Archive for February, 2009

Northern Ky. Bar Association Press Release re: meetings and seminars

Friday, February 13th, 2009
  • The NAACP Lawyers Luncheon has been scheduled for Wednesday, February 25th.  We are sorry the date has changed from February 24thPlease see the attached invitation and RSVP request form.


  • The Bankruptcy Section will meet on February 24th at 12:00 noon at Brio on the Levee.  Judge Christopher Mehling is the guest speaker.


  • The Mediation Section will host a one hour CLE on March 19, 2009, beginning promptly at 12:00 noon in the NKBA office.  Jim Kruer will present “Stop Yelling at Me! – Mediating With Difficult People”. Cost $15 Members and $25 Non-Members.


  • A Special Invitation from the NKY Chamber to NKBA Members —Join us as we welcome Justice Wil Schroder to speak at the February Government Forum!
    “Judging the Business Cycle … The Interaction Between Business and the Judicial Branch”

    Friday, Feb 20th from 11:30 a.m – 1:30 p.m. at the Metropolitan Club
    *           Our state legislators have a big impact on your business.  Did you know that the judicial branch has as much – if not more?  Join us at the February 20th Government      Forum where Justice Wil Schroder of the 6th
    Supreme Court District will discuss this beneficial topic.  

    *           Justice Schroder was elected to the Supreme Court of Kentucky in 2006.  He has had more than 23 years of prior judicial service.  He served on the Kentucky Court of   Appeals for more than 15 years and served as a trial judge on the Kenton District Court for almost 8 years.
    *           Cost: $25 pre-registered Chamber members; $30 Future members
    *           Call 859.578.6395 and mention that you are a NKBA member to receive Chamber member rates for this event!




 Julie L. Jones
NKBA Executive Director
859-781-1277 (fax)


Northern Kentucky Bar Association

House Bill 367 seeks to amend KRS 13B.010 to permit non-lawyers to practice before administrative hearings

Thursday, February 12th, 2009

House Bill 367 seeks to amend KRS 13B.010 to permit non-lawyers to represent

Parties hearings before Administrative Law Judges.


HB 367, as we read it, opens the door to the practice of law by non-lawyers in behalf of parties appearing before hearings conducted by Administrative Law Judges in appeal of state agency decisions and rulings.  The amendment to Section (3)(a) expands the definition of a “party” as a person whose rights are being adjudicated, “and by his union representative or other designee.”


We find it difficult to find the merit in allowing non-lawyers to practice law before such hearings.  The legal issues and the procedures for these appeals are difficult and complex, and require a knowledge of the law.  This is a great bill if you merely want to reduce such hearings to shouting matches.


HB 367 would amend KRS 13B.010 as follows:


As used in this chapter, unless the context requires otherwise:

(1)        “Administrative agency” or “agency” means each state board, bureau, cabinet, commission, department, authority, officer, or other entity in the executive branch of state government authorized by law to conduct administrative hearings.

(2)        “Administrative hearing” or “hearing” means any type of formal adjudicatory proceeding conducted by an agency as required or permitted by statute or regulation to adjudicate the legal rights, duties, privileges, or immunities of a named person.

(3)        “Party” means:

(a)        The named person whose legal rights, duties, privileges, or immunities are being adjudicated in the administrative hearing or the person’s union representative or other designee

House Bill 367 seeks to amend KRS 13B.010 to permit non-lawyers to practice in administrative hearings

Thursday, February 12th, 2009

House Bill 367 seeks to amend KRS 13B.010 to permit non-lawyers to represent

Parties hearings before Administrative Law Judges.


HB 367, as we read it, opens the door to the practice of law by non-lawyers in behalf of parties appearing before hearings conducted by Administrative Law Judges in appeal of state agency decisions and rulings.  The amendment to Section (3)(a) expands the definition of a “party” as a person whose rights are being adjudicated, “and by his union representative or other designee.”


We find it difficult to find the merit in allowing non-lawyers to practice law before such hearings.  The legal issues and the procedures for these appeals are difficult and complex, and require a knowledge of the law.  This is a great bill if you merely want to reduce such hearings to shouting matches.


HB 367 would amend KRS 13B.010 as follows:


As used in this chapter, unless the context requires otherwise:

(1)        “Administrative agency” or “agency” means each state board, bureau, cabinet, commission, department, authority, officer, or other entity in the executive branch of state government authorized by law to conduct administrative hearings.

(2)        “Administrative hearing” or “hearing” means any type of formal adjudicatory proceeding conducted by an agency as required or permitted by statute or regulation to adjudicate the legal rights, duties, privileges, or immunities of a named person.

(3)        “Party” means:

(a)        The named person whose legal rights, duties, privileges, or immunities are being adjudicated in the administrative hearing or the person’s union representative or other designee

Thursday, February 12th, 2009


Ky. Appellate Courts hear a case within about a year. In India the High Court hears cases is less than 5 minutes but still have a back log of 466 years.

Thursday, February 12th, 2009

NEW DELHI  - The High Court in New Delhi is so behind in its work that it could take up to 466 years to clear the enormous backlog, the court’s chief justice said in a damning report that illustrates the decrepitude of India’s judicial system. 

The Delhi High Court races through each case in an average of four minutes and 55 seconds but still has tens of thousands of cases pending, including upward of 600 that are more than 20 years old, according to the report.

Reports indicate that there is a 20 million case backlog in the India Court.

The Kentucky Court of Appelas issues about 1450 cases a year, and the Ky. Supreme Court issues about 500 decisions.   Our court is 465 years ahead of India on handlling the backlog.   Maybe we should give our courts an efficiency raise!!!

Bully Prosecutor who ignored court orders, withheld exculpatory evidence and violated ethic rules disbarred for four years

Thursday, February 12th, 2009


“His overzealousness …obstructed his understanding of a prosecutor’s special duty to promote justice and seek truth”

Mercury – Silicon Valley California-  Feb. 11, 2009
Suggesting the harshest disciplinary punishment in recent history for a California prosecutor, a state bar judge Wednesday called for Santa Clara County Deputy District Attorney Ben Field to be stripped of his right to practice law in the state for four years because he “abused his prosecutorial power.”
In a scathing 67-page ruling, Judge Pat McElroy described Field as an “overzealous” prosecutor who violated a host of ethical rules in four criminal cases, ranging from disobeying judges’ orders to hiding crucial evidence from defense lawyers that could help their clients. The judge’s decision was based on a series of hearings held last year in which bar prosecutors charged Field with a string of misconduct in cases dating back to 1995, and she largely accepted the prosecution’s depiction of the case against Field.
McElroy, however, took the extraordinary step of recommending punishment more severe than prosecutors had sought. Bar prosecutors had recommended that Field be suspended from practicing law for three years, ordinarily the stiffest penalty handed down in discipline cases short of disbarring an attorney.
“His overzealousness to convict and punish defendants who had murdered, robbed and raped obstructed his understanding of a prosecutor’s special duty to promote justice and seek truth,” the judge wrote.
Star prosecutor Field was a star prosecutor in the office who harbored  ambitions of becoming district attorney or a county judge.
Field could not be reached for comment. But Allen Ruby, Field’s lawyer, said the decision would be appealed, first to an appellate panel of the State Bar of California and, if necessary, eventually to the California Supreme Court. It requires a state Supreme Court order to make the suspension official.
“The law forbids me from saying what I think of the opinion,” Ruby said. “We’ll appeal and we’re confident an appeal will vindicate Ben.”
The bar judge found Field committed “serious prosecutorial misconduct” in four cases, including: violating court orders in a 1995 juvenile case; defying a judge’s orders and concealing evidence in the 2003 appeal of a rape case; withholding a crucial witness’s police interrogation in a 2003 murder case; and defying court orders in his closing arguments in a 2005 sex offender case.
Perhaps the most serious allegations against Field involved his handling of the appeal of two men, Damon Auguste and Kamani Hendricks, in their effort to get their rape convictions overturned in 2003. In that case, the judge found Field held back crucial evidence that would have been helpful to their appeal, and also ignored a judge’s orders. Hendricks and Auguste eventually settled the case for misdemeanors after Field’s misconduct was disclosed.
Field’s handling of the case was one of those highlighted in a Mercury News series three years ago examining problems in the local justice system.
Admitted mistakes
Auguste, whose family attended most of Field’s disciplinary hearing, said Wednesday that he was satisfied with the judge’s decision, although he would have preferred Field be disbarred.
“He did a lot of stuff to a lot of different people, including me, that was wrong,” Auguste said. “It’s good he’s being punished for that.”
Field, while admitting mistakes and apologizing, denied any deliberate wrongdoing in his testimony this past summer. Both current District Attorney Dolores Carr and former District Attorney George Kennedy have defended Field’s character and reputation, although they also acknowledged he violated the ethical rules of the office. Field has continued to prosecute cases in Carr’s white-collar crime unit while the disciplinary case has unfolded.
Carr said she would not comment until she had time to review the ruling.
Field is the second Santa Clara County prosecutor disciplined by the bar this month. Bar officials recently publicly reprimanded veteran prosecutor Peter Waite for misconduct in a 1999 murder case.
Bar prosecutors have generally stepped up their disciplinary probes of state prosecutors, but McElroy’s decision underscores the severity of the proposed punishment for Field’s misconduct. If upheld, it would be the harshest of the penalties imposed on the eight prosecutors publicly disciplined by the bar since 2005; only Marin County prosecutor Brooke Halsey (three years) and Santa Cruz prosecutor George Dunlap (two years) faced similar suspensions.
The bar suspended 170 lawyers statewide in 2007, according to the bar’s most recent report.
“I think the court wanted to make a point of how close this case was to disbarment,” said Don Steedman, the lead prosecutor in the Field case.
The judge noted that “disbarment would be the appropriate degree of discipline” for Field, except for offsetting evidence of his strong reputation among colleagues and his active work in the community. Many prosecutors came to Field’s defense, and the county’s government lawyer association issued a statement Wednesday saying, “Our thoughts are with Ben and his family during this very difficult time.”
Read the full decision in the Ben Field case


Dave Kramer authors new pocket part updates for Thomson/West publishing

Wednesday, February 11th, 2009

Northern Kentucky attorney David Kramer is an author of the new pocket parts for Thomson/ West Publishing Co.   Dave is a highly respected attorney, and is the author of numerous articles on a number of legal topics. He has been kind enough to provide us a copy of one of his updates for American’s largest legal publishing company. 

The comment he has written will be included in the forthcoming pocket part to vol. 7 of West’s Kentucky Practice series. It is obviously not meant to be comprehensive treatment of the subject (which is what you typically do), just an update on a change in the law.  We think this may be of interest. The books are available in print from West (see the link at the end of the disclaimer) or on Westlaw (though not part of the basic subscription package) under the database acronym “kyprac-rcp.”

Kramer is a member in the law firm Dressman Benzinger LaVelle psc (formerly Deters, Benzinger & LaVelle, P.S.C.), Crestview Hills, Kentucky.  (Associate, January 1986 – February 1994.)  Practicing primarily in areas of health-care law and litigation, medical malpractice defense, and insurance litigation.  Martindale-Hubbell rating: AV.

Kramer’s latest pocket-part update:      Challenge for Cause – Grounds and Appellate Review

             On appeal, the standard of review of a trial court’s ruling on a litigant’s challenge of a prospective juror for cause is one of abuse of discretion.[1]  In a recent civil case that was not designated for publication,[2] the Kentucky Court of Appeals noted that the Kentucky Supreme Court had remanded the case with direction to consider the Supreme Court’s holding in a criminal case, Shane v. Commonwealth, 243 S.W.3d 336 (Ky. 2007), in deciding the issues whether the trial court had erred in overruling a party’s challenges to several jurors for cause and if so whether such error was reversible.  Under prior case law, the trial court’s erroneous failure to strike a juror for cause was held not to be reversible error as long as the juror in question did not ultimately sit on the jury (usually because the objecting party used a peremptory challenge after the challenge for cause was overruled).  Shane v. Comm. overruled the prior case law and held that forcing a party to use a peremptory challenge to remove a juror whom the trial court should have removed for cause is a violation of a substantial right and automatically constitutes reversible error.  [1][2]In light of this principle, trial lawyers should be careful to preserve the record on any jury challenges for cause and should strive to explore during voir dire whether any of the prospective jurors have prior knowledge of the case or have a relationship with any of the litigants, legal counsel, or the lay and expert witnesses who will testify in the case that may give rise to a basis to challenge for cause.[3]  Such bases include the following:  

  • a close relationship, either familial, financial, or situational.[4]
  • other acquaintance such that reasonable grounds do not exist to believe the juror can render a fair and impartial verdict based solely on the evidence.[5]  However, a mere social acquaintanceship between the prospective juror and a party, attorney or witness is not cause for striking a juror unless there is some other indication that the relationship is so close as to indicate the probability of partiality.[6]
  • a business relationship that is more than “casual.”[7]
  • considerable prior knowledge of the facts of the case such that the prospective juror has formed an opinion about the main issue in the case.[8]  However, it is not required that jurors be totally ignorant of facts and issues in the case.[9]
  • involvement in a case with similar issues.[10]


    [1]  Maxie v. Commonwealth, 82 S.W.3d 860 (Ky.2002). 

    [2]  O’Hair v. Wells, 2008 WL 2610164 (Ky.App. 2008).  It appears that the case may be cited as authority under CR 76.28(4)(C) as amended and effective January 1, 2007. 

    [3]  See generally Osborne, “Trial Handbook for Kentucky Lawyers,” 2d ed., Sections 17.18-17.26 (Thomson West 1992). 

    [4]  Ward v. Commonwealth, 695 S.W.2d 404 (Ky. 1985). 

    [5]  Maxie v. Commonwealth, 82 S.W.3d 860 (Ky. 2002). 

    [6]  Sholler v. Commonwealth, 969 S.W.2d 706 (Ky. 1998). 

    [7]  Sanders v. Commonwealth, 801 S.W.2d 665 (Ky. 1990), cert. denied, 502 U.S. 831 (1991). 

    [8]  Marsch v. Commonwealth, 743 S.W.2d 830 (Ky. 1987) 

    [9]  Jacobs v. Commonwealth, 870 S.W.2d 412 (Ky.1994). 

    [10]  Comm., Dept. of Highways v. Ginsburg, 516 S.W.2d 868 (Ky. 1974).   

    Web address,

    University of Kentucky College of Law, Lexington, Kentucky, J.D., 1983. Associate Justice, U.K. Student Government Judicial Board, 1982; Phi Alpha Delta Law Fraternity.

Xavier University, Cincinnati, Ohio, H.A.B., cum laude, 1980.  Major was Honors A.B. Program, concentrated in classical languages (Latin and ancient Greek) and humanities (philosophy and theology). 

Other Kramer PUBLICATIONS and Seminars :

“Confidentiality of Patient Alcohol and Drug Abuse Information,” Kentucky Hospitals (publication of the Kentucky Hospital Association), Spring 1988.

“Beyond Apparent Authority: Hospital Liability for Negligence of Independent Physicians,” Kentucky Hospitals, Winter 1989.

“Designation of Health-Care Surrogate: An Alternative to Living Wills,” Sentinel (newsletter of Senior Citizens of Northern Kentucky), March 1991. Co-authored with James A. Dressman III.

“Overview of Federal Antitrust Law in the Health-Care Field,” Health Law Handbook (1st Ed.), University of Kentucky CLE Institute, June 1991.  Co-authored with Robert G. Stevens.

“Managing Medical Waste: A Road Map for Health Care Institutions,” Kentucky Hospitals, Spring 1991.  Co-authored with Jeffrey J. Harmon.

“High/Low Settlement Agreements,” Kentucky Bench & Bar (publication of the Kentucky Bar Association), September 1999.

Volumes 6 and 7, Philipps, Kramer & Burleigh, Kentucky Practice, “Kentucky Rules of Civil Procedure Annotated,” 6th edition, 2005 (Thomson/West).  Served as primary author of 6th edition; co-authored with the late Kurt A. Philipps, Jr., and David W. Burleigh.  Treatise updated annually.


“Confidentiality of Alcohol and Drug Abuse Patient Records,” Medical Educational Services Seminar, Louisville, Kentucky, May 25, 1988.

“Overview of New Workers’ Compensation Procedures,” sponsored by the Northern Kentucky Bar Association, at Northern Kentucky University, Highland Heights, Kentucky, June 23, 1988.

“Advance Directives (Living Wills and Medical Powers of Attorney),” Northern Kentucky Bar Association Health Law Section, Fort Mitchell, Kentucky, February 25, 1992.

Living Wills and Durable Powers of Attorney,” part of the “I Can Cope” Program sponsored by the American Cancer Society, Edgewood, Kentucky, September 24, 1992.

“Living Wills and Medical Powers of Attorney,” part of “Senior Summit V,” Covington, Kentucky, April 24, 1993.

“Institutional Review Boards,” Northern Kentucky Bar Association Health Law Section, Fort Mitchell, Kentucky, September 30, 1993.

DeGrella vs. Elston – The Right to Die in Kentucky” (panel discussion), Northern Kentucky Bar Association Health Law Section, Fort Mitchell, Kentucky, November 29, 1993.

“Avoiding and Reducing Employers’ Workers’ Compensation Liability,” St. Elizabeth Medical Center Foundation, Edgewood, Kentucky July 25, 1995.

“Ethical and Legal Issues of Forcing and Withholding Treatment,” Northeast Kentucky Area Health Education Center Seminar, Morehead, Kentucky, December 3, 1996.

“Competency: Legal, Ethical and Medical Perspectives,” The Center for Healthcare Ethics, Seminar at St. Charles Care Center, Covington, Kentucky, March 10, 1999.

“End of Life Issues,” Symposium Panel Member, St. Charles Care Center, Covington, Kentucky, September 28, 2000.

“Ethical and Legal Issues Surrounding the Last Stages of Life,” Professional Workshop sponsored by the Diocese of Covington Planned Giving Committee, Thomas More College, Crestview Hills, Kentucky, October 16, 2002.

“Update on the Kentucky Rules of Civil Procedure,” Salmon P. Chase American Inn of Court, the Metropolitan Club, Covington, Kentucky, January 20, 2005.

“Current Issues and Recent Cases in Kentucky and Federal Civil Procedure,” Salmon P. Chase American Inn of Court, the Metropolitan Club, Covington, Kentucky, November 28, 2006.  “Trial Strategies & Techniques from Leading Attorneys on Both Sides of the Bar:  Use of Demonstrative Evidence and Technology in the Courtroom,” Joint Seminar of the Kentucky Justice Association and Kentucky Defense Counsel, Louisville, Kentucky, May 16, 2008, and Lexington, Kentucky May 30, 2008.  Scheduled/forthcoming:  “ ‘No Further Questions, Your Honor’ – Effective Cross-Examination of Expert Witnesses,” Annual Convention of the Kentucky Bar Association, Northern Kentucky Convention Center, Covington, Kentucky, June 11, 2009.Member, Board of Directors, Kentucky Lottery Corporation (Aug. 1993 – Dec. 1998) (Chairman, Contracts and Procurement Committee) (appointed by Governor Brereton Jones and confirmed by Kentucky Senate, Aug. 1993; re-appointed by Governor Jones and confirmed by Kentucky Senate, Nov. 1994).

Member, Kenton County Democratic Executive Committee (Apr. 1992 – May 1996; Feb. 1998 – April 2008).

Member, Board of Directors, Covington Latin School Alumni Association (1989-92) (Secretary, 1990-92).

Member, Institutional Review Board (responsible for overseeing medical research protocols), Saint Elizabeth Medical Center, Inc., Edgewood, Kentucky (1989 – present).

Member, Kiwanis Club of Covington/Kenton County (1988 – present) (President, 1993-94; Secretary, 1989-92; Director, 1992-95).

Member, Northern Kentucky Chamber of Commerce (1987 – present).


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Reprinted from the forthcoming supplement to Rules of Civil Procedure Annotated, 6th ed (Vols. 6 & 7, Kentucky Practice Series), by the late Kurt A. Philips, David V. Kramer and Todd V. McMurtry, with permission. Copyright (c) 2009 Thomson Reuters. For more information about this publication please visit”

Nominations Sought for William Cooper Award for Community and Faith in Action Award to honor individual for outstanding service to Kentuckians

Wednesday, February 11th, 2009

FRANKFORT, Ky. – Governor Steve Beshear announced today that nominations are now being accepted for the William Cooper Award for Community and Faith in Action.

 “We must recognize individuals who give back to their community through leadership and service to others,” said Gov. Beshear. “The William Cooper Award is a wonderful way to honor an individual who is motivated by faith and continually serves others within the commonwealth.”

The recipient’s of the William Cooper Award must embody the heart of the commonwealth: “United We Stand; Divided We Fall.” The individual provides service to others with a motivation of faith and humbly leaves a mark on the community with a lasting impact.

The official nomination form is able for download at The nominee must be a current resident of Kentucky. Nominations are to be submitted no later than Monday, Feb. 16th, 2009, to Mr. Colmon Eldridge, Office of Faith Based Initiatives,

702 Capitol Avenue, Frankfort, Ky. 40601


The recipient will be announced at the annual Governor’s Prayer Breakfast, founded by William Cooper, on March 3, 2009, at the Frankfort Convention Center.

Gov. Ernie Fletcher first presented the award in 2007 to Kenny Boyd of Youth Alive in Louisville. In 2008, Gov. Beshear honored Duncan Taylor, of Nicholasville, for outstanding service to Kentuckians.

Are you a “mouse tracker” or “elephant hunter” 1952 Court of Appeals Court decision gives some guidance.

Wednesday, February 11th, 2009

Are you a “mouse tracker” or “elephant hunter”  1952 Court of Appeals Court decision gives some quidance.

Eastern Kentucky Production Credit Ass’n v. Scott, 247 S.W.2d 983 (Ky.App. 03/14/1952)
 Appellant insists that under KRS 382.270 the holder of an unrecorded deed takes subject to the attachment lien of a creditor without notice; that as it was a subsequent creditor without notice, Mildred’s claim to the property, merely through possession and without a deed, must yield to the attachment lien.  [...]  If Mildred had a deed to the property and it had been recorded, or if she had been occupying the apartment personally, appellant would have been put on notice that the apartment was not included in the ‘city property’ listed in Darwin’s financial statement. [...]  We realize this is a hard case for Mildred to lose and that she is the victim of mistake which she did not bring about. However, there is some responsibility on a person accepting a deed to make sure it conveys the property intended and that the description is correct. A meticulous lawyer is sometimes derisively called a ‘mouse-tracker’ by those who would like to be known as ‘elephant-hunters’, but no one can lay claim to being a competent real estate lawyer, or even a conveyancer, who is not a ‘mouse-tracker’. We even notice a mistake in the description of the quit-claim deed Mildred executed. Instead of calling for the east side of Broadway it calls for the west side of the street. This same error in the description appears in the deed Darwin executed to her for the vacant lot. A small mistake, but somebody was not accurate in comparing the description in either of those instruments. 

New Makeup of the Kentucky State Senate

Wednesday, February 11th, 2009

After the election of  a Democrat from Bowling Green in Tuesdays special election, the Kentucky Senate is now made up of 21 Republicans and 1 independent who caucuses with the Republicans, and 16 Democrats.

Democrat Mike Reynolds won a special election Tuesday for the 32nd District state senate seat vacated by U.S. Rep. Brett Guthrie

Reynolds, a Bowling Green attorney, beat Republican challenger J. Marshall Hughes, also a Bowling Green attorney, 8,283 to 6,858.

Hughes carried Butler County 1,338 to 451, but Reynolds rode to victory on a 7,832 to 5,520 margin in Warren County, according to unofficial results posted by the state Board of Elections. 

That effectively gives the Republicans a 22 to 16 majority.

In the 2010 elections, 12 Republicans will stand.  For control of the State Senate to change, the Democrats will have to pick up 4 seats.

Four seats would give the Democrats 20 seats, and the Republicans 17 seats plus 1 Independent, for an effective total of l8 controlled votes.

Currently if the Democrats are to override the Republican majority on any issue, they need to hold on to all their members and pick up 4 Republicans to form a majority.

Law professors, former judges, attorneys urge major changes for U.S. Supreme Court structure and procedure

Wednesday, February 11th, 2009


In an article posted Feb. 10, 2009  by Marcia Coyle of the National Law Journal 33 law professors, former state supreme court justices and lawyers are calling for a change in U.S. Supreme Court procedures and structure.
WASHINGTON — A group of 33 law professors, former state supreme court justices and practitioners are urging the attorney general and the heads of the Senate and House judiciary committees to consider four changes in the operation of the U.S. Supreme Court, including regular appointment of justices and the involvement of appellate judges in the selection of cases to be decided on the merits.

The group sent the proposals in draft legislative form and noted that all of its members do not support all of the proposals, but are “unanimous” that it is time for Congress to reconsider the law applicable to the Supreme Court, “a subject it appears not to have seriously considered for at least 70 years.”

The proposals grew out conversations among the group’s members over a period of years, said professor Paul Carrington of Duke Law School.

Although the members are not unanimous on all four proposals, Carrington added, “All of them have one background thought — the Supreme Court has gotten a little too big for its britches and it would be good for Congress to enact a law or two that says, `You’re part of an enterprise that we have some power over.’ ”

In its letter to the public officials, the group notes that Congress has given “scant attention” to the role and structure of the third branch since the “Court-packing” proposal of 1937.

“With rare exception, it has wisely entrusted the law governing that Branch to the Judicial Conference of the United States that it established in 1922,” the letter states. “But given its inherent limitations, the Conference has been unable to consider issues arising from the work of the Supreme Court. From time to time, the other branches of the federal government need to reconsider how the judicial branch has evolved, and adapt it to changed circumstances.”

The four proposals would do the following:

First, regular biennial appointments of new justices selected by the president and Senate in order to assure timely rotation within the membership of the court. If an appointment results in more than nine justices, the nine who are junior in time of service would sit to decide each appeal certified for decision on the merits. The proposal also would create senior justices. This proposal was signed by 30 of the 33 members — the greatest support.

“Our proposal is not a term limit but a system of rotation to assure some regularity of change in the composition of the court,” the proposal explains. “If necessary to meet the constitutional objection, the allocation and assignment of duties when there are more than nine active justices could be left for the Justices themselves to resolve by a rule of court.”

Second, the proposal states that it would be the duty of the chief justice to advise a justice who can no longer perform his or her duties to retire and report that to the Judicial Conference of the United States. The Judicial Conference then would be required to advise the chief judges of the federal circuits of the report. If a majority of those judges find substantial evidence of disability, they must report that finding to the House Judiciary Committee.

Third, this proposal would limit the term of a chief justice to seven years, subject to automatic extension until the president is authorized to appoint a new justice or until resolution of any pending impeachment proceeding over which the chief justice is needed to preside.

“Over time, the powers and responsibilities of that office have been extended into numerous other political, administrative, and non-judicial roles calling for a measure of special accountability for the justice holding office as Chief,” the group explains.

Fourth, under this proposal, a body of experienced appellate judges would have the power to designate a substantial number of cases that the high court would then be required to decide on their merits. The justices could add to that number. This proposal was signed by 19 members of the group — the least amount of support among the four proposals.

“This would be intended to correct the steady shrinkage of the docket and engage the Supreme Court’s attention on matters selected by persons suitably independent of the Justices and their personal or professional concerns,” the proposal states. “It would also correct a visible tendency of the justices to place greater reliance on their staffs, a practice increasingly replicated at all levels of the judicial system.”

Veteran Supreme Court litigator Alan Morrison of American University Washington College of Law said, “I very much support the regularization of appointments and the proposal on the inability to perform. I think the notion about the certiorari process is worthwhile. I’m in favor of those issues being discussed.”

Both Morrison and Carrington said some of these ideas have been the subject of recommendations for a number of years by prominent advisory committees.

“It’s not a subject that has a constituency,” said Carrington. “Judges pretty much like things the way they are, although in private, some will say they’d sign on to all four of the proposals.”

Carrington said the “easiest” proposal to endorse and adopt is the one on disability of a justice. “It’s hard to make an argument against calling attention to the fact that some justice is totally disabled. What’s the answer to that?”

The most “complicated” proposal in some ways, he suggested, involves the chief justice. “Somewhere along the way the chief justice has acquired more and more political and administrative responsibilities,” he said. “There’s a pretty good argument that the job ought to be accountable to someone.”

Carrington said he hopes one of the congressional committees would hold a hearing on the proposals.

“Given the history of it, nothing may happen, but, gosh darn it, they do need to think about it,” he added. “I think all four proposals are reasonable and not reckless.”


Former Owen Circuit Clerk Carolyn Keith named Co. Judge

Wednesday, February 11th, 2009
FRANKFORT, Ky. –Gov. Steve Beshear has appointed Carolyn H. Keith to the office of County Judge/Executive of Owen County to serve until the next general election on Nov. 2, 2010. 

Keith, of Owenton, is a retired circuit court clerk. She received her Master’s and Bachelor of Arts Degrees from Georgetown College.

The appointment replaces William P. O’Banion, who resigned last month after pleading guilty to reduced charges concerning overpayments to himself.

Senate Bill 5- “Zero-Tolerance Bill Makes Zero Sense”

Tuesday, February 10th, 2009


By Nathan Miller

Once again, a bill that seeks to punish prior use of a controlled substance with an automatic DUI conviction is making its way through the Kentucky Legislature.

Like its predecessors, SB 5 cleverly attempts to bootstrap an ill-advised rule regarding all drugs onto a rule created for the purpose of measuring alcohol impairment. Under the provisions of SB 5, a driver who tests positive for traces of marijuana can be convicted of “driving under the influence” even if that driver is unimpaired at the time of arrest.

While such laws do little to actually make roadways safer, they do send many innocent people to jail and saddle them with criminal records for the rest of their lives. Current Kentucky DUI law requires prosecutors to prove that a suspect was impaired while driving. SB 5 seeks to circumvent current evidentiary standards by removing this requirement under the guise of public safety. If lawmakers want to make it tougher than it already is for Kentuckians to find and retain employment, clog court dockets, and cost taxpayers more money, then this is the bill to support.

SB 5 attempts to create the appearance of scientific reliability by requiring blood tests to be administered within two hours of operating a vehicle using a “scientifically reliable test.” However, the two hour standard was developed decades ago for measuring impairment caused by alcohol, not drugs like marijuana. Moreover, the test referred to in SB 5 is not a test for marijuana impairment, but merely a test for marijuana’s presence, which is not what DUI laws are supposed to punish.

The effect and perhaps even the aim of legislation like SB 5 is to punish prior drug use – predominantly marijuana use – by convicting drivers of DUI without scientifically reliable evidence that they were operating a vehicle while under the influence of anything.

“Zero-tolerance” laws are more than simply unjust; they are scientifically unsound, which is exactly why not one single state applies such a rule to alcohol. Furthermore, these laws are even less suited for marijuana, the traces of which are detectable by drug tests long after its intoxicating effects have worn off. In short, marijuana and alcohol affect the body in different ways and leave the body at different intervals. Marijuana impairment, for example, peaks within minutes of use and is seldom severe or long lasting. Conversely, alcohol impairment peaks much later after consumption and lasts for several hours, meaning there’s a true correlation between high alcohol levels detected in the blood and driver impairment.

A driver with high levels of THC (the active psychotropic ingredient in marijuana) in the blood may not be impaired in any manner if time has passed since the substance was last used. The person is most certainly not impaired days or weeks later, even though THC metabolites are still detectible. The inability to accurately measure marijuana impairment with a blood test is why both the National Highway Traffic Safety Administration and the National Institute on Drug Abuse have stated that marijuana impairment testing via blood sampling is unreliable.

Proponents of SB 5 will argue that Kentucky must maintain a zero-tolerance policy for any level of drugs in a driver’s blood in order to save lives. However, if that is the case, then why does Kentucky law tolerate blood alcohol levels of up to .08 percent?

The truth is, zero-tolerance laws aren’t about making roadways safer; they’re a disingenuous attempt to create a powerful, intrusive tool to root out those who use controlled substances such as marijuana, regardless of whether they operate an automobile under its influence. This type of justice is cruel, unusual and bad public policy.

If proponents believe granting authorities easier and more arbitrary access to your fluids enhances public safety, then let them argue that point on its merits. If, however, this isn’t just an underhanded ploy to legislate morality and really is about highway safety, how about introducing a bill that seeks to establish a task force comprising physicians, phlebotomists, researchers, state police, prosecutors and defense attorneys to identify real solutions to the problems associated with detecting impaired driving caused by marijuana use? Not only would this be real progress, it could position Kentucky as a national leader in the development of scientifically reliable, marijuana-specific impairment testing, which is still in its infancy.

Driving under the influence of any substance is dangerous and should not be tolerated, but sending innocent people to jail for DUI using methods incapable of accurately measuring impairment is not the answer. Lawmakers should reject SB 5 as they have done in the past, and instead focus on finding real, scientifically valid ways to detect impaired drivers and get them off Kentucky highways.

(Nathan Miller is a Kentucky native, an attorney and legislative analyst for the Marijuana Policy Project in Washington, D.C., and a graduate of the University of Louisville Brandeis School of Law.)

Ky. Supreme Court issues order on court records retention

Tuesday, February 10th, 2009


Order addresses files in small claims cases, District Court civil cases, other records  

 FRANKFORT, Ky., Feb. 9, 2009 – The Supreme Court of Kentucky has issued an order for certain court records to be destroyed after a set time, including some records in small claims and District Court civil cases, financial records after audits are conducted, and paper records that have been scanned and stored electronically. 

Chief Justice of Kentucky John D. Minton Jr. entered an order on Jan. 30 based on the first set of recommendations from the Court Records Retention Committee, or CRRC, that he formed in August. The committee, led by Court of Appeals Judge Thomas B. Wine, is continuing its work of considering how the Kentucky court system should retain, destroy and archive court records statewide. 

“I appreciate Judge Wine and the records committee for tackling the important issue of how to best maintain court records in Kentucky,” Chief Justice Minton said. “This Supreme Court order is a good first step in determining how we should protect critical records while disposing of records that are no longer vital. I’m encouraged by this progress and look forward to the committee’s most important work, which is still to come.”    

As part of its mission, the CRRC will recommend a retention schedule for records that could be used for enhancing the charges of offenders and other significant records. 


Under Supreme Court Order 2009-04, judgments and records affecting judgments in small claims and District Court civil cases are to be kept permanently. The rest of the records in those files are to be destroyed after five years. The order also allows paper records that are electronically scanned in District Court civil and small claims divisions to be destroyed after scanning if the manager of the Administrative Office of the Courts Division of Clerk Services provides written approval in advance. The paper records may only be destroyed after the AOC confirms that an appropriate process is in place for scanning, indexing and electronically storing the scanned documents. When the paper records are destroyed, the scanned records will be considered the official court records. 

The order also calls for specific financial records in the Offices of Circuit Court Clerk to be destroyed following an audit after they have been kept for a designated number of years. For instance, bank reconciliation files, which contain canceled and voided checks, bank statements and deposit slips, are to be kept for two years, audited and then destroyed. 

The records retention timelines and other criteria in the Supreme Court order are identical to those in the most recent previous Court of Justice Records Retention Schedule for the destruction of records in small claims cases, District Court civil cases and financial records. The destruction of those records has not been a point of debate between prosecutors, defense attorneys, the AOC and others about the court records retention policy. 

Paper records that are scanned and stored electronically were not addressed in the previous retention schedule. 

Prosecutors and others called for a change to the records retention policy in late 2006 after the AOC, following guidelines at the time, destroyed records in Jefferson County. Those who wanted change maintained that the destruction of records eliminated information necessary for enhancing the charges of offenders and other significant data. After a panel recommended changes to the policy, the AOC announced in April 2007 that the destruction of all court records would be halted statewide until the issue could be further reviewed. Judge Wine, chairman of the CRRC, also headed that panel. 

Chief Justice Minton took up the records issue by forming the CRRC after he took office in June 2008. The office of chief justice has held the statutory authority to determine how court records are to be maintained since 1977. The committee’s goals are to ensure community safety by keeping records prosecutors need to effectively prosecute individuals who have committed crimes against the commonwealth, to maintain criminal records that citizens may seek to have expunged and to appropriately spend limited state funds with regard to records storage. 

The committee members represent those with an interest in the preservation of court records, including judges, attorneys, circuit court clerks and personnel from the AOC. The members are Judge Wine, who chairs the committee; Jefferson County Family Court Judge Patricia Walker FitzGerald; Senior Judge Roger L. Crittenden; District Judge Brandy O. Brown, who serves Clark and Madison counties; Woodford County Circuit Court Clerk Tricia Kittinger; Fayette County Commonwealth’s Attorney Ray Larson; Fayette County Attorney Larry Roberts; Damon Preston, director of the Trial Division of the Kentucky Department of Public Advocacy; Kevin Smalley, manager of the AOC Division of Clerk Services; Jason Cloyd, manager of the AOC Division of Records and Statistics; Brian Sudduth, supervisor of the AOC Division of Accessioning; and Barbara Teague, director of the Public Records Division of the Kentucky Department for Libraries and Archives. 

 The AOC in Frankfort is the operational arm of the Kentucky Court of Justice and supports the activities of more than 4,000 court system employees, including the elected offices of justices, judges and circuit court clerks. 



LawReader President Mike McMain remembers his former law partner Martin “Marty” Horwitz.

Tuesday, February 10th, 2009

LawReader President Mike McMain remembers his former law partner Marin Horwitz.

It was shocking this past Saturday when I received a phone call from my partner Burr Travis to let me know my ex-partner and friend, Marty Horwitz passed away. He was only 57 years young when his life ended. I had the pleasure of meeting Marty when he joined the law firm of Busald Funk Zevely,

 He was a partner of mine for many years and more importantly a dear friend. When something likes this happens, it makes you stop and think about your loved ones. More importantly it forces you to realize what is truly important.  I  remember all the vacations I took with Marty–many ski trips to Colorado, a trip to Alaska and even our trip to the 1988 Olympics. All the trips were very special, for which I will have lasting memories of those days and times. Wil Zevely went with us on many of the vacations. Marty affectionately referred to Wil as Dad and me as Doc and we called him Doc.

  Marty was an excellent lawyer and a wonderful husband and father. He was truly a joy to be around, always cherishing every second of the life he was given. He was truly a person who enjoyed giving. He was always there to help no matter how short the notice. 

It is hard to find people like that these days. I am truly grateful I had the pleasure of spending quality time with you, both in our profession and in our social life.

Marty, you will be missed by all of us! May you have eternal happiness, you earned it.

How a Judge should not act when arrested for DUI

Tuesday, February 10th, 2009

Judge suspended in DUI case outburst 

Tuesday, February 10, 2009 

By Mary E. O’Leary, Register Topics – New Haven,. Conn. 

HARTFORD — The state Judicial Review Council Monday suspended Superior Court Judge E. Curtissa R. Cofield from the bench for eight months for the racial epithets, threats and demeaning language she directed at police after her drunken driving arrest in October.

The 12-member council, after a daylong hearing and three hours of closed deliberations, unanimously found Cofield, 60, had violated the Code of Judicial Conduct on five counts.

In addition to driving drunk and the inappropriate language, Cofield was found guilty of using her position to influence and intimidate police officials during her booking at Glastonbury police headquarters Oct. 10.

The deliberations were preceded by a packed hearing of supporters, 64 of whom submitted letters on her behalf, while several testified, including U.S. District Judge Vanessa Bryant and David Carter, chancellor of the Connecticut State University System, that Cofield’s behavior Oct. 8, 2008, was a single mistake and out of character. 

“There is not a prejudicial bone in her body,” said Carter, who said some punishment was appropriate, but not removal from the bench. “My own life has seen the power of second chances — you are looking at one,” he said.

The council could have issued a reprimand, a suspension for up to one year or recommended that the state Supreme Court remove Cofield from the bench permanently.

It found her actions failed to uphold the integrity of the judiciary and undermined the public’s confidence in the impartiality of the courts.

Cofield’s attorney, Raymond Hassett, said the suspension was the harshest the council has ever issued against a judge; Cofield thought the 60 days Hassett had argued for would have been fairer.

Cofield said she felt the panel gave serious consideration to Hassett’s arguments. “I’m not happy with the decision, but it won’t affect my ability to give justice to others,” Cofield said.

The judge, who was a state prosecutor before being confirmed in 1991 as the state’s first black female judge, said she won’t appeal the decision.

“I’m going to accept full responsibility for my actions. I want to put this behind me and go on with my life as a mother, as a judge and as a strong member of my family,” she said.

Cofield said she was grateful for all the support she received. “If you treat people good and do the right thing, people will be in your corner,” she said after the vote.

The video of her calling black state police Sgt. Dwight Washington “Mr. Negro Washington,” whom she also referred to in a police report as, “Head nigger in charge,” has been widely available since its release by the council last month.

Cofield, who the former chief court administrator testified had a high rating on comportment and demeanor during her years on the bench, was also seen on the police video refusing to sign a form.

“I’m not signing anything, because when it comes down to the bottom line, who’s smarter, me or you? We’ll figure it out, won’t we,” Cofield said. A police report said the judge “threatened our careers.”

Her blood alcohol level at 0.16 percent and 0.17 percent was twice the legal limit of 0.08 percent.

Cofield Monday apologized to the police, her judicial colleagues and had to stop to control her voice when she apologized to the dozen family members in the audience.

She said she “acted in a reprehensible way. There is no excuse for my poor judgment.” Cofield said she could only attribute it to “my intoxicated condition.” The judge said she drank occasionally.

When she viewed the video, Cofield said, “I did not recognize myself. It was like I was having an out-of-body experience. It is the antithesis of who I am.”

She said her record of 30 years of public service and 17 years on the bench, “was previously unblemished” and she asked to be judged in that context.

Bryant, whose friendship with Cofield goes back to law school, said she has been a role model for her community work, in addition to her judicial temperament.

After viewing the video, Bryant, said: “I don’t see a racist. I see a woman self destructing.” Cofield’s pyschiatrist testified that Cofield was under stress in the last eight months when her father died, her mother’s house burned down and she was having marital problems.

Asked if she would seek out the police officers she insulted, Cofield said she would do so “in time. I just think that they might need some time. It is hard to forgive. 


KBA sets schedule for regional CLE updates this year

Monday, February 9th, 2009

KBA Sets Schedule for Law Update CLE meetings this year

September 2-3  (Wednesday/Thursday)
Northern Kentucky Convention Center

September 10-11  (Thursday/Friday)
Lexington Convention Center

September 22-23  (Tuesday/Wednesday)
London Community Center

October 1-2  (Thursday/Friday)
RiverPark Center

October 6-7  (Tuesday/Wednesday)
Ashland Plaza Hotel

October 20-21  (Tuesday/Wednesday)
Jenny Wiley State Resort Park

October 29-30  (Thursday/Friday)
Paducah (Gilbertsville)
Kentucky Dam Village State Resort Park

November 5-6  (Thursday/Friday)
Bowling Green
Holiday Inn & Sloan Convention Center

December 3-4  (Thursday/Friday)
KY International Convention Center

This year our membership will be receiving the 2009 KLU registration brochure in the mail during the month of May.  We would also like everyone to know that when we mail out the registration brochure you will be receiving a follow up email with the link to our online registration form. 

Another idea that we are trying to implement for the upcoming KLU season is the choice between the KLU handbook or the KLU handbook on CD.  On the registration form attendees will have a choice between the two.  Since this is something new for us, we cannot guarantee that members will get their selection, but we will make every attempt to fill their request. 

If you have any questions please feel free to contact me, Shannon Roberts, in the CLE Department at 502.564.3795 ext. 226.  Thank you.

Shannon H. Roberts
Publications & Program Coordinator
Kentucky Bar Association

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Kenton Attorney Martin “Martin” Horwitz dies Feb. 7th. – funerial details

Monday, February 9th, 2009

Kenton Attorney Martin “Martin” Horwitz dies Feb. 7th.

February 7, 2009-  Martin J. “Marty” HORWITZ
HORWITZ, Martin Jack, age 57, passed away Feb. 7, 2009, beloved husband of Anna Marie “Ree” Horwitz & the late Vicky Horwitz, devoted father of Allie Horwitz & Zach Pille, dear brother of Jerry & Joanie Horwitz & Lawrence Horwitz, also survived by many nieces & nephews. Services Weil Funeral Home, 8350 Cornell Rd, Cinti, OH 45249, Weds, Feb. 11, 1:00 P.M.

Visitation at the funeral home 10-1 P.M. A private graveside service will be held at the convenience of the family.

Friends may call on the family at the residence of Jerry & Joanie Horwitz Weds & Thurs evenings 7-9 P.M.

In lieu of flowers, memorial contributions to Cinti Museum of Athletics at The Cinti Athletic Club, 111 Shillito Pl., Cinti, OH 45202 or the Vicky Horwitz Memorial Fund at St. Elizabeth Medical Foundation, 1 Medical Village Dr., Edgewood, KY 41017.
Click here for Service Location Information
Click here for Shiva Location Map
Shiva Location Address:
9010 Ambercreek Drive
Amberley Village, OH 45236


230 people exonerated by DNA evidence

Monday, February 9th, 2009

Two decades later, DNA evidence has been used to exonerate more than 230 people wrongfully convicted nationwide, including 24 in New York State. The resulting stories of innocent men being freed after decades in prison have captured the public’s imagination and provided fodder for a number of Hollywood dramas. 

But the proliferation of such exonerations, as well as the wider availability of DNA evidence, has also made it harder for prisoners seeking to prove their innocence in the much larger number of cases that do not involve DNA evidence. Many lawyers have grown more reluctant to take on these kinds of cases because they are much harder and more expensive to pursue. 

Legislative leaders amend 2009 session calendar

Sunday, February 8th, 2009



Kentucky Senate and House leaders today approved changes to the calendar for the General Assembly’s 2009 legislative session. The session is now scheduled to conclude on March 27, three days later than previously planned. 


In addition to observing the Feb. 16 Presidents’ Day holiday by not convening that day, the General Assembly will also not be in session on Feb. 17, 18, 19 and 20, according to the amended calendar. 


The veto recess – the period of time during which lawmakers return to their home districts to wait for potential gubernatorial vetoes – will be held from March 14 to March 25. After the recess, lawmakers will return to the Capitol on March 26 and 27 for the final days of the session. 


A copy of the new 2009 legislative calendar can be viewed here