Archive for October, 2009


Friday, October 30th, 2009

The White House and key senators have reached a compromise on a shield law to protect journalists who refuse to reveal their sources, but they limited its application in cases involving national security and federal criminal prosecutions.

Negotiations involving Senate sponsors of the legislation, the Justice Department, the White House and media organizations over the past month resulted in compromises on all sides.

 Sen. Charles E. Schumer (D-N.Y.), a sponsor of the measure who led the negotiations, said in a statement Friday that the new version “preserves a strong protection for reporters interested in protecting their sources, while also making sure that the government can still do the job of protecting its citizens.”

The Obama administration, while favoring a shield law in principle, this month took the position that national security cases should be exempt from a “balancing test,” in which a judge weighs the importance of the public having certain information against the damage such disclosure could do to national security.

The new compromise handles national security cases in different ways. When the government can show that disclosure of a source of information is necessary to prevent or mitigate a terrorist act or identify a perpetrator, there will be no balancing test.

For example, if a journalist independently gathers and publishes a story describing a terrorist cell in the United States that was planning an attack, the government could subpoena the journalist even though the information disclosed did not come from government sources.

In criminal investigations triggered by leaked classified information, the government has to show “by the preponderance of evidence” that the information is likely to cause significant harm to national security.

Though there will be no balancing test, the journalist can argue in court that the information involved is not as significant as the government asserts.

Under the new version of the legislation, not all cases of classified leaks would be exempt from the balancing test. In cases in which the information published has to do with past classified activities or practices, there can be a test.

In criminal cases, the compromise puts the burden on the journalist to establish in court why the public interest would be harmed by the disclosure of a source or sources. The government or defense attorney would need to show only that the information sought is essential to the case.

The compromise also expands the definition of those covered, eliminating previous language that required those individuals to be employed by or to have a contract with a news organization. Under the new language, protection would be available to people who have the “primary intent . . . to disseminate to the public news” from the “inception of the newsgathering process.”

As a result, coverage would be available to freelance authors, people who write for local news outlets without pay and, potentially, to many bloggers.

Remaining in the bill from early Senate drafts is language that excludes from coverage agents of foreign powers or people on government lists of terrorist organizations, or anyone providing material support to those organizations or “aiding, abetting or conspiring in illegal activity” with anyone on the lists.

That language, which is also contained in the shield law bill that passed the House in March, is designed to prevent propagandists for terrorist organizations from being protected, according to media supporters of the legislation. It is not clear how it would relate to journalists working in the United States for media owned by foreign governments, such as al-Jazeera, which is owned by the Qatari government.

Under current plans, the compromise bill is expected to be brought up for a vote in the Senate Judiciary Committee meeting scheduled for Thursday.

The Kentucky Supreme Court overturns Ward v. Housman regarding Rules for Dismissal Due to Lack of Prosecution. – New Standard Created Expanding Criteria Court Must Consider Before Dismissing a Case

Friday, October 30th, 2009

On Oct. 29th. the Kentucky Supreme Court created new standards for review of dismissal of civil action for lack of prosecution.  The court held in part:

“…to the extent that other cases have held or suggested that all factors listed in Ward must always be fully discussed in all orders dismissing cases for lack of prosecution under CR 41 .02, those cases are overruled .

 In the future, the trial court must base its decision to dismiss under CR 41 .02 upon the totality of the circumstances ; and it should take into account all relevant factors, whether or not those factors are listed in Ward .

 Trial courts must make explicit findings on the record so that the parties and appellate courts will be properly apprised of the basis for the trial court’s rulings; and the appellate courts can assess whether the trial court properly considered the totality of the circumstances in dismissing the case .

 we again emphasize that the propriety of an order dismissing a case under CR 41 .02(1) for lack of prosecution depends upon whether the trial court abused its discretion under all relevant facts and circumstances, not on whether the trial court recited the six factors listed in Ward.”

For full text and synopsis of this important case LawReader subscribers can go to: KENTUCKY SUPREME COURT DECISIONS OCTOBER 2009  Case no. 22

The New Kentucky Supreme Court Demonstrates Reason Over Passion In Decision that Limits Prejudicial Evidence Which Has No Probative Value By Restricting so called “Police Officer Expert” Medical Testimony and Holding that Evidence of Drug Use With No Proof of Impairment Can Not Be Introduced.

Friday, October 30th, 2009

 On Oct. 29th. the Kentucky Supreme Court demonstrated that law, common sense, and good science should prevail over prejudice against anyone who might have mere traces of drugs or intoxicants in their blood. 

 In the case cited below (Burton v. Commonwealth), the court held that the Commonwealth could not introduce evidence that a defendant had traces of drugs in his blood when the uncontested medical testimony by a physician found that the blood test did not prove impairment.  The medical expert testified that cocaine would not impair a user for more than one hour, and that traces of marihuana could be found in the blood for up to six days after it use.   The Commonwealth wanted to use this evidence to prove the required element of “wantonness”.  The Court also disallowed the tendered evidence by a police officer to the effect that he could read the medical record and make a determination that the driver was impaired.    

 The majority opinion was written by Justice Scott.  Justice Scott quoted the late Justice Leibson who wrote some years ago:

 “Certainly we have not yet reached the sorry state of affairs where prior use of marijuana and amphetamines, unrelated to the accident, should be considered evidence to prove wanton conduct on the occasion of the accident.”

 The following is a LawReader Synopsis available to LawReader Subscribers.  Due to the importance of this case we have made it available to the public and non-subscribers.

 For full text of case click case number  2006-SC-000784-MR.pdf


 From HICKMAN Circuit Court






 (Court quoting Leibson) The evidence failed the test of relevance because there was nothing to infer that the presence of marijuana and amphetamine as found in the urine made the ultimate fact at issue, whether appellant was driving under the influence, any more or less probable . Certainly we have not yet reached the sorry state of affairs where prior use of marijuana and amphetamines, unrelated to the accident, should be considered evidence to prove wanton conduct on the occasion of the accident.

 E “404(b) . . . protects against the introduction of extrinsic act evidence when the evidence is offered solely to prove character [or propensity] .

 evidence of criminal conduct other than that being tried is admissible only if probative of an issue independent of character or criminal predisposition, [i .e ., KRE 404] and only if its probative value on that issue outweighs the unfair prejudice with respect to character  the twelve-step Drug Recognition Protocol, which he attempted, in part, to employ, requires an officer’s personal observation, physical testing and examination of the subject.

 the trial court’s ruling appears to have been based solely on the fact that because the defense had an expert, the Commonwealth could have one too. We cannot say that this reasoning is supported by sound legal principles .

 Cook’s unqualified testimony improperly invited the jury to speculate that Burton could have been under the influence of LSD, ecstasy, and methamphetamine -all illicit substances of which there was no evidence.


 A Circuit Court jury convicted Steve Burton of second-degree manslaughter, second-degree assault, and operating a motor vehicle with a suspended license, for which the trial court sentenced him to a total of twenty (20) years imprisonment. He appealed the Circuit Courtjudgment to this Court as a matter of right. Ky.Const. 110(2)(b) .

 For reasons that the undue prejudice arising from the introduction of the urinalysis results, when viewed within the context of the other evidence, substantially outweighed its probative value under KRE 403, and thus were improperly admitted, we reverse Burton’s second-degree manslaughter and second-degree assault convictions . We affirm his conviction for operating a motor vehicle with a suspended license.

 Burton’s convictions stem from an automobile collision that occurred on a rural two-lane road . Burton’s automobile collided head-on with an automobile approaching from the opposite direction driven by Jeffrey Bartolo . James Boyd was a passenger in Bartolo’s automobile . Other than the occupants of the two vehicles, there were no eyewitnesses to the crash.

 Burton said that he had picked up some friends and that someone other than himself was driving the automobile. But when asked to identify the driver, Burton could not. Then again, he claimed he did not know what had happened.

 At the hospital, Burton at first refused a urine sample. After he was informed that a catheter would be used to obtain the sample, he assented and provided the sample . Ultimately, the urinalysis tested positive for the presence of marijuana and cocaine but the tests could not determine the concentration of these substances in Burton’s system or when he had ingested the substances.

 The jury found Burton guilty of second-degree manslaughter and second-degree assault, as well as operating a motor vehicle on a suspended license . Burton was sentenced to a total of twenty (20) years imprisonment…

 Burton filed a motion in limine requesting exclusion of the urinalysis results as irrelevant and inadmissible because the results failed to establish concentration levels or impairment.

 Dr. Martinez explained that the urine test does not indicate whether Burton was under the influence of, or was impaired by, these substances at the

time of the test. The effects of cocaine generally last an hour, but a person’s urine could test positive from two to four days after its ingestion . The effects of

marijuana could last up to six hours, but a person’s urine could test positive seven days after its ingestion.

 Dr. Martinez testified that the urine test indicated absolutely nothing about whether Mr. Burton was impaired at the time of the accident.

 No blood test was performed in this case, nor did the Commonwealth offer any evidence to rebut Dr. Martinez’s testimony.

 In Billings v. Commonwealth, 843 S.W.2d 890, 892 (Ky. 1992), this Court Against the hoary proposition that we welcome any evidence tending to make a material fact, i .e ., an element of the offense, appear more likely or less likely than it would appear absent that evidence, is counterpoised the equally venerable rule that a defendant may not be convicted on the basis of low character or

criminal predisposition, even though such character or predisposition makes it appear more likely that the defendant is guilty of the charged offense . The upshot is that evidence of criminal conduct other than that being tried is admissible only if probative of an issue independent of character or criminal

predisposition, [i .e ., KRE 404] and only if its probative value on that issue outweighs the unfair prejudice with respect to character [i .e ., KRE 4,03] .

 Justice Leibson, (In Bush) who wrote the majority opinion, but also a separate opinion dissenting in part, framed the issue well in his separate opinion, noting:

 The evidence failed the test of relevance because there was nothing to infer that the presence of marijuana and amphetamine as found in the urine made the ultimate fact at issue, whether appellant was driving under the influence, any more or less probable . Certainly

we have not yet reached the sorry state of affairs where prior use of marijuana and amphetamines, unrelated to the accident, should be considered evidence to prove wanton conduct on the occasion of the accident.

 KRE “404(b) . . . protects against the introduction of extrinsic act evidence when the evidence is offered solely to prove character [or propensity] .

 the trial court must determine if the evidence’s probative value is substantially outweighed by the danger of undue prejudice.

 Thus, an independent act too remote in time will fail the balancing test required by KRE 403.” Commonwealth, 943 S.W.2d 616, 618 (Ky. 1997) ;

 Absent a proper context within the other evidence, the introduction of urinalysis results only encouraged speculation . As such, the only real affect

the urinalysis results could have had was to brand Burton as a user of drugs.

 we must conclude that the trial court abused its discretion in the admission of this evidence and it was error to do so . Within the context of the

other evidence we have reviewed and considering the potential result, we cannot say that the error was harmless .

the day before trial, Burton’s counsel received a fax from the Commonwealth stating that it intended to call Mr. Darrell Cook (Cook); a drug recognition instructor for the Department of Criminal Justice Training facility at Richmond, Kentucky. The fax stated that Cook “will testify in regard to drug recognition and the physical signs which point to use of controlled substances. In this case particularly he will speak to blood pressure, dilated eyes, and other relevant factors.” Burton filed an immediate

written objection to Cook being allowed to testify on grounds that: (1) the Commonwealth’s announcement of its intended use of the expert was too late ;

(2) its expert’s opinion was “not supported by a factual basis ;” (3) “the opinion was thus irrelevant and inadmissible ;” and (4) “the Commonwealth had not

provided a curriculum vitae or summary of his report to allow the court or the defense to determine whether [Mr.] Cook is or is not an expert in his field.”

 the trial court noted its feelings about expert witnesses, stating “you both got one, you let them both in or neither one of them.”

 Cook stated that the fact that a person was “wound up”, not responding to commands, or resistant to medical treatment, was indicative of marijuana, cocaine, methamphetamine, or other drug use.

 However, the twelve-step Drug Recognition Protocol, which he attempted, in part, to employ, requires an officer’s personal observation, physical testing and examination of the subject.

 Notably, Mr. Cook was neither a medical doctor nor a pharmacologist . He did not personally observe, examine, or test Burton. In fact, he acknowledged that Burton’s elevated vital signs and behavior could simply be the result of having just been in a serious car accident and that he could not say definitively whether Burton was under the influence at the time.

 the trial court’s ruling appears to have been based solely on the fact that because the defense had an expert, the Commonwealth could have one too. We cannot say that this reasoning is supported by sound legal principles .

 Cook’s unqualified testimony improperly invited the jury to speculate that Burton could have been under the influence of LSD, ecstasy, and methamphetamine -all illicit substances of which there was no evidence.

 Burton contends that the trial court erroneously denied his mistrial motion after a prosecution witness revealed that Burton had a prior DUI, contrary to the parties’ agreement that his prior DUI would not be mentioned at trial. We note, however, that the prosecutor did not appear to intentionally

elicit the existence of the prior DUI.

 Immediately, the trial court admonished the jury to disregard the answer as “non-responsive” and directed the prosecutor to “get something accurate”

through other questions. A jury is presumed to follow the trial court’s admonition. Martin v. Commonwealth, 170 S.W.3d 374, 381 (Ky. 2005)

 Given this admonition, we find no reason to question the trial court’s decision to deny the mistrial .


 For the foregoing reasons, we reverse Burton’s convictions for second degree manslaughter and second-degree assault and remand the same for

further proceedings consistent with this opinion. We affirm, however, Burton’s conviction for operating a motor vehicle with a suspended license.

 Noble, Schroder, and Venters, JJ ., concur. Minton, C.J . ; concurs in part and dissents in part by separate opinion with Abramson, J., and Cunningham,

J., joining that opinion. Abramson, J., concurs in part and dissents in part by separate opinion with Minton, C.J., and Cunningham, J., joining that opinion.

 MINTON, CHIEF JUSTICE, CONCURRING, IN PART, AND DISSENTING, IN PART: Because it is a startling departure from precedent, I respectfully

dissent from the majority’s conclusion that the urinalysis showing Burton had used marijuana and cocaine is inadmissible .


Shannon Renee Dupree

Assistant Public Advocate

Department of Public Advocacy

100 Fair Oaks Lane

Suite 301

Frankfort, Kentucky 40601


Jack Conway

Attorney General of Kentuc

Bryan Darwin Morrow

Office of the Attorney General

1024 Capital Center Drive

Frankfort, Kentucky 40601

Attorney General Conway Argues that Legislature Should be Allowed to Pass Ex Post Facto Laws at will.

Friday, October 30th, 2009

 Attorney General Conway has announced that his office will appeal the recent ruling of the Ky. Supreme Court which held that the legislature is prohibited by the Kentucky and U.S. Constitution from passing an ex post facto law which adds to the sentence of a person who was convicted before the passage of the law.  Few issues are as well settled in the law as the unconstitutionality of ex post facto laws.  

Any reading of this court decision shows a great deal of restraint by the court.  The court’s ruling held that any new sex offenders can still be banned.  Only those offenders who had already been convicted before the new law was passed were affected by this decision.   The court did not rule on a larger question of whether “banishment” is itself constitutional.   The court discussed the logic of the law and pointed out that it does not prevent convicted sex offenders from visiting homes within a thousand yards of a school or playground, it just says they can’t sleep there.

 We would hope that our Attorney General would focus on asking the legislature for a better piece of legislation that actually limited contact of child sex offenders with children and to provide supervision of offenders.  The current law merely draws a line on a map which forces (even offenders who were not convicted of offenses involving children) to be forced from their homes.

 While the Attorney General’s petition for certiorari is great political theater it ignores the larger problem and avoids the heavy lifting of writing an effective law.


The Herald Leader commented on this issue:

“…at this moment, the state’s high court’s ruling is the law. Conway recently filed a motion requesting that the court suspend the law’s implementation until after the appeal. Unless or until the court agrees to that, we all should abide by the ruling.

As the state’s top law enforcement official, Conway should make that clear, in no uncertain terms, to law enforcement personnel across the state. Not doing so would raise questions about whether he, as a U.S. Senate candidate, is using this emotional issue for political grandstanding.

More troublesome is the message this situation sends that law enforcement officials do not have to play by the rules of the legal system.

That’s anarchy. Who then is protected?”


For full text of case click case number  2007-SC-000347-CL.pdf  



 The Ky. Supreme Court said: 

“The question of law to be answered is whether KRS 17 .545, which restricts where registered sex offenders may live, may be applied to those who committed their offenses prior to July 12, 2006, the effective date of the statute. We hold that it may not. Even though the General Assembly did not intend the statute to be punitive, the residency restrictions are so punitive in effect as to negate any intention to deem them civil. Therefore, the retroactive application ofKRS 17.545 is an ex post facto punishment, which violates Article I, Section 10 of the United States Constitution, and Section 19(1) of the Kentucky Constitution…

The United States Constitution and the Kentucky their respective ex post facto clauses, prohibit. the enactment of any law that imposes or increases the punishment for criminal acts committed prior to the law’s enactment…

KRS 17 .54-5 does not oven restrict an offender from living with the victim, so long as they live, and sleep outside of the prohibited area …

All KRS 17.545 prohibits is residing in a home within the prohibited zone. It does not regulate contact with children.”


Tuesday, October 27th, 2009


 (Frankfort, KY) – Thousands of Kentuckians are expected to file paper work with the Secretary of State and their local county clerks to seek political office during the 2010 election cycle.  Potential candidates seeking an office on the 2010 ballot may begin filing with the Office of the Secretary of State and their county clerks on November 4, 2009. Candidates will either appear on the May 18, 2010 primary or November 2, 2010 general election ballots.

 “This election cycle should be exciting in Kentucky with so many important races on the ballot,” stated Secretary of State Trey Grayson.  “Hopefully, many citizens will give serious consideration to becoming candidates for one of the many races on the ballot in 2010.”

 Republican and Democratic candidates have until January 26, 2010 to file for office.  Independent or political group candidates, excluding federal offices, must file a statement of intent by April 1, 2010.  All independent or political group candidates have until August 10, 2010 to file their petitions.  Each of the filing dates includes a 4:00 p.m. filing deadline.

  Candidates for offices that file with the Office of the Secretary of State may begin to file their papers as early as 8:00 a.m. EST.  Candidates for offices that file with the local county clerk should call their clerk’s office for more information about filing times.

 Offices that file with the Secretary of State that are regularly scheduled to occur in 2010 include:

 • United States Senator

• United States Representative

• State Senator (Even Districts)

• State Representative

• Justice of the Supreme Court, District 3

• District Judge

Offices that file with the local county clerk that are regularly scheduled to occur in 2010 include:

 • County Judge/Executive

• County Attorney

• County Clerk

• Property Valuation Administrator

• Sheriff

• Jailer

• County Commissioner

• Coroner

• Magistrate/Justice of the Peace

• Constable

• Surveyor

• Mayor

• City Legislative Body

• Board of Education (School Board)

• Soil and Water Conservation District Supervisors

      In order to help candidates seeking political office, the Office of the Secretary of State developed a ballot access procedural manual titled: Declaring Your Candidacy.  This manual has been updated for this election cycle and provides Kentuckians with a quick guide to filing for political office.

 Although the publication focuses primarily on candidate filing procedures, sample forms for attaining ballot access, and qualifications for each elective office, it also includes other important and pertinent election information that may affect candidates.  The manual contains an election schedule, sample filing forms of various types, contact information for state election agencies, and answers to candidates’ most frequently asked questions.

 There will also be additional races this year to fill unexpired terms.  Currently, the following offices that file with the Secretary of State will appear on the ballot in order to fill unexpired terms:

 Circuit Judge-2nd Judicial Circuit, 1st Division (County:  McCracken) 

            Vacancy created by resignation of R. Jeffrey Hines

 Circuit Judge-11th Judicial Circuit, 1st Division (Counties:  Green, Marion, Taylor & Washington)         Vacancy created by resignation of Doughlas M. George

 Circuit Judge-“Family Court”, 17th Judicial Circuit, 3rd Division (County:  Campbell)

            Vacancy created by resignation of Michael “Mickey” Foellger

 Circuit Judge-18th Judicial Circuit, 1st Division (Counties:  Harrison, Nicholas, Pendleton & Robertson)             Vacancy created by resignation of Robert W. McGinnis

 Circuit Judge-21st Judicial Circuit, 1st Division (Counties:  Bath, Menifee, Montgomery & Rowan)         Vacancy created by resignation of William B. Mains

 Circuit Judge-“Family Court” 25th Judicial Circuit, 3rd Division

            Vacancy created by 2008 General Election

 Circuit Judge-30th Judicial Circuit, 6th Division (County:  Jefferson) 

            Vacancy created by resignation of Martin “Marty” McDonald

 Circuit Judge-30th Judicial Circuit, 11th Division   (County:  Jefferson)

            Vacancy created by resignation of Geoffrey “Jeff” Morris

Circuit Judge-31st Judicial Circuit, 1st Division (County:  Floyd)

            Vacancy created by resignation of Danny P. Caudill

 Circuit Judge-32nd Judicial Circuit, 1st Division     (County:  Boyd)

            Vacancy created by resignation of Marc I. Rosen

 Circuit Judge-“Family Court” 37th Judicial Circuit, 2nd Division (Counties:  Carter, Elliott & Morgan)                        Vacancy created by resignation of Kristi Gossett

 Circuit Judge-44th Judicial Circuit  (County:  Bell)

            Vacancy created by resignation of James L. Bowling, Jr.

 Circuit Judge-45th Judicial Circuit (Counties:  McLean & Muhlenberg)

            Vacancy created by resignation of David H. Jernigan

 Circuit Judge-“Family Court”, 48th Judicial Circuit, 3rd Division  (County:  Franklin)

            Vacancy created by resignation of Reed Rhorer

 Commonwealth Attorney-18th Judicial Circuit (Counties:  Harrison, Nicholas, Pendleton & Robertson)             Vacancies created by death of Doug Wright

 Commonwealth Attorney-42nd Judicial Circuit (Counties:  Calloway & Marshall)

Vacancy created by resignation of Michael Ward

 Commonwealth Attorney-46th Judicial Circuit (Counties:  Breckinridge, Grayson & Meade)

Vacancy created by resignation of Kenton R. Smith

 “Our office has already received hundreds of phone calls concerning the elections in 2010, outpacing our call volume in 2006 when we had a record number of races on the ballot,” remarked Secretary Grayson.  “If this kind of interest continues, it is possible that we may see a record number of candidates on the primary ballot in 2010.”

For more information about filing to run for elected office in Kentucky, to obtain a copy of Declaring Your Candidacy, or to view a list of candidates, please visit

Northern Kentucky Attorneys and Court House Workers Come to Aid of Boone Court Bailiff Donna Jansen Who Lost Leg in Boating Accident

Monday, October 26th, 2009

  On Aug. 15th. Boone Deputy Sheriff Donna Jansen was boating at Lake Cumberland, when her jet ski ran into the back of a motor boat and the propeller struck her.  The accident cost Deputy Jansen her right leg above the ankle and severely damaged her left leg.  Donna faces a long and difficult rehabilitation as well as numerous medical bills. 

 Her spirits have been elevated due to the strong support and friendship demonstrated by her co-workers.

 Northern Kentucky lawyers Leslie Knight, Tasha Scott and Jennifer Hatfield joined with the Boone County Sheriff’s Deputy, friends, clerks and courthouse personnel to sponsor a fundraiser on Oct. 23rd.   The fundraiser was attended by hundreds of people.

Donna is about to be fitted with her first prosthesis.  She still can’t use her injured left leg, but is looking forward to learning to walk again.  Currently she is getting around in a wheelchair.

She said:  “These people have surrounded me with love and affection and fun, and I can’t express how much I thank them.”

Deputy Jansen who has to work one more year to be eligible for retirement is hoping to recover and to return to work.

Gov. Appoints Sen. Dan Kelly to the Circuit Court bench

Monday, October 26th, 2009

FRANKFORT, Ky. —Oct. 26, 2009 –  Gov. Steve Beshear announced today the appointment of State Senator Dan Kelly as a judge in the 11th Judicial Circuit.  Sen. Kelly was among three names submitted to Gov. Beshear by the seven-member nominating commission. 

“Sen. Kelly has the appropriate temperament and experience for this position,” said Gov. Beshear.  “I feel confident he will provide fair, honest and judicious service to the people of the 11th Judicial Circuit.”  

Representing the 14th Senate District since 1991, Sen. Kelly has a distinguished career that includes service on the legislative interim committees of Agriculture, Appropriations and Revenue, Education, Elections, Constitutional Amendments and Intergovernmental Affairs Task Force, Elementary and Secondary Education, Horse Farming, Local Government and State Government; the legislative session committees of Agriculture, Appropriations and Revenue and State and Local Government; and the legislative statutory Education Assessment and Accountability Review Subcommittee. In addition, with the present rank of Lt. Colonel, he has been awarded the United States Army Meritorious Service Medal Army Commendation Medal and two National Defense Service Medals.  He received his law degree from the University of Louisville.

Judicial Branch Facing $35 million dollar deficit in current fiscal year…more layoffs possible.

Thursday, October 22nd, 2009

A month after a round of layoffs, state court officials warned a panel of lawmakers Thursday that the agency needs an additional $44 million in the next fiscal year to avoid further worker cutbacks.

Administrative Office of the Courts Director Laurie Dudgeon told a legislative budget subcommittee that the state’s courts system would have trouble functioning if it does not get the extra cash starting July 1, 2010.  The agency was budgeted to spend $273 million in the current fiscal year.

Dudgeon said that AOC would need $72 million more than it now gets in the second year of the upcoming biennial budget.

AOC officials said Thursday that they won’t know if more layoffs will be necessary until the 2010 General Assembly approves the biennial budget in April.

Because of declining state revenues, the state judicial branch faces a deficit of $35 million in the fiscal year that began July 1. The agency laid off 47 workers and trimmed other expenses last month, saving an estimated $4.5 million.

U.S. Supreme Ct. Refuses to Hear Anonymous Tip Case to Justify Traffic Stop

Wednesday, October 21st, 2009

 In the drunk driving case, Virginia v. Harris, the commonwealth challenged a Virginia Supreme Court ruling that said police who pursue tips about people driving drunk may not act until they actually see the driver driving dangerously. In the case before the Court, an anonymous tipster told Richmond police that Joseph Moses Harris Jr. was driving drunk. The officer did not see unsafe driving before pulling Harris over. Harris was convicted, but the state Supreme Court reversed the conviction on Fourth Amendment grounds as the result of an improper search.

 ”This is an important question that is not answered by our past decisions, and that has deeply divided federal and state courts,” wrote Roberts in a dissent from denial, joined by Justice Antonin Scalia. “The conflict is clear and the stakes are high. The effect of the rule below will be to grant drunk drivers ‘one free swerve’ before they can legally be pulled over by police. It will be difficult for an officer to explain to the family of a motorist killed by that swerve that the police had a tip that the driver of the other car was drunk, but that they were powerless to pull him over, even for a quick check.”

Kentucky law has long held that the anonymous tip must have “indicia of reliability” and will be reviewed on the “totality of the circumstances standard”.

 Com. v. Morgan, 248 S.W.3d 538 (Ky., 2008)                                    January 24, 2008

Before an investigating officer can rely on an anonymous tip as part of his basis for reasonable suspicion, that tip must have sufficient indicia of reliability. Hampton v. Commonwealth, 231 S.W.3d 740, 745 (Ky.2007); See Florida v. J.L., 529 U.S. 266, 276, 120 S.Ct. 1375, 1381, 146 L.Ed.2d 254 (2000); Alabama v. White, 496 U.S. 325, 332, 110 S.Ct. 2412, 2417, 110 L.Ed.2d 301 (1990).

Chase Law School Has Two Openings for Law Professors

Tuesday, October 20th, 2009

Northern Kentucky University, Salmon P. Chase College of Law is seeking applications from candidates for two tenure-track faculty positions to begin in the 2010-11 academic year.

The first position is a Director of Externships.  Responsibilities would include developing externship placement opportunities for our full-time and part-time students, conducting appropriate supervisory training and mentoring, and providing appropriate classroom instruction. 

For the second position, we are particularly interested in candidates with expertise in intellectual property law who could also teach one or more of the following subject areas:  property, torts or contracts.

We are looking for candidates with excellent academic credentials who are committed to teaching and scholarship.  While prior legal teaching experience and scholarship will be looked upon favorably, they are not requirements for the position.

NKU Chase is located in Highland Heights, Kentucky, which is approximately ten miles southeast of downtown Cincinnati, Ohio.  The Cincinnati/Northern Kentucky area is an enjoyable place to live with an affordable cost of living.

Northern Kentucky University is an affirmative action/equal opportunity employer and encourages the application of minorities, women, and others whose backgrounds will contribute to the diversity of the faculty. 

Please send letter of interest and resume to: Professor Jennifer Kreder, Chair, Faculty Appointments Committee, Chase College of Law, Northern Kentucky University, Nunn Hall, Highland Heights, Kentucky  41099-0001.

U.S. Supreme Ct. Hears Civil Forfeiture Case

Thursday, October 15th, 2009

The U.S. Supreme Court heard arguments on Wednesday Oct. 14, 2009  about civil forfeitures, the practice in which the police seize cars, money and other kinds of property said to have been used in connection with crimes.

 Civil forfeitures can raise an array of due process issues, and the question before the court was the relatively minor one of whether people seeking to get their property back are entitled to a prompt hearing before a judge. Though some justices appeared inclined to rule that at least that much was required, several of them indicated they would leave resolution of the question for another day because the case before them was procedurally flawed.

 Law enforcement agencies seize more than $1 billion worth of property every year, generally without warrants and based solely on officials’ assertions that the property was in some way tainted. Property owners may challenge the seizures but must often wait months or years to do so. The police often get to keep what they capture.

Justice Stephen G. Breyer sketched out the basic issue in the case, Alvarez v. Smith, No. 08-351, by describing a hypothetical situation.

 “My car was parked on the street,” he said. “There happened to be some big drug crime nearby and the policeman took my car. In my opinion there was no probable cause. I would like my car back.”

 “Do I have to wait for up to six months,” Justice Breyer asked, “before I have any magistrate, any neutral official, pass on my claim there was no probable cause to take my car?”

 William M. Jay, a Justice Department lawyer, said the government needed significant time to figure out who owned the car and to investigate the owner’s connection, if any, to the criminal conduct at issue.

 “I’m sorry,” Justice Sonia Sotomayor said. “You take the car and then you investigate?”

Justice Samuel A. Alito Jr. countered that requiring a prompt hearing could compromise criminal investigations.

 “They may think he is involved in the drug conspiracy as well,” Justice Alito said of the car’s owner. “They may have him on wiretaps. They may be preparing to arrest him. Now, you want to force them to come into court within 10 or 14 days and disclose the details of a pending criminal investigation?”

 “The hardship posed by the loss of one’s means of transportation, even in a city like Chicago, with a well-developed mass transportation system, is hard to calculate,” Judge Terence T. Evans wrote for a unanimous three-judge panel of the appeals court.

It is bad enough, Judge Evans wrote, when the owner of the car is accused of a crime. “But consider the owner of an automobile which is seized because the driver — not the owner — is the one accused and whose actions caused the seizure. The innocent owner can be without his car for months or years without a means to contest the seizure.”

The claims of all six plaintiffs in the case have been resolved. That meant, several justices suggested Wednesday, that the case is moot.

California Gov. Vetoes State Bar Association Funding Authorization Citing Internal Problems –including high cost of disciplinary system

Tuesday, October 13th, 2009


Excerpted article By SHERRI M. OKAMOTO, Metropolitan News-Enterprise  October 13, 2009

 Gov. Arnold Schwarzenegger has vetoed SB 641, which would have extended the State Bar’s authority to collect annual membership dues through 2010.

 In his letter to the Senate, Schwarzenegger explained that he was returning the measure by Sen. Ellen Corbett, D-San Leandro, without his signature on Sunday “because the State Bar cannot continue with business as usual.”

 State Bar President Howard B. Miller yesterday told the MetNews that “we take the governor’s concerns very seriously,” and that the organization was “going to focus intensely on trying to craft a compromise with the Legislature and governor” that takes the governor’s concerns into account “in the next few weeks.”

 Miller added that the State Bar was “continuing to function” and had enough funds to continue operations through 2009.

 ‘Drastic Response’

Gov. Schwarzenegger insisted that the State Bar must itself “be above reproach” since it is charged with regulating the professional conduct of its members, but “[r]egrettably, it is not.”

 The governor opined that “inefficiencies remain unaddressed” by the State Bar, and that the group maintained a “political agenda.”

 He cited a report by the State Auditor released in July which stated that salaries for State Bar staff have risen significantly over the past five years, and that the costs of the disciplinary system escalated $12 million even though the number of inquiries conducted declined between 2004 and 2008.

Schwarzenegger also noted “a lack of internal controls” which allowed a former employee to embezzle nearly $676,000 from the organization.

 The governor went on to reference the media leak of Fifth District Court of Appeal Justice Charles Poochigian’s “not qualified” rating by the State Bar’s Judicial Nominees Evaluation Commission.

 All JNE Commission proceedings are required by law to be confidential and qualification ratings are not to be released to the public prior to the governor considering an appointment.

 Schwarzenegger further expressed concern that the commission was not complying with Government Code Sec. 12010.6(d)—part of legislation enacted two years ago in an effort to increase the diversity of the bench—in considering judicial nominees.

 The legislation states, in part:

“The State Bar shall consider legal experience broadly, including, but not limited to, litigation and nonlitigation experience, legal work for a business or nonprofit entity, experience as a law professor or other academic position, legal work in any of the three branches of government, and legal work in dispute resolution.”

 After Poochigian’s August confirmation hearing, a spokesperson for Chief Justice Ronald M. George said that he had “substantial doubts” the JNE commission’s conclusion that Poochigian lacked the “actual practical legal experience” required of an appellate justice took the Sec. 12010.6(d) factors into consideration.

 Schwarzenegger said the commission “[b]y failing to follow the law, damaged its reputation for impartiality and, in turn, the State Bar’s.”

 Acknowledging that the State Bar “has an essential role in the state’s justice system and must continue to oversee the licensing, education, and discipline of California’s lawyers,” Schwarzenegger urged the group to “take the time to re-examine the problems noted…[and] resolve these issues as soon as possible so the Legislature can reintroduce this measure early next year.”

How the Feds Target the Innocent -The “Right to Honest Services” Criminal Law getting Supreme Court Review

Monday, October 12th, 2009


Justice Scalia said: The honest services law, “invites abuse by headline-grabbing prosecutors in pursuit of local officials, state legislators and corporate C.E.O.’s who engage in any manner of unappealing or ethically questionable conduct.”

Excerpted from New York Times article By ADAM LIPTAK   October 12, 2009

 In February, Justice Antonin Scalia wrote that federal prosecutors had developed an unseemly crush on a particularly vague law, one that “has been invoked to impose criminal penalties upon a staggeringly broad swath of behavior.”

 Justice Scalia was writing to protest the Supreme Court’s decision not to hear an appeal from three city officials in Chicago who had been convicted of violating the law, which makes it a crime “to deprive another of the intangible right of honest services.”

If you can make sense of that phrase, you have achieved something that has so far eluded the nation’s appeals courts.

 “How can the public be expected to know what the statute means when the judges and prosecutors themselves do not know, or must make it up as they go along?” Judge Dennis Jacobs of the United States Court of Appeals for the Second Circuit, in New York, asked in a 2003 dissent.

 The “honest services” law, Justice Scalia explained, says that “officeholders and employees owe a duty to act only in the best interests of their constituents and employers.” Carried to its logical extreme, he said, “it would seemingly cover a salaried employee’s phoning in sick to go to a ballgame.”

 Justice Scalia’s dissent, which was vigorous even by his own muscular standards, seems to have had an impact. In the following months, the Supreme Court agreed to hear not one but two cases exploring the scope of the honest services law.

 Critics of the honest services law say it has two essential flaws. It allows federal prosecutors vast discretion “to go after people they don’t like or people they disagree with politically,” said Julie Rose O’Sullivan, who teaches criminal law at Georgetown.

The second problem, said George D. Brown, a specialist in government ethics at Boston College Law School, is that prosecutions of state officials under the federal law may violate fundamental principles of federalism. “It represents a federal judgment that you can’t trust the states,” Professor Brown said.

 The honest services law is but one example of what Harvey A. Silverglate, a civil liberties lawyer in Boston, calls “an over-criminalization problem.” His new book, “Three Felonies a Day: How the Feds Target the Innocent,” argues that the average American professional unwittingly commits several serious crimes each day.

“Even the most intelligent and informed citizen (including lawyers and judges, for that matter),” Mr. Silverglate writes, “cannot predict with any reasonable assurance whether a wide range of seemingly ordinary activities might be regarded by federal prosecutors as felonies.”

 The Justice Department, of course, sees the matter entirely differently. In its Supreme Court brief in Mr. Black’s case, the government said the honest services law has an important role to play in attacking frauds that do not involve the loss of money or property but something intangible like candor or loyalty. In Mr. Weyhrauch’s case, the government said that requiring proof of a violation of a state law would result in a patchwork of legal standards under a single federal law.

 Federal appeals courts have tried to impose limiting principles on the law.

The United States Court of Appeals for the Fifth Circuit, in New Orleans, requires proof that a state law was violated before the federal law kicks in. But the Ninth Circuit, in San Francisco, rejected that limitation in Mr. Weyhrauch’s case.

 The Seventh Circuit has imposed a different limiting principle. It requires proof of “private gain,” a principle rejected by the Third Circuit, in Philadelphia. But the “private gain” limitation was of no help to the defendants in the Chicago patronage case, who apparently gained nothing. The fact that the people who got jobs gained something was enough.

 As the Seventh Circuit put it in 2005, “a participant in a scheme to defraud is guilty even if he is an altruist and all the benefits of the fraud accrue to other participants.”

The bottom line, Justice Scalia said in February, is that the courts have not been able to define what separates “the criminal breaches, conflicts and misstatements from the obnoxious but lawful ones.” The honest services law, he said, “invites abuse by headline-grabbing prosecutors in pursuit of local officials, state legislators and corporate C.E.O.’s who engage in any manner of unappealing or ethically questionable conduct.”

“It seems to me quite irresponsible to let the current chaos prevail,” Justice Scalia wrote. By the end of this term, we should know whether the Supreme Court can straighten things out.


Was there buried treasure at Summit Hills Country Club? FBI conducts search for evidence on Hole #3 at Summit Hills Country Club in Kenton County. LawReader CEO and Club member Gwen Billingsley denies involvement.

Friday, October 9th, 2009

 Club officials are hush-hush about the appearance of the FBI and their federal search warrant, and the “capsule” they removed from the bottom of a hole dug in the turf with the aid of the club’s backhoe. 

 Club members noted that William Erpenbeck, who was convicted of a financial scandal along with his father, both had maintained homes fronting on the golf course just a couple of tee shots from the site where the hole was dug.  Did they bury millions there?   Or were they just looking for that expensive PRO VI golf ball that Judge Billingsley lost this spring in that area?

 Club officials refused to disclose the contents of the search warrant but cooperated with the federal agents

Mississippi Supreme Court Rules Home Insurance Policy Covers Hurricane Wind/Water Damage

Friday, October 9th, 2009


In a 9-0 decision, the Mississippi Supreme Court has ruled that so-called “all-risk” home insurance policies may cover wind damage from hurricanes, even in situations where the loss is later exacerbated by water from storm surge.

The state high court decision found that language in a policy may exclude storm damage when it is caused by a combination of wind and water acting together. But if wind and water damage can be distinguished, this exclusion does not apply. The court said a jury must decide whether the damage to the home of Margaret and Magruder Corban was caused by wind or water.

The ruling is a blow to some insurers that had argued that such damage is excluded by anti-concurrent cause (ACC) and other language in their policies. The 5th U.S. Circuit Court of Appeals had sided with insurers in previous cases.

The state’s high court has now decided that the ACC clause is not applicable because the wind and water losses were separate or in sequence, and not “indivisible.” Justice Michael K. Randolph wrote for the unanimous court:

“We conclude that the ACC clause has no application for losses caused by wind peril. An insurer may not abrogate its duty to indemnify for such loss by the occurrence of a subsequent, excluded cause or event.”

Once the wind loss occurred, the homeowners were entitled to coverage under the policy, the Mississippi court said.

“No reasonable person can seriously dispute that if a loss occurs, caused by either a covered peril (wind) or an excluded peril (water), that particular loss is not changed by any subsequent cause or event. Nor can the loss be excluded after it has been suffered, as the right to be indemnified for a loss caused by a covered peril attaches at that point in time when the insured suffers deprivation of, physical damage to, or destruction of the property insured. An insurer cannot avoid its obligation to indemnify the insured based upon an event which occurs subsequent to the covered loss. The insured’s right to be indemnified for a covered loss vests at time of loss,” the opinion states.

The Mississippi Supreme Court opinion is significant because it preempts federal rulings since insurance contracts are governed by state, not federal, law.

The state court said that the federal circuit court did not err in ruling that storm surge is included in the water damage exclusion but did err in holding that the ACC clause is applicable.

The court sent the Corbans’ case back to Harrison County Circuit Court for a jury trial.

The Corbans had sued their insurer, United Services Automobile Association, after Hurricane Katrina.

USAA downplayed the significance of the ruling. Paul Berry, USAA spokesman, told Insurance Journal that his company is actually pleased with the decision and believes it affirms both that USAA’s “approach to handling claims in Mississippi is correct” and “decades of insurance law” including that storm surge is not covered. He said USAA has always paid wind damage.

While USAA sees no need to change its own policies and operations as a result of the ruling, other carriers in the insurance industry could be affected differently. Other parties, including Nationwide Insurance, were permitted to participate in the case because the court thought it was far-reaching.

One industry group, the American Insurance Association (AIA), said the decision provides guidance to insurers while affirming that the water damage exclusion and ACC clause are “valid provisions” that will continue to be important to insurers in adjusting wind versus water claims.

“First, and most importantly, the Corban decision reaffirms the longstanding flood exclusion provision found in most homeowners’ insurance policies, that expressly excludes coverage for hurricane driven water (or storm surge),” said James Whittle, AIA assistant general counsel. “The water damage or flood exclusion has now withstood every post-Katrina court challenge, and remains a part of regulator-approved insurance contracts throughout the country.”

But Smith, Phillips, Mitchell, Scott & Nowak, the Batesville, Mississippi, law firm for the Corbans, hailed the decision as a landmark, stressing that it places the burden for excluding coverage on the industry.

“Today’s opinion says homeowners ‘all risk’ policies mean exactly what policyholders across the Gulf Coast, as well as legal scholars across the country, have said from day one: (1) Concurrent means concurrent, i.e. at the same time, and (2) In ‘all risk’ policies like those sold today, it is the insurance company’s burden to prove what part of the loss was caused by an excluded peril (water in the case of a hurricane). The ACC clause does not relieve an insurance company of its obligation to establish causation if it seeks to exclude coverage for part of the loss caused by water,” the firm said on its Web site.

The law firm also called the Corban victory “bittersweet” because, it said, “thousands of Gulf Coast residents whose homes were destroyed by Katrina have been forced by economic circumstances to settle their insurance claims over the past four years under an erroneous interpretation of the law.”
Copy of the decision here.

Florida Supreme Court clarifies when someone is in police custody

Friday, October 9th, 2009



Florida’s high court said a Miami youth was not free to go when narcotics officers approached him at a park. The juvenile was rolling a marijuana cigarette.

Handcuffs, Miranda warnings, the back seat of a police car.

They’re all pretty good signs that someone has been “seized” by a police officer.

But what about flashing blue lights? A police car blocking someone’s path? Are they signs, too?

In a decision that settles a conflict between different appeals courts in Florida and helps solve the question of what constitutes a police stop, the Florida Supreme Court said Thursday that a youthful drug suspect was, indeed, “seized” when armed officers in a police car with flashing lights confronted him near an elementary school.


The case involves a juvenile, identified only as G.M., who was arrested in a Miami-Dade park with a “blunt” — a hollowed-out cigar containing marijuana. The youth, whose age is not specified, had been sitting in a Lexus rolling the marijuana cigarette when armed police officers, driving a car with flashing lights, approached.

“It strains the bounds of reason to conclude that under these circumstances, a reasonable person would believe that he or she was free to end the encounter with police and simply leave,” the opinion states.

G.M.’s conviction on drug possession charges was upheld by the high court, which said G.M. didn’t know he was “seized” by police; if he had known, justices said, he probably would have tried to dispose of his marijuana sooner. Still, the opinion states clearly that the youth was not free to leave — even if he didn’t know it at the time.

In a short statement to The Miami Herald, Ryan Wiggins, a spokesman for Attorney General Bill McCollum, said “the court affirmed our position and upheld the lower court’s rulings that the police encounter did not violate the defendant’s Fourth Amendment rights.”

Assistant Public Defender Howard K. Blumberg, who argued the case before the high court, said he was disappointed G.M. did not prevail, but was pleased the court agreed with his contention that citizens are not free to simply walk away after being stopped by armed officers with their lights flashing.

“Under the totality of circumstances, any reasonable person who sees a police car pulled up behind him — with the lights on — would not feel they are free to leave,” Blumberg said.

The opinion was written by Justice R. Fred Lewis and signed by justices Charles T. Canady, Ricky Polston, Jorge Labarga and James E.C. Perry. Chief Justice Peggy A. Quince and Justice Barbara J. Pariente concurred in part and dissented in part.


According to the 25-page opinion, G.M. had been sitting in the car — and occasionally getting out to talk to others — on Aug. 8, 2006. Two Miami-Dade police undercover narcotics officers were watching the Lexus, and became suspicious because the youths were “not engaged in what the officers considered `traditional’ park activities.”

“This caused the officers to activate the emergency lights of the unmarked vehicle and drive across the street into the park to approach the group,” Lewis wrote.

At issue in G.M.’s hearing was whether the two officers acted lawfully when they seized the drug. G.M.’s attorney argued the officers had not observed any illegal activity that afternoon and had no reason to stop the kids.

A juvenile court judge declared the seizure proper, and the Third District Court of Appeal in Miami agreed.

Supreme Court Limits Free speech rights to follow a person around in pubic and get into their face to express your opinion….

Friday, October 9th, 2009

 Foes of abortion-rights in Chicago ought to be relieved to know that they’ll continue to have the First Amendment right to “protest, counsel, shout, implore, dissuade, persuade, educate, inform and distribute literature” on the sidewalks outside abortion clinics, despite new restrictions imposed on them in a measure passed Wednesday by the City Council.

They’re not.

Instead they’re mounting protests and threatening lawsuits claiming the new ordinance infringes on their freedom of speech because it forbids them from getting up in the faces of patients and employees at the doors of the clinics.

Specifically, the law creates a 50-foot buffer zone around entrances to all medical buildings. Protesters still are allowed inside that zone, but can no longer come within 8 feet of people going in and out for the purpose of approaching them to offer counseling, education, prayer, opprobrium or leaflets that would fall under the loose heading of protest statements.

Does a person have a right to be free from being “dogged” on a public street by someone who wishes him to hear an expression of his point of view on abortion? Or on any topic for that matter?

It’s not an inconsiderable question.

Without some potential access to an audience, the right to free speech is meaningless and its exercise futile — one reason why the so-called “protest pens” on the outskirts of political conventions are such an affront to the Constitution.

But without time, place and manner restrictions, you get “speech” that turns into harassment and crosses the line between expression and intimidation.

“The unwilling listener’s interest in avoiding unwanted communication has been repeatedly identified in our cases,” wrote Supreme Court Justice John Paul Stevens for the 6-3 majority in the Colorado case. “It is an aspect of the broader ‘right to be let alone’ that (Justice Louis Brandeis, in 1928) characterized as ‘the most comprehensive of rights and the right most valued by civilized men.’ ”

The nation’s high court has weighed these two, often contradictory rights many times over the years and sought middle ground that “protects the right of every citizen to reach the minds of willing listeners,” as Stevens wrote, while still “protecting listeners from unwanted communication” and making sure that restrictions are content-neutral; not based on whether the government approves of the message of the protesters.

So we have bans on picketing people’s homes in residential neighborhoods, bans on solicitation in airports, bans on at-large leafleting at state fairs, bans on electioneering at polling places and so on

 Chicago’s new ordinance, if signed into law, will still allow anyone entering and leaving an abortion clinic to stop and talk to the protesters and take their literature if he or she wishes to. The 8-foot “bubble” limit applies only to protesters who are actively approaching someone, not to those standing in place on a sidewalk holding up signs or photos or holding out leaflets.

The protesters can speak — 8 feet is a conversational distance — or they can yell, pray, sing, whatever. Despite their bleating to the contrary, their First Amendment rights are safe. The new law will not restrict them from expressing their point of view online, on the air, in print and even within easy earshot of those going into the clinic for abortions.

Those who wish to exercise their right to ignore them ought to be relieved as well.

Click here for relevant U.S. Supreme Court cases and other background documents, including the full text of the Chicago ordinance as passed and an earlier comment thread on this topic.

Michigan Court rules Police can’t force alcohol test without warrant

Friday, October 9th, 2009

Jennifer Chambers / The Detroit News

Troy — Emran Chowdhury was leaving a house party on foot one night last year when he found himself face to face with a Troy police officer.

Investigating allegations of underage drinking, the officer asked Chowdhury some questions and then, according to court records, gave the 18-year-old an ultimatum: Take a preliminary breath test or face jail.

Chowdhury took the test out of fear, he told a judge, but never consented to it. He fought the matter in court and won.

As a result of a recent state Court of Appeals ruling in the case, police in Troy and other local jurisdictions across Michigan must now obtain a search warrant before they can require a minor to take a preliminary breath test (PBT).

A three-judge panel ruled unanimously that a Troy city ordinance allowing police to administer the PBT without a warrant is unconstitutional.

According to lawyers on both sides of the case, the decision sets a statewide legal precedent that is expected to force communities to rewrite similar “minor-in-possession” ordinances and at the same time require officers to take the extra step of obtaining a search warrant signed by a judge or magistrate.

Michigan’s minor-in-possession law, which applies to anyone under age 21, was toughened by Gov. Jennifer Granholm in 2004 to include blood-alcohol content under the definition of being “in possession of alcohol.”

The tougher zero-tolerance law — which since has been successfully challenged in state and federal court — considers any alcohol ingestion by minors illegal, regardless of whether they’re driving.

The appeals court ruling will affect every city in the state that has a minor-in-possession ordinance because most use language identical to Troy’s law, said Rick Levitt, Chowdhury’s attorney.

“(The appeals court) left no doubt that the manner in which the police had been forcing kids to take a PBT is unconstitutional,” he said. “I can’t see the city prevailing on appeal. That is what the constitution requires unless there are some limited exceptions. They have to get a warrant.”

The ruling, issued Sept. 10, upheld decisions by a district judge and circuit judge that Troy’s ordinance is unconstitutional on its face and the warrantless search had been unreasonable.

“It will take a lot of manpower we did not anticipate,” Troy City Attorney Lori Bluhm said, referring to seeking PBT warrants. “We will be able to continue making sure the law is being upheld. It still is a major inconvenience.”

Some cities ‘aggressive’

Chowdhury testified in court that officers said he was required to take the PBT. He and other witnesses said the officers informed them they would be taken to the police station and possibly go to jail if they did not comply.

Now a student at Michigan State University, Chowdhury told the court he believed he had no choice but to submit to the test, which registered a .025 alcohol level. Chowdhury declined to comment for this story.

Levitt filed a motion to suppress the test results, arguing to Troy District Judge William Bolle the ordinance was unconstitutional because it allowed the police to perform warrantless searches.

“The officer was threatening these kids in the foulest of terms. It’s an extremely intimidating situation,” Levitt said. “I think the intimidation and fear factor are inherent in this situation, you can’t remove it when you have uniformed, armed officers.”

Levitt said the appeals court ruling and a recent lawsuit against district court judges in Rochester and Bloomfield alleging that juveniles in minor-in-possession cases are being illegally jailed are proof that law enforcement officials are overzealous in their effort to eliminate underage drinking.

“Some jurisdictions — Troy being one of them — are far more aggressive. It’s an extremely oppressive situation,” Levitt said. In Oakland County, there were 1,622 minor-in-possession cases in 2008, according to the Office of Highway Safety Planning.

Sgt. Perry Curtis of the Michigan State Police alcohol enforcement unit said his department has been seeking search warrants for minors for PBTs since a 2007 ruling out of U.S. District Court in Detroit that declares a portion of the state’s minor-in-possession statute unconstitutional.

Police cite inconvenience

Bluhm said she is not recommending the city appeal the warrant requirement to the Michigan Supreme Court, but the Troy City Council will make the final decision. Immediately after the ruling, Troy police officers were required to get consent from the minors or seek warrants for breath tests, Bluhm said.

“It’s not just inconvenient to the police, it’s inconvenient to the individual. If we have to get a search warrant, we have to detain them onsite unless consent is given,” she said.

The burden on police to obtain search warrants is not unreasonable, Levitt said. The appeals court agreed, saying the city never presented evidence as to why officers could not have sought a warrant.

“It doesn’t take too long to get a search warrant. Police do this all the time in drunk driving cases. They are ready to go. Judges and magistrates are available 24 hours a day, 7 days a week,” Levitt said.

Oakland University student Enio Sina found himself at a party in Troy where police were asking underage kids to take PBTs. The 18-year-old consented, he said, because he wasn’t drinking and wanted to go home. He thinks police should be able to require PBTs without a warrant because of the dangers of drinking and driving. OU student David Kulig, 20, agreed.

“It’s usually pretty obvious when someone has been drinking. I think the (state’s) no-tolerance law” — which considers any alcohol ingestion by a minor illegal — “is harsh,” Kulig said, but he does believe drinking and driving is dangerous.

Carol Mastroianni, executive director, of the Birmingham Bloomfield Community Coalition, said the ruling won’t hurt efforts to eliminate underage drinking.

“Our law enforcement will do what they did in the past. They are going to request young people to take the test, and you can still charge by observations: looking at their eyes, their breath, their speech, their mannerisms. All that happened is a tool was taken away.”

Homer Smith, state director of Michigan Mothers Against Drunk Driving, said police and lawyers have been debating minor-in-possession laws in Michigan for some time. Yet the focus, Smith says, should be about how minors are getting access to alcohol.

“If we really want to impact underage drinking, we need to get to the source and in almost every instance an underage person got alcohol because someone wasn’t doing their job,” Smith said. “We need to focus on that.”

Ohio Man Declared a ‘vexatious litigator’ and Must Now Ask Court’s Permission to Sue Anyone

Friday, October 9th, 2009

Excerpted by Cincinnati Enquirer  -

Saint Torrance isn’t a lawyer but he’s kept the Hamilton County courts busy with the dozens of lawsuits he’s filed.

The Westwood man has sued tenants, utility companies and judges, prompting one judge to take the unusual step of ordering Torrance to file no more lawsuits without first getting permission.

Torrance “has repeatedly wasted the resources of the State of Ohio, Hamilton County, and this court by filing frivolous lawsuits and motions having no foundation,” Common Pleas Court Judge Ralph “Ted” Winkler wrote in an Oct. 5 order.

Winkler declared Torrance a “vexatious litigator,” or someone who files suits to harass or malign.

That designation prevents Torrance from filing any more suits in Hamilton County unless he first gets permission from the presiding judge.

Torrance, 42, responded to Winkler’s order by filing a complaint with the Ohio Supreme Court.

Since 2007, Torrance has filed 21 lawsuits in Hamilton County courts and 16 complaints in the Ohio Supreme Court.

Many of the Supreme Court complaints are against Hamilton County judges who ruled in favor of those he sued.

“I’ve been in that courthouse 20 years and have not got paid on one of my cases,” Torrance said after Winkler’s order.

That’s because they are ill-considered, often indecipherable and rarely based on the law, Winkler countered.

In one case, Torrance sued a free, online auto valuation service after it valued his vehicles – which Torrance believed were worth thousands of dollars – at $500 each.

“They told me my vehicles were junk,” Torrance said. He sued and lost.

What particularly invoked Winkler’s ire was Torrance’s suit against Time Warner Cable after his Internet service was disrupted.

“Some days it was out for weeks at a time,” Torrance’s suit noted.

Torrance files the suits himself, he said, because the attorneys he has hired in the past were inept.

“They didn’t do their jobs,” he said.

“All the judges in Common Pleas Court are not actually following the law,” he said.

He sued many of them to make that point.

In addition to Winkler, Torrance has sued or filed complaints against all of the judges in the Cincinnati-based 1st District Court of Appeals – because they upheld the rulings of other judges who ruled against him …

 ”If a judge follows the law and he doesn’t like it, he files a complaint against the judge,” Winkler said.

“He’s got too much time on his hands,” Winkler said. “We have to do something to stop the frivolous cases.”

The U.S. News and World Report has published U.S. Law School Rankings for 2009 – UK in top third

Tuesday, October 6th, 2009


 Of the Top 100 Law Schools in the U.S. the University of Kentucky College of Law is the highest ranked Kentucky Law School and is ranked No. 55 nationally.  That puts UK in the top third of U.S. Law Schools.

 Louisville is the second and is ranked number 98 in the top 100.

 Chase is a distant third.    Chase Law School is not ranked in the top 100 of 184 U.S. Law Schools.

 University of Kentucky (KY)

Tier 1  Rank 55

 University of Louisville (Brandeis) (KY)

Tier 1   Rank 98

 Northern Kentucky University (Chase) (KY)

Tier 4 – Not ranked in Top 100

 Regional Law Schools:

University of Cincinnati

Tier 1  Rank 52


Tier 1  Rank 17

 Yale  No. 1

 Harvard No. 2

 Stanford No. 3

 Columbia  No. 4