The Ethics Committee of the KBA may submit to the KBA Board of Governors a formal advisory opinion setting forth what activities constitute the ethical or unethical practice of law.
”If the recommended Opinion is approved by three-fourths of the Board of Governors, it carries the weight of an advisory opinion. This Court, however, is not bound by its terms.
On proper request by an aggrieved party, we have the authority to evaluate the Opinion and determine whether it accurately states the law.” Countrywide Home Loans v. Kentucky Bar Association, 113 S.W.3d 105, 107 (Ky.2003). The procedure is set out in SCR 3.530(5).
”Inquiring attorneys and ethics committee members tend to think of the opinions as equal in authority to court rules. The result is, that when known, the opinions tend to shape conduct to the same degree as the rules. Attorneys are afraid to engage in conduct when told by the Ethics Committee and Board of Governors that they may not engage in such conduct.” William H. Fortune, The Role of Ethics and Unauthorized Practice Opinions in Regulating the Practice of Law 309 N. Ky. L.Rev. 309, 321 (1998).
Thus, this court must always be aware of the potential “chilling effect” ethics opinions can have on our practices and procedures.
“… ”An `ethics question’ should only arise if there is a deliberate attempt to circumvent the … Rules as written or customarily applied in the particular forum, perhaps with a view to dispensing with notice to an opponent or securing some unfair advantage. In the absence of same, there would seem to be no real question of `ethics’ involved, but only a difference of opinion as to the proper interpretation of the … Rules.” KBA E-304.”
”…we will not here address Movants’ argument that Formal Opinions are limited to standards set out in SCR 3.350(1). Tomorrow is another day.”
Assistant Boone Commonwealth Attorney Jason Hiltz made a major error in his opening statement in a death penalty case being tried in the Boone Circuit Court.
Hiltz told the jury that the defendant’s son, who has since died, told acquaintances that his father forced him to participate in the dismemberment of the deceased victim.
Boone Circuit Judge Anthony Frohlich declared a mistrial after Hiltz mentioned the inadmissible evidence 10 minutes into his opening statement.
Since the Commonwealth was asking for the death penalty, it had taken five days to select a jury.
Judge Frohlich’s order declaring a mistrial characterized Hiltz’s comment as “inadvertent.” The judge could have tossed out the case had he ruled Hiltz “acted in bad faith” by intentionally including the comments of Clutter’s son.
Statements from people who are deceased cannot be admitted if they incriminate others, as this denies the defendant the right to confront his accuser and to cross-exam them.
Boone Commonwealth Attorney Linda Talley Smith, after the mistrial, announced that the Commonwealth would retry the case without seeking the death penalty.
Hiltz has an excellent reputation as a prosecutor, and Judge Frohlich’s conclusion that the comment was “inadvertent” seems plausible.
Few prosecutors are ever personally sanctioned for their errors. The trial court may be missing an opportunity to send a message to prosecutors that there are consequences for serious trial errors other than a mistrial.
Don Blankenship is the head of Massey Energy, the company that runs the Upper Big Branch Mine which just had a horrific “accident” that left 29 dead. Massey’s conduct under Blankenship has been negligent enough to approach criminality, calling into question how much of an “accident” this was. Leo Gerard, head of the United Steelworkers, makes that point:
Blankenship does more than run the killing machine that is Massey Energy. He’s heavily involved in politics as well. Blankenship is on the board of the U.S. Chamber of Commerce, and he’s been heavily involved in electing state judges who are favorable to his business interests.
In the most famous instance, Blankenship poured $3 million of his own money into a campaign to elect Brent Benjamin to the West Virginia Supreme Court of Appeals. When a case involving Massey Energy came before Benjamin in 2007, the plaintiff, Hugh Caperton, petitioned to have Benjamin recused from the case on the grounds that the extraordinary sums spent by Blankenship – more than any other spending by Benjamin supporters and Benjamin’s campaign put together – represented a conflict of interest. Benjamin refused, Caperton appealed, and in 2009 in the decision of Caperton v. A.T. Massey Coal Co., the Supreme Court ruled that Caperton was denied due process do to the extreme conflict of interest presented by Blankenship’s spending.
But West Virginia isn’t the only place Blankenship meddles in judicial elections. As a board member of the Chamber of Commerce, he gets a direct hand in how they spend their money. And over the last decade, the Chamber has spent over $50 million to elect judges that agree with their ideological position.
Blankenship and the Chamber of Commerce get what they pay for.
For instance, in Michigan, the Michigan Chamber of Commerce, using money from the national organization, has spent millions on judicial races each cycle. The amount of money in Michigan’s elections has drawn notice, with funding from independent expenditure groups like the Chamber and PACs far outstripping the amount spent by campaigns. One of the judges the Chamber spent millions to elect in 2000 was Judge Robert Young of the Michigan Supreme Court. Beyond his pro-business rulings, Young has paid back the Chamber and Blankenship in spades, co-signing an amicus brief [pdf] in 2009 that is chock full of citations to extreme right wing judicial thought to the Supreme Court in the Caperton v. Massey case. Of course, the brief argued against judicial recusal. And of course, Young is up again for re-election this year.
The situation in which the Chamber and Don Blankenship spend millions to elect judges and get favorable rulings and amicus briefs in return is similar the situation in Caperton v. Massey. There is an appearance of a quid-pro-quo and a conflict of interest, especially given that Chamber spending usually outstrips spending by campaigns, parties, and other interest groups. Some logical questions follow: How much money is Young expecting to receive in supporting ads from the Chamber this cycle? And how many of the other judges and former judges who co-signed the brief received significant support from the Chamber?
As Peter Luke notes, $45 million has been spent for and against judicial candidates by outside groups in Michigan alone since 2000, but the only reason anyone would ever know these totals is if they ask television stations for their ad numbers. No disclosure of the amount of spending is required. I wonder how much the Chamber and Blankenship have spent nationwide. I’m not sure we’ll ever know the answer under current law.
Meanwhile, Massey Energy gets to go on with business as usual.
The Court of Appeals on Friday April 9, 2010 found one provision of the Worker’s Compensation act to be unconstitutional. The following is a synopsis provided weekly by LawReader to subscribers
(See LawReader case No. 16 at www.lawreader.com membership required)
GARDNER, JESSE VS.
VISION MINING, INC., ET AL.
TO BE PUBLISHED KRS 342.316 / BLACK LUNG X-RAY PROVISION UNCONSTITUTIONAL – DUE PROCESS – STANDARDS DIFFERENT THAN OTHER CAUSES OF BLACK LUNG
KRS 342.316, which defines the procedure for coal workers’ pneumoconiosis claims (CWP), is unconstitutional in violation of his right to equal protection under the law.
Imposing more onerous procedural and substantive burdens on coal workers than on others fails the test of “reasonable and substantial difference in kind, situation or circumstance[.]” The legislation under review does indeed “arbitrarily designate the severed factions of the original unit as two classes[.]”
As there is no discernable difference between a claimant who has contracted pneumoconiosis through the inhalation of coal dust and one who has contracted the disease through the inhalation of another particulate, we see no rational basis or “substantial and justifiable reason” for imposing a different procedure and a higher burden on CWP claimants than on other occupational pneumoconiosis claimants
An interesting question is raised. Can this tort be used to seek damages for improper plea bargaining negotiations? Under the correct fact situation this may well justify a claim against a prosecutor subject to immunity rules. Prosecutors are entitled to qualified immunity in their investigative phase but enjoy absolute immunity during the prosecutorial phase. So when the extortion occurs would be important. However, federal law appears more willing to allow lawsuits against prosecutors. A Bivens suit and Sec. 1983 of the Federal Civil Rights Act of 1870 may apply.
OPINION OF THE COURT BY JUSTICE VENTERS AFFIRMING IN PART AND REVERSING IN PART
We granted discretionary review in this matter to consider issues relating to a landowner’s abuse of process claim and other related claims, against a long-distance telephone communications carrier for its conduct in attempting to use the power of eminent domain to acquire the landowner’s property.
Specifically, we consider whether the tort of abuse of process may be established solely on the basis of actions that occurred at or before the commencement of the legal process.
Appellant, Sprint Communications Company, L.P. is a “telephone company” within the meaning of KRS 278.540(2) and KRS 415.150, and therefore, has a limited power to condemn a right of way across private property. Sprint filed a condemnation action in the Jefferson Circuit Court by which it sought to acquire a “permanent utility easement” over an entire halfacre lot owned by the Albert E. Leggett Family Trust,…
The Leggett property is a 22,172 square-foot (one half-acre) five-sided lot upon which is located a 9,700 square-foot building that houses Leggett’s photography studio. The Leggetts purchased the land in 1990 for $325,000.
Sprint’s proposed use of the Leggett tract would require demolition of the building and the construction of its own new building.
Sprint contacted Leggett and asked him to set a price at which he would sell the property at 330-336 Baxter Avenue . Leggett said he would sell for $900,000. On Sprint’s behalf, Gilley offered Leggett $200,000 for the tract. This offer was supported by a written appraisal prepared for Sprint by a local appraiser.
Leggett then obtained his own professional appraisal, which valued the property at $750,000. Sprint increased its offer to $275,000, which Leggett declined.
Sprint filed the condemnation action to take the Leggett property, alleging in its complaint that it “possess[ed] the power to acquire real property through the exercise of eminent domain exercised pursuant to KRS 416.150 and KRS 278.540.” Sprint also pled that it had “the authority to acquire . . . by condemnation such property or interest therein as [it] may determine to be necessary, proper and convenient for its corporate purposes.”
The court-appointed commissioners found the fair-market value of Leggett’s property immediately before the proposed taking was $600,000, and that the value of the property remaining to Leggett after the taking was $0.
In March 2002, Sprint moved to voluntarily dismiss its condemnation action, and eventually the petition for condemnation was dismissed.
The trial court dismissed Leggett’s malicious prosecution claim because the original proceedings had not yet finally terminated, and because Leggett had not established that Sprint lacked probable cause to commence the condemnation action. The trial court dismissed the abuse of process claim because it concluded that Sprint could have no “ulterior purpose” in seeking to condemn the property, and Sprint “had done nothing more than what it was authorized to do in this judicial process.” The trial court then noted that Leggett had no evidence to show that Sprint acted improperly or deprived him of due process, and thus dismissed the civil rights claim.
The Court of Appeals affirmed the summary judgment with respect to the malicious prosecution claim, but reversed with respect to the abuse of process and civil rights claims, and remanded those claims for further proceedings in the circuit court .
The Court of Appeals also considered, and affirmed, the order of the trial court substantially limiting Leggett’s discovery of certain sealed documents on the grounds that they were protected by attorney-client privilege.
We granted Sprint’s petition for discretionary review…
For reason set forth below, we affirm the Court of Appeals’ decision to reverse the summary judgment granted against Leggett’s abuse of process and civil rights claims.
However, we reverse the Court of Appeals ruling which affirmed the limitation of Leggett’s discovery.
Generally stated, one who uses a legal process, whether criminal or civil, against another primarily to accomplish a purpose for which that process is not designed, is subject to liability to the other for harm caused by the abuse of (process)…
Restatement (Second) of Torts § 682 (1977) . There is no liability where the defendant (usually a plaintiff in the underlying action) has done nothing more than carry out the process to its authorized conclusion. W. Prosser, Handbook of the Law of Torts, § 121 (4th ed. 1971) .
In Stoll Oil Refining v. Fierce, 337 S.W .2d 263, 266 (Ky. 1960) our predecessor Court defined abuse of process simply as “the irregular or wrongful employment of a judicial proceeding.”
[T]he gist of the tort[abuse of process] is not commencing an action or causing process to issue without justification, but misusing or misapplying process justified in itself for an end other than that which it was designed to accomplish . The purpose for which the process is used, once it is issued, is the only thing of importance . .
. . The improper purpose usually takes the form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money, by the use of the process as a threat or a club. There is, in other words, a form of extortion, and it is what is done in the course of negotiation, rather than the issuance or any formal use of the process itself, which constitutes the tort.
We addressed the issue most recently in Simpson v. Laytart, 962 S.W.2d 392 (Ky. 1998), reiterating that an action for abuse of process is “the irregular or wrongful employment of a judicial proceeding[,]” and has two essential elements: 1) an ulterior purpose, and 2) a willful act in the use of the process not proper in the regular conduct of the proceeding . Id. at 394.
We emphasized, again citing W. Prosser, Handbook of the Law of Torts, § 121 (4th ed . 1971), that some definite act or threat not authorized by the process, or aimed at an objective which is not a legitimate use of the process was required.
The process is used as a form of extortion, and “it is what is done in the course of negotiation, rather than the issuance or any formal use of the process itself, which constitutes the tort.” Id. (citing W. Prosser, Handbook of the Law of Torts, § 121 (4th ed . 1971)) .
Sprint’s specific argument is that the trial court properly granted summary judgment dismissing Leggett’s abuse of process claim because Leggett failed to present evidence to establish either of the two “essential elements” of abuse of process .
Sprint claims it sought to obtain nothing other than what was proper in the condemnation litigation. However, we agree with the Court of Appeals and with Leggett. A telephone company does not have the right under Kentucky law to take by the power of eminent domain a “permanent easement,” coextensive with an entire tract of land, demolish the principal buildings located thereon, and totally deprive the owner of any use thereof.
KRS 278.540(2), which empowers Sprint and other telephone companies to take private property by condemnation, provides in pertinent part:
Any telephone company authorized to do business in this state may, by contract with any person, construct, maintain and operate telephone lines on and across the real property of that person, and if it cannot obtain the right of way by contract it may . . . condemn the right of way in the manner provided in the Eminent Domain Act of Kentucky
Whether the expansion of service was necessary is not at issue here, but apparently the acquisition of Leggett’s property was not necessary as Sprint moved to voluntarily dismiss the condemnation in March 2002, less than 90 days after filing its petition .
We agree with the Court of Appeals that even a cursory reading of the statute reveals that Sprint had no authority to take for its permanent use the entirety of Leggett’s land . There is no ambiguity in the language of KRS
We cannot construe the term “right of way” so broadly as to allow Sprint to consume Leggett’s entire half-acre lot in perpetuity . The right to pass through another’s land cannot be equated with the power to divest that person of all meaningful attributes of his ownership interest.
A brief survey of the applicable statutes discloses that the power of eminent domain granted to telephone companies is much more limited than the power enjoyed by other private entities serving a public need.
One cannot reasonably read into KRS 278.540(2) the authority to acquire by condemnation a “permanent easement” over an entire half-acre tract, upon which to construct a large building, in a way that totally deprives the owner of the use of his land .
Sprint surmises that the “willful act” of coercion must occur after the initiation of the legal process .
We find nothing in the text of the Restatement or in any of the cases and treatises cited to us that supplies a compelling rationale for placing great weight on the use of the word “subsequent.” It is use of the legal process to
coerce compliance with the ulterior purpose, whenever it may occur, that the tort of abuse of process is designed to redress.
We note that in both Stoll Oil Refining v. Pierce, 337 S.W.2d 263 (Ky. 1960) and Williams v. Central Concrete, Inc., 599 S .W .2d 460 (Ky. App. 1980)
abuse of process was established without an act subsequent to the issuance of the process. In Songer, we prominently noted that, “The purpose for which the
process is used, once it is issued, is the only thing of importance” and “the gist of the tort is that they attempted to use it as a means to secure a collateral
advantage.” Flynn v. Songer, 399 S.W.2d 491, 494 (Ky. 1966)
What is significant is the willful act of employing of a legal process against another to achieve a purpose other than that for which the process was designed and intended.
we conclude, from the weight of Kentucky jurisprudence and the persuasive authority expressed by the courts of other states, that abuse of process does not require that the willful, coercive act occur subsequent to the issuance of the process .
there is evidence that Sprint went beyond the simple filing of a lawsuit – it threatened Leggett that unless he sold Sprint his entire property, it would take his land and force him to suffer “the rigors of contest and associated unpleasantries” of a condemnation suit.
Second, there is evidence that Sprint abused its power of condemnation by filing a lawsuit that grossly overstated its authority to condemn property in an effort to induce Leggett to negotiate more generously than had been his prior inclination for the sale of an interest in his land that Sprint had no power to acquire by legal process.
To be clear, this opinion does not expose the risk of an abuse of process lawsuit, to one who engages in pre-litigation settlement negotiations, and, with
an eye toward encouraging an agreement, merely reminds the opposing party of the “rigors and unpleasantries” of litigation. Nor, does this opinion hold that
simply filing a groundless lawsuit constitutes an abuse of process .
Because Leggett has evidence available for use at trial to establish the elements of abuse of process, the Court of Appeals properly reversed the summary judgment.
Sprint finally asserts that summary judgment on the abuse of process claim was appropriate because Leggett can not show compensable damages.
We disagree. If upon remand, Leggett’s evidence of abuse of process is persuasive, he is entitled to at least nominal damages. Stoll Oil Refining, 337
S.W.2d at 266.
While we do not hold that the survival of the abuse of process claim assures the survival of the (Federal Section 1983) civil rights claim, in the absence of any compelling argument to do otherwise, we affirm the Court of Appeals’ decision remanding the civil rights claim to the trial court for further proceedings.
upon remand of this matter, Leggett is entitled to a determination by the trial court of whether waiver of privilege applies with respect to the documents in
question, and with respect to discovery materials otherwise sought.
For the reason set forth above, we affirm the decision of the Court of Appeals reversing the summary judgment granted on the claims of abuse of process and violation of civil rights under 42 USC § 1983, and we reverse the
decision of the Court of Appeals with respect to the discovery of privileged documents.
This matter is remanded to the Jefferson Circuit Court for further proceedings consistent with this opinion.
Cunningham, Noble, Schroder and Scott, JJ., and Special Justice Kevin Garvey and Special Justice John Grise, concur. Minton, C.J . and Abramson, J., not sitting.
COUNSEL FOR APPELLANT/CROSS-APPELLEE:
Stuart E. Alexander, III
Kathleen M. Winchell Schoen
William J. Walsh
Tilford, Dobbins, Alexander, Buckaway and Black, LLP
The Court of Appeals discusses favorably software that can be used by separated parents to help manage their communications regarding child care issues. The Kenton Court had ordered the parents to use this software from Family Wizard. Links and case name below.
Telek argues that the family court acted outside its authority in ordering the parties to purchase Family Wizard software at a cost of one hundred dollars ($100) per year to each party. Telek contends that the software is unnecessary and not in the best interests of the child.
…the software provides time-stamped documentation regarding the parties’ communication, allows the guardian ad litem and the trial court to monitor the parties’ communications, provides interactive family scheduling and information management, and provides
secure storage of medical history and emergency contacts. In light of the high degree of conflict present in this case, we agree with the guardian ad litem that the family court was within its authority and discretion to order the use of this software.
Appeal from KENTON circuit court
TELEK, JOHN STEPHEN VS. DAUGHERTY, (NOW BUCHER), SAMANTHA
After over a year of debate, Congress passed legislation in March to reform the health care delivery system in the United States: “The Patient Protection and Affordable Care Act.”
When the Obama Administration initiated its efforts to reform health care, the Administration’s goal was to address what it perceived to be three major problems with the health care delivery system in the United States:
The cost of health care in the United States is too high.
The quality of health care in the United State is too low.
Health care in the United States is not sufficiently accessible, particularly to the uninsured.
A fundamental thought for the proponents of this legislation is that every person in the United States should have health insurance. The logic is that, if every person has health insurance:
The cost of health care will go down because health care providers will no longer be required to bear the cost of providing health care to the uninsured.
The cost of health insurance will go down because health insurers will no longer be required to share in the cost of providing health care to the uninsured.
Health care will be more accessible because individuals will no longer be denied care based on their inability to pay.
The legislation passed by Congress will not cause every person in the United States to have health insurance. However, the legislation will cause an additional 32 million individuals to have health insurance through a variety of requirements, prohibitions, and programs including:
A requirement that individuals buy health insurance or pay fines, with certain exceptions for low-income individuals.
The establishment of federal subsidies to help individuals buy health insurance.
A requirement that companies with 50 or more employees pay a fine if any of their full-time workers receive federal subsidies to buy health insurance.
The establishment of tax credits for small businesses to help provide health insurance to employees.
The establishment of state-based health care exchanges to create a marketplace for the uninsured and small businesses to comparison shop for health insurance.
An expansion of Medicaid to cover more individuals.
A requirement that insurance companies provide coverage to dependent children up to the age of 26.
Prohibitions against insurance companies denying coverage based on an individual’s pre-existing condition.
A prohibition against insurance companies placing a lifetime limit on coverage.
A prohibition against insurance companies rescinding coverage, except for fraud.
The legislation also has a variety of provisions aimed at encouraging preventive care, encouraging primary care, and discouraging activities that lead to disease. For example, the legislation:
Requires health insurance companies to cover immunizations for children and cancer screenings for women.
Requires Medicare to pay primary care physicians and general surgeons in areas that lack primary care physicians a 10% bonus payment.
Imposes a 10% tax on indoor tanning services.
Requires chain restaurants and food sold from vending machines to disclose the nutritional content of each item.
The legislation also would close the “Medicare doughnut hole.” The “doughnut hole” is a gap in Medicare coverage that requires one in eight Medicare beneficiaries to pay thousands of dollars for prescription drugs from their own pockets. The legislation would close this gap over time.
While the legislation focuses on decreasing health care costs, increasing the quality of health care, and increasing the accessibility of health care, the legislation also focuses on a fourth major issue: how to pay for health insurance coverage for an additional 32 million individuals.
In addition to requiring individuals to buy health insurance and fining companies if their full-time workers receive federal health care subsidies, the legislation imposes:
Additional taxes on single people earning more than $200,000 per year and couples earning more than $250,000 per year.
Billions of dollars of annual fees on health insurance companies and pharmaceutical manufacturers.
A 40% excise tax on “Cadillac” health care plans.
The legislation does not contain one much-discussed feature: a “public option.” The public option was a proposed federal health insurance program whose purpose was to (1) offer affordable health insurance to the uninsured and (2) compete with health insurance companies, which at times have high market shares and profit margins in certain states and purportedly do not offer affordable health insurance to the uninsured.
The legislation has created more than its share of fears.
One fear is that the legislation with its provision of health insurance to an additional 32 million individuals will cause health care costs to go up, not down. The fear is that among the uninsured there is a pent-up demand for health care services and that, once 32 million additional individuals have health insurance, there will be an enormous increase in health care utilization.
Another fear is that some employers simply cannot afford to provide health insurance to their employees and will face fines for their inability to afford for health insurance. In March, one of the country’s largest companies, AT&T, announced that it is taking a $1 billion write-down as the result of the legislation. The following companies also announced significant write-downs:
Deere & Co. $150 million
Caterpillar $100 million
3M $90 million
AK Steel $31 million
Valero Energy Up to $20 million
Another fear is that, when nearly all of a health care provider’s patients have health insurance, the federal government and state governments may eliminate or challenge health care providers’ tax exempt status, which is predicated in part on providing charity care to the uninsured.
Finally, 14 state attorneys general have filed lawsuits challenging the constitutionality of the legislation. Their argument is that there is nothing in the United States Constitution that permits the federal government to require every individual to buy health insurance. They recognize that, as a condition to driving an automobile, it is permissible to require an individual to have automobile insurance. However, in their opinion, it is not permissible to require every individual to have health insurance as a condition to simply existing.
This story is at its very beginning and is going to unfold over the next several years. Stay tuned.
(Bob O’Neil is one of most respected Health Care lawyers in West Virginia, where he represents health systems, hospitals, physicians, and other health care providers including the state’s largest hospitals. Currently serving as chair of the Health Care Group, he has practiced exclusively in the area of health care litigation, regulatory, administrative, and corporate law for the past 29 years and has a wide and diverse background in health care law.)
The U.S. Supreme Court, in ruling on what qualifies as a class action, has reinstated a suit that accuses Allstate of routinely refusing to pay interest when it is late with a benefit payment.
The class action case was brought in New York where lower courts ruled that state’s law prohibits class actions where the suit involved seeks penalties or statutory minimum damages. The court concluded that the interest charges qualify as a penalty.
But the high court disagreed and sent the case back for trial on a 5-4 ruling. Justice Antonin Scalia, who wrote the majority opinion, said New York law does not have the power to negate federal law that permits class actions.
The court found that under federal law there is “a categorical rule entitling a plaintiff whose suit meets the specified criteria to pursue his claim as a class action.”
“Congress, unlike New York, has ultimate authority over the Federal Rules of Civil Procedure; it can create exceptions to an individual rule as it sees fit—either by directly amending the rule or by enacting a separate statute overriding it in certain instances,” the court said.
“If the state law instead banned class actions for fraud claims, a would-be class-action plaintiff could drop the fraud counts from his complaint and proceed with the remainder in a class action. Yet that would not mean the law provides no remedy for fraud; the ban would affect only the procedural means by which the remedy may be pursued,” the court noted.
The decision mentioned that the ruling could lead to plaintiffs venue shopping for friendly courts.
“We must acknowledge the reality that keeping the federal-court door open to class actions that cannot proceed in state court will produce forum shopping,” Justice Scalia wrote.
“But, divergence from state law, with the attendant consequence of forum shopping, is the inevitable (indeed, one might say the intended) result of a uniform system of federal procedure. Congress itself has created the possibility that the same case may follow a different course if filed in federal instead of state court,” the opinion said.
“We cannot contort the text of federal rules, even to avert a collision with state law that might render it invalid,” the decision said.
The validity of a Federal Rule depends entirely upon whether it regulates procedure. If it does, it is authorized …and is valid in all jurisdictions, with respect to all claims, regardless of its incidental effect upon state-created rights,” the court ruled.
The case was brought on behalf of Shady Grove Orthopedic Associates, that had treated Sonia Galvez, an Allstate no-fault policyholder from New York injured in an auto accident. She assigned her benefit rights to the group, which submitted a claim.
Allstate paid, but not within the required 30 day time period under New York law and Shady Grove, which contended it was being denied $500 in interest, sued on behalf of itself and other parties that had been denied interest.
A concurring opinion by Justice John Paul Stevens means that the decision will most likely have to be applied on a case-by-case basis, looking at different types of statutes that states have enacted to place limitations on class actions.”
Specifically, in his concurring opinion, Justice Stevens said, “It is important to observe that the balance Congress has struck turns, in part, on the nature of the state law that is being displaced by a federal rule.”
Justice Stevens said, “Federal rules must be interpreted with some degree of ‘sensitivity to important state interests and regulatory policies.”’ The same point was noted by Justice Ruth Bader Ginsburg in her dissenting opinion.
The case is Shady Grove Orthopedic Associates v. Allstate Insurance Co., No. 08-1008.
New York’s highest court ruled on Thursday that police departments cannot use general warrants that apply to a specific location to search every person they find there unless there is probable cause to believe that a particular person is involved in criminal activity.
While the decision, which was unanimous, arose from a case in Syracuse, the ruling could have broad implications because “all-persons-present” warrants are so often used by the police.
In its 7-to-0 ruling, the New York Court of Appeals said that an all-persons-present warrant used by the police in Syracuse during a drug raid at an apartment in 2006 did not give them enough evidence to strip-search a man who was in the home. The court ordered the dismissal of drug possession charges that the man, Robert Mothersell, had been facing.
The court also said that even if the warrant did give the police reason to search Mr. Mothersell, a strip-search was so intrusive that it violated his rights under the federal and state constitutions. The police said they found a bag of cocaine between Mr. Mothersell’s buttocks.
The decision could be appealed to the United States Supreme Court, which could rule on the federal issues, but not on the “state constitutional protections,” said Gary Spencer, a spokesman for the Court of the Appeals.
James P. Maxwell, the chief assistant district attorney for Onondaga County, which includes Syracuse, said an appeal was unlikely because the state goes further than the federal government in offering protections against such searches.
HB 265 has passed both houses and has been sent to the Governor for his consideration.
The bill adds certain drugs to PER SE violations of Chapter 189A. One presumption created in this law provides a defense and allows the court to determine if the drug was prescribed by a “practitioner”. A laundry list of drugs applicable to this new law is provided.
One aggravating circumstance is amended and a BAC of .15% is now an aggravator (prior law set the level at .18%).
THE FOLLOWING SECTIONS OF HB 265 AMEND THE CURRENT DUI LAWS.
(20) “Medical order,” as used in KRS Chapter 218A and for criminal prosecution only, means a lawful order of a specifically identified practitioner for a specifically identified patient for the patient’s health-care needs. “Medical order” may or may not include a prescription drug order;
(30) “Practitioner” means a physician, dentist, podiatrist, veterinarian, scientific investigator, optometrist as authorized in KRS 320.240, advanced registered nurse practitioner as authorized under KRS 314.011, or other person licensed, registered, or otherwise permitted by state or federal law to acquire, distribute, dispense, conduct research with respect to, or to administer a controlled substance in the course of professional practice or research in this state. “Practitioner” also includes a physician, dentist, podiatrist, veterinarian, or advanced registered nurse practitioner authorized under KRS 314.011 who is a resident of and actively practicing in a state other than Kentucky and who is licensed and has prescriptive authority for controlled substances under the professional licensing laws of another state, unless the person’s Kentucky license has been revoked, suspended, restricted, or probated, in which case the terms of the Kentucky license shall prevail;
(31) “Practitioner-patient relationship,” as used in KRS Chapter 218A and for criminal prosecution only, means a medical relationship that exists between a patient and a practitioner or the practitioner’s designee, after the practitioner or his designee has conducted at least one (1) good faith prior examination;
(32) “Prescription” means a written, electronic, or oral order for a drug or medicine, or combination or mixture of drugs or medicines, or proprietary preparation, signed or given or authorized by a medical, dental, chiropody, veterinarian, optometric practitioner, or advanced registered nurse practitioner, and intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals;
(1) A person shall not operate or be in physical control of a motor vehicle anywhere in this state:
(a) Having an alcohol concentration of 0.08 or more as measured by a scientifically reliable test or tests of a sample of the person’s breath or blood taken within two (2) hours of cessation of operation or physical control of a motor vehicle;
(b) While under the influence of alcohol;
(c) While under the influence of any other substance or combination of substances which impairs one’s driving ability;
(d) While the presence of a controlled substance listed in subsection (12) of this section is detected in the blood, as measured by a scientifically reliable test, or tests, taken within two (2) hours of cessation of operation or physical control of a motor vehicle;
(e) While under the combined influence of alcohol and any other substance which impairs one’s driving ability; or
(f)[(e)] Having an alcohol concentration of 0.02 or more as measured by a scientifically reliable test or tests of a sample of the person’s breath or blood taken within two (2) hours of cessation of operation or physical control of a motor vehicle, if the person is under the age of twenty-one (21).
(2) With the exception of the results of the tests administered pursuant to KRS 189A.103(7), if the sample of the person’s blood or breath that is used to determine the alcohol concentration thereof was obtained more than two (2) hours after cessation of operation or physical control of a motor vehicle, the results of the test or tests shall be inadmissible as evidence in a prosecution under subsection (1)(a) or (f)[(e)] of this section. The results of the test or tests, however, may be admissible in a prosecution under subsection (1)(b) or (e)[(d)] of this section.
(3) In any prosecution for a violation of subsection (1)(b) or (e)[(d)] of this section in
which the defendant is charged with having operated or been in physical control of a motor vehicle while under the influence of alcohol, the alcohol concentration in the defendant’s blood as determined at the time of making analysis of his blood or breath shall give rise to the following presumptions:
(a) If there was an alcohol concentration of less than 0.05 based upon the definition of alcohol concentration in KRS 189A.005, it shall be presumed that the defendant was not under the influence of alcohol; and
(b) If there was an alcohol concentration of 0.05 or greater but less than 0.08 based upon the definition of alcohol concentration in KRS 189A.005, that fact shall not constitute a presumption that the defendant either was or was not under the influence of alcohol, but that fact may be considered, together with other competent evidence, in determining the guilt or innocence of the defendant.
The provisions of this subsection shall not be construed as limiting the introduction of any other competent evidence bearing upon the questions of whether the defendant was under the influence of alcohol or other substances, in any prosecution for a violation of subsection (1)(b) or (e)[(d)] of this section.
(4) (a) Except as provided in paragraph (b) of this subsection, the fact that any person charged with violation of subsection (1) of this section is legally entitled to use any substance, including alcohol, shall not constitute a defense against any charge of violation of subsection (1) of this section.
(b) A laboratory test or tests for a controlled substance shall be inadmissible as evidence in a prosecution under subsection (1)(d) of this section upon a finding by the court that the defendant consumed the substance under a valid prescription from a practitioner, as defined in KRS 218A.010, acting in the course of his or her professional practice.
(5) Any person who violates the provisions of paragraph (a), (b), (c),[ or] (d), or (e) of subsection (1) of this section shall:
(a) For the first offense within a five (5) year period, be fined not less than two hundred dollars ($200) nor more than five hundred dollars ($500), or be imprisoned in the county jail for not less than forty-eight (48) hours nor more than thirty (30) days, or both. Following sentencing, the defendant may apply to the judge for permission to enter a community labor program for not less than forty-eight (48) hours nor more than thirty (30) days in lieu of fine or imprisonment, or both. If any of the aggravating circumstances listed in subsection (11) of this section are present while the person was operating or in physical control of a motor vehicle, the mandatory minimum term of imprisonment shall be four (4) days, which term shall not be suspended, probated, conditionally discharged, or subject to any other form of early release.
(b) For the second offense within a five (5) year period, be fined not less than three hundred fifty dollars ($350) nor more than five hundred dollars ($500) and shall be imprisoned in the county jail for not less than seven (7) days nor more than six (6) months and, in addition to fine and imprisonment, may be sentenced to community labor for not less than ten (10) days nor more than six (6) months. If any of the aggravating circumstances listed in subsection (11) of this section are present, the mandatory minimum term of imprisonment shall be fourteen (14) days, which term shall not be suspended, probated, conditionally discharged, or subject to any other form of early release.
(c) For a third offense within a five (5) year period, be fined not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000) and shall be imprisoned in the county jail for not less than thirty (30) days nor more than twelve (12) months and may, in addition to fine and imprisonment, be sentenced to community labor for not less than ten (10) days nor more than twelve (12) months. If any of the aggravating circumstances listed in subsection (11) of this section are present, the mandatory minimum term of imprisonment shall be sixty (60) days, which term shall not be suspended, probated, conditionally discharged, or subject to any other form of early release.
(d) For a fourth or subsequent offense within a five (5) year period, be guilty of a Class D felony. If any of the aggravating circumstances listed in subsection (11) of this section are present, the mandatory minimum term of imprisonment shall be two hundred forty (240) days, which term shall not be suspended, probated, conditionally discharged, or subject to any other form of release.
(e) For purposes of this subsection, prior offenses shall include all convictions in this state, and any other state or jurisdiction, for operating or being in control of a motor vehicle while under the influence of alcohol or other substances that impair one’s driving ability, or any combination of alcohol and such substances, or while having an unlawful alcohol concentration, or driving while intoxicated, but shall not include convictions for violating subsection (1)(f)[(e)] of this section. A court shall receive as proof of a prior conviction a copy of that conviction, certified by the court ordering the conviction.
(6) Any person who violates the provisions of subsection (1)(f)[(e)] of this section shall have his driving privilege or operator’s license suspended by the court for a period of no less than thirty (30) days but no longer than six (6) months, and the person shall be fined no less than one hundred dollars ($100) and no more than five hundred dollars ($500), or sentenced to twenty (20) hours of community service in lieu of a fine. A person subject to the penalties of this subsection shall not be subject to the penalties established in subsection (5) of this section or any other penalty established pursuant to KRS Chapter 189A, except those established in KRS 189A.040(1).
(7) If the person is under the age of twenty-one (21) and there was an alcohol concentration of 0.08 or greater based on the definition of alcohol concentration in KRS 189A.005, the person shall be subject to the penalties established pursuant to subsection (5) of this section.
(8) For a second or third offense within a five (5) year period, the minimum sentence of imprisonment or community labor shall not be suspended, probated, or subject to conditional discharge or other form of early release. For a fourth or subsequent offense under this section, the minimum term of imprisonment shall be one hundred twenty (120) days, and this term shall not be suspended, probated, or subject to conditional discharge or other form of early release. For a second or subsequent offense, at least forty-eight (48) hours of the mandatory sentence shall be served consecutively.
(9) When sentencing persons under subsection (5)(a) of this section, at least one (1) of the penalties shall be assessed and that penalty shall not be suspended, probated, or subject to conditional discharge or other form of early release.
(10) In determining the five (5) year period under this section, the period shall be measured from the dates on which the offenses occurred for which the judgments of conviction were entered.
(11) For purposes of this section, aggravating circumstances are any one (1) or more of the following:
(a) Operating a motor vehicle in excess of thirty (30) miles per hour above the speed limit;
(b) Operating a motor vehicle in the wrong direction on a limited access highway;
(c) Operating a motor vehicle that causes an accident resulting in death or serious physical injury as defined in KRS 500.080;
(d) Operating a motor vehicle while the alcohol concentration in the operator’s blood or breath is 0.15[0.18] or more as measured by a test or tests of a sample of the operator’s blood or breath taken within two (2) hours of cessation of operation of the motor vehicle;
(e) Refusing to submit to any test or tests of one’s blood, breath, or urine requested by an officer having reasonable grounds to believe the person was operating or in physical control of a motor vehicle in violation of subsection (1) of this section; and
(f) Operating a motor vehicle that is transporting a passenger under the age of twelve (12) years old.
(12) The substances applicable to a prosecution under subsection (1)(d) of this section are:
(a) Any Schedule I controlled substance except marijuana;
(o) Propoxyphene; and
âSection 18. KRS 189A.040 is amended to read as follows:
(1) In addition to any other penalty prescribed by KRS 189A.010(5)(a) or (6), the court shall sentence the person to attend an alcohol or substance abuse education or treatment program subject to the following terms and conditions for a first offender or a person convicted under KRS 189A.010(1)(f)[(e)]:
(a) The treatment or education shall be for a period of ninety (90) days and the program shall provide an assessment of the defendant’s alcohol or other substance abuse problems, which shall be performed at the start of the program;
(b) Each defendant shall pay the cost of the education or treatment program up to his ability to pay but no more than the actual cost of the treatment;
(c) Upon written report to the court by the administrator of the program that the defendant has completed the program recommended by the administrator based upon the assessment of the defendant, the defendant shall be released prior to the expiration of the ninety (90) day period; and
(d) Failure to complete the education or treatment program or to pay the amount specified by the court for education or treatment shall constitute contempt, and the court shall, in addition to any other remedy for contempt, reinstitute all penalties which were previously imposed but suspended or delayed pending completion of the education or treatment program.
(2) In addition to any other penalty prescribed by KRS 189A.010(5)(b), the court shall sentence the person to an alcohol or substance abuse treatment program subject to the following terms and conditions for a second offender:
(a) The sentence shall be for a period of one (1) year and the program shall provide an assessment of the defendant’s alcohol or other substance abuse problems, which shall be performed at the start of the program;
(b) Each defendant shall pay the cost of the treatment program up to his ability to pay but no more than the actual cost of the treatment;
(c) Upon written report to the court by the administrator of the program that the defendant has completed the program recommended by the administrator based upon the assessment of the defendant, the defendant may be released prior to the expiration of the one (1) year period; and
(d) Failure to complete the treatment program or to pay the amount specified by the court for treatment shall constitute contempt of court and the court shall, in addition to any other remedy for contempt, reinstitute all penalties which were previously imposed but suspended or delayed pending the completion of the treatment program.
(3) In addition to any other penalty prescribed by KRS 189A.010(5)(c) or (d), the court shall sentence the person to an alcohol or substance abuse treatment program subject to the following terms and conditions for a third or subsequent offender:
(a) The sentence shall be for a period of one (1) year and the program shall provide an assessment of the defendant’s alcohol or other substance abuse problems, which shall be performed at the start of the program. The program may be an inpatient or residential-type program;
(b) Each defendant shall pay the cost of the treatment program up to his ability to pay but no more than the actual cost of the program;
(c) A defendant, upon written recommendation to the court by the administrator of the program, may be released from the inpatient or residential program prior to the expiration of one (1) year but shall be retained in the program on an outpatient basis for the remainder of the year period; and
(d) Failure to complete the treatment program or to pay the amount specified by the court for treatment shall constitute contempt of court, and the court shall, in addition to any other remedy for contempt, reinstitute all penalties which were previously imposed but suspended or delayed pending completion of the treatment program.
(4) Costs of treatment or education programs which are paid from the service fee established by KRS 189A.050, or from state or federal funds, or any combination thereof, shall be deducted from the amount which the defendant must pay.
(5) For the purposes of this section, “treatment” means service in an alcohol or substance abuse education or treatment program or facility licensed, regulated, and monitored by the Cabinet for Health and Family Services for services as required under this section.
(6) The Cabinet for Health and Family Services shall promulgate administrative regulations for the licensure of education and treatment facilities and programs for offenders receiving education or treatment under this section. The criteria developed by the Cabinet for Health and Family Services shall include:
(a) Manner of assessment;
(b) Appropriate education and treatment plans; and
(c) Referrals to other treatment providers.
(7) The participating facilities and programs shall be required to abide by these standards and shall report completion to the Transportation Cabinet. Upon request, the facility or program shall report to the courts regarding the progress of offenders being treated pursuant to this section.
(8) Administrative decisions regarding the licensure of education and treatment facilities and programs may be appealed, and upon appeal an administrative hearing shall be conducted in accordance with KRS Chapter 13B.
âSection 19. KRS 189A.050 is amended to read as follows:
(1) All persons convicted of violation of KRS 189A.010(1)(a), (b), (c),[ or] (d), or (e) shall be sentenced to pay a service fee of three hundred seventy-five dollars ($375), which shall be in addition to all other penalties authorized by law.
(2) The fee shall be imposed in all cases but shall be subject to the provisions of KRS 534.020 relating to the method of imposition and KRS 534.060 as to remedies for nonpayment of the fee.
(3) The first fifty dollars ($50) of each service fee imposed by this section shall be paid into the general fund, and the remainder of the revenue collected from the service fee imposed by this section shall be utilized as follows:
(a) Twelve percent (12%) of the amount collected shall be transferred to the Department of Kentucky State Police forensic laboratory for the acquisition, maintenance, testing, and calibration of alcohol concentration testing instruments and the training of laboratory personnel to perform these tasks;
(b) Twenty percent (20%) of the service fee collected pursuant to this section shall be allocated to the Department for Public Advocacy;
(c) One percent (1%) shall be transferred to the Prosecutor’s Advisory Council for training of prosecutors for the prosecution of persons charged with violations of this chapter and for obtaining expert witnesses in cases involving the prosecution of persons charged with violations of this chapter or any other offense in which driving under the influence is a factor in the commission of the offense charged;
(d) Sixteen percent (16%) of the amount collected shall be transferred as follows:
1. Fifty percent (50%) shall be credited to the traumatic brain injury trust fund established under KRS 211.476; and
2. Fifty percent (50%) shall be credited to the Cabinet for Health and Family Services, Department for Mental Health and Mental Retardation Services, for the purposes of providing direct services to individuals with brain injuries that may include long-term supportive services and training and consultation to professionals working with individuals with brain injuries. As funding becomes available under this subparagraph, the cabinet may promulgate administrative regulations pursuant to KRS Chapter 13A to implement the services permitted by this subparagraph;
(e) Any amount specified by a specific statute shall be transferred as provided in that statute;
(f) Forty-six percent (46%) of the amount collected shall be transferred to be utilized to fund enforcement of this chapter and for the support of jails, recordkeeping, treatment, and educational programs authorized by this chapter and by the Department for Public Advocacy; and
(g) The remainder of the amount collected shall be transferred to the general fund.
(4) The amounts specified in subsection (3)(a), (b), (c), and (d) of this section shall be placed in trust and agency accounts that shall not lapse.
âSection 20. KRS 189A.070 is amended to read as follows:
(1) Unless the person is under eighteen (18) years of age, in addition to the penalties specified in KRS 189A.010, a person convicted of violation of KRS 189A.010(1)(a), (b), (c),[ or] (d), or (e) shall have his license to operate a motor vehicle or motorcycle revoked by the court as follows:
(a) For the first offense within a five (5) year period, for a period of not less than thirty (30) days nor more than one hundred twenty (120) days;
(b) For the second offense within a five (5) year period, for a period of not less than twelve (12) months nor more than eighteen (18) months;
(c) For a third offense within a five (5) year period, for a period of not less than twenty-four (24) months nor more than thirty-six (36) months; and
(d) For a fourth or subsequent offense within a five (5) year period, sixty (60) months.
(e) For purposes of this section, “offense” shall have the same meaning as described in KRS 189A.010(5)(e).
(2) In determining the five (5) year period under this section, the period shall be measured from the dates on which the offenses occurred for which the judgments of conviction were entered.
(3) In addition to the period of license revocation set forth in subsection (1) or (7) of this section, no person shall be eligible for reinstatement of his privilege to operate a motor vehicle until he has completed the alcohol or substance abuse education or treatment program ordered pursuant to KRS 189A.040.
(4) A person under the age of eighteen (18) who is convicted of violation of KRS 189A.010(1)(a), (b), (c),[ or] (d), or (e) shall have his license revoked by the court until he reaches the age of eighteen (18) or shall have his license revoked as provided in subsection (1) or (7) of this section, whichever penalty will result in the longer period of revocation or court-ordered driving conditions.
(5) Licenses revoked pursuant to this chapter shall forthwith be surrendered to the court upon conviction. The court shall transmit the conviction records, and other appropriate information to the Transportation Cabinet. A court shall not waive or stay this procedure.
(6) Should a person convicted under this chapter whose license is revoked fail to surrender it to the court upon conviction, the court shall issue an order directing the sheriff or any other peace officer to seize the license forthwith and deliver it to the court.
(7) A person whose license has been revoked pursuant to subsection (1)(b), (c), or (d) of this section may move the court to reduce the applicable minimum period of revocation by one-half (1/2), but in no case less than twelve (12) months. The court may, upon a written finding in the record for good cause shown, order such a period to be reduced by one-half (1/2), but in no case less than twelve (12) months, if the following conditions are satisfied:
(a) The person shall not operate a motor vehicle or motorcycle without an ignition interlock device as provided for in KRS 189A.340(2);
(b) The person shall not operate a motor vehicle or motorcycle at any other time and for any other purposes than those specified by the court; and
(c) The ignition interlock device shall be installed on the motor vehicle or motorcycle for a period of time not less than the applicable minimum period of revocation provided for under subsection (1)(b), (c), or (d) of this section nor for more than the respective maximum period of revocation provided for under subsection (1)(b), (c), or (d) of this section.
(8) Upon a finding of a violation of any of the conditions specified in subsection (7) of this section or of the order permitting any reduction in a minimum period of revocation that is issued pursuant thereto, the court shall dissolve such an order and the person shall receive no credit toward the minimum period of revocation required under subsection (1)(b), (c), or (d) of this section.
âSection 21. KRS 189A.085 is amended to read as follows:
(1) Unless the court orders installation of an ignition interlock device under KRS 189A.340, upon the conviction of a second or subsequent offense of KRS 189A.010, a person shall have the license plate or plates on all of the motor vehicles owned by him or her, either solely or jointly, impounded by the court of competent jurisdiction in accordance with the following procedures:
(a) At the final sentencing hearing, the person who has been convicted of a second or subsequent offense of KRS 189A.010(1)(a), (b), (c),[ or] (d), or (e) shall physically surrender any and all license plate or plates currently in force on any motor vehicle owned either individually or jointly by him or her to the court. The order of the court suspending the license plate or plates shall not exceed the time for the suspension of the motor vehicle operator’s license of the second or subsequent offender as specified in KRS 189A.070.
(b) The clerk of the court shall retain any surrendered plate or plates and transmit all surrendered plate or plates to the Transportation Cabinet in the manner set forth by the Transportation Cabinet in administrative regulations promulgated by the Transportation Cabinet.
(2) Upon application, the court may grant hardship exceptions to family members or other individuals affected by the surrender of any license plate or plates of any vehicle owned by the second or subsequent offender. Hardship exceptions may be granted by the court to the second or subsequent offender’s family members or other affected individuals only if the family members or other affected individuals prove to the court’s satisfaction that their inability to utilize the surrendered vehicles would pose an undue hardship upon the family members or affected other individuals. Upon the court’s granting of hardship exceptions, the clerk or the Transportation Cabinet as appropriate, shall return to the family members or other affected individuals the license plate or plates of the vehicles of the second or subsequent offender for their utilization. The second or subsequent offender shall not be permitted to operate a vehicle for which the license plate has been suspended or for which a hardship exception has been granted under any circumstances.
(3) If the license plate of a jointly owned vehicle is impounded, this vehicle may be transferred to a joint owner of the vehicle who was not the violator.
(4) If the license plate of a motor vehicle is impounded, the vehicle may be transferred.
âSection 22. KRS 189A.090 is amended to read as follows:
(1) No person shall operate or be in physical control of a motor vehicle while his license is revoked or suspended under KRS 189A.010(6), 189A.070, 189A.107, 189A.200, or 189A.220, or operate or be in physical control of a motor vehicle without a functioning ignition interlock device in violation of KRS 189A.345(1).
(2) In addition to any other penalty imposed by the court, any person who violates subsection (1) of this section shall:
(a) For a first offense within a five (5) year period, be guilty of a Class B misdemeanor and have his license revoked by the court for six (6) months, unless at the time of the offense the person was also operating or in physical control of a motor vehicle in violation of KRS 189A.010(1)(a), (b), (c),[ or] (d), or (e), in which event he shall be guilty of a Class A misdemeanor and have his license revoked by the court for a period of one (1) year;
(b) For a second offense within a five (5) year period, be guilty of a Class A misdemeanor and have his license revoked by the court for one (1) year, unless at the time of the offense the person was also operating or in physical control of a motor vehicle in violation of KRS 189A.010(1)(a), (b), (c),[ or] (d), or (e), in which event he shall be guilty of a Class D felony and have his license revoked by the court for a period of two (2) years;
(c) For a third or subsequent offense within a five (5) year period, be guilty of a Class D felony and have his license revoked by the court for two (2) years, unless at the time of the offense the person was also operating or in physical control of a motor vehicle in violation of KRS 189A.010(1)(a), (b), (c),[ or] (d), or (e), in which event he shall be guilty of a Class D felony and have his license revoked by the court for a period of five (5) years.
(3) The five (5) year period under this section shall be measured in the same manner as in KRS 189A.070.
(4) After one (1) year of the period of revocation provided for in subsection (2)(b) or (c) of this section has elapsed, a person whose license has been revoked pursuant to either of those subsections may move the court to have an ignition interlock device installed for the remaining portion of the period of revocation. The court may, upon a written finding in the record for good cause shown, order an ignition interlock device installed if the following conditions are satisfied:
(a) The person shall not operate a motor vehicle or motorcycle without an ignition interlock device as provided for in KRS 189A.340(2);
(b) The person shall not operate a motor vehicle or motorcycle at any other time and for any other purposes than those specified by the court; and
(c) The ignition interlock device shall be installed on the motor vehicle or motorcycle for a period of time not less than the period of revocation required for the person under subsection (2)(b) or (c) of this section.
(5) Upon a finding of a violation of any of the conditions specified in subsection (4) of this section or of the order permitting the installation of an ignition interlock device in lieu of the remaining period of revocation that is issued pursuant thereto, the court shall dissolve such an order and the person shall receive no credit toward the remaining period of revocation required under subsection (2)(b) or (c) of this section.
âSection 23. KRS 189A.105 is amended to read as follows:
(1) A person’s refusal to submit to tests under KRS 189A.103 shall result in revocation of his driving privilege as provided in this chapter.
(2) (a) At the time a breath, blood, or urine test is requested, the person shall be informed:
1. That, if the person refuses to submit to such tests, the fact of this refusal may be used against him in court as evidence of violating KRS 189A.010 and will result in revocation of his driver’s license, and if the person refuses to submit to the tests and is subsequently convicted of violating KRS 189A.010(1) then he will be subject to a mandatory minimum jail sentence which is twice as long as the mandatory minimum jail sentence imposed if he submits to the tests, and that if the person refuses to submit to the tests he will be unable to obtain a hardship license; and
2. That, if a test is taken, the results of the test may be used against him in court as evidence of violating KRS 189A.010(1), and that if the results of the test are 0.15[0.18] or above and the person is subsequently convicted of violating KRS 189A.010(1), then he will be subject to a sentence that is twice as long as the mandatory minimum jail sentence imposed if the results are less than 0.15[0.18]; and
3. That if the person first submits to the requested alcohol and substance tests, the person has the right to have a test or tests of his blood performed by a person of his choosing described in KRS 189A.103 within a reasonable time of his arrest at the expense of the person arrested.
(b) Nothing in this subsection shall be construed to prohibit a judge of a court of competent jurisdiction from issuing a search warrant or other court order requiring a blood or urine test, or a combination thereof, of a defendant charged with a violation of KRS 189A.010, or other statutory violation arising from the incident, when a person is killed or suffers physical injury, as defined in KRS 500.080, as a result of the incident in which the defendant has been charged. However, if the incident involves a motor vehicle accident in which there was a fatality, the investigating peace officer shall seek such a search warrant for blood, breath, or urine testing unless the testing has already been done by consent. If testing done pursuant to a warrant reveals the presence of alcohol or any other substance that impaired the driving ability of a person who is charged with and convicted of an offense arising from the accident, the sentencing court shall require, in addition to any other sentencing provision, that the defendant make restitution to the state for the cost of the testing.
(3) During the period immediately preceding the administration of any test, the person shall be afforded an opportunity of at least ten (10) minutes but not more than fifteen (15) minutes to attempt to contact and communicate with an attorney and shall be informed of this right. Inability to communicate with an attorney during this period shall not be deemed to relieve the person of his obligation to submit to the tests and the penalties specified by KRS 189A.010 and 189A.107 shall remain applicable to the person upon refusal. Nothing in this section shall be deemed to create a right to have an attorney present during the administration of the tests, but the person’s attorney may be present if the attorney can physically appear at the location where the test is to be administered within the time period established in this section.
(4) Immediately following the administration of the final test requested by the officer, the person shall again be informed of his right to have a test or tests of his blood performed by a person of his choosing described in KRS 189A.103 within a reasonable time of his arrest at the expense of the person arrested. He shall then be asked “Do you want such a test?” The officer shall make reasonable efforts to provide transportation to the tests.
âSection 24. KRS 189A.240 is amended to read as follows:
In any judicial review of a pretrial suspension imposed under KRS 189A.200(1)(b), if the court determines by a preponderance of the evidence that:
(1) The person was charged and arrested by a peace officer with a violation of KRS 189A.010(1)(a), (b), (c),[ or] (d), or (e);
(2) The peace officer had reasonable grounds to believe that the person was operating a motor vehicle in violation of KRS 189A.010(1)(a), (b), (c),[ or] (d), or (e);
(3) There is probable cause to believe that the person committed the violation of KRS 189A.010(1)(a), (b), (c),[ or] (d), or (e) as charged; and
(4) The person has been convicted of one (1) or more prior offenses as described in KRS 189A.010(5)(e) or has had his motor vehicle operator’s license suspended or revoked on one (1) or more occasions for refusing to take an alcohol concentration or substance test, in the five (5) year period immediately preceding his arrest, then the court shall continue to suspend the person’s operator’s license or privilege to operate a motor vehicle. The provisions of this section shall not be construed as limiting the person’s ability to challenge any prior convictions or license suspensions or refusals.
âSection 25. Whereas synthetic cannabinoid agonists and piperazines are dangerous substances that are currently legal to sell and possess in this state, and whereas it is necessary to prohibit the sale or possession of these substances immediately in an effort to prevent stockpilling of them by individuals for future use, an emergency is declared to exist, and Sections 1 to 16 of this Act take effect upon its passage and approval by the Governor or upon its otherwise becoming law.
By Judge Stan Billingsley (Ret.) – LawReader Senior Editor
THE CHICKENS HAVE COME HOME TO ROOST – The 1983 repeal of KRS 41.110 by the Legislature’s movement to enhance Legislative independence has come home to roost, and the smell is awful.
KRS 41.110 permitted the Governor to apply an interim continuation budget when the legislature failed to enact a budget. This statute was said to give the Governor to much power and those who sought legislative independence garnered enough votes to repeal this law. The statue was repealed and the result has substantially weakened the Governor’s power to run the state.
The legislature has left Frankfort without a budget three times since 1994. In 2004, the last time the legislature could not come to an agreement on a budget, a lawsuit was filed. The state Supreme Court ruled in 2005 that a governor can spend money without a budget, but only on items directly mentioned in the Constitution and state statutes. The Legislature is currently deadlocked on a budget bill, and gridlock for Kentucky is only days away.
Several court decisions since l983 have weakened the ability of the Governor to remedy a budget crisis. The Legislature is failing to act, and having assumed the budgetary power have not responsible exercised that power. Nevertheless, the law is clear…the Governor cannot spend money that is not appropriated except in a few situations. The Governor no longer has the power to impose a continuation budget in the absence of legislative authority.
Unless this problem is resolved, state government will soon grind to a halt, and the finger will be correctly pointed back to the legislature. They can argue to the voting public that “legislative independence” is more important than keeping state parks open, funding education, maintaining road’s etc., etc. to the tune of $20 billion dollars.
One would hope that the legislature would fix our budgetary problem by some other method than shutting down state government.
Baker v. Fletcher, 204 S.W.3d 589 (Ky., 2006)
“The origin of the Plaintiffs’ complaint emerges from the Kentucky General Assembly’s failure to fulfill its constitutional and statutory duty to enact a comprehensive balanced budget appropriating revenues to fund the Executive Branch. As a result of the General Assembly’s neglect and in the absence of a budget appropriation, then Governor Paul E. Patton declared a state of emergency and issued an Executive Order (2002-727) for the fiscal year beginning July 1, 2002. Pertinent to the case at hand, Governor Patton’s Executive Spending Plan contained language seeking to suspend operation of KRS 18A.355(1) and alternatively provide for a two and seven-tenths (2.7%) annual salary increment for state employees.”
“The Governor possesses no “emergency” or “inherent” powers to appropriate money from the state treasury that the General Assembly, for whatever reason, has not appropriated. . . . Nor does the Court of Justice have the power to confer such authority.”
“…it is confirmed by the actual amount of money appropriated. The General Assembly appropriated just enough to pay a two and seven-tenths percent raise for all employees. There was no money for a five percent increment, including employees who had an annual-increment anniversary date prior to the budget enactment. When a sum certain is appropriated there can be no legitimate contention that more spending was intended. In Hager v. Shuck34 this Court stated that salaries of the auditor’s clerks must not exceed the amount legislatively appropriated
Fletcher v. Commonwealth, No. 2005-SC-0046-TG (KY 5/19/2005) (KY, 2005)
The issue presented by this appeal is whether the Governor of the Commonwealth of Kentucky may order money drawn from the state treasury to fund the operations of the executive department of government if the General Assembly fails to appropriate funds for that purpose. The issue arose when the General Assembly adjourned sine die on April 14, 2004, without adopting an executive department budget bill for the 2004-06 biennium.
“… At the 2002 regular session, the Republican-controlled Senate and the Democratic-controlled House of Representatives deadlocked on whether to appropriate funds for the election campaign fund created by the Public Financing Campaign Act, KRS 121A.020, and adjourned sine die on April 15, 2002, without enacting a budget bill for either the executive or judicial departments for the 2002-04 biennium. On April 17, Governor Patton reconvened the General Assembly into an extraordinary session for the sole purpose of negotiating a budget bill. Recalcitrance prevailed, however, and the General Assembly adjourned the special session on May 1, 2002, without enacting a budget bill for either of the other two departments of government.
On June 26, Governor Patton promulgated an “Executive Spending Plan” and authorized the Secretary of the Finance and Administration Cabinet to issue warrants against the treasury to implement that plan “and to assist the Court of Justice as may be necessary to implement lawful expenditures for its operation.” Exec. Order No. 2002-727, para. 6, at 4.1 In essence, the Governor adopted his own executive department budget and ordered appropriations from the state treasury to fund it. The Treasurer filed a petition in the Franklin Circuit Court for a declaration of rights, KRS 418.040, to determine the constitutionality of the Executive Spending Plan. Ky. Dept. of the Treasury ex rel. Miller v. Ky. Fin. and Admin. Cabinet, No. 02-CI-00855 (Franklin Circuit Court, filed June 26, 2002). However, the legislative deadlock dissolved when all potential gubernatorial candidates announced their intentions to reject public financing of the 2003 election. During its 2003 regular thirty-day session, the General Assembly enacted a budget bill for the 2002-04 biennium that did not fund the election campaign fund and ratified the Governor’s expenditures under the Executive Spending Plan, nunc pro tunc. The Franklin Circuit Court dismissed the declaration of rights action as moot. See generally Paul E. Salamanca, The Constitutionality of an Executive Spending Plan, 92 Ky. L.J. 149, 152-58 (2003-04).
Unlike Governors Jones and Patton before him, Governor Fletcher did not reconvene the General Assembly into extraordinary session for the purpose of further budget negotiations. When asked during oral argument whether the Governor should have called an extraordinary session so that the General Assembly could attempt to resolve its differences, the attorney for the President of the Senate responded that an extraordinary session would have been “futile.” Instead, the Governor announced that he, like Governor Patton before him, would formulate his own executive department spending plan, i.e., his own budget.
On May 27, 2004, the Attorney General filed this action in the Franklin Circuit Court against the Governor, the Treasurer, and the Secretary of the Finance and Administration Cabinet seeking to preclude the anticipated suspension of 153 existing statutes in the Governor’s executive spending plan. Other parties, including the President of the Senate, the Speaker of the House of Representatives, individual legislators, representatives of state employees, and the Board of Trustees of the Kentucky Employees Retirement System, intervened to assert limitations on the Governor’s power to suspend statutes or to spend unappropriated funds. Common Cause of Kentucky, an unincorporated self-styled “non-profit, non-partisan organization which advocates ethics and constitutional law in Kentucky,” intervened on the relation of its chairman, a self-described “Kentucky taxpayer,” seeking an injunction against the Governor to preclude him “from implementing any spending plan which would draw
money from the State Treasury without appropriations made by the Legislature” in contravention of Section 230 of the Constitution of Kentucky
On June 28, 2004, Governor Fletcher promulgated Executive Order 2004-650, adopting an executive department budget which he denominated a “Public Services Continuation Plan.” The Order noted that:
Through its adoption of House Bill 396, the General Assembly has made appropriations for the use of the Judicial Branch totaling $234,648,400, and in House Bill 397 for the Legislative Branch totaling $40,731,400, leaving $20,739,752,600 in previously estimated revenues identified for use by the Executive Branch, as modified by the Consensus Forecasting Group estimates of June 8, 2004, for the operation and function of the Executive Branch of government.
On December 15, 2004, the Franklin Circuit Court declared the Public Services Continuation Plan unconstitutional but authorized its continuation until June 30, 2005,2 after which, “absent legislative action, no public funds shall be expended from the State Treasury …, with the exception of those funds demonstrated to be for limited and specific essential services previously approved in Quertermous [Miller v. Quertermous, 304 Ky. 733, 202 S.W.2d 389 (1947))." On January 13, 2005, the Governor and the Secretary of the Finance and Administration Cabinet appealed. We granted transfer, CR 74.02, ordered an expedited briefing schedule, and set oral arguments for March 9, 2005. On March 8, 2005, during the course of its thirty-day regular legislative session, the General Assembly enacted both an executive department budget bill for the 2004-06 biennium and a tax bill. As it had done in its 2003 session, the General Assembly also ratified all executive department actions taken pursuant to the Public Services Continuation Plan, nunc pro tunc."
" On three occasions within a ten-year period, the General Assembly convolved itself into a partisan deadlock and adjourned sine die without enacting an executive department budget bill. After the two most recent such occasions, the respective governors promulgated their own budgets and ordered appropriations drawn from the treasury in accordance therewith. On each occasion, lawsuits were filed to test the constitutionality of those actions. On each occasion, the General Assembly enacted an executive department budget bill and ratified the governor's actions before the issue could be finally resolved by the Court of Justice. Having no assurance that similar partisan brinkmanship will not recur in the General Assembly, resulting in future gubernatorially promulgated budgets, we conclude that this issue is capable of repetition, yet evading review, and will address its merits. SeeBurlington Northern R. Co. v. Bhd. of Maint. of Way Employees, 481 U.S. 429, 436 n.4, 107 S.Ct. 1841, 1846 n.4, 95 L.Ed.2d 381 (1987) ("Because these same parties are reasonably likely to find themselves again in dispute over the issues raised in this petition, and because such disputes typically are resolved quickly by ... legislative action, this controversy is one that is capable of repetition yet evading review.")."
"... The President of the Senate suggests that when a budget deadlock occurs, a court can supervise the Governor's expenditures on an item-by-item basis to ensure that they do not exceed the constitutional exception for "essential services" allegedly created in Miller v. Quertermous, 304 Ky. 733, 202 S.W.2d 389 (1947). The Governor responds that budgetary matters, including determinations of what services are essential or not, are nonjusticiable political questions that should be reserved to the other departments of government.
The issue in this case, however, is not the efficacy or necessity of a particular appropriation, but whether the Governor has any constitutional authority to determine what are essential services or to unilaterally order any appropriations from the treasury."
"... No money shall be drawn from the State Treasury, except in pursuance of appropriations made by law....
We have consistently held that this provision means exactly what it says. Commonwealth ex rel. Armstrong v. Collins, 709 S.W.2d 437, 441 (Ky. 1986) ("It is clear that the power of the dollar — the raising and expenditure of the money necessary to operate state government — is one which is within the authority of the legislative branch of government. The Constitution of the Commonwealth so states and we have so stated."); L.R.C. v. Brown, 664 S.W.2d at 925 ("The budget, which provides the revenue for the Commonwealth and which determines how that revenue shall be spent, is fundamentally a legislative matter."); Ferguson v. Oates, 314 S.W.2d 518, 521 (Ky. 1958)("[T]he purpose of [Section 230] was to prevent the expenditure of the State’s money without the consent of the Legislature.”) (internal citation and quotation omitted).”
“… The Governor asserts that Section 230 applies only if the General Assembly has enacted a budget bill. As noted at the outset of this opinion, there is no provision in the Constitution of Kentucky requiring the General Assembly to enact a budget bill. Such is purely a statutory requirement. Since Section 230 preexisted that statutory scheme, the Framers could not have intended for the Section to apply only when the General Assembly enacts a budget bill. Accordingly, we hold that, in the absence of a specific appropriation, or a statutory, constitutional, or federal mandate as discussed below, the unambiguous language of Section 230 prohibits the withdrawal of funds from the state treasury.”
“… V. STATUTORY, CONSTITUTIONAL AND FEDERAL MANDATES.
KRS 41.110 provides:
No public money shall be withdrawn from the Treasury for any purpose other than that for which its withdrawal is proposed, nor unless it has been appropriated by the General Assembly or is a part of a revolving fund, and has been allotted as provided in KRS 48.010 to 48.800, and then only on the warrant of the Finance and Administration Cabinet. The provisions of this section do not apply to withdrawals of funds from state depository banks for immediate redeposit in other state depository banks or to funds held in trust for the security of bond holders.
Where the General Assembly has mandated that specific expenditures be made on a continuing basis, or has authorized a bonded indebtedness which must be paid, such is, in fact, an appropriation. Otherwise, the General Assembly has not delegated its constitutional power of appropriation to the executive department. It has even forbidden the expenditure of surplus monies in the general and road funds. KRS 48.700(8); KRS 48.710(8).”
“… VI. CONTINUATION BUDGET.
The Attorney General posits that, in addition to statutory, constitutional, and federal mandates, the Governor ought to be able to look to the immediately preceding biennial budget as a “guide” for additional appropriations, i.e., a kind of “quasi-continuation budget.”
From 1918 until 1983, there existed statutory authority for a continuation budget in Kentucky, subject to substantial executive department leeway, viz:
If the General Assembly fails to make an appropriation for any fiscal year for any purpose required to be executed by provisions of existing laws, or if the Governor vetoes an appropriation essential to the carrying out of any such purpose, an appropriation equal in amount to the appropriation made, or deemed to have been made under this section, for that purpose for the fiscal year next preceding, exclusive of any such appropriations for extraordinary expenses and capital outlays, shall be deemed to have been made and shall continue available from year to year until an appropriation has been made as provided in this chapter and has become effective. If any such appropriation for the fiscal year next preceding is applicable alike for ordinary recurring expenses, extraordinary expenses, and capital outlays, the Executive Department for Finance and Administration shall determine what proportion thereof shall be deemed under the provisions of this section to have been appropriated for ordinary recurring expenses by the General Assembly for the next fiscal year. Each appropriation or the proportion of each appropriation that is continued under this section shall be included in the budget and made available for expenditure by allotments as provided in this chapter.”
” KRS 45.120. The statute was repealed effective July 1, 1983. 1982 Ky. Acts, ch. 450, § 79. We interpret that repeal as a specific legislative rejection of the solution proffered by the Attorney General. Cf.Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at 586, 72 S.Ct. at 866 (finding no Congressional authority for President’s seizure of steel mills partially because, “[w]hen the Taft-Hartley Act was under consideration in 1947, Congress rejected an amendment which would have authorized such governmental seizures in cases of emergency.”).
Thus, we are left with KRS 48.310(1) (“No provision of a branch budget bill shall be effective beyond the second fiscal year from the date of its enactment.”) and the ancient principle that each legislature is a free and independent body and cannot control the conduct of its successor except by acts in the form of binding contracts. Bd. of Trustees v. Attorney Gen., 132 S.W.3d at 789; City of Mt. Sterling v. King, 126 Ky. 526, 104 S.W. 322, 322 (1907); Swift & Co. v. City of Newport, 70 Ky. (7 Bush) 37, 41 (1870). There presently exists no authority for a continuation budget in Kentucky.”
VII. GOVERNOR’S CONSTITUTIONAL POWERS.
The Governor asserts that when the General Assembly fails to exercise its appropriations power to fund the operations of the executive department, he (the Governor) possesses the inherent power to order the appropriations necessary to prevent the imminent collapse of governmental services. He cites Sections 69 and 81 of the Constitution as the source of that power.
“… Section 69 provides: “The supreme executive power of the Commonwealth shall be vested in a Chief Magistrate, who shall be styled the `Governor of the Commonwealth of Kentucky.’” That provision only vests the Governor with executive powers, just as Section 29 vests the General Assembly with legislative powers and Section 109 vests the Court of Justice with judicial powers. Manifestly, Section 69 does not vest the Governor with legislative powers, which are specifically reserved by Sections 28 and 29 solely to the legislative department. Section 81 provides: “He shall take care that the laws be faithfully executed.” The Governor asserts that he cannot faithfully execute the laws enacted by the General Assembly without the funds necessary to do so. However, as noted earlier in this opinion, the mere existence of a law does not mean that it must be implemented if doing so requires the expenditure of unappropriated funds. Commonwealth ex rel. Armstrong v. Collins, 709 S.W.2d at 441.”
“… The Governor possesses no “emergency” or “inherent” powers to appropriate money from the state treasury that the General Assembly, for whatever reason, has not appropriated. Cf.Brown v. Barkley, 628 S.W.2d 616, 623 (Ky. 1982) (“Practically speaking, except for those conferred upon him specifically by the Constitution, [the Governor's] powers, like those of the executive officers created by Const. Sec. 91, are only what the General Assembly chooses to give him.”). Nor does the Court of Justice have the power to confer such authority. Miller v. Quertermous is overruled to the extent it holds or can be interpreted otherwise.”
“… There is no constitutional mandate that the General Assembly enact a budget bill, and there is no statute providing for an alternative when it fails to do so. Despite much hand-wringing and doomsday forecasting by some of the parties to this action at the prospect that we would hold that Section 230 means what it unambiguously says, it is not our prerogative to amend the Constitution or enact statutes. When the General Assembly declines to exercise its appropriations power, that power does not flow over the “high wall” erected by Section 28 to another department of government.”
Accordingly, we affirm that portion of the Franklin Circuit Court’s judgment that declares the Public Services Continuation Plan unconstitutional insofar as it requires expenditure from the treasury of unappropriated funds other than pursuant to statutory, constitutional, and federal mandates; and reverse that portion of the Franklin Circuit Court’s judgment that authorizes unappropriated expenditures for other “limited and specific services previously approved in Quertermous.”
Graves, Johnstone, and Wintersheimer, JJ., concur. Lambert, C.J., concurs in part and dissents in part by separate opinion. Keller, J., concurs in part and dissents in part by separate opinion, with Scott, J., joining that opinion.
Another recurring issue involving the plea process may be affected by the March 31, 2010 U.S. Supreme Court reversal in Padilla. A number of cases have discussed incorrect advice by counsel and by the sentencing court in sex offender registration cases, and cases involving parole consideration times.
Kentucky courts have consistently held that a defendant does not have to be correctly advised as to his eligibility for parole consideration when he is convicted of certain charges which mandate minimum sentences and does not need to be advised of a duty to register as a sex offender (even though required by statute).
Numerous appeals have been filed over the years in which the defendant claimed he was incorrectly advised about how long he would have to serve before being eligible for parole consideration. The Dept. of Corrections sometimes imposes a greater sentence than the defendant was advised would occur.
The courts have taken the position that there is no duty of the sentencing court to advise the defendant of the “collateral consequences” of his guilty plea such as parole consideration eligibility.
One Appellate judge wrote: “One would have to take a course in criminal law in order to be able to determine parole eligibility.” That thought seems out of touch with the black eye given to the judicial system by any claim of subterfuge or trickery to encourage guilty pleas.
We respectfully suggest that the court could mandate that the Department of Corrections prepare a pamphlet that explains the nuances of parole consideration rules in lieu of complex statutes on the subject. If the court is going to send someone to prison for 30 years, they surely can take a day or two to figure out when he might be eligible for parole consideration.
This is a recurring problem, and is so easily solved, that a solution is morally required.
The Kentucky position on collateral consequences is explained in Com. v. Fuartado, 170 S.W.3d 384 (KY, 2005):
“The existence of collateral consequences is irrelevant to the determination of a defendant’s guilt or innocence and completely outside the authority or control of the trial court.
Accordingly, we find, along with the majority of other courts determining the issue, that the Sixth Amendment requires representation encompassing only the criminal prosecution itself and the direct consequences thereof. Because the consideration of collateral consequences is outside the scope of representation required under the Sixth Amendment, failure of defense counsel to advise Appellee of potential deportation consequences was not cognizable as a claim for ineffective assistance of counsel.”
“ We do not feel that the failure of a trial court to inform a defendant before accepting a guilty plea of mandatory service of sentence before eligibility for parole is a violation of constitutional due process or that such failure is a ground to vacate a judgment under RCr 11.42.
The Sixth Circuit in the Sparks case held that “gross misadvice concerning parole eligibility can amount to ineffective assistance of counsel.” Id. at 885. Nevertheless, the Kentucky Supreme Court has held that the failure of a trial court to inform a defendant of mandatory service of sentence before accepting a guilty plea is not a violation of constitutional due process or a ground for relief from a judgment under RCr 11.42. See Turner, 647 S.W.2d at 502. Our supreme court has also held that “the consideration of collateral consequences is outside the scope of representation required under the Sixth Amendment of the U.S. Constitution.” See Fuartado, 170 S.W.3d at 386.8
It is apparent that our supreme court has impliedly rejected the Sixth Circuit’s decision in the Sparks case.9 Parole eligibility is a collateral consequence, and failure to advise or to even give gross advice concerning collateral consequences are not within the scope of a defendant’s Sixth Amendment rights. See Turner, supra; Fuartado, supra. Thus, we conclude that under Kentucky law, Nation is not entitled to relief from his guilty plea even though his attorney grossly misadvised him that he would be eligible for parole after serving only 20% of his sentence when, in fact, he won’t be eligible until he serves 85% of his sentence.10 The trial court correctly denied Nation an evidentiary hearing on this issue.”
The U.S. Supreme Court on March 31, 2010 reversed a decision of the Ky. Supreme Court which had held that an attorney was not required to advise an illegal immigrant that a guilty plea would result in his deportation.
The Kentucky Court of Appeals had previously held that the Sixth Amendment (Right to Counsel and RCR 11.42 required that a defendant was entitled to a hearing to consider if the defendant was misadvised by his attorney. The opinion suggested that under the right facts that an attorney representing a defendant who was subject to deportation should be correctly advised of the consequences of a guilty plea to criminal charges when he had specifically sought such advice. Padilla claimed that he had specifically asked his attorney if a guilty plea would result in deportation, and the attorney advised him that he would not be deported.
The Ct. of Appeals decision (and the U.S. Supreme Court) did not find that Padilla had been incorrectly advised, it only ruled that he had the right to a hearing to determine if in fact he was incorrectly advised. The Ky. Court of Appeals decision authored by Ct. of “Appeals Chief Judge Sara Combs was overruled on a 5-2 vote of the Kentucky Supreme Court 253 S.W.3d 482- Jan. 24, 2008.
The U.S. Supreme Court vindicated the dissent in the Kentucky decision written by Justice Cunningham and joined in by Justice Schroder and the decision of the Ct. of Appeals.
Kentucky Supreme Court Opinion:
”On August 18, 2004, Padilla filed an RCr 11.42 motion for post-conviction relief alleging that his attorney was ineffective in misadvising him about the potential for deportation as a consequence of his guilty plea. Padilla alleged that his counsel told him that he “did not have to worry about immigration status since he had been in the country so long.” The Hardin Circuit Court denied the RCr 11.42 motion on the basis that a valid guilty plea does not require that the defendant be informed of every possible consequence of a guilty plea. It reasoned that since Appellee’s bond was changed because he was suspected of being an illegal alien, he was aware of the possibility of deportation, and the court noted that counsel did discuss the issue with him. The court concluded that: “Padilla’s counsel does not make a deportation decision and neither does this Court.”
On appeal, the Court of Appeals reversed the decision of the Hardin Circuit Court and remanded the case for an evidentiary hearing. The Court of Appeals had the benefit of this Court’s recent decision in Commonwealth v. Fuartado,1 which determined that collateral consequences are outside the scope of representation required by the Sixth Amendment and that failure of defense counsel to advise the defendant of possible deportation consequences is not cognizable as a claim for ineffective assistance of counsel. However, the majority of the Court of Appeals panel found this case distinguishable from that unequivocal holding in Fuartado. The Court of Appeals held that although collateral consequences do not have to be advised, “an affirmative act of `gross misadvice’ relating to collateral matters can justify post-conviction relief.”2 The Court of Appeals concluded that counsel’s wrong advice in the trial court regarding deportation could constitute ineffective assistance of counsel. It remanded Appellee’s case to the trial court for an evidentiary hearing on his motion for RCr 11.42 relief.”
“…We conclude that our unequivocal holding in Fuartado leaves Appellee without a remedy pursuant to RCr 11.42. As collateral consequences are outside the scope of the guarantee of the Sixth Amendment right to counsel, it follows that counsel’s failure to advise Appellee of such collateral issue or his act of advising Appellee incorrectly provides no basis for relief. In neither instance is the matter required to be addressed by counsel, and so an attorney’s failure in that regard cannot constitute ineffectiveness entitling a criminal defendant to relief under Strickland v. Washington. Accordingly, we reverse the Court of Appeals and reinstate the final judgment of the Hardin Circuit Court denying RCr 11.42 relief.”
All sitting. LAMBERT, C.J., and ABRAMSON, MINTON, NOBLE and SCOTT, JJ., concur.
CUNNINGHAM, J., dissents by separate opinion in which SCHRODER, J., joins.
Dissenting opinion by Justice CUNNINGHAM.
I respectfully dissent from the excellent writing of our distinguished Chief Justice.
I believe Commonwealth v. Fuartado is distinguishable in a small, but critical way from the case before us. In that case, the Court of Appeals concluded that a defense lawyer has no affirmative duty to inform his or her client of the impact that a guilty plea will have on civil immigration status. I fully agree.
In this case, however, if Appellee’s claim is to be believed — a prospect still looming because no hearing was held — he specifically inquired of his counsel about this very important matter. Appellee had been in the United States for decades and had even served this country in Vietnam. Again, it is Appellee’s contention that his counsel gave him terribly wrong advice. The majority states that the matter of deportation is “not a matter required to be addressed by counsel.” Again, I fully agree. But here, Appellee raised the issue himself. Counsel could have just as easily, and responsibly, responded that he did not know the answer. Counsel who gives erroneous advice to a client which influences a felony conviction is worse than no lawyer at all. Common sense dictates that such deficient lawyering goes to effectiveness. The allegations made by Appellee may not be credible. But he was at least entitled to a hearing. I do not believe it is too much of a burden to place on our defense bar the duty to say, “I do not know.” Accordingly, I would reverse and remand for a hearing.
SCHRODER, J., joins this dissenting Sara Combs, had held:
Kentucky Court of Appeals ruling in 2004-CA-001981-MR (March 31, 2006) authored by Court of Appeals Judge Sara Combs held:
“ Padilla did not receive a hearing on his claim. The record does not refute his allegation that counsel affirmatively assured him he would not be deported as a result of pleading guilty; nor does it refute his claim that but for counsel’s mistaken advice, he would not have pled guilty. We are persuaded that counsel’s wrong advice regarding deportation could constitute ineffective assistance of counsel pursuant to Sparks, supra. Thus, as there are relevant and substantial issues of fact that cannot be resolved by an examination of the record, we conclude that Padilla is entitled to an evidentiary hearing on his motion. See, Fraser v. Commonwealth, 59 S.W.3d 448 (Ky. 2001).
The order of the Hardin Circuit Court is vacated, and this matter is remanded for further proceedings consistent with this opinion.
DYCHE, Judge, Concurs. – HENRY, Judge, Dissents and files separate opinion.
The U.S. Supreme Court held:
“…as a matter of federal law, Padilla’s counsel had an obligation to advise him that the offense to which he was pleading guilty would result in his removal from this country. We agree with Padilla that constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation. Whether he is entitled to relief depends on whether he has been prejudiced, a matter that we do not address.”
Another issue may be affected by the Supreme Court reversal. Kentucky courts have consistently held that a defendant does not have to be correctly advised as to his eligibility for parole consideration when he is convicted of certain charges which mandate minimum sentences. One Appellate judge wrote: “One would have to take a course in criminal law in order to be able to determine parole eligibility.” We respectfully suggest that the court could mandate that the Department of Corrections prepare a pamphlet that explains the nuances of parole consideration rules in lieu of complex statutes on the subject. If the court is going to send someone to prison for 30 years, they surely can take a day or two to figure out when he might be eligible for parole consideration.
SUPREME COURT OF THE UNITED STATES.
Top of Form
Bottom of Form
PADILLA v. KENTUCKY
JOSE PADILLA, PETITIONER
Argued October 13, 2009.
Decided March 31, 2010.
JUSTICE STEVENS delivered the opinion of the Court.
Petitioner Jose Padilla, a native of Honduras, has been a lawful permanent resident of the United States for more than 40 years. Padilla served this Nation with honor as a member of the U. S. Armed Forces during the Vietnam War. He now faces deportation after pleading guilty to the transportation of a large amount of marijuana in his tractor-trailer in the Commonwealth of Kentucky.[ 1 ]
In this postconviction proceeding, Padilla claims that his counsel not only failed to advise him of this consequence prior to his entering the plea, but also told him that he “`did not have to worry about immigration status since he had been in the country so long.’” 253 S. W. 3d 482, 483 (Ky. 2008). Padilla relied on his counsel’s erroneous advice when he pleaded guilty to the drug charges that made his deportation virtually mandatory. He alleges that he would have insisted on going to trial if he had not received incorrect advice from his attorney.
Assuming the truth of his allegations, the Supreme Court of Kentucky denied Padilla postconviction relief without the benefit of an evidentiary hearing. The court held that the Sixth Amendment’s guarantee of effective assistance of counsel does not protect a criminal defendant from erroneous advice about deportation because it is merely a “collateral” consequence of his conviction. Id., at 485. In its view, neither counsel’s failure to advise petitioner about the possibility of removal, nor counsel’s incorrect advice, could provide a basis for relief.
We granted certiorari, 555 U. S. ___ (2009), to decide whether, as a matter of federal law, Padilla’s counsel had an obligation to advise him that the offense to which he was pleading guilty would result in his removal from this country. We agree with Padilla that constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation. Whether he is entitled to relief depends on whether he has been prejudiced, a matter that we do not address.
The landscape of federal immigration law has changed dramatically over the last 90 years. While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration reforms over time have expanded the class of deportable offenses and limited the authority of judges to alleviate the harsh consequences of deportation. The “drastic measure” of deportation or removal, Fong Haw Tan v. Phelan, 333 U. S. 6, 10 (1948), is now virtually inevitable for a vast number of noncitizens convicted of crimes.
The Nation’s first 100 years was “a period of unimpeded immigration.” C. Gordon & H. Rosenfield, Immigration Law and Procedure §1.(2)(a), p. 5 (1959). An early effort to empower the President to order the deportation of those immigrants he “judge[d] dangerous to the peace and safety of the United States,” Act of June 25, 1798, ch. 58, 1 Stat. 571, was short lived and unpopular. Gordon §1.2, at 5. It was not until 1875 that Congress first passed a statute barring convicts and prostitutes from entering the country, Act of Mar. 3, 1875, ch. 141, 18 Stat. 477. Gordon §1.2b, at 6. In 1891, Congress added to the list of excludable persons those “who have been convicted of a felony or other infamous crime or misdemeanor involving moral turpitude.” Act of Mar. 3, 1891, ch. 551, 26 Stat. 1084.[ 2 ]
The Immigration and Nationality Act of 1917 (1917 Act) brought “radical changes” to our law. S. Rep. No. 1515, 81st Cong., 2d Sess., pp. 54-55 (1950). For the first time in our history, Congress made classes of noncitizens deportable based on conduct committed on American soil. Id., at 55. Section 19 of the 1917 Act authorized the deportation of “any alien who is hereafter sentenced to imprisonment for a term of one year or more because of conviction in this country of a crime involving moral turpitude, committed within five years after the entry of the alien to the United States . . . .” 39 Stat. 889. And §19 also rendered deportable noncitizen recidivists who commit two or more crimes of moral turpitude at any time after entry. Ibid. Congress did not, however, define the term “moral turpitude.”
While the 1917 Act was “radical” because it authorized deportation as a consequence of certain convictions, the Act also included a critically important procedural protection to minimize the risk of unjust deportation: At the time of sentencing or within 30 days thereafter, the sentencing judge in both state and federal prosecutions had the power to make a recommendation “that such alien shall not be deported.” Id., at 890.[ 3 ] This procedure, known as a judicial recommendation against deportation, or JRAD, had the effect of binding the Executive to prevent deportation; the statute was “consistently . . . interpreted as giving the sentencing judge conclusive authority to decide whether a particular conviction should be disregarded as a basis for deportation,” Janvier v. United States, 793 F. 2d 449, 452 (CA2 1986). Thus, from 1917 forward, there was no such creature as an automatically deportable offense. Even as the class of deportable offenses expanded, judges retained discretion to ameliorate unjust results on a case-by-case basis.
Although narcotics offenses—such as the offense at issue in this case—provided a distinct basis for deportation as early as 1922,[ 4 ] the JRAD procedure was generally available to avoid deportation in narcotics convictions. See United States v. O’Rourke, 213 F. 2d 759, 762 (CA8 1954). Except for “technical, inadvertent and insignificant violations of the laws relating to narcotics,” ibid., it appears that courts treated narcotics offenses as crimes involving moral turpitude for purposes of the 1917 Act’s broad JRAD provision. See ibid. (recognizing that until 1952 a JRAD in a narcotics case “was effective to prevent deportation” (citing Dang Nam v. Bryan, 74 F. 2d 379, 380-381 (CA9 1934))).
In light of both the steady expansion of deportable offenses and the significant ameliorative effect of a JRAD, it is unsurprising that, in the wake of Strickland v. Washington, 466 U. S. 668 (1984), the Second Circuit held that the Sixth Amendment right to effective assistance of counsel applies to a JRAD request or lack thereof, see Janvier, 793 F. 2d 449. See also United States v. Castro, 26 F. 3d 557 (CA5 1994). In its view, seeking a JRAD was “part of the sentencing” process, Janvier, 793 F. 2d, at 452, even if deportation itself is a civil action. Under the Second Circuit’s reasoning, the impact of a conviction on a noncitizen’s ability to remain in the country was a central issue to be resolved during the sentencing process—not merely a collateral matter outside the scope of counsel’s duty to provide effective representation.
However, the JRAD procedure is no longer part of our law. Congress first circumscribed the JRAD provision in the 1952 Immigration and Nationality Act (INA),[ 5 ] and in 1990 Congress entirely eliminated it, 104 Stat. 5050. In 1996, Congress also eliminated the Attorney General’s authority to grant discretionary relief from deportation, 110 Stat. 3009-596, an authority that had been exercised to prevent the deportation of over 10,000 noncitizens during the 5-year period prior to 1996, INS v. St. Cyr, 533 U. S. 289, 296 (2001). Under contemporary law, if a noncitizen has committed a removable offense after the 1996 effective date of these amendments, his removal is practically inevitable but for the possible exercise of limited remnants of equitable discretion vested in the Attorney General to cancel removal for noncitizens convicted of particular classes of offenses.[ 6 ]See 8 U. S. C. §1229b. Subject to limited exceptions, this discretionary relief is not available for an offense related to trafficking in a controlled substance. See §1101(a)(43)(B); §1228.
These changes to our immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. The importance of accurate legal advice for noncitizens accused of crimes has never been more important. These changes confirm our view that, as a matter of federal law, deportation is an integral part—indeed, sometimes the most important part[ 7 ]—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.
Before deciding whether to plead guilty, a defendant is entitled to “the effective assistance of competent counsel.” McMann v. Richardson, 397 U. S. 759, 771 (1970); Strickland, 466 U. S., at 686. The Supreme Court of Kentucky rejected Padilla’s ineffectiveness claim on the ground that the advice he sought about the risk of deportation concerned only collateral matters, i.e., those matters not within the sentencing authority of the state trial court.[ 8 ] 253 S. W. 3d, at 483-484 (citing Commonwealth v. Fuartado, 170 S. W. 3d 384 (2005)). In its view, “collateral consequences are outside the scope of representation required by the Sixth Amendment,” and, therefore, the “failure of defense counsel to advise the defendant of possible deportation consequences is not cognizable as a claim for ineffective assistance of counsel.” 253 S. W. 3d, at 483. The Kentucky high court is far from alone in this view.[ 9 ]
We, however, have never applied a distinction between direct and collateral consequences to define the scope of constitutionally “reasonable professional assistance” required under Strickland, 466 U. S., at 689. Whether that distinction is appropriate is a question we need not consider in this case because of the unique nature of deportation.
We have long recognized that deportation is a particularly severe “penalty,” Fong Yue Ting v. United States, 149 U. S. 698, 740 (1893); but it is not, in a strict sense, a criminal sanction. Although removal proceedings are civil in nature, see INS v. Lopez-Mendoza, 468 U. S. 1032, 1038 (1984), deportation is nevertheless intimately related to the criminal process. Our law has enmeshed criminal convictions and the penalty of deportation for nearly a century, see Part I, supra, at 2-7. And, importantly, recent changes in our immigration law have made removal nearly an automatic result for a broad class of noncitizen offenders. Thus, we find it “most difficult” to divorce the penalty from the conviction in the deportation context. United States v. Russell, 686 F. 2d 35, 38 (CADC 1982). Moreover, we are quite confident that noncitizen defendants facing a risk of deportation for a particular offense find it even more difficult. See St. Cyr, 533 U. S., at 322 (“There can be little doubt that, as a general matter, alien defendants considering whether to enter into a plea agreement are acutely aware of the immigration consequences of their convictions”).
Deportation as a consequence of a criminal conviction is, because of its close connection to the criminal process, uniquely difficult to classify as either a direct or a collateral consequence. The collateral versus direct distinction is thus ill-suited to evaluating a Strickland claim concerning the specific risk of deportation. We conclude that advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel. Strickland applies to Padilla’s claim.
Under Strickland, we first determine whether counsel’s representation “fell below an objective standard of reasonableness.” 466 U. S., at 688. Then we ask whether “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id., at 694. The first prong—constitutional deficiency—is necessarily linked to the practice and expectations of the legal community: “The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Id., at 688. We long have recognized that “[p]revailing norms of practice as reflected in American Bar Association standards and the like . . . are guides to determining what is reasonable . . . .” Ibid.; Bobby v. Van Hook, 558 U. S. ___, ___ (2009) (per curiam) (slip op., at 3); Florida v. Nixon, 543 U. S. 175, 191, and n. 6 (2004); Wiggins v. Smith, 539 U. S. 510, 524 (2003); Williams v. Taylor, 529 U. S. 362, 396 (2000). Although they are “only guides,” Strickland, 466 U. S., at 688, and not “inexorable commands,” Bobby, 558 U. S., at ___ (slip op., at 5), these standards may be valuable measures of the prevailing professional norms of effective representation, especially as these standards have been adapted to deal with the intersection of modern criminal prosecutions and immigration law.
The weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation. National Legal Aid and Defender Assn., Performance Guidelines for Criminal Representation §6.2 (1995); G. Herman, Plea Bargaining §3.03, pp. 20-21 (1997); Chin & Holmes, Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 Cornell L. Rev. 697, 713-718 (2002); A. Campbell, Law of Sentencing §13:23, pp. 555, 560 (3d ed. 2004); Dept. of Justice, Office of Justice Programs, 2 Compendium of Standards for Indigent Defense Systems, Standards for Attorney Performance, pp. D10, H8-H9, J8 (2000) (providing survey of guidelines across multiple jurisdictions); ABA Standards for Criminal Justice, Prosecution Function and Defense Function 4-5.1(a), p. 197 (3d ed. 1993); ABA Standards for Criminal Justice, Pleas of Guilty 14-3.2(f), p. 116 (3d ed. 1999). “[A]uthorities of every stripe— including the American Bar Association, criminal defense and public defender organizations, authoritative treatises, and state and city bar publications—universally require defense attorneys to advise as to the risk of deportation consequences for non-citizen clients . . . .” Brief for Legal Ethics, Criminal Procedure, and Criminal Law Professors as Amici Curiae 12-14 (footnotes omitted) (citing, inter alia, National Legal Aid and Defender Assn., Guidelines, supra, §§6.2-6.4 (1997); S. Bratton & E. Kelley, Practice Points: Representing a Noncitizen in a Criminal Case, 31 The Champion 61 (Jan./Feb. 2007); N. Tooby, Criminal Defense of Immigrants §1.3 (3d ed. 2003); 2 Criminal Practice Manual §§45:3, 45:15 (2009)).
We too have previously recognized that “`[p]reserving the client’s right to remain in the United States may be more important to the client than any potential jail sentence.’” St. Cyr, 533 U. S., at 323 (quoting 3 Criminal Defense Techniques §§60A.01, 60A.02 (1999)). Likewise, we have recognized that “preserving the possibility of” discretionary relief from deportation under §212(c) of the 1952 INA, 66 Stat. 187, repealed by Congress in 1996, “would have been one of the principal benefits sought by defendants deciding whether to accept a plea offer or instead to proceed to trial.” St. Cyr, 533 U. S., at 323. We expected that counsel who were unaware of the discretionary relief measures would “follo[w] the advice of numerous practice guides” to advise themselves of the importance of this particular form of discretionary relief. Ibid., n. 50.
In the instant case, the terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequence for Padilla’s conviction. See 8 U. S. C. §1227(a)(2)(B)(i) (“Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States or a foreign country relating to a controlled substance . . . , other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable”). Padilla’s counsel could have easily determined that his plea would make him eligible for deportation simply from reading the text of the statute, which addresses not some broad classification of crimes but specifically commands removal for all controlled substances convictions except for the most trivial of marijuana possession offenses. Instead, Padilla’s counsel provided him false assurance that his conviction would not result in his removal from this country. This is not a hard case in which to find deficiency: The consequences of Padilla’s plea could easily be determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel’s advice was incorrect.
Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward (as it is in many of the scenarios posited by JUSTICE ALITO), a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.[ 10 ] But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.
Accepting his allegations as true, Padilla has sufficiently alleged constitutional deficiency to satisfy the first prong of Strickland. Whether Padilla is entitled to relief on his claim will depend on whether he can satisfy Strickland‘s second prong, prejudice, a matter we leave to the Kentucky courts to consider in the first instance.
The Solicitor General has urged us to conclude that Strickland applies to Padilla’s claim only to the extent that he has alleged affirmative misadvice. In the United States’ view, “counsel is not constitutionally required to provide advice on matters that will not be decided in the criminal case . . . ,” though counsel is required to provide accurate advice if she chooses to discusses these matters. Brief for United States as Amicus Curiae 10.
Respondent and Padilla both find the Solicitor General’s proposed rule unpersuasive, although it has support among the lower courts. See, e.g., United States v. Couto, 311 F. 3d 179, 188 (CA2 2002); United States v. Kwan, 407 F. 3d 1005 (CA9 2005); Sparks v. Sowders, 852 F. 2d 882 (CA6 1988); United States v. Russell, 686 F. 2d 35 (CADC 1982); State v. Rojas-Martinez, 2005 UT 86, 125 P. 3d 930, 935; In re Resendiz, 25 Cal. 4th 230, 19 P. 3d 1171 (2001). Kentucky describes these decisions isolating an affirmative misadvice claim as “result-driven, incestuous . . . [,and] completely lacking in legal or rational bases.” Brief for Respondent 31. We do not share that view, but we agree that there is no relevant difference “between an act of commission and an act of omission” in this context. Id., at 30; Strickland, 466 U. S., at 690 (“The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance”); see also State v. Paredez, 2004-NMSC-036, 136 N. M. 533, 538-539.
A holding limited to affirmative misadvice would invite two absurd results. First, it would give counsel an incentive to remain silent on matters of great importance, even when answers are readily available. Silence under these circumstances would be fundamentally at odds with the critical obligation of counsel to advise the client of “the advantages and disadvantages of a plea agreement.” Libretti v. United States, 516 U. S. 29, 50-51 (1995). When attorneys know that their clients face possible exile from this country and separation from their families, they should not be encouraged to say nothing at all.[ 11 ] Second, it would deny a class of clients least able to represent themselves the most rudimentary advice on deportation even when it is readily available. It is quintessentially the duty of counsel to provide her client with available advice about an issue like deportation and the failure to do so “clearly satisfies the first prong of the Strickland analysis.” Hill v. Lockhart, 474 U. S. 52, 62 (1985) (White, J., concurring in judgment).
We have given serious consideration to the concerns that the Solicitor General, respondent, and amici have stressed regarding the importance of protecting the finality of convictions obtained through guilty pleas. We confronted a similar “floodgates” concern in Hill, see id., at 58, but nevertheless applied Strickland to a claim that counsel had failed to advise the client regarding his parole eligibility before he pleaded guilty.[ 12 ]
A flood did not follow in that decision’s wake. Surmounting Strickland‘s high bar is never an easy task. See, e.g., 466 U. S., at 689 (“Judicial scrutiny of counsel’s performance must be highly deferential”); id., at 693 (observing that “[a]ttorney errors . . . are as likely to be utterly harmless in a particular case as they are to be prejudicial”). Moreover, to obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances. See Roe v. Flores-Ortega, 528 U. S. 470, 480, 486 (2000). There is no reason to doubt that lower courts—now quite experienced with applying Strickland —can effectively and efficiently use its framework to separate specious claims from those with substantial merit.
It seems unlikely that our decision today will have a significant effect on those convictions already obtained as the result of plea bargains. For at least the past 15 years, professional norms have generally imposed an obligation on counsel to provide advice on the deportation consequences of a client’s plea. See, supra, at 11-13. We should, therefore, presume that counsel satisfied their obligation to render competent advice at the time their clients considered pleading guilty. Strickland, 466 U. S., at 689.
Likewise, although we must be especially careful about recognizing new grounds for attacking the validity of guilty pleas, in the 25 years since we first applied Strickland to claims of ineffective assistance at the plea stage, practice has shown that pleas are less frequently the subject of collateral challenges than convictions obtained after a trial. Pleas account for nearly 95% of all criminal convictions.[ 13 ] But they account for only approximately 30% of the habeas petitions filed.[ 14 ] The nature of relief secured by a successful collateral challenge to a guilty plea—an opportunity to withdraw the plea and proceed to trial—imposes its own significant limiting principle: Those who collaterally attack their guilty pleas lose the benefit of the bargain obtained as a result of the plea. Thus, a different calculus informs whether it is wise to challenge a guilty plea in a habeas proceeding because, ultimately, the challenge may result in a less favorable outcome for the defendant, whereas a collateral challenge to a conviction obtained after a jury trial has no similar downside potential.
Finally, informed consideration of possible deportation can only benefit both the State and noncitizen defendants during the plea-bargaining process. By bringing deportation consequences into this process, the defense and prosecution may well be able to reach agreements that better satisfy the interests of both parties. As in this case, a criminal episode may provide the basis for multiple charges, of which only a subset mandate deportation following conviction. Counsel who possess the most rudimentary understanding of the deportation consequences of a particular criminal offense may be able to plea bargain creatively with the prosecutor in order to craft a conviction and sentence that reduce the likelihood of deportation, as by avoiding a conviction for an offense that automatically triggers the removal consequence. At the same time, the threat of deportation may provide the defendant with a powerful incentive to plead guilty to an offense that does not mandate that penalty in exchange for a dismissal of a charge that does.
In sum, we have long recognized that the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel. Hill, 474 U. S., at 57; see also Richardson, 397 U. S., at 770-771. The severity of deportation—”the equivalent of banishment or exile,” Delgadillo v. Carmichael, 332 U. S. 388, 390-391 (1947)—only underscores how critical it is for counsel to inform her noncitizen client that he faces a risk of deportation.[ 15 ]
It is our responsibility under the Constitution to ensure that no criminal defendant—whether a citizen or not—is left to the “mercies of incompetent counsel.” Richardson, 397 U. S., at 771. To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation. Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.
Taking as true the basis for his motion for postconviction relief, we have little difficulty concluding that Padilla has sufficiently alleged that his counsel was constitutionally deficient. Whether Padilla is entitled to relief will depend on whether he can demonstrate prejudice as a result thereof, a question we do not reach because it was not passed on below. See Verizon Communications Inc. v. FCC, 535 U. S. 467, 530 (2002).
The judgment of the Supreme Court of Kentucky is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
JUSTICE ALITO, with whom THE CHIEF JUSTICE joins, concurring in the judgment.
I concur in the judgment because a criminal defense attorney fails to provide effective assistance within the meaning of Strickland v. Washington, 466 U. S. 668 (1984), if the attorney misleads a noncitizen client regarding the removal consequences of a conviction. In my view, such an attorney must (1) refrain from unreasonably providing incorrect advice and (2) advise the defendant that a criminal conviction may have adverse immigration consequences and that, if the alien wants advice on this issue, the alien should consult an immigration attorney. I do not agree with the Court that the attorney must attempt to explain what those consequences may be. As the Court concedes, “[i]mmigration law can be complex”; “it is a legal specialty of its own”; and “[s]ome members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it.” Ante, at 11. The Court nevertheless holds that a criminal defense attorney must provide advice in this specialized area in those cases in which the law is “succinct and straightforward”—but not, perhaps, in other situations. Ante, at 11-12. This vague, halfway test will lead to much confusion and needless litigation.
Under Strickland, an attorney provides ineffective assistance if the attorney’s representation does not meet reasonable professional standards. 466 U. S., at 688. Until today, the longstanding and unanimous position of the federal courts was that reasonable defense counsel generally need only advise a client about the direct consequences of a criminal conviction. See, e.g., United States v. Gonzalez, 202 F. 3d 20, 28 (CA1 2000) (ineffectiveassistance-of-counsel claim fails if “based on an attorney’s failure to advise a client of his plea’s immigration consequences”); United States v. Banda, 1 F. 3d 354, 355 (CA5 1993) (holding that “an attorney’s failure to advise a client that deportation is a possible consequence of a guilty plea does not constitute ineffective assistance of counsel”); see generally Chin & Holmes, Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 Cornell L. Rev. 697, 699 (2002) (hereinafter Chin & Holmes) (noting that “virtually all jurisdictions”—including “eleven federal circuits, more than thirty states, and the District of Columbia “—”hold that defense counsel need not discuss with their clients the collateral consequences of a conviction,” including deportation). While the line between “direct” and “collateral” consequences is not always clear, see ante, at 7, n. 8, the collateral-consequences rule expresses an important truth: Criminal defense attorneys have expertise regarding the conduct of criminal proceedings. They are not expected to possess—and very often do not possess— expertise in other areas of the law, and it is unrealistic to expect them to provide expert advice on matters that lie outside their area of training and experience.
This case happens to involve removal, but criminal convictions can carry a wide variety of consequences other than conviction and sentencing, including civil commitment, civil forfeiture, the loss of the right to vote, disqualification from public benefits, ineligibility to possess firearms, dishonorable discharge from the Armed Forces, and loss of business or professional licenses. Chin & Holmes 705-706. A criminal conviction may also severely damage a defendant’s reputation and thus impair the defendant’s ability to obtain future employment or business opportunities. All of those consequences are “seriou[s],” see ante, at 17, but this Court has never held that a criminal defense attorney’s Sixth Amendment duties extend to providing advice about such matters.
The Court tries to justify its dramatic departure from precedent by pointing to the views of various professional organizations. See ante, at 9 (“The weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation”). However, ascertaining the level of professional competence required by the Sixth Amendment is ultimately a task for the courts. E.g., Roe v. Flores-Ortega, 528 U. S. 470, 477 (2000). Although we may appropriately consult standards promulgated by private bar groups, we cannot delegate to these groups our task of determining what the Constitution commands. See Strickland, supra, at 688 (explaining that “[p]revailing norms of practice as reflected in American Bar Association standards . . . are guides to determining what is reasonable, but they are only guides”). And we must recognize that such standards may represent only the aspirations of a bar group rather than an empirical assessment of actual practice.
Even if the only relevant consideration were “prevailing professional norms,” it is hard to see how those norms can support the duty the Court today imposes on defense counsel. Because many criminal defense attorneys have little understanding of immigration law, see ante, at 11, it should follow that a criminal defense attorney who refrains from providing immigration advice does not violate prevailing professional norms. But the Court’s opinion would not just require defense counsel to warn the client of a general risk of removal; it would also require counsel in at least some cases, to specify what the removal consequences of a conviction would be. See ante, at 11-12.
The Court’s new approach is particularly problematic because providing advice on whether a conviction for a particular offense will make an alien removable is often quite complex. “Most crimes affecting immigration status are not specifically mentioned by the [Immigration and Nationality Act (INA)], but instead fall under a broad category of crimes, such as crimes involving moral turpitude or aggravated felonies.” M . G a r c i a& L. E i g , C R S Report for Congress, Immigration Consequences of Criminal Activity (Sept. 20, 2006) (summary) (emphasis in original). As has been widely acknowledged, determining whether a particular crime is an “aggravated felony” or a “crime involving moral turpitude [(CIMT)]” is not an easy task. See R. McWhirter, ABA, The Criminal Lawyer’s Guide to Immigration Law: Questions and Answers 128 (2d ed. 2006) (hereinafter ABA Guidebook) (“Because of the increased complexity of aggravated felony law, this edition devotes a new [30-page] chapter to the subject”); id., §5.2, at 146 (stating that the aggravated felony list at 8 U. S. C. §1101(a)(43) is not clear with respect to several of the listed categories, that “the term `aggravated felonies’ can include misdemeanors,” and that the determination of whether a crime is an “aggravated felony” is made “even more difficult” because “several agencies and courts interpret the statute,” including Immigration and Customs Enforcement, the Board of Immigration Appeals (BIA), and Federal Circuit and district courts considering immigration-law and criminal-law issues); ABA Guidebook §4.65, at 130 (“Because nothing is ever simple with immigration law, the terms `conviction,’ `moral turpitude,’ and `single scheme of criminal misconduct’ are terms of art”); id., §4.67, at 130 (“[T]he term `moral turpitude’ evades precise definition”).
Defense counsel who consults a guidebook on whether a particular crime is an “aggravated felony” will often find that the answer is not “easily ascertained.” For example, the ABA Guidebook answers the question “Does simple possession count as an aggravated felony?” as follows: “Yes, at least in the Ninth Circuit.” §5.35, at 160 (emphasis added). After a dizzying paragraph that attempts to explain the evolution of the Ninth Circuit’s view, the ABA Guidebook continues: “Adding to the confusion, however, is that the Ninth Circuit has conflicting opinions depending on the context on whether simple drug possession constitutes an aggravated felony under 8 U. S. C. §1101(a)(43).” Id., §5.35, at 161 (citing cases distinguishing between whether a simple possession offense is an aggravated felony “for immigration purposes” or for “sentencing purposes”). The ABA Guidebook then proceeds to explain that “attempted possession,” id., §5.36, at 161 (emphasis added), of a controlled substance is an aggravated felony, while “[c]onviction under the federal accessory after the fact statute is probably not an aggravated felony, but a conviction for accessory after the fact to the manufacture of methamphetamine is an aggravated felony,” id., §537, at 161 (emphasis added). Conspiracy or attempt to commit drug trafficking are aggravated felonies, but “[s]olicitation is not a drug-trafficking offense because a generic solicitation offense is not an offense related to a controlled substance and therefore not an aggravated felony.” Id., §5.41, at 162.
Determining whether a particular crime is one involving moral turpitude is no easier. See id., at 134 (“Writing bad checks may or may not be a CIMT” (emphasis added)); ibid. (“[R]eckless assault coupled with an element of injury, but not serious injury, is probably not a CIMT” (emphasis added)); id., at 135 (misdemeanor driving under the influence is generally not a CIMT, but may be a CIMT if the DUI results in injury or if the driver knew that his license had been suspended or revoked); id., at 136 (“If there is no element of actual injury, the endangerment offense may not be a CIMT” (emphasis added)); ibid. (“Whether [a child abuse] conviction involves moral turpitude may depend on the subsection under which the individual is convicted. Child abuse done with criminal negligence probably is not a CIMT” (emphasis added)).
Many other terms of the INA are similarly ambiguous or may be confusing to practitioners not versed in the intricacies of immigration law. To take just a few examples, it may be hard, in some cases, for defense counsel even to determine whether a client is an alien,[ 16 ] or whether a particular state disposition will result in a “conviction” for purposes of federal immigration law.[ 17 ]The task of offering advice about the immigration consequences of a criminal conviction is further complicated by other problems, including significant variations among Circuit interpretations of federal immigration statutes; the frequency with which immigration law changes; different rules governing the immigration consequences of juvenile, first-offender, and foreign convictions; and the relationship between the “length and type of sentence” and the determination “whether [an alien] is subject to removal, eligible for relief from removal, or qualified to become a naturalized citizen,” Immigration Law and Crimes §2:1, at 2-2 to 2-3.
In short, the professional organizations and guidebooks on which the Court so heavily relies are right to say that “nothing is ever simple with immigration law”—including the determination whether immigration law clearly makes a particular offense removable. ABA Guidebook §4.65, at 130; Immigration Law and Crimes §2:1. I therefore cannot agree with the Court’s apparent view that the Sixth Amendment requires criminal defense attorneys to provide immigration advice.
The Court tries to downplay the severity of the burden it imposes on defense counsel by suggesting that the scope of counsel’s duty to offer advice concerning deportation consequences may turn on how hard it is to determine those consequences. Where “the terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequence[s]” of a conviction, the Court says, counsel has an affirmative duty to advise the client that he will be subject to deportation as a result of the plea. Ante, at 11. But “[w]hen the law is not succinct and straightforward . . . , a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” Ante, at 11-12. This approach is problematic for at least four reasons.
First, it will not always be easy to tell whether a particular statutory provision is “succinct, clear, and explicit.” How can an attorney who lacks general immigration law expertise be sure that a seemingly clear statutory provision actually means what it seems to say when read in isolation? What if the application of the provision to a particular case is not clear but a cursory examination of case law or administrative decisions would provide a definitive answer? See Immigration Law and Crimes §2:1, at 2-2 (“Unfortunately, a practitioner or respondent cannot tell easily whether a conviction is for a removable offense. . . . [T]he cautious practitioner or apprehensive respondent will not know conclusively the future immigration consequences of a guilty plea”).
Second, if defense counsel must provide advice regarding only one of the many collateral consequences of a criminal conviction, many defendants are likely to be misled. To take just one example, a conviction for a particular offense may render an alien excludable but not removable. If an alien charged with such an offense is advised only that pleading guilty to such an offense will not result in removal, the alien may be induced to enter a guilty plea without realizing that a consequence of the plea is that the alien will be unable to reenter the United States if the alien returns to his or her home country for any reason, such as to visit an elderly parent or to attend a funeral. See ABA Guidebook §4.14, at 111 (“Often the alien is both excludable and removable. At times, however, the lists are different. Thus, the oddity of an alien that is inadmissible but not deportable. This alien should not leave the United States because the government will not let him back in” (emphasis in original)). Incomplete legal advice may be worse than no advice at all because it may mislead and may dissuade the client from seeking advice from a more knowledgeable source.
Third, the Court’s rigid constitutional rule could inadvertently head off more promising ways of addressing the underlying problem—such as statutory or administrative reforms requiring trial judges to inform a defendant on the record that a guilty plea may carry adverse immigration consequences. As amici point out, “28 states and the District of Columbia have already adopted rules, plea forms, or statutes requiring courts to advise criminal defendants of the possible immigration consequences of their pleas.” Brief for State of Louisiana et al. 25; accord, Chin & Holmes 708 (“A growing number of states require advice about deportation by statute or court rule”). A nonconstitutional rule requiring trial judges to inform defendants on the record of the risk of adverse immigration consequences can ensure that a defendant receives needed information without putting a large number of criminal convictions at risk; and because such a warning would be given on the record, courts would not later have to determine whether the defendant was misrepresenting the advice of counsel. Likewise, flexible statutory procedures for withdrawing guilty pleas might give courts appropriate discretion to determine whether the interests of justice would be served by allowing a particular defendant to withdraw a plea entered into on the basis of incomplete information. Cf. United States v. Russell, 686 F. 2d 35, 39-40 (CADC 1982) (explaining that a district court’s discretion to set aside a guilty plea under the Federal Rules of Criminal Procedure should be guided by, among other considerations, “the possible existence of prejudice to the government’s case as a result of the defendant’s untimely request to stand trial” and “the strength of the defendant’s reason for withdrawing the plea, including whether the defendant asserts his innocence of the charge”).
Fourth, the Court’s decision marks a major upheaval in Sixth Amendment law. This Court decided Strickland in 1984, but the majority does not cite a single case, from this or any other federal court, holding that criminal defense counsel’s failure to provide advice concerning the removal consequences of a criminal conviction violates a defendant’s Sixth Amendment right to counsel. As noted above, the Court’s view has been rejected by every Federal Court of Appeals to have considered the issue thus far. See, e.g., Gonzalez, 202 F. 3d, at 28; Banda, 1 F. 3d, at 355; Chin & Holmes 697, 699. The majority appropriately acknowledges that the lower courts are “now quite experienced with applying Strickland,” ante, at 14, but it casually dismisses the longstanding and unanimous position of the lower federal courts with respect to the scope of criminal defense counsel’s duty to advise on collateral consequences.
The majority seeks to downplay its dramatic expansion of the scope of criminal defense counsel’s duties under the Sixth Amendment by claiming that this Court in Hill v. Lockhart, 474 U. S. 52 (1985), similarly “applied Strickland to a claim that counsel had failed to advise the client regarding his parole eligibility before he pleaded guilty.” Ante, at 14. That characterization of Hill obscures much more than it reveals. The issue in Hill was whether a criminal defendant’s Sixth Amendment right to counsel was violated where counsel misinformed the client about his eligibility for parole. The Court found it “unnecessary to determine whether there may be circumstances under which erroneous advice by counsel as to parole eligibility may be deemed constitutionally ineffective assistance of counsel, because in the present case we conclude that petitioner’s allegations are insufficient to satisfy the Strickland v. Washington requirement of `prejudice.’” 474 U. S., at 60. Given that Hill expressly and unambiguously refused to decide whether criminal defense counsel must avoid misinforming his or her client as to one consequence of a criminal conviction (parole eligibility), that case plainly provides no support whatsoever for the proposition that counsel must affirmatively advise his or her client as to another collateral consequence (removal). By the Court’s strange logic, Hill would support its decision here even if the Court had held that misadvice concerning parole eligibility does not make counsel’s performance objectively unreasonable. After all, the Court still would have “applied Strickland” to the facts of the case at hand.
While mastery of immigration law is not required by Strickland, several considerations support the conclusion that affirmative misadvice regarding the removal consequences of a conviction may constitute ineffective assistance.
First, a rule prohibiting affirmative misadvice regarding a matter as crucial to the defendant’s plea decision as deportation appears faithful to the scope and nature of the Sixth Amendment duty this Court has recognized in its past cases. In particular, we have explained that “a guilty plea cannot be attacked as based on inadequate legal advice unless counsel was not `a reasonably competent attorney’ and the advice was not `within the range of competence demanded of attorneys in criminal cases.’” Strickland, 466 U. S., at 687 (quoting McMann v. Richardson, 397 U. S. 759, 770, 771 (1970); emphasis added). As the Court appears to acknowledge, thorough understanding of the intricacies of immigration law is not “within the range of competence demanded of attorneys in criminal cases.” See ante, at 11 (“Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it”). By contrast, reasonably competent attorneys should know that it is not appropriate or responsible to hold themselves out as authorities on a difficult and complicated subject matter with which they are not familiar. Candor concerning the limits of one’s professional expertise, in other words, is within the range of duties reasonably expected of defense attorneys in criminal cases. As the dissenting judge on the Kentucky Supreme Court put it, “I do not believe it is too much of a burden to place on our defense bar the duty to say, `I do not know.’” 253 S. W. 3d 482, 485 (2008).
Second, incompetent advice distorts the defendant’s decisionmaking process and seems to call the fairness and integrity of the criminal proceeding itself into question. See Strickland, 466 U. S., at 686 (“In giving meaning to the requirement [of effective assistance of counsel], we must take its purpose—to ensure a fair trial—as the guide”). When a defendant opts to plead guilty without definitive information concerning the likely effects of the plea, the defendant can fairly be said to assume the risk that the conviction may carry indirect consequences of which he or she is not aware. That is not the case when a defendant bases the decision to plead guilty on counsel’s express misrepresentation that the defendant will not be removable. In the latter case, it seems hard to say that the plea was entered with the advice of constitutionally competent counsel—or that it embodies a voluntary and intelligent decision to forsake constitutional rights. See ibid. (“The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result”).
Third, a rule prohibiting unreasonable misadvice regarding exceptionally important collateral matters would not deter or interfere with ongoing political and administrative efforts to devise fair and reasonable solutions to the difficult problem posed by defendants who plead guilty without knowing of certain important collateral consequences.
Finally, the conclusion that affirmative misadvice regarding the removal consequences of a conviction can give rise to ineffective assistance would, unlike the Court’s approach, not require any upheaval in the law. As the Solicitor General points out, “[t]he vast majority of the lower courts considering claims of ineffective assistance in the plea context have [distinguished] between defense counsel who remain silent and defense counsel who give affirmative misadvice.” Brief for United States as Amicus Curiae 8 (citing cases). At least three Courts of Appeals have held that affirmative misadvice on immigration matters can give rise to ineffective assistance of counsel, at least in some circumstances.[ 18 ]And several other Circuits have held that affirmative misadvice concerning nonimmigration consequences of a conviction can violate the Sixth Amendment even if those consequences might be deemed “collateral.”[ 19 ] By contrast, it appears that no court of appeals holds that affirmative misadvice concerning collateral consequences in general and removal in particular can never give rise to ineffective assistance. In short, the considered and thus far unanimous view of the lower federal courts charged with administering Strickland clearly supports the conclusion that that Kentucky Supreme Court’s position goes too far.
In concluding that affirmative misadvice regarding the removal consequences of a criminal conviction may constitute ineffective assistance, I do not mean to suggest that the Sixth Amendment does no more than require defense counsel to avoid misinformation. When a criminal defense attorney is aware that a client is an alien, the attorney should advise the client that a criminal conviction may have adverse consequences under the immigration laws and that the client should consult an immigration specialist if the client wants advice on that subject. By putting the client on notice of the danger of removal, such advice would significantly reduce the chance that the client would plead guilty under a mistaken premise.
In sum, a criminal defense attorney should not be required to provide advice on immigration law, a complex specialty that generally lies outside the scope of a criminal defense attorney’s expertise. On the other hand, any competent criminal defense attorney should appreciate the extraordinary importance that the risk of removal might have in the client’s determination whether to enter a guilty plea. Accordingly, unreasonable and incorrect information concerning the risk of removal can give rise to an ineffectiveness claim. In addition, silence alone is not enough to satisfy counsel’s duty to assist the client. Instead, an alien defendant’s Sixth Amendment right to counsel is satisfied if defense counsel advises the client that a conviction may have immigration consequences, that immigration law is a specialized field, that the attorney is not an immigration lawyer, and that the client should consult an immigration specialist if the client wants advice on that subject.
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, dissenting.
In the best of all possible worlds, criminal defendants contemplating a guilty plea ought to be advised of all serious collateral consequences of conviction, and surely ought not to be misadvised. The Constitution, however, is not an all-purpose tool for judicial construction of a perfect world; and when we ignore its text in order to make it that, we often find ourselves swinging a sledge where a tack hammer is needed.
The Sixth Amendment guarantees the accused a lawyer “for his defense” against a “criminal prosecutio[n]“—not for sound advice about the collateral consequences of conviction. For that reason, and for the practical reasons set forth in Part I of JUSTICE ALITO’s concurrence, I dissent from the Court’s conclusion that the Sixth Amendment requires counsel to provide accurate advice concerning the potential removal consequences of a guilty plea. For the same reasons, but unlike the concurrence, I do not believe that affirmative misadvice about those consequences renders an attorney’s assistance in defending against the prosecution constitutionally inadequate; or that the Sixth Amendment requires counsel to warn immigrant defendants that a conviction may render them removable. Statutory provisions can remedy these concerns in a more targeted fashion, and without producing permanent, and legislatively irreparable, overkill.
* * *
The Sixth Amendment as originally understood and ratified meant only that a defendant had a right to employ counsel, or to use volunteered services of counsel. See, United States v. Van Duzee, 140 U. S. 169, 173 (1891); W. Beaney, Right to Counsel in American Courts 21, 28-29 (1955). We have held, however, that the Sixth Amendment requires the provision of counsel to indigent defendants at government expense, Gideon v. Wainwright, 372 U. S. 335, 344-345 (1963), and that the right to “the assistance of counsel” includes the right to effective assistance, Strickland v. Washington, 466 U. S. 668, 686 (1984). Even assuming the validity of these holdings, I reject the significant further extension that the Court, and to a lesser extent the concurrence, would create. We have until today at least retained the Sixth Amendment’s textual limitation to criminal prosecutions. “[W]e have held that `defence’ means defense at trial, not defense in relation to other objectives that may be important to the accused.” Rothgery v. Gillespie County, 554 U. S. ___, ___ (2008) (ALITO, J., concurring) (slip op., at 4) (summarizing cases). We have limited the Sixth Amendment to legal advice directly related to defense against prosecution of the charged offense—advice at trial, of course, but also advice at postindictment interrogations and lineups, Massiah v. United States, 377 U. S. 201, 205-206 (1964); United States v. Wade, 388 U. S. 218, 236-238 (1967), and in general advice at all phases of the prosecution where the defendant would be at a disadvantage when pitted alone against the legally trained agents of the state, see Moran v. Burbine, 475 U. S. 412, 430 (1986). Not only have we not required advice of counsel regarding consequences collateral to prosecution, we have not even required counsel appointed to defend against one prosecution to be present when the defendant is interrogated in connection with another possible prosecution arising from the same event. Texas v. Cobb, 532 U. S. 162, 164 (2001).
There is no basis in text or in principle to extend the constitutionally required advice regarding guilty pleas beyond those matters germane to the criminal prosecution at hand—to wit, the sentence that the plea will produce, the higher sentence that conviction after trial might entail, and the chances of such a conviction. Such matters fall within “the range of competence demanded of attorneys in criminal cases,” McMann v. Richardson, 397 U. S. 759, 771 (1970). See id., at 769-770 (describing the matters counsel and client must consider in connection with a contemplated guilty plea). We have never held, as the logic of the Court’s opinion assumes, that once counsel is appointed all professional responsibilities of counsel—even those extending beyond defense against the prosecution— become constitutional commands. Cf. Cobb, supra, at 171, n. 2; Moran, supra, at 430. Because the subject of the misadvice here was not the prosecution for which Jose Padilla was entitled to effective assistance of counsel, the Sixth Amendment has no application.
Adding to counsel’s duties an obligation to advise about a conviction’s collateral consequences has no logical stopping-point. As the concurrence observes,
“[A] criminal convictio[n] can carry a wide variety of consequences other than conviction and sentencing, including civil commitment, civil forfeiture, the loss of the right to vote, disqualification from public benefits, ineligibility to possess firearms, dishonorable discharge from the Armed Forces, and loss of business or professional licenses. . . . All of those consequences are `serious,’ . . . .” Ante, at 2-3 (ALITO, J., concurring in judgment).
But it seems to me that the concurrence suffers from the same defect. The same indeterminacy, the same inability to know what areas of advice are relevant, attaches to misadvice. And the concurrence’s suggestion that counsel must warn defendants of potential removal consequences, see ante, at 14-15—what would come to be known as the “Padilla warning”—cannot be limited to those consequences except by judicial caprice. It is difficult to believe that the warning requirement would not be extended, for example, to the risk of heightened sentences in later federal prosecutions pursuant to the Armed Career Criminal Act, 18 U. S. C. §924(e). We could expect years of elaboration upon these new issues in the lower courts, prompted by the defense bar’s devising of ever-expanding categories of plea-invalidating misadvice and failures to warn—not to mention innumerable evidentiary hearings to determine whether misadvice really occurred or whether the warning was really given.
The concurrence’s treatment of misadvice seems driven by concern about the voluntariness of Padilla’s guilty plea. See ante, at 12. But that concern properly relates to the Due Process Clauses of the Fifth and Fourteenth Amendments, not to the Sixth Amendment. See McCarthy v. United States, 394 U. S. 459, 466 (1969); Brady v. United States, 397 U. S. 742, 748 (1970). Padilla has not argued before us that his guilty plea was not knowing and voluntary. If that is, however, the true substance of his claim (and if he has properly preserved it) the state court can address it on remand.[ 20 ] B u t w e s h o u l dn o t s m u g g l e t h e claim into the Sixth Amendment.
The Court’s holding prevents legislation that could solve the problems addressed by today’s opinions in a more precise and targeted fashion. If the subject had not been constitutionalized, legislation could specify which categories of misadvice about matters ancillary to the prosecution invalidate plea agreements, what collateral consequences counsel must bring to a defendant’s attention, and what warnings must be given.[ 21 ] Moreover, legislation could provide consequences for the misadvice, nonadvice, or failure to warn, other than nullification of a criminal conviction after the witnesses and evidence needed for retrial have disappeared. Federal immigration law might provide, for example, that the near-automatic removal which follows from certain criminal convictions will not apply where the conviction rested upon a guilty plea induced by counsel’s misadvice regarding removal consequences. Or legislation might put the government to a choice in such circumstances: Either retry the defendant or forgo the removal. But all that has been precluded in favor of today’s sledge hammer.
In sum, the Sixth Amendment guarantees adequate assistance of counsel in defending against a pending criminal prosecution. We should limit both the constitutional obligation to provide advice and the consequences of bad advice to that well defined area.
1. Padilla’s crime, like virtually every drug offense except for only the most insignificant marijuana offenses, is a deportable offense under 8 U. S. C. §1227(a)(2)(B)(i).
2. In 1907, Congress expanded the class of excluded persons to include individuals who “admit” to having committed a crime of moral turpitude. Act of Feb. 20, 1907, ch. 1134, 34 Stat. 899.
3. As enacted, the statute provided:
“That the provision of this section respecting the deportation of aliens convicted of a crime involving moral turpitude shall not apply to one who has been pardoned, nor shall such deportation be made or directed if the court, or judge thereof, sentencing such alien for such crime shall, at the time of imposing judgment or passing sentence or within thirty days thereafter, . . . make a recommendation to the Secretary of Labor that such alien shall not be deported in pursuance of this Act.” 1917 Act, 39 Stat. 889-890.
This provision was codified in 8 U. S. C. §1251(b) (1994 ed.) (transferred to §1227 (2006 ed. )). The judge’s nondeportation recommendation was binding on the Secretary of Labor and, later, the Attorney General after control of immigration removal matters was transferred from the former to the latter. See Janvier v. United States, 793 F. 2d 449, 452 (CA2 1986).
4. Congress first identified narcotics offenses as a special category of crimes triggering deportation in the 1922 Narcotic Drug Act. Act of May 26, 1922, ch. 202, 42 Stat. 596. After the 1922 Act took effect, there was some initial confusion over whether a narcotics offense also had to be a crime of moral turpitude for an individual to be deportable. See Weedin v. Moy Fat, 8 F. 2d 488, 489 (CA9 1925) (holding that an individual who committed narcotics offense was not deportable because offense did not involve moral turpitude). However, lower courts eventually agreed that the narcotics offense provision was “special,” Chung
5. The Act separately codified the moral turpitude offense provision and the narcotics offense provision within 8 U. S. C. §1251(a) (1994 ed.) under subsections (a)(4) and (a)(11), respectively. See 66 Stat. 201, 204, 206. The JRAD procedure, codified in 8 U. S. C. §1251(b) (1994 ed.), applied only to the “provisions of subsection (a)(4),” the crimes-of-moralturpitude provision. 66 Stat. 208; see United States v. O’Rourke, 213 F. 2d 759, 762 (CA8 1954) (recognizing that, under the 1952 Act, narcotics offenses were no longer eligible for JRADs).
6. The changes to our immigration law have also involved a change in nomenclature; the statutory text now uses the term “removal” rather than “deportation.” See Calcano-Martinez v. INS, 533 U. S. 348, 350, n. 1 (2001).
7. See Brief for Asian American Justice Center et al. as Amici Curiae 12-27 (providing real-world examples).
8. There is some disagreement among the courts over how to distinguish between direct and collateral consequences. See Roberts, Ignorance is Effectively Bliss: Collateral Consequences, Silence, and Misinformation in the Guilty-Plea Process, 95 Iowa L. Rev. 119, 124, n. 15 (2009). The disagreement over how to apply the direct/collateral distinction has no bearing on the disposition of this case because, as even JUSTICE ALITO agrees, counsel must, at the very least, advise a noncitizen “defendant that a criminal conviction may have adverse immigration consequences,” post, at 1 (opinion concurring in judgment). See also post, at 14 (“I do not mean to suggest that the Sixth Amendment does no more than require defense counsel to avoid misinformation”). In his concurring opinion, JUSTICE ALITO has thus departed from the strict rule applied by the Supreme Court of Kentucky and in the two federal cases that he cites, post, at 2.
9. See, e.g., United States v. Gonzalez, 202 F. 3d 20 (CA1 2000); United States v. Del Rosario, 902 F. 2d 55 (CADC 1990); United States v. Yearwood, 863 F. 2d 6 (CA4 1988); Santos-Sanchez v. United States, 548 F. 3d 327 (CA5 2008); Broomes v. Ashcroft, 358 F. 3d 1251 (CA10 2004); United States v. Campbell, 778 F. 2d 764 (CA11 1985); Oyekoya v. State, 558 So. 2d 990 (Ala. Ct. Crim. App. 1989); State v. Rosas, 183 Ariz. 421, 904 P. 2d 1245 (App. 1995); State v. Montalban, 2000-2739 (La. 2/26/02), 810 So. 2d 1106; Commonwealth v. Frometa, 520 Pa. 552, 555 A. 2d 92 (1989).
10. As JUSTICE ALITO explains at length, deportation consequences are often unclear. Lack of clarity in the law, however, does not obviate the need for counsel to say something about the possibility of deportation, even though it will affect the scope and nature of counsel’s advice.
11. As the Commonwealth conceded at oral argument, were a defendant’s lawyer to know that a particular offense would result in the client’s deportation and that, upon deportation, the client and his family might well be killed due to circumstances in the client’s home country, any decent attorney would inform the client of the consequences of his plea. Tr. of Oral Arg. 37-38. We think the same result should follow when the stakes are not life and death but merely “banishment or exile,” Delgadillo v. Carmichael, 332 U. S. 388, 390-391 (1947).
12. However, we concluded that, even though Strickland applied to petitioner’s claim, he had not sufficiently alleged prejudice to satisfy Strickland‘s second prong. Hill, 474 U. S., at 59-60. This disposition further underscores the fact that it is often quite difficult for petitioners who have acknowledged their guilt to satisfy Strickland‘s prejudice prong.
JUSTICE ALITO believes that the Court misreads Hill, post, at 10-11. In Hill, the Court recognized—for the first time—that Strickland applies to advice respecting a guilty plea. 474 U. S., at 58 (“We hold, therefore, that the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel”). It is true that Hill does not control the question before us. But its import is nevertheless clear. Whether Strickland applies to Padilla’s claim follows from Hill, regardless of the fact that the Hill Court did not resolve the particular question respecting misadvice that was before it.
13. See Dept. of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics 2003, p. 418 (31st ed. 2005) (Table 5.17) (only approximately 5%, or 8,612 out of 68,533, of federal criminal prosecutions go to trial); id., at 450 (Table 5.46) (only approximately 5% of all state felony criminal prosecutions go to trial).
14. See V. Flango, National Center for State Courts, Habeas Corpus in State and Federal Courts 36-38 (1994) (demonstrating that 5% of defendants whose conviction was the result of a trial account for approximately 70% of the habeas petitions filed).
15. To this end, we find it significant that the plea form currently used in Kentucky courts provides notice of possible immigration consequences. K y . A d m i n .O f f i c eo f C ourts, Motion to Enter Guilty Plea, Form AOC-491 (Rev. 2/2003), http://courts.ky.gov/NR/rdonlyres/55E1F54E-ED5C-4A30-B1D5-4C43C7ADD63C/0/491.pdf (as visited Mar. 29, 2010, and available in Clerk of Court’s case file). Further, many States require trial courts to advise defendants of possible immigration consequences. See, e.g., Alaska Rule Crim. Proc. 11(c)(3)(C) (2009-2010); Cal. Penal Code Ann. §1016.5 (West 2008); Conn. Gen. Stat. §54-1j (2009); D. C. Code §16-713 (2001); Fla. Rule Crim. Proc. 3.172(c)(8) (Supp. 2010); Ga. Code Ann. §17-7-93(c) (1997); Haw. Rev. Stat. Ann. §802E-2 (2007); Iowa Rule Crim. Proc. 2.8(2)(b)(3) (Supp. 2009); Md. Rule 4-242 (Lexis 2009); Mass. Gen. Laws, ch. 278, §29D (2009); Minn. Rule Crim. Proc. 15.01 (2009); Mont. Code Ann. §46-12-210 (2009); N. M. Rule Crim. Form 9-406 (2009); N. Y. Crim. Proc. Law Ann. §220.50(7) (West Supp. 2009); N. C. Gen. Stat. Ann. §15A-1022 (Lexis 2007); Ohio Rev. Code Ann. §2943.031 (West 2006); Ore. Rev. Stat. §135.385 (2007); R. I. Gen. Laws §12-12-22 (Lexis Supp. 2008); Tex. Code. Ann. Crim. Proc., Art. 26.13(a)(4) (Vernon Supp. 2009); Vt. Stat. Ann., Tit. 13, §6565(c)(1) (Supp. 2009); Wash. Rev. Code §10.40.200 (2008); Wis. Stat. §971.08 (2005-2006).
1. Citizens are not deportable, but “[q]uestions of citizenship are not always simple.” ABA Guidebook §4.20, at 113 (explaining that U.S. citizenship conferred by blood is “`derivative,’” and that “[d]erivative citizenship depends on a number of confusing factors, including whether the citizen parent was the mother or father, the immigration laws in effect at the time of the parents’ and/or defendant’s birth, and the parents’ marital status”).
2. “A disposition that is not a `conviction,’ under state law may still be a `conviction’ for immigration purposes.” Id., §4.32, at 117 (citing Matter of Salazar, 23 I. & N. Dec. 223, 231 (BIA 2002) (en banc)). For example, state law may define the term “conviction” not to include a deferred adjudication, but such an adjudication would be deemed a conviction for purposes of federal immigration law. See ABA Guidebook §4.37; accord, D. Kesselbrenner & L. Rosenberg, Immigration Law and Crimes §2:1, p. 2-2 (2008) (hereinafter Immigration Law and Crimes) (“A practitioner or respondent will not even know whether the Department of Homeland Security (DHS) or the Executive Office for Immigration Review (EOIR) will treat a particular state disposition as a conviction for immigration purposes. In fact, the [BIA] treats certain state criminal dispositions as convictions even though the state treats the same disposition as a dismissal”).
3. See United States v. Kwan, 407 F. 3d 1005, 1015-1017 (CA9 2005); United States v. Couto, 311 F. 3d 179, 188 (CA2 2002); Downs-Morgan v. United States, 765 F. 2d 1534, 1540-1541 (CA11 1985) (limiting holding to the facts of the case); see also Santos-Sanchez v. United States, 548 F. 3d 327, 333-334 (CA5 2008) (concluding that counsel’s advice was not objectively unreasonable where counsel did not purport to answer questions about immigration law, did not claim any expertise in immigration law, and simply warned of “possible” deportation consequence; use of the word “possible” was not an affirmative misrepresentation, even though it could indicate that deportation was not a certain consequence).
4. See Hill v. Lockhart, 894 F. 2d 1009, 1010 (CA8 1990) (en banc) (“[T]he erroneous parole-eligibility advice given to Mr. Hill was ineffective assistance of counsel under Strickland v. Washington“); Sparks v. Sowders, 852 F. 2d 882, 885 (CA6 1988) (“[G]ross misadvice concerning parole eligibility can amount to ineffective assistance of counsel”); id., at 886 (KENNEDY, J., concurring) (“When the maximum possible exposure is overstated, the defendant might well be influenced to accept a plea agreement he would otherwise reject”); Strader v. Garrison, 611 F. 2d 61, 65 (CA4 1979) (“[T]hough parole eligibility dates are collateral consequences of the entry of a guilty plea of which a defendant need not be informed if he does not inquire, when he is grossly misinformed about it by his lawyer, and relies upon that misinformation, he is deprived of his constitutional right to counsel”).
1. I do not mean to suggest that the Due Process Clause would surely provide relief. We have indicated that awareness of “direct consequences” suffices for the validity of a guilty plea. See Brady, 397 U. S., at 755 (internal quotation marks omitted). And the required colloquy between a federal district court and a defendant required by Federal Rule of Criminal Procedure 11(b) (formerly Rule 11(c)), which we have said approximates the due process requirements for a valid plea, see Libretti v. United States, 516 U. S. 29, 49-50 (1995), does not mention collateral consequences. Whatever the outcome, however, the effect of misadvice regarding such consequences upon the validity of a guilty plea should be analyzed under the Due Process Clause.
2. As the Court’s opinion notes, ante, at 16-17, n. 15, many States— including Kentucky—already require that criminal defendants be warned of potential removal consequences.