Archive for October, 2009

U.S. Supreme Court October Term To Hear Six Cases On Lawyer Ethics, Errors- including prosecutorial immunity

Sunday, October 4th, 2009

 Excerpted from an article by Marcia Coyle  The National Law Journal  September 28, 2009

 How lawyers do their jobs — from the type of advice they give clients to the calculation of fees — moves to the fore in the new U.S. Supreme Court term in six cases that could dramatically alter the day-to-day practice of law.

The justices in recent terms typically have taken two or three cases — and sometimes none — involving the legal profession. The six cases this term have roots in the First Amendment, habeas corpus, bankruptcy law, civil procedure, privileged materials and the Sixth Amendment.

The cases raise issues about “the unique and various ways lawyers practice law and how the legal system protects lawyers, perhaps even from themselves,” said Vladeck.

The unusual number thus far simply may be the result of an upsurge in petitions involving lawyering. But Renee Newman Knake, a professional responsibility scholar at Michigan State University College of Law, suggests another reason: The cases may reflect a larger movement toward greater scrutiny of the legal profession, particularly in the wake of corporate and government scandals involving lawyers.

 GOOD, BAD, SECRET ADVICE

It would be easy to dismiss Milavetz, Gallop & Milavetz v. U.S. as simply another bankruptcy case on the Court’s docket, but that would be a huge mistake, according to G. Eric Brunstad Jr., a partner in the Hartford, Conn., office of Dechert.

In the Supreme Court, Milavetz — supported by the American Bar Association and the Commercial Law League of America — argues that three sections of the 2005 act violate the First Amendment and lawyers’ ethical duties: the inclusion of lawyers as “debt relief agencies,” the requirement that anyone who provides bankruptcy assistance for payment must advertise as a “debt relief agency” and a provision prohibiting “debt relief agencies” from advising clients “to incur more debt in contemplation of bankruptcy.”

The United States defends the first two as necessary to achieve Congress’ purpose of eliminating abuse in the bankruptcy system and argues that the restriction on advice about incurring more debt should be narrowly interpreted to apply only to advice intended to abuse the system.

Two other cases involve lawyers’ duties to their clients, but in very different contexts.

In Padilla v. Kentucky, Jose Padilla, a lawful permanent resident for four decades, seeks to overturn a Kentucky Supreme Court decision that he could not bring an ineffective assistance of counsel claim based on his defense lawyer’s erroneous advice that accepting a plea agreement on charges of transporting marijuana would not affect his immigration status. His lawyer never investigated the matter and, after Padilla pleaded guilty, the government moved to deport him.

The third case in this set, Mohawk Industries v. Carpenter, is far removed from the criminal arena. Norman Carpenter sued Mohawk Industries Inc., claiming he was fired because he refused to recant a report that the company had hired illegal aliens as temporary workers. During discovery, he sought information from an interview between him and Mohawk’s outside counsel, part of Mohawk’s internal investigation.

After the trial court ordered Mohawk to provide the information, Mohawk filed an interlocutory appeal. The 11th Circuit Court of Appeals dismissed, holding that discovery orders relating to attorney-client privilege are not collateral orders subject to immediate appeal.

Mohawk’s counsel, Randall Allen of Alston & Bird in Atlanta, says waiting until final judgment to appeal the discovery order here would, in effect, make the appeal

A group of federal judges, in a brief authored by American’s Vladeck, raise other concerns if Mohawk wins.

“Courts of appeals, already enormously overworked, will have to take on a not insignificant number of appeals at early stages of litigation, and there’s a strong policy disfavoring these piecemeal appeals,” said Vladeck.

DOING THE JOB, OR NOT

Lawyers performing badly give rise to two cases: Wood v. Allen, a case involving an ineffective assistance of counsel claim against a lawyer who, with four months’ experience, handled the penalty phase of an Alabama capital murder trial, and Pottawattamie v. McGhee, in which two Iowa prosecutors, who fabricated evidence and used it in the murder trial of two men, seek immunity from a civil rights damages suit by the wrongfully convicted men.

The prosecutors’ case pits two high court veterans: Jeffrey Sarles of Mayer Brown in Chicago, for the county and prosecutors, and former Solicitor General Paul Clement, now in King & Spalding’s Washington, D.C., office, for the two wrongfully convicted men.

Sarles argues that procuring false testimony does not violate the Constitution, and under the Supreme Court’s “function” test for immunity, the prosecutors are entitled to absolute immunity for the use of false testimony at trial because, at that stage, they are advocates of the state.

Calling the prosecutors’ conduct here “truly unconscionable,” Clement counters that prosecutors who fabricate evidence before probable cause attaches are no less culpable or more entitled to immunity than a police office who violates the Constitution by duping an unknowing prosecutor into using fabricated evidence.”

In Perdue v. Kenny A, the justices will decide whether an attorney fee awarded under a federal fee-shifting statute can be enhanced because of the results obtained by the litigation and the lawyers’ outstanding performance.

A federal judge in a Georgia class action involving abuse and neglect of the state’s foster care children awarded the plaintiffs attorneys a basic — or lodestar — fee of $6 million and then bumped it up to $10.5 million because of the lawyers’ performance — the best the judge had seen in his 27 years on the bench. The 11th Circuit affirmed.

For more about the Prosecutors Immunity case go to:

PROSECUTORIAL IMMUNITY CASE BEFORE U.S. SUPREME COURT OCT 2009 Pottawattamie County et al. v. McGhee

KANSAS SUPREME COURT ISSUES IMPORTANT RULING DISMISSING FORECLOSURE SUITS BY MORTGAGE OWNERS WHO HAVE RELIED ON mers – MILLENNIA MORTGAGE CORP. FOR REGISTRATION OF MORTGAGE INSTEAD FILING WITH COUNTY CLERK…

Sunday, October 4th, 2009

 This ruling will be important to you if you represent debtors, or banks who have valid first mortgage liens.

 The system of electronic registration of mortgages that are bundled and sold by banks, is operated by a group created by the banking industry.  The entity is called Millennia Mortgage Corporation.  MERS as it is called, is “basically an electronic phone book for mortgages, said Kevin Byers, an expert on mortgage securities.  “To call this electronic registry a creditor in foreclosure and bankruptcy actions is legal prezel logic, nothing more than an artifice constructed to save time, money and paper work.

 As foreclosure cases filed by MERS grew, lawyers representing troubled borrowers began questioning how an electronic registry with no ownership claims in the mortgages had the right to evict people.  The banking industry nominated MERS to be the plaintiff to bring the foreclosure suits.

 The Kansas Supreme Court issued a ruling last month said this was a dubious practice and disallowed MERS to enforce a mortgage lien in a bankruptcy action.  They essentially said MERS had no legal standing to assert a lien or pursue a foreclosure since they were not an owner of the mortgage or mortgage lien.

 The MERS registration system attempts to bypass the requirement for filing all mortgages and liens with the local county clerk.

 The Kansas case involved Boyd A Kesler.  The court would not enforce the mortgage lien asserted by MERS saying they had no interest in the property and had no right to receive any proceeds from the bankruptcy court action.

 The action of the Kansas Supreme Court rejects the MERS business model which was cooked up by the banking industry.

Breath Alcohol Concentration Tests Can Vary As Much As 20%

Sunday, October 4th, 2009

by Kentucky Attorney Stephen J. Isaacs, Isaacs Law Officehttp://www.kyduiblog.com/

While the states contend that the science behind Breath Alcohol Testing is reliable, researchers are finding flaws with the science upon which Breath Alcohol Testing is based. 

Lung physiology researcher Dr. Michael P. Hlastala, Ph.D. Professor of Physiology, Biophysics and of Medicine Pulmonary and Critical Care Medicine of the University of Washington tested the consistency of measurements from breath alcohol concentration (BrAC) testing machines and compared them to measurements of blood alcohol concentration (BAC) measurements.  Dr. Hlastala discovered that the results could vary by as much as plus or minus 20%.

In his research, Dr. Hlastala states that:

. . . subjects with larger lung volume may have a lower BrAC than a subject with a small lung volume because these subjects do not need to exhale as great a fraction of their vital capacity as subjects with smaller lung volume to fulfill the minimum volume exhalation required before stopping exhalation (usually ~1.5 liters). A person with smaller lung volume must breathe farther into the exhaled breath, resulting in a greater BrAC-to-BAC ratio.   Michael P. Hlastala, Invited-Editorial on “The Alcohol Breath Test,” 93 Journal of Applied Psysiology 405 (2002).

According to this research, breath testing machines based on the “average” person can result in a bias favoring individuals with large lung capacities causing a low BrAC-to-BAC ratio, and against individuals with small lung capacities causing a higher BrAC-to-BAC ratio.

Stated another way, a person legally under the influence with a 0.08 blood alcohol concentration and with large lung capacity may inaccurately measure 0.064 BrAC on a breath alcohol concentration test machine.   A person not considered to be under the influence with a 0.067 blood alcohol concentration and with a small lung capacity may inaccurately measure 0.08 BrAC on a breath alcohol concentration test device.

 

ISAACS ADDS:

“… it appears that lung size affects the value of the breath alcohol test where it may be off by as much as +- 20% (for up to a 40% maximum swing). The theory is that a person with a large lung will not need to provide a large breath sample, which means that the air deep within the lungs which the machines try to measure is not fully measured, or that persons with small lungs end up giving too much of a sample, which skews the results. “

Campaign contribution vs. personal gift to a FAMILY MEMBER – The Law Behind the News

Saturday, October 3rd, 2009

 

By LawReader Senior Editor Stan Billingsley

 QUESTION: When a father makes a gift to his daughter, who is a candidate for public office, can this gift be considered as an illegal  campaign contribution?

 

We present the following discussion upon which you may answer the question for yourself.

 

We begin by examining KRS 121.150(1) which limits campaign contributions.  This requires some statutory construction and this statute must past constitutional muster.

 

KRS 121.150 (12) No person shall make a payment, distribution, loan, advance, deposit, or gift of money to another person to contribute to a candidate, a slate of candidates, committee, contributing organization, or anyone on their behalf. No candidate, slate of candidates, committee, contributing organization, nor anyone on their behalf shall accept a contribution made by one (1) person who has received a payment, distribution, loan, advance, deposit, or gift of money from another person to contribute to a candidate, a slate of candidates, committee, contributing organization, or anyone on their behalf.

 

 

This statute can arguably be read in two different ways.

 

 1.  “No person shall make a…gift..to another person to contribute to a candidate…(or)…committee…”

 

This can be read to mean that the intent of this provision is to prevent gifts to third parties who then are expected to transfer the gift to the candidate or committee.  This would prevent an attempt to hide the source of a campaign contribution.  If the gift is directly to the daughter then one can argue that no third party is involved and the prohibition does not apply.

 

2. This could also be read to mean that if the gift or contribution  is made to the candidate (daughter) with the intent that the candidate (daughter) is to transfer the gift to the campaign committee, then it would violate the intent of this statute by making the candidate the third party and the committee another party.  It may be argued that when the candidate and the committee are the same entity that no third party is involved and KRS 121.150 (12) would not apply. 

 

THE ADVISORY OPINION MECHANISM:

 

The limits on campaign contributions tread on constitutional grounds.  The courts have held that the Advisory Opinion mechanism of KRS Chapter 121 can help avoid constitutional violations and claims of vagueness and overbreadth by providing a “safe harbor” opinion upon which the involved parties may rely.  See: Martin v. Com., 96 S.W.3d 38 (Ky., 2003) below.

 

That mechanism as applied to Chapter 121 states:

 

KRS 121.135 (4)(b) “…any person… who acts in good faith …shall not, as a result of any act with respect to a transaction or activity addressed by the advisory opinion, be subject to any sanction provided by this chapter or any administrative regulation promulgated by the registry. “

 

If the person making the “contribution” or “gift” has obtained an advisory opinion about the legality of the transaction has in good faith relied on the opinion, then no illegality can be assumed.  The body giving the advisory opinion is empowered to immunize any violation of the statute, if the person making the transaction acted in “good faith”.

 

The Martin case cited below, cautions about opinions which attempt to add to much verbiage and suggests that such opinions should be simple “yes” or “no” opinions.  

 

The following case Martin v. Com. Is the only appellate decision discussing KRS Chapter 121.150(12).  It overruled an interpretation of the statute that attempted to criminalize an “independent expenditure” by a third party.  It held that there must be a compelling state interest in limiting certain expenditures used in a campaign.  One may ask if there is a compelling state interest in limiting gifts by parents to a child who happens to be a candidate.  This issue has never been considered by the Kentucky Courts.

 

Martin does caution against an interpretation of the statute that:

 

limit(s)… actions voluntarily undertaken by citizens independently of a candidate’s campaign.”

 

“limitations on truly independent expenditures must be “narrowly tailored” to serve a “compelling” governmental interest,…”

 

So the question must be considered, was the gift independent of a candidate’s campaign?  

 

Does a strict reading of KRS 121.150 mean that a parent can never advance an inheritance to a child who happens to be a candidate?  Would it also be a violation if a parent were to die and leave an inheritance to a child who at the time is a candidate for public office?  What compelling state interest is achieved by such a conclusion?

 

Regardless of the reading of KRS 121.150(12), it appears that statutory and case law immunize any violation of the campaign finance law by the “good faith” reliance on the advisory opinion.

 

Is it an ethical violation for a judge to receive a gift from a family member?

 

It is one issue to determine if a gift from a father to his candidate daughter is in violation of a campaign finance law, and it is another to determine if the transaction violates the Judge’s ethical duties under the Judicial Code of Conduct.

 

The Judicial Code of Conduct does not prohibit a gift from a family member.

 

JUDICIAL CODE OF CONDUCT

Canon 5:

  1. Neither a judge nor a member of his family residing in his household should accept a gift, bequest, favor, or loan from anyone except as follows:

(b)A judge or a member of his family residing in his household may accept ordinary social hospitality; a gift, bequest, favor, or loan from a relative; a wedding or engagement gift; a loan from a lending institution in its regular course of business on the same terms generally available to persons who are not judges; or a scholarship or fellowship awarded on the same terms applied to other applicants;

 

AUTHORITIES:

 

                              Martin v. Com., 96 S.W.3d 38 (Ky., 2003)

 

  KRS 121.150(12):

        No person shall make a payment, distribution, loan, advance, deposit, or gift of money to another person to contribute to a candidate, committee, contributing organization, or anyone on their behalf. No candidate, committee, contributing organization, nor anyone on their behalf shall accept a contribution made by one (1) person who has received a payment, distribution, loan, advance, deposit or gift of money from another person to contribute to a candidate, committee, contributing organization, or anyone on their behalf

Limitations on “contributions,” or the amount that one may contribute to a candidate or political committee, however, were found to create only a “marginal restriction” on the contributor’s First Amendment rights, id. at 20-21, 96 S.Ct. at 635, because a contribution does little more than communicate “a general expression of support for a candidate and his views,” through “the symbolic act of contributing.” Id. at 21, 96 S.Ct. at 635. The First Amendment interest primarily implicated by a contribution is the right of political association. Id. at 24-25, 96 S.Ct. at 637. This expression of association is not affected by the amount or size of the contribution which, at best, conveys “a very rough index of the intensity of the contributor’s support for the candidate.” Id. at 21, 96 S.Ct. at 635-636. As a matter of necessity, “the transformation of contributions into political debate involves speech by someone other than the contributor.” Id. at 21, 96 S.Ct. at 636. Thus, limitations on contributions (not amounting to a ban) do not pose a great threat to political speech….

 

… Only truly “independent expenditures” differ functionally from cash gifts for purposes of the First Amendment. Id. Buckley also upheld the inclusion of “in-kind assistance” within the definition of a “contribution” because it “provides material financial assistance to a candidate.” Id. at 36, 96 S.Ct. at 643.

        The ultimate effect is the same as if the person had contributed the dollar amount to the candidate and the candidate had then used the contribution to pay for [e.g.] the fundraising event or the food …. Treating these expenses as contributions when made to the candidate’s campaign or at the direction of the candidate or his staff forecloses an avenue of abuse without limiting actions voluntarily undertaken by citizens independently of a candidate’s campaign.

Accordingly, Buckley and its progeny have established that limitations on truly independent expenditures must be “narrowly tailored” to serve a “compelling” governmental interest, while limitations on contributions need only be “closely drawn” to match a “sufficiently important” governmental interest. Buckley, supra, at 24-25, 44-45, 96 S.Ct. at 637-38, 647; Shrink Missouri, supra, at 386-88 and n. 3, 120 S.Ct. at 903-05 and n. 3. Beaumont v. Federal Election Comm’n, 278 F.3d 261, 271 (4th Cir.2002); Daggett v. Commission on Governmental Ethics and Election Practices, 205 F.3d 445, 454, 464 (1st Cir.2000); Service Employees Int’l Union v. Fair Political Practices Comm’n, 955 F.2d 1312, 1322 (9th Cir.1992); Opinion of the Justices to the House of Representatives, 418 Mass. 1201, 637 N.E.2d 213, 216 (1994)….

 

… Therefore, Buckley construed that language as applying “only to expenditures for communications that in express terms advocate the election or defeat of a clearly identified candidate,” id. at 44, 96 S.Ct. at 646-47, otherwise referred to as “express advocacy.” Massachusetts Citizens for Life, supra, 479 U.S. at 249, 107 S.Ct. at 623. In addition to avoiding the vagueness challenge, this interpretation attempted to make former § 608(e)(1) as constitutionally palatable as possible by leaving unregulated “funds spent [independently] to propagate one’s views on issues without expressly calling for a candidate’s election or defeat,” Buckley, supra, at 44, 96 S.Ct. at 646 (quotation omitted), otherwise referred to as “issue advocacy.” Massachusetts Citizens for Life, supra at 252 n. 6, 107 S.Ct. at 625 n. 6.

 

…  Thus, in the discussions most relevant to this case, Buckley upheld FECA’s limits on contributions, but struck down FECA’s limits on truly independent expenditures. As the Court has recently noted, “Plater cases have respected this line between contributing and spending.” Colorado II, supra, 533 U.S. at 437, 121 S.Ct. at 2356….

 

The primary First Amendment violations claimed by Appellants are that (1) KRS 121.015(6)(e) included within the definition of “contribution” exactly the type of independent activity that Buckley held could not be restricted; (2) the definition of “independent expenditure,” KRS 121.150(1)(b) (as dissected), required the expenditure to be made without “consultation involving a … candidate,” which could include, e.g., a consultation with a third party about the candidate or a mere inquiry of the candidate as to his/her position on a particular issue for the purpose of determining whether to make an independent expenditure; and (3) KRS 121.150(1)(c) (as dissected) prohibited “any communication” between the campaign and a potential independent spender about the expenditure before the expenditure was made. We agree that these provisions were facially unconstitutional for precisely the reasons stated by Appellants…

The advisory opinion mechanism, as applied to these provisions, would have been resigned to continually interpreting an unconstitutional statute. All an advisory opinion could say with respect to, e.g., whether a prospective expenditure would constitute a “contribution” under KRS 121.015(6)(e) is essentially “yes” or “no.” If “no,” the expenditure would be afforded a “safe harbor,” and no enforcement or punitive action could be taken. But if “yes,” then the otherwise valid conduct would be “chilled,” and the overbreadth issue would still remain….

 

KRS  121.015 Definitions for chapter.

(6) “Contribution” means any:

(a) Payment, distribution, loan, deposit, or gift of money or other thing of value, to a candidate, his agent, a slate of candidates, its authorized agent, a committee, or contributing organization. As used in this subsection, “loan” shall include a guarantee, endorsement, or other form of security where the risk of nonpayment rests with the surety, guarantor, or endorser, as well as with a committee, contributing organization, candidate, slate of candidates, or other primary obligor. No person shall become liable as surety, endorser, or guarantor for any sum in any one (1) election which, when combined with all other contributions the individual makes to a candidate, his agent, a slate of candidates, its agent, a committee, or a contributing organization, exceeds the contribution limits provided in KRS 121.150;…

 

KRS  121.015 Definitions for chapter.

 (7) Notwithstanding the foregoing meanings of “contribution,” the word shall not be construed to include: 

 (c) An independent expenditure by any individual or permanent committee;

 

(12) “Independent expenditure” means the expenditure of money or other things of value for a communication which expressly advocates the election or defeat of a clearly identified candidate or slate of candidates, and which is made without any coordination, consultation, or cooperation with any candidate, slate of candidates, campaign committee, or any authorized person acting on behalf of any of them, and which is not made in concert with, or at the request or suggestion of any candidate, slate of candidates, campaign committee, or any authorized person acting on behalf of any of them;

 

KRS 121.150 Campaign contribution and loan restrictions and expenditure limitations.

(1) No contribution shall be made or received, directly or indirectly, other than an independent expenditure, to support inauguration activities or to support or defeat a candidate, slate of candidates, constitutional amendment, or public question which will appear on the ballot in an election, except through the duly appointed campaign manager, or campaign treasurer of the candidate, slate of candidates, or registered committee. Any person making an independent expenditure, shall report these expenditures when the expenditures by that person exceed five hundred dollars ($500) in the aggregate in any one (1) election, on a form provided or using a format approved by the registry and shall sign a statement on the form, under penalty of perjury, that the expenditure was an actual independent expenditure and that there was no prior communication with the campaign on whose behalf it was made.

(2) Except as provided in KRS 121.180(10), the solicitation from and contributions by campaign committees, caucus campaign committees, political issues committees, permanent committees, and party executive committees to any religious, charitable, civic, eleemosynary, or other causes or organizations established primarily for the public good is expressly prohibited; except that it shall not be construed as a violation of this section for a candidate or a slate of candidates to contribute to religious, civic, or charitable groups.

(3) No candidate, slate of candidates, committee, or contributing organization, nor anyone acting on their behalf, shall accept any anonymous contribution in excess of fifty dollars ($50), and all anonymous contributions in excess of fifty dollars ($50) shall be returned to the donor, if the donor can be determined. If no donor is found, the contribution shall escheat to the state. No candidate, slate of candidates, committee, or contributing organization, nor anyone acting on their behalf shall accept anonymous contributions in excess of one thousand dollars ($1,000) in the aggregate in any one (1) election. Anonymous contributions in excess of one thousand dollars ($1,000) in the aggregate which are received in any one (1) election shall escheat to the state.

(4) No candidate, slate of candidates, committee, or contributing organization, nor anyone on their behalf, shall accept a cash contribution in excess of fifty dollars ($50) in the aggregate from each contributor in any one (1) election. No candidate, slate of candidates, committee, or contributing organization, nor anyone on their behalf, shall accept a cashier’s check or money order in excess of the maximum cash contribution limit unless the instrument clearly identifies both the payor and the payee. A contribution made by cashier’s check or money order which identifies both the payor and payee shall be treated as a contribution made by check for purposes of the contribution limits contained in this section. No person shall make a cash contribution in excess of fifty dollars ($50) in the aggregate in any one (1) election to a candidate, slate of candidates, committee, or contributing organization, nor anyone on their behalf.

(5) No candidate, slate of candidates, committee, contributing organization, nor anyone on their behalf, shall accept any contribution in excess of one hundred dollars

($100) from any person who shall not become eighteen (18) years of age on or before the day of the next general election.

(6) No candidate, slate of candidates, campaign committee, political issues committee, nor anyone acting on their behalf, shall accept a contribution of more than one thousand dollars ($1,000) from any person, permanent committee, or contributing organization in any one (1) election; except that no candidate for school board, his campaign committee, nor anyone acting on their behalf shall accept a contribution of more than one hundred dollars ($100) from any person or more than two hundred dollars ($200) from any permanent committee or contributing organization in any one (1) election. No person, permanent committee, or contributing organization shall contribute more than one thousand dollars ($1,000) to any one (1) candidate, campaign committee, political issues committee, nor anyone acting on their behalf, in any one (1) election; except that no person shall contribute more than one hundred dollars ($100) and no permanent committee or contributing organization shall contribute more than two hundred dollars ($200) to any one (1) school board candidate, his campaign committee, nor anyone acting on their behalf, in any one (1) election.

(7) Permanent committees or contributing organizations affiliated by bylaw structure or by registration, as determined by the Registry of Election Finance, shall be considered as one (1) committee for purposes of applying the contribution limits of subsection (6) of this section.

(8) No permanent committee shall contribute funds to another permanent committee for the purpose of circumventing contribution limits of subsection (6) of this section.

(9) No person shall contribute funds to a permanent committee, political issues committee, or contributing organization for the purpose of circumventing the contribution limits of subsection (6) of this section.

(10) No person shall contribute more than one thousand five hundred dollars ($1,500) to all permanent committees and contributing organizations in any one (1) year.

(11) No person shall contribute more than two thousand five hundred dollars ($2,500) to the state executive committee of a political party and its subdivisions and affiliates in any one (1) year. No person shall contribute more than two thousand five hundred dollars ($2,500) to a caucus campaign committee in any one (1) year. Contributions a person makes to any executive committee other than the state executive committee in excess of one thousand dollars ($1,000) in any one (1) year shall be deposited in a separate account which the state executive committee maintains for the exclusive purpose of paying administrative costs incurred by the political party.

(12) No person shall make a payment, distribution, loan, advance, deposit, or gift of money to another person to contribute to a candidate, a slate of candidates, committee, contributing organization, or anyone on their behalf. No candidate, slate of candidates, committee, contributing organization, nor anyone on their behalf shall accept a contribution made by one (1) person who has received a payment, distribution, loan, advance, deposit, or gift of money from another person to

contribute to a candidate, a slate of candidates, committee, contributing organization, or anyone on their behalf.

(13) No candidates running as a slate for the offices of Governor and Lieutenant Governor shall make combined total personal loans to their committee in excess of fifty thousand dollars ($50,000) in any one (1) election. No candidate for any other statewide elected state office shall lend to his committee any amount in excess of twenty-five thousand dollars ($25,000) in any one (1) election. In campaigning for all other offices, no candidate shall lend to his committee more than ten thousand dollars ($10,000) in any one (1) election.

(14) Subject to the provisions of subsection (18) of this section, no candidate or slate of candidates for nomination to any state, county, city, or district office, nor their campaign committees, nor anyone on their behalf, shall solicit or accept contributions for primary election expenses after the date of the primary. No person other than the candidate or slate of candidates shall contribute for primary election expenses after the date of the primary.

(15) Subject to the provisions of subsection (18) of this section, no candidate or slate of candidates for any state, county, city, or district office at a regular election, nor their campaign committees, nor anyone on their behalf, shall solicit or accept contributions for regular election expenses after the date of the regular election. No person other than the candidate or slate of candidates shall contribute for regular election expenses after the date of the regular election.

(16) Subject to the provisions of subsection (18) of this section, no candidate or slate of candidates for nomination or election to any state, county, city, or district office, nor their campaign committees, nor anyone on their behalf, shall solicit or accept contributions for special election expenses after the date of the special election. No person other than the candidate or slate of candidates shall contribute for special election expenses after the date of the special election.

(17) The provisions of subsections (14) and (15) of this section shall apply only to those candidates in a primary or regular election which shall be conducted subsequent to January 1, 1989. The provisions of subsection (16) of this section shall apply only to those candidates or slates of candidates in a special election which shall be conducted subsequent to January 1, 1993.

(18) A candidate, slate of candidates, or a campaign committee may solicit and accept contributions after the date of a primary election, regular election, or special election to defray necessary expenses that arise after the date of the election associated with election contests, recounts, and recanvasses of a specific election, complaints regarding alleged campaign finance violations that are filed with the registry pertaining to a specific election, or other legal actions pertaining to a specific election to which a candidate, slate of candidates, or campaign committee is a party. Reports of contributions received and expenditures made after the date of the specific election shall be made in accordance with KRS 121.180.

(19) No slate of candidates for Governor and Lieutenant Governor or their immediate families shall loan any money, service, or other thing of value to their campaign, and all moneys, services, or other things of value which are loaned shall be deemed

a contribution, which may not be recovered by the slate of candidates, except to the extent of a combined total of fifty thousand dollars ($50,000).

(20) No candidate, slate of candidates, committee, except a political issues committee, or contributing organization, nor anyone on their behalf, shall knowingly accept a contribution from a corporation, directly or indirectly.

(21) Nothing in this section shall be construed to restrict the ability of a corporation to administer its permanent committee insofar as its actions can be deemed not to influence an election as prohibited by KRS 121.025.

(22) No candidate, slate of candidates, or committee, nor anyone on their behalf, shall solicit a contribution of money or services from a state employee, whether or not the employee is covered by the classified service provisions of KRS Chapter 18A. However, it shall not be a violation of this subsection for a state employee to receive a solicitation directed to him as a registered voter in an identified precinct as part of an overall plan to contact voters not identified as state employees.

(23) (a) A candidate or a slate of candidates for elective public office shall not accept contributions from permanent committees which, in the aggregate, exceed fifty percent (50%) of the total contributions accepted by the candidate or a slate of candidates in any one (1) election or ten thousand dollars ($10,000) in any one (1) election, whichever is the greater amount. The percentage of the total contributions or dollar amounts of contributions accepted by a candidate or a slate of candidates in an election that is accepted from permanent committees shall be calculated as of the day of each election. Funds in a candidate’s or a slate of candidates’ campaign account which are carried forward from one (1) election to another shall not be considered in calculating the acceptable percentage or dollar amount of contributions which may be accepted from permanent committees for the election for which the funds are carried forward. A candidate or a slate of candidates may, without penalty, contribute funds to his campaign account not later than sixty (60) days following the election so as not to exceed the permitted percentage or dollar amount of contributions which may be accepted from permanent committees or the candidate or a slate of candidates may, not later than sixty (60) days after the end of the election, refund any excess permanent committee contributions on a pro rata basis to the permanent committees whose contributions are accepted after the aggregate limit has been reached.

(b) The provisions of paragraph (a) of this subsection regarding the receipt of aggregate contributions from permanent committees in any one (1) election shall also apply separately to the receipt of aggregate contributions from executive committees of any county, district, state, or federal political party in any one (1) election.

(c) The provisions of paragraph (a) of this subsection regarding the receipt of aggregate contributions from permanent committees in any one (1) election shall also apply separately to the receipt of aggregate contributions from caucus campaign committees.

(24) No candidate or slate of candidates for any office in this state shall accept a contribution, including an in-kind contribution, which is made from funds in a federal campaign account. No person shall make a contribution, including an in-kind contribution, from funds in a federal campaign account to any candidate or slate of candidates for any office in this state.

Effective: July 15, 2008

History: Amended 2008 Ky. Acts ch. 129, sec. 11, effective July 15, 2008. — Amended 2005 Ky. Acts ch. 105, sec. 5, effective March 16, 2005. — Amended 2000 Ky. Acts ch. 398, sec. 4, effective July 14, 2000. — Amended 1998 Ky. Acts ch. 599, sec. 1, effective July 15, 1998. — Amended 1996 Ky. Acts ch. 153, sec. 3, effective July 15, 1996; ch. 188, sec. 1, effective July 15, 1996; and ch. 372, sec. 1, effective April 12, 1996. — Amended 1994 Ky. Acts ch. 458, sec. 8, effective July 15, 1994. — Amended 1993 (1st Extra. Sess.) Ky. Acts ch. 4, sec. 57, effective September 16, 1993. — Amended 1992 Ky. Acts ch. 288, sec. 25, effective July 14, 1992. — Amended 1990 Ky. Acts ch. 314, sec. 1, effective July 13, 1990; and ch. 476, Pt. II, sec. 73, effective July 13, 1990. — Amended 1988 Ky. Acts ch. 15, sec. 1, effective July 15, 1988; ch. 55, sec. 1, effective March 11, 1988; ch. 118, sec. 2, effective 1991; and ch. 341, sec. 43, effective July 15, 1988. — Amended 1986 Ky. Acts ch. 100, sec. 4, effective July 15, 1986; and ch. 168, sec. 1, effective July 15, 1986. — Amended 1980 Ky. Acts ch. 292, sec. 6, effective July 15, 1980. — Created 1974 Ky. Acts ch. 130, sec. 187

 

KRS 121.135 Advisory opinion by registry — Effect — Publication.

(1) Any person may file a written request with the registry for an advisory opinion concerning the application of the provisions of this chapter or any administrative regulation promulgated by the registry with respect to a specific transaction or activity by the person. The registry shall render a written advisory opinion relating to the specific transaction or activity to the person making the request not later than thirty (30) days after the registry receives the request.

(2) If a candidate, slate of candidates, or either of their campaign committees files a written request with the registry for an advisory opinion not more than thirty (30) days before the date of an election at which the candidate or slate of candidates shall appear on the ballot, the registry shall render a written advisory opinion relating to the request not later than twenty (20) days after the registry receives a complete request.

(3) No advisory opinion shall be issued by the registry or any of its employees except in accordance with the provisions of this section.

(4) (a) Any advisory opinion rendered by the registry under subsection (1) or (2) of this section may be relied upon only by the person or committee involved in the specific transaction or activity with respect to which the advisory opinion is rendered.

(b) Notwithstanding any other provision of law, any person or committee to whom a written advisory opinion has been rendered who relies upon any provision or finding of the advisory opinion and who acts in good faith in accordance with the provisions and findings of the advisory opinion shall not, as a result of any act with respect to a transaction or activity addressed by the advisory opinion, be subject to any sanction provided by this chapter or any administrative regulation promulgated by the registry.

(c) It shall be no defense in any civil or criminal proceeding regarding a violation of any provision of this chapter or any administrative regulation promulgated by the registry for a person or committee to claim that he relied upon and acted in good faith based upon any provision or finding of an advisory opinion if the person or committee was not the person or committee involved in the specific transaction or activity with respect to which the advisory opinion was rendered.

(5) (a) The registry shall make public all written requests for an advisory opinion made under subsection (1) or (2) of this section. Before rendering an advisory opinion, the registry shall accept written comments submitted by any interested party within the ten (10) day period following the date the request is made public.

(b) The registry shall make public all advisory opinions rendered under subsection (1) or (2) of this section.

Effective: July 14, 1992

History: Created 1992 Ky. Acts ch. 288, sec. 45, effective July 14, 1992.

Oregon Appeals Court rules that Implied Consent Law for Blood and Breath Test is Unconstitutional – “a consent to search is “coerced by the fear of adverse consequences, and is ineffective to excuse” a search warrant.”

Saturday, October 3rd, 2009

 By Maxine Bernstein, The Oregonian                 October 02, 2009,

 Police and prosecutors say a court of appeals ruling will make it more difficult to investigate and prosecute suspected drunken drivers. Although a man accused of drunken driving gave his consent to have his blood drawn for testing, the Oregon Court of Appeals ruled this week that the consent was coerced and should be suppressed.

In a 6-4 decision, the appellate court found that the man’s consent was not voluntary because he agreed after a police officer read him the penalties of not complying, as required by state law.

The court also ruled that the officer, who had probable cause to believe the driver was intoxicated, could have obtained a search warrant by phone without sacrificing evidence and should have done so.

Prosecutors and police say the ruling could significantly change how police investigate drunk driving cases, requiring officers to get a search warrant before every breath test, blood draw or urine test.

“It could pose an enormous challenge to DUI prosecution,” said Josh Marquis, Clatsop County district attorney. “The whole concept of the implied consent law is that driving is a privilege, not a right.”

The ruling throws into question the constitutionality of the state’s implied consent law which holds that licensed drivers will consent to a breath, blood or urine test if arrested on an accusation of driving under the influence of intoxicants. The law says refusal to take a test could be used as evidence in court, and lead to loss of license and fines.

Defense attorneys hailed the ruling as a victory for individual rights.

“This is a huge case. I applaud the majority opinion for its devotion to the fundamentals of constitutional law,” said Oregon City lawyer John Henry Hingson III, founding member of the National College for DUII Defense Inc., a non-profit organization that helps train attorneys.

State Attorney General John Kroger will petition the Oregon Supreme Court to review the decision, said spokesman Tony Green. “Given the significant on-the-ground impact of the ruling, we are working quickly on getting our appeal together.”

The case stemmed from a 2005 arrest of Thomas Gregory Machuca after an accident on Portland’s Southwest Naito Parkway. Machuca was injured and taken to Oregon Health Sciences University Hospital.

Portland Traffic Officer Joshua Ladd, finding probable cause to believe the driver was under the influence of intoxicants, went to the hospital around 2:10 a.m.

The officer noticed a very strong smell of alcohol in his emergency room. He explained why he was there, and told Machuca he was under arrest for driving under the influence of intoxicants and reckless driving. Ladd testified the defendant understood he’d been in a wreck, knew where he was, and why. Ladd read him his Miranda rights, and the state’s implied consent law, including the consequences he could face if he refused a blood draw. Machuca consented, and a nurse drew his blood at 3:18 a.m.

Machuca pushed to suppress the evidence, but the trial court judge denied his motion. Machuca entered a conditional guilty plea, reserving the right to appeal.

The state argued that Machuca gave consent, and evidence would have been lost if the officer had to wait for a search warrant.

The appellate court’s majority opinion cited a 28-year-old Oregon Supreme Court case State v. Newton, saying that a consent to search is “coerced by the fear of adverse consequences, and is ineffective to excuse” a search warrant. The majority also ruled there was no emergency to draw the blood without a search warrant, because the officer conceded he could have obtained a warrant by phone within one hour.

“The requirement to obtain a warrant is not excused by the mere fact that alcohol dissipates in the bloodstream over time,” Appellate Judge Timothy Sercombe wrote in the majority opinion.

Oregon Public Defender Peter Gartlan, who argued the appeal on Machuca’s behalf, said the state statute is drafted to coerce consent, and violates the constitutional protection against unreasonable search or seizure.

Appellate Judge Rick T.Haselton wrote in the dissenting opinion that the 28-year-old Newton case is not binding, has never been cited and was “patently wrong.” He cited the Catch-22 impact of the majority’s ruling: if an officer follows state statute, they’re being “coercive,” but if they don’t, they’re violating state law.

The alleged Mongiardo Audio-Video tape is the second instance in a year which may involve illegal eavesdropping in violation of Kentucky law.

Friday, October 2nd, 2009

This week a video tape was published on the internet, and widely discussed in the press.  Several experts conclude the tape was clearly spliced and altered.

Whoever recorded this alleged conversation and spliced it to hide the alterations have successfully achieved their apparent goal of embarrassing Mongiardo.  A guest on KET’s Comment on Kentucky speculated that parts of the tape are likely to be used by Mongiardo’s opponents in his campaign for the U.S. Senate.

The press has been the hand-maiden of the eavesdropper.  By printing details about the tape, they have fulfilled the goal of the eavesdropper.   One reporter for the Lexington Herald-Leader justified their publication of details from the tape by saying they asked the Mongiardo campaign if the tape was authentic and the campaign did not respond to the question.

   It is one thing to record a public statement of a candidate. That is permissible under state law.  However it is a felony offense to electronically record a private conversation without the consent of one of the parties to that conversation.

 If a person is guilty of eavesdropping under Kentucky law they have committed a Class D Felony punishable by a sentence of up to five years in prison.  (KRS 526.020).
 

KRS 526.010 provides the definition of “eavesdrop” and it describes a situation where a party records an oral communication of others without the consent of at least one party to the conversation by means of electronic device.

This is the second time in a year that allegations of illegal wiretapping of a Kentucky candidate has been raised.  In October of Oct. 29, 2008 the Bruce Lunsford campaign found a recording device on Senatorial candidate Lunsford on his podium which could have  recorded private conversations with his aides prior to his speech.  A Marshall County grand jury failed to return any indictments.   The McConnell campaign had a videographer follow Lunsford at every public event, and the aide was alleged by the Lunsford campaign to have pushed his videocam in the  faces of Lunsford and people in the crowd he attempted to speak to privately.

In light of the apparent illegal eavesdropping of the Mongiardo campaign, and the growing examples of eavesdropping, perhaps the Kentucky State Police will actually investigate this growing crime.

We wonder if the Herald-Leader will ask all potential opponents of Mongiardo if they had anything to do with the eavesdropping and if they don’t deny it, then conclude in print that they were involved.

The law is pretty straight forward.

 KRS 526.010 Definition.
The following definition applies in this chapter, unless the context otherwise requires:
Eavesdrop” means to overhear, record, amplify or transmit any part of a wire or
oral communication of others without the consent of at least one (1) party thereto by
means of any electronic, mechanical or other device.
Effective: January 1, 1975
History: Created 1974 Ky. Acts ch. 406, sec. 226, effective January 1, 1975.
 

KRS 526.020 Eavesdropping.
(1) A person is guilty of eavesdropping when he intentionally uses any device to
eavesdrop, whether or not he is present at the time.
(2) Eavesdropping is a Class D felony.
Effective: January 1, 1975
History: Created 1974 Ky. Acts ch. 406, sec. 227, effective January 1, 1975.

IOLTA TO BECOME A MANDATORY PROGRAM

Friday, October 2nd, 2009

 

The KBA reports:

In accordance with its order entered on September 10, 2009, the Supreme Court of Kentucky approved amendments to SCR 3.830 which makes participation in the Kentucky IOLTA Fund mandatory under the provisions of the rule. The amendments become effective on January 1, 2010.

Under the amended rule, a lawyer or law firm is now required to designate their “pooled client escrow account” (an escrow account that contains more than one client’s funds) as an IOLTA account. Participation is now required, unless exceptions as set out in the rule apply, or the lawyer or law firm is otherwise exempt under paragraph 14 of the rule. The amendments only pertain to escrow accounts and not other types of accounts with financial institutions that lawyers or law firms may utilize. The full text of the amended SCR 3.830 will be published in the November issue of the Bench & Bar.

.

THERE IS A NEW SHERIFF IN TOWN!!! Ky. Supreme Court Makes Major Change in Loss of Consortium Law and Allows Post Death Damages –

Thursday, October 1st, 2009

 

This New Court has enhanced the value of the marital relationship by overruling the Court of Appeals and allowing a surviving spouse to seek post-death damages in loss of consortium claims.  

 

In TINA MARTIN, ADMINISTRATRIX OF THE ESTATE OF BILLIE CAROL SHREVE, DECEASED; AND DONALD RAY SHREVE, INDIVIDUALLY vs. the Ohio County Hospital , 2008-SC-000211-DG, rendered on Oct. 1, 2009, the court once again demonstrates that there is a new sheriff in town.

 

We at LawReader have written a synopsis of every Ky. appellate ruling since 2003, and published them on LawReader.com.  Since the major changes occurred in the membership of the Supreme Court we have continued to be amazed at the change in direction of the court.   Citizen rights are being upheld as opposed to the Old Court’s tendency to only favor corporate rights.  

 

We see the New Court as being  willing to actually read the law and set aside the barnacles which have accumulated on the hull of the judicial ship.   These are exciting times for legal scholars.

Ky. Supreme Rules Sex Offender Registration Statute Unconstitutional Ex Post Facto law when applied Retroactively

Thursday, October 1st, 2009

 

The Supreme Court has affirmed a District Court ruling of Judge Martin J. Sheehan (he now is a Circuit Judge).

 

LawReader Synopsis:  For full text of case click case number

2007-SC-000347-CL.pdf

 

APPEAL FROM KENTON DISTRICT COURT V. HONORABLE MARTIN J. SHEEHAN, JUDGE

 

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 of KRS 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.

 

Like every other state, Kentucky has enacted a version of Megan’s Law. The General Assembly first enacted sex offender registration requirements in 1994, amending them in 1996 and again in 2000. The 2000 amendments to our Megan’s Law also included residency restrictions on sex offenders as a condition of their probation or parole . That restriction, codified at KRS 17.495…

 

The current residency restriction statute, effective July 12, 2006, codified at KRS 17.545, reads as follows :

 

(1) No registrant., as delIned in KRS 17.500, shall

reside within one thousand (1,000) feet of a high

school, middle school, elementary school,

preschool, publicly owned playground, or licensed

day care facility. The nieasurement shall be taken

in a straight line froni the nearest property line of

the school to the nearest: property line of the

registrant’s place of residence….

 

While the original residency restriction statute applied only to those on probation, parole, or other form of supervised release, the current statute applies to all registrants regardless of probation or parole status .

 

The district court concluded that KISS 17 .545, as applied to Respondent, violated the ex post facto clauses of the United States and Kentucky Constitutions . In its thorough opinion, the district court found that the General Assembly had intended KRS 17.545 to be punitive . The district court also found that, even if KRS 17.545 were not clearly punitive, its effect was punitive. Upon finding the statute to be unconstitutional as applied to Respondent, the district court declined to address the remaining constitutional challenges .

 

We granted certification to resolve this important constitutional ISSUE…

 

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.

 

As a threshold question, for the law to be considered ex post facto, it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected  72 S.W.3d at 571

 

 There is no question that KRS 17.545 applies to conduct by respondent, that. occurred well before  the law’s enactment. In addition, Respondent, is disadvantaged by the law, as it restricts where he may live. However, to violate the ex post facto clause, the statute must also be punitive. Martin v. Chandler , 122 S.W.3d 540, 547 (Ky. 2003)

 

We conclude that the General Assembly intended KRS 17.545 to be a civil, nonpunitive, regulatory scheme .

 

As in Smith, the five factors relevant here are, “whether, in its necessary operation, the regulatory scheme (1) has been regarded in our history and traditions as punishment., (2) promotes the traditional aims of punishment, (3) imposes an affirmative disability or restraint., (4) has a rational connection to a nonpunitive purpose, or (5) is excessive with respect, to the nonpunitive purpose. Id .

 

When a restriction is imposed equally upon all offenders, with no consideration given to how dangerous any particular registrant may be to public safety, that restriction

begins to look far more like retribution for past offenses than a regulation intended to prevent further ones .

 

The registrant also faces a constant threat of eviction “because there is no way for him or her to find a permanent home…As such, a registrant cannot establish a permanent home. KRS 17.545 clearly imposes affirmative disability upon ….and restraints upon registrants.

 

The Commonwealth argues that residency restrictions serve a non punitive purpose of public safety, which is undoubtedly a legitimate purpose. The question is therefore whether KRS 17.545 bears a rational connection to public safety.

 

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.

 

KRS 17.545 is connected to public safety. However, the statute’s inherent flaws prevent that, connection from being “rational.” Therefore, we conclude that, KRS 17.545 does not have a rational connection to a nonpunitive purpose.

 

The record before us does not, reveal whether or not Respondent might be a threat to children and to public safety. But this is exactly why KRS 17.545 is excessive.

 

Of the five Smith factors, all five weigh in favor of concluding that KRS 17 .545 is punitive in effect. Therefore, we conclude that KRS 17.545 is so punitive in effect as to negate the General Assembly’s intention to deem it civil.

 

IV. CONCLUSION

 

Although the General Assembly did not intend KRS 17 .545 to be punitive, the residency restrictions are so punitive in effect as to negate any intention to deem them, civil. Therefore, the statute may not constitutionally be applied….

 

The law is so certified .

 

Cunningham, Noble, Schroder, Scott . and Venters, JJ ., concur.

 

Abramson, J., dissents by separate opinion in which Minton, CJ., joins.

Kentucky Court of Justice – Commission on Racial Fairness surveying Jefferson County court system users about access and fairness

Thursday, October 1st, 2009

 

FRANKFORT, Ky., Sept. 30 – The Jefferson County Commission on Racial Fairness is surveying those who use the Jefferson County judicial system about access and fairness in the system. The survey is being conducted Sept. 29-Oct. 1 and on Oct. 5, 6, 8 and 12 from 9 a.m. to 2 p.m. at the Jefferson County Judicial Center and the Jefferson County Hall of Justice in Louisville.

Access and Fairness Survey 2009 – Jefferson County Commission on Racial Fairness.pdf

Approximately 10 staff members from the Administrative Office of the Courts and the Kentucky Court of Justice are offering the survey to individuals who are at the judicial center and hall of justice for business on the survey days. Those who participate in the survey may include citizens, attorneys, law enforcement officers, social workers and others. Inmates who participate in court proceedings at the judicial center or hall of justice on the survey days also have the opportunity to provide input on their experiences regarding access and fairness in the Jefferson County judicial system. Officers with the Louisville Metro Department of Corrections are offering the survey to those inmates. None of the survey participants will be identified on the survey forms.

The 26-question survey is based on a National Center for State Courts survey and is available in English and Spanish.

The Jefferson County Commission on Racial Fairness was appointed in 2001 to examine study claims of racial bias in Jefferson Circuit Court. The commission is composed of a diverse group of judges, lawyers, civil rights proponents and other leaders in the African-American community. In its nearly eight years of work, the commission has found evidence of disparities or systemic bias regarding bail determinations, sentencing and jury selection. Some of the measures it has recommended to address the problems have been implemented through immediate policy changes and training initiatives. Court of Appeals Judge Denise G. Clayton, who represents Jefferson County, chairs the commission.

The Administrative Office of the Courts in Frankfort supports the activities of 3,800 Kentucky Court of Justice employees, including the elected offices of justices, judges and circuit court clerks. As the fiscal agent for the state court system, the AOC prepares a biennial budget draft and executes the Judicial Branch budget