds by owners.
The governing authorities of any city within whose corporate limits any burying grounds lie may require the owner or those having claims to the grounds to properly care for them.
Effective: October 1, 1942
History: Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. sec. 2741p-2.
 KRS 525.120 Abuse of corpse.
(1) A person is guilty of abuse of a corpse when except as authorized by law he intentionally treats a corpse in a way that would outrage ordinary family sensibilities. A person shall also be guilty of abuse of a corpse if that person enters into a contract and accepts remuneration for the preparation of a corpse for burial or the burial or cremation of a corpse and then deliberately fails to prepare, bury, or cremate that corpse in accordance with that contract.
Effective: July 15, 2002
History: Amended 2002 Ky. Acts ch. 276, sec. 8, effective July 15, 2002. — Amended 2000 Ky. Acts ch. 490, sec. 1, effective July 14, 2000. — Created 1974 Ky. Acts ch. 406, sec. 222, effective January 1, 1975.
 KRS 307.300 Improperly interred body or cremated remains.
(1) In any instance where the operator of any cemetery is informed or becomes aware that it has improperly interred or has allowed to be improperly interred a body or cremated remains, including but not limited to interment in the wrong space, the burial container shall be disinterred and properly reinterred.
(2) Prior to disinterment and proper reinterment of the body or cremated remains, the cemetery shall give reasonable notice to the next of kin of the deceased and, if requested, the owner of the burial space, informing them of the improper interment and the agreed-upon date of the disinterment and proper reinterment.
(3) The expense of the disinterment and proper reinterment shall be paid by the cemetery in which the body or cremated remains were improperly interred.
Effective: July 15, 2002
History: Created 2002 Ky. Acts ch. 276, sec. 5, effective July 15, 2002.


KRS 72.450 Disposal of body and valuables found thereon.
(1) A coroner who has possession of a dead body or a part thereof shall make a bona fide attempt to notify the spouse, if any, or next of kin of the decedent’s death. In the event the coroner is unable to locate the spouse, if any, or next of kin, he or she may cause the body to be buried at the expense of the fiscal court, consolidated local government, or urban-county government, whichever is appropriate.
(2) In the event the body is buried at public expense, the coroner shall take possession of all money or other property found on or belonging to the decedent and shall deliver same to the fiscal court, consolidated local government, or urban-county government, whichever is appropriate. Any money or other property found on the body of the decedent or belonging to him or her shall be delivered by the coroner to the fiscal court, consolidated local government, or urban-county government, whichever is appropriate, to help defray burial expenses. Any excess funds shall escheat to such governmental agency one (1) year thereafter.
(3) In lieu of having an unclaimed body buried at public expense, the coroner may deliver such body or part thereof to a state medical school in accordance with the provisions of KRS 311.300 to 311.350.
Effective: July 15, 2002
History: Amended 2002 Ky. Acts ch. 346, sec. 74, effective July 15, 2002. — Created 1978 Ky. Acts ch. 93, sec. 14, effective June 17, 1978.

Martinez v. Employers Insurance of Wausau, 1999 KY 42109 (KYCA, 1999)
     One who is entitled to the Disposition of the body of a deceased person has a cause of action in tort against one who intentionally, recklessly or negligently mistreats or improperly deals with the body, or prevents its proper burial or cremation. The technical basis of the cause of action is the interference with the exclusive right of control of the body, which frequently has been called by the courts a “property” or a “quasi-property” right.
  This does not, however, fit very well into the category of property, since the body ordinarily cannot be sold or transferred, has no utility and can be used only for the one purpose of interment or cremation. In practice the technical right has served as a mere peg upon which to hang damages for the mental distress inflicted upon the survivor; and in reality the cause of action has been exclusively one for the mental distress. * * * There is no need to show physical consequences of the mental distress.




Justice Dept. Issues Opinion: Lawyer Incompetence in Immigration Hearings No Bar to Deportation

Monday, January 12th, 2009


 Ineffective assistance of counsel in an immigration proceeding is no longer a valid defense to deportation, reports The New York Times. An opinion released Wednesday by Attorney General Michael Mukasey holds that “neither the Constitution nor any statutory or regulatory provision entitles an alien to a do-over if his initial removal proceeding is prejudiced by the mistakes of a privately retained lawyer.” 

Prior to Mukasey’s opinion, many federal courts and the Board of Immigration Appeals held that immigrants denied competent counsel could reopen their cases on constitutional grounds. However, more recent federal appellate cases rejected the proposition that immigrants are entitled to effective representation in a deportation proceeding. 

Some who defend the ruling argue that it is based “firmly in the law.” Others believe that it will cut down on frivolous motions to reopen a case based on ineffective assistance of counsel, which is often a delaying tactic at best. But others criticize Mukasey for his 11th hour ruling, which penalizes immigrants for the sins of their attorneys, many of whom “extract heavy fees in exchange for false promises and shoddy, ineffective representation.”