Archive for March, 2011

The Legislative Ethics Commission costs taxpayers $500,000 a year and has dismissed 20 of 21 complaints in the last decade. In current budget crisis this is a good place to start cutting.

Monday, March 7th, 2011

By LawReader  Senior Editor Stan Billingsley        March 7, 2011

  The existing Legislative Ethics Commission (LEC) costs taxpayers $238,095 per complaint.  An average of two ethics complaints a year have been filed against legislators since 2000. 

Over the last decade the one complaint upheld resulted in a $500 fine.  Since all other complaints were dismissed this one conviction cost taxpayers $5,000,000 dollars.

(Author’s note: LEGISLATIVE ETHICS COMMISSION DIRECTOR TONY WILHOITE TAKES EXCEPTION TO LAWREADER ARTICLE – Defends LEC   Read Story)

   In 1996 the then existing Legislative body dealing with ethics complaints of legislators was largely independent and was very active.  In 1996 the Legislature changed the makeup in the way members were appointed and enacted a criminal provision that subjected any person who filed an ethics complaint with a criminal misdemeanor charge if it was deemed to be “false”.

   “Originally, ethics commissioners were independently nominated by the attorney general, the state auditor, the Judicial Retirement and Removal Commission and the Kentucky Registry of Election Finance.”  (Herald-Leader)

Under the current system for selecting Legislative Ethics Commission members, the Speaker of the House appoints three members, the Senate President appoints three and one is selected by the LRC.

The LEC Chairman has been quoted as saying the LEC is now an “advisory” body. This would appear to repeal the investigative and punitive powers of the LEC.

Reports circulate. that the Legislature is seeking to make it a felony offense to file a false complaint against a Legislator.   

   The Judicial Conduct Commission receives an average of 100 cases a year.   Most of these are frivolous and were dismissed, but many resulted in sanctions and in some cases removal from office of judges.  

The members of the Judicial Conduct Commission were volunteers and received a nominal fee for attending actual hearings and for compensation for mileage.  The JCC oversees about 250 judges and judicial officers.   Over the last decade they have handled some 1,000 cases, while the LEC has handled 21 cases. 

We cite the example of the Judicial Conduct Commission as being the way such a body can be operated without excessive cost to the taxpayer.

 In these times of budgetary constraints, we can think of no better way to cut waste and abuse of taxpayer money than to eliminate the LEC, since it produces virtually no results, and merely obscures the Wizard behind the curtain. 

The most offending thing about the LEC is that they brook no criticism.  John M. Berry, Jr., acting as a citizen in 2007 wrote them a letter critical of their dismissal of an ethics complaint filed by Common Cause.  In his letter he presented a legal argument questioning their legal reasoning for dismissal of the complaint.   Since Berry was a lawyer, a complaint found its way to the KBA and they began a two year ethics investigation of Berry for writing his letter.

The investigation resulted in the issuance of a non-appealable Warning Letter which called Berry’s letter “inappropriate”.  We believe that the KBA clearly intended to warn Berry and other lawyers to keep their opinions to themselves. (i.e. Lawyers don’t have the right of free speech.)

 Berry and the ACLU have sued the KBA from infringement of free speech rights of lawyers, and a decision is pending in Federal Court in Frankfort.

The following articles have been published on the internet regarding activities of the Legislative Ethics Commission.

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ETHICS COMPLAINTS RARELY END IN DISCIPLINE

By John Cheves — jcheves@herald-leader.com

Posted: 12:00am on Oct 18, 2009; Modified: 2:43pm on Jan 3, 2011

FRANKFORT — Kentucky spends close to $500,000 a year on a Legislative Ethics Commission that has dismissed 20 of 21 ethics complaints filed against legislators over the past decade.

The nine-member commission — chosen by the House speaker and Senate president — says it seldom needs to punish legislators because they faithfully obey the ethics laws. In fact, its chairman says he’ll lobby for tougher criminal penalties against citizens who file complaints that seem frivolous or politically based.

An average of two ethics complaints a year have been filed against legislators since 2000. They typically allege that legislators used their public office to benefit themselves privately or that they improperly raised campaign funds from interest groups or lobbyists.

The public can be too cynical about its legislature, said Anthony Wilhoit, who the legislature pays $117,540 a year as the commission’s executive director.

“I’m not saying that nobody does anything wrong in our General Assembly,” Wilhoit said. “But the FBI has been investigating legislatures in other states, not here. You tell me why that is.”

However, some critics — including former ethics commissioners and staff — say the agency became a toothless watchdog when legislators remade it in 1996.

In the three years before that, the commission opened nearly 30 investigations, mostly on its own initiative, leading to reprimands and other punishments. Now, virtually nothing happens unless a citizen files a complaint.

“They don’t take any actions or seriously pursue any investigations anymore,” said Charles Luker, a retired circuit court judge who served on the panel until 1996. “The ethics commission was a good idea, but it didn’t amount to anything in the end. The legislature really didn’t want to be watched.”

One of the legislature’s advocates for cleaner government, Rep. Jim Wayne, D-Louisville, said lawmakers call the commission for advice, such as whether it’s acceptable to vote on a bill that could profit them personally or take a free trip from an interest group.

Wayne said the commission sometimes applies a lower standard to these queries than he prefers. He said he has ignored the commission’s thumbs-up and abstained from votes or rejected trips based on his own moral code.

Part of the problem is Kentucky’s ethics laws, which permit behavior from legislators that strikes most citizens as questionable, Wayne said.

The state constitution forbids lawmakers from acting on bills in which they hold a personal interest. But various legal interpretations have said that they can push legislation that benefits them personally as long as it could benefit others as well.

So a car dealer in the House can sponsor bills that help car dealers, and a senator can fund a state project and then privately win contracts from that project back home. The Herald-Leader reported last year that more than one in five lawmakers sponsored measures that would directly benefit their outside businesses, investments, employers or industries.

Many legislators defend the practice by arguing that they are part-time citizen-lawmakers, entitled to make a living just as anyone else is.

But these frequent conflicts of interest erode confidence in the ethics commission, Wayne said.

“A lot of the time, actions that would be perceived by the public as clearly unethical are not found to be violations by the ethics commission because they set the bar so low for us,” he said.

Senate President David Williams said he has no problem with the ethics commission. But he agrees that the ethics laws should be tightened to prevent lawmakers from enjoying private-sector deals that are tied to their actions in the General Assembly.

“I would like to put in restrictions,” said Williams, R-Burkesville. “I don’t think members of the legislature should be hired by state universities, which we fund, for instance. I have problems with members doing public bond work when they’re directly involved in state appropriations on public projects.”

Ethics law backlash

The legislature established the ethics commission in 1993 in response to the Operation BOPTROT scandal that exposed 15 current or former lawmakers selling their votes.

Originally, ethics commissioners were independently nominated by the attorney general, the state auditor, the Judicial Retirement and Removal Commission and the Kentucky Registry of Election Finance. Several retired judges ended up on the panel.

The commission could pursue whatever it chose — acting on anonymous tips or stories it read in the newspaper — and it was not shy.

It opened nearly 30 investigations in three years. Two led to public reprimands and five to private reprimands. It sent one case — the failure of Rep. Richard Turner, R-Tompkinsville, to report $3,000 he took from a lobbyist — to the House for further action. The House stripped Turner of a committee seat and ordered him to publicly apologize.

By the time the 1996 General Assembly began, lawmakers were complaining about the scrutiny. They voted to change the commission.

First, they changed the makeup of the panel, eliminating outside nominations. Now House and Senate leaders can name who they want. In recent years, they chose former legislators (Ray White and Pat Freibert), political party activists (Bob Fulkerson) and major campaign contributors with whom they are acquainted (Deborah Jo Durr and Norma Scott, who with their husbands paid about $250,000 combined in political donations before joining the commission).

Second, they prohibited the commission from opening an investigation unless a citizen files a signed, notarized complaint. (In rare instances, the commission’s enforcement counsel will file a complaint himself.) Citizens are warned that a knowingly false complaint is a crime that can bring a year in jail; they are asked to travel to Frankfort to appear at hearings.

Almost overnight, tips about legislators dried up, said Earl Mackey, the commission’s original executive director. Mackey, a former Missouri lawmaker, had been hired after running the National Conference of State Legislatures.

“Most people are extremely reluctant to come in and sign their name to a complaint against someone who may be very powerful in their community, someone who may control the flow of money locally,” Mackey said. “There is a very real possibility of reprisal.”

“Now the ethics commission can sit there and do nothing in the face of legislative scandals and say, ‘Well, nobody swore out a complaint to us,’” he said.

Mackey and most of the commission resigned to protest the changes.

“They emasculated us when they changed the law,” said Luker, a commissioner until then. “They removed any authority we had to do anything.”

Originally, Kentucky had perhaps the strictest state legislative ethics laws in the country, said University of Florida political scientist Beth Rosenson, who published a book in 2005 called The Shadowlands of Conduct: Ethics and State Politics.

By so quickly eroding the ethics commission, Kentucky went against the general trend of states toughening their laws over time.

“I remember thinking it was pretty extreme and (gutsy) of the legislature to do that,” Rosenson said.

Less prosecution

Since 2000, the commission has dismissed nearly all ethics complaints filed against legislators, including House Speaker Greg Stumbo, D-Prestonsburg, and Williams, the Senate president.

The sole sanctioned lawmaker was Rep. Tom Burch, D-Louisville, who early this year fined $500 for using his House letterhead to contact judges in a parental-rights case. Burch acted “contrary to the public interest,” the commission ruled. However, even as it fined him, it praised him for having “good intentions to help a person in need.”

“Your efforts are to be commended,” commission chairman George Troutman told Burch at the hearing. “But sometimes the way you go about them causes problems.”

The commission, which has a full-time staff of four and rented offices just outside Frankfort, describes its role as more education and less prosecution. The constant investigations of the commission’s early days were a mistake, Troutman said last week.

“BOPTROT happened and there was an immediate overreaction,” Troutman said. “They went pretty far with the ethics law.”

“It’s not our job to go out and try to seek out these complaints, to look for problems, any more than it’s a judge’s job to seek out criminal offenses,” he said.

Commissioners point to an ethics seminar on state laws that they host for lawmakers at the start of legislative sessions. Guest speakers are flown in from around the country, including political scientist Norman Ornstein in 2007. The commission paid him $5,000.

The law mandates that legislators attend. But many skip the seminar. The year that Ornstein spoke, for example, more than one-third of the Senate missed some or all of the seminar.

Asked at the time about absent lawmakers, Wilhoit said, “We certainly would prefer that people be physically present.” Still, they can borrow tapes of the seminars and listen to them later, he said.

Legislative leaders say they’re satisfied with the commission and think the lack of punitive action is proof of their ethical behavior.

“The General Assembly operates under some of the most stringent ethics rules in the nation,” Stumbo said. “The main reason why there have been few complaints is because Wilhoit and his board and staff have always been accessible to all legislators and have helped steer them down the correct path.”

Read more: http://www.kentucky.com/2009/10/18/981948/ethics-complaints-rarely-end-in.html#ixzz1Fvswv0jP

 

 

http://www.bluebluegrass.com/2009/10/19/legislative-ethics-commission-examined/

 

Legislative Ethics Commission Examined

Posted on October 19, 2009, 5:59 am by Bob

Three weeks ago, a post here echoed the question asked in a Lexington Herald-Leader editorial about the Legislative Ethics Commission: “Why Bother?” The question was asking, why even bother having a Legislative Ethics Commission, in light of the questionable conduct approved of earlier this year by that commission.

Yesterday, the Herald-Leader’s John Cheves did an excellent job of reviewing the half-million dollar a year spent on the Legislative Ethics Commission. Cheves points out that only one time in the past 10 years was a violation found, and there a $500 fine was apologetically issued. The initial reform after BOPTROT that brought the creation of the Commission, and the backlash in 1996 after the Commission actually held legislators responsible for abiding by ethical standards of conduct, and also points out how the Commission was eliminated in everything but name in 1997, with mass resignations in protest of the unethical use of the Ethics Commission.

Cheves reports:

By the time the 1996 General Assembly began, lawmakers were complaining about the scrutiny. They voted to change the commission.
First, they changed the makeup of the panel, eliminating outside nominations. Now House and Senate leaders can name who they want. In recent years, they chose former legislators (Ray White and Pat Freibert), political party activists (Bob Fulkerson) and major campaign contributors with whom they are acquainted (Deborah Jo Durr and Norma Scott, who with their husbands paid about $250,000 combined in political donations before joining the commission).
Second, they prohibited the commission from opening an investigation unless a citizen files a signed, notarized complaint. (In rare instances, the commission’s enforcement counsel will file a complaint himself.) Citizens are warned that a knowingly false complaint is a crime that can bring a year in jail; they are asked to travel to Frankfort to appear at hearings.
Almost overnight, tips about legislators dried up, said Earl Mackey, the commission’s original executive director. Mackey, a former Missouri lawmaker, had been hired after running the National Conference of State Legislatures.
“Most people are extremely reluctant to come in and sign their name to a complaint against someone who may be very powerful in their community, someone who may control the flow of money locally,” Mackey said. “There is a very real possibility of reprisal.”
“Now the ethics commission can sit there and do nothing in the face of legislative scandals and say, ‘Well, nobody swore out a complaint to us,’” he said.
Mackey and most of the commission resigned to protest the changes.
“They emasculated us when they changed the law,” said Luker, a commissioner until then. “They removed any authority we had to do anything.”

Given that the unethical legislator can threaten sending anyone who files a complaint against them to prison, and that the complaint must be notarized and that the complainant is required to travel and be present in Frankfort for proceedings, there is a better, more reasonable and more honest oversight for the average citizen to consider:

Go to the local courthouse, present the facts to the pretrial services office and ask if a criminal charge of official misconduct can be filed against the legislator; or, if the local prosecutor is too close to the legislator, consider asking the same question in Franklin County. While that will still present the possibility of a legislator being politically protected, at least there are two locations the charge will be considered in, and the complaining witness is not required to be present at every step of the prosecution. Further, unlike the Commission, the statutes written allowing for criminal prosecution not only carry criminal penalties, but they are not designed to punish the complaining party.

Another question raised by the lack of ethical behavior the past 12 years: Has the U.S. Attorney properly reviewed prosecution of any of these cases? No such complaint filing is required for federal prosecution, which historically was the one impartial avenue for justice, no matter how powerful the accused was.

http://www.bluebluegrass.com/2009/09/28/ethics-why-bother-indeed/

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Mongiardo’s Macaca Moment →

Ethics – Why Bother Indeed?

Posted on September 28, 2009, 7:00 am by Bob

The editorial in the Lexington Herald-Leader asks the ultimate rhetorical question:

One question begs to be asked of Kentucky’s Legislative Ethics Commission: Why bother?

If an artful arrangement with Madison County is all it takes for Senate Minority Leader Ed Worley to get around a law that bars legislators from selling or leasing property to a state agency, why bother having ethics laws or, indeed, an ethics commission?

“The law provides no penalty for the appearance of impropriety,” the commission order said, “but if it did, the respondent could well be penalized on the facts before us.”
But then, the commission’s response always seems to be “Tut-tut” when investigating potential conflicts of interest by lawmakers. It has not upheld any such allegations in a dozen years. Based on the commission’s failure to gig Worley in a case that cried out “conflict of interest,” those past outcomes are hardly surprising.
They also beg the question: Why bother?

In reality, it’s a trick question. There is no reason to bother. The answer is found in the question. The Herald-Leader notes that the commission has not upheld any such allegations in a dozen years. And that timeframe of a dozen years provides the answer.

In fairness, Worley is just the latest in an fantastically long unbroken string of legislators reaching back over the past dozen years to be told that no matter what has occurred or been proposed, they have not violated any rules of the ethics commission. This summer, for example, it was dental hygienist and Republican state senator Julie Denton who was hired by a Florida company that sought for Medicaid through the spectacularly top-heavy health care plan known as Passport to give it a $20 million contract. Denton was hired by that company at the exact same time it got the contract for $20 million, to represent the company at state hearings where people appeal denial of services.

As the Broward Palm Beach New Times noted in July, “it’s one humdinger of a coincidence that Denton began her work with MCNA earlier this month, not long after MCNA won its contract.”

Leaving aside the potential issue of Denton’s unauthorized practice of law (by representing a corporation in a formal administrative hearing), in discussing the underlying conflict issue, the Courier-Journal’s editorial asked—isn’t it quite clear that she has no business simultaneously working for MCNA and running the committee that assesses Medicaid performance, including the quality of Passport services? If that isn’t a conflict, then Donald isn’t a Duck.

Back to that reference to no violations being found in the past dozen years: In 1991 and 1992, Operation BOPTROT occurred. It was an investigation by the FBI into corruption among the Kentucky General Assembly which led to the conviction of more than a dozen legislators between 1992 and 1995. The investigation also led to reform legislation being passed in 1993. That scandal-inspired legislation established the Legislative Ethics Commission.

Which was fine, until the Commission actually began prosecuting legislators for ethical violations. Fast forward to 1996. The legislature decided enough time had passed, and radically reduced the authority of the Legislative Ethics Commission. Five of the original Legislative Ethics Commission Members and the Executive Director resigned in protest. Those leaving in 1997 included retired Fayette Circuit Judge George Barker, and the Executive Director of the Commmission, Earl Mackey, who stated in his resignation letter that he had “great energy for true ethics reform but little interest or energy for dismantling” the ethics code, calling the 1996 amendments a swift ‘’counterattack from defenders of the old political culture.’’

In 1997, the new Commission chairman was extremely blunt about whether ethics would be prosecuted. Chairman Charles Lester expected to see education, not prosecution. Lester told a seminar of legislators that he did not see the commission having a primary prosecutorial function, althought that could happen in a few cases.

Lester was right about the commission not prosecuting. Ever. That year, in 1997, Kentucky Court of Appeals Chief Judge Anthony Wilhoit was named to replace Mackey as the Executive Director of the Commission. The next year found Wilhoit meeting with civic groups to try to restore confidence in the Legislative Ethics Commission, but the damage was permanent and powerful. For the past 12 years, there have been no prosecution by the Legislative Ethics Commission.

Examination or criticism of any individual legislator has accomplished nothing. The only possible focus is on the larger picture: because of the lack of authority given the overseeing institution of the Legislative Ethics Commission, ethical controversies have continued nonstop for the past 12 years. Realizing how the Legislative Ethics Commission was created and then effectively destroyed in the space of a few short years in the 1990s, the question has no answer:

Why bother indeed?

Until another BOPTROT occurs, it is extremely unlikely any modifying legislation will be considered

Fascinating History of Lincoln’s Inauguration

Monday, March 7th, 2011

 March 6, 2011,

 The First Trick

By JAMIE MALANOWSKI

Disunion follows the Civil War as it unfolded.

Lincoln’s inauguration, President Buchanan

March 2–9, 1861

Library of Congress

President-elect Lincoln and President Buchanan (tipping his hat) at the base of the Capitol grounds on their way to Lincoln’s first inauguration.

The Old Public Functionary attended his last public function this week.

Delayed a bit by a rash of last-minute bills that needed his signature, President Buchanan arrived at Willard’s Hotel a little past noon on Monday in order to escort his successor, as tradition demanded, to his inauguration. Together they were an incongruous pair: the outgoing president, short and round, wore a swallow-tailed coat and broad-brimmed silk hat, while the new president, long and lean, wore a black cashmere suit and his trademark black stovepipe. Mrs. Lincoln and her children had been escorted on ahead.

Traveling in the presidential barouche, they were followed by a long parade: bands, floats full of pretty girls, mounted marshals, color guards, honored veterans and a phalanx of cavalrymen. On this sunny, festive day, President Buchanan’s feelings must have been bittersweet. At the head of a similar parade four years before, he began his presidency as one of the best-prepared political leaders ever to have assumed the office; he exits, after an economic panic and mounting sectional strife, with the country teetering on the brink of civil war so precariously that the rooftops of the buildings lining the route of this procession are crowned with sharpshooters, and artillery pieces command the avenues. Buchanan’s reputation is in ruins: almost daily he suffers to see the words imbecilic, moronic and traitorous affixed to his name. “My dear sir,’’ he at one point addressed Mr. Lincoln, “if you are as happy in entering the White House as I shall feel on returning to Wheatland, you are a happy man indeed.’’

“Mr. President, I cannot say that I shall enter it with much pleasure,” Mr. Lincoln graciously replied, “but I assure you that I shall do what I can to maintain the high standards set by my illustrious predecessors who have occupied it.’’

Few of the other remarks that President Buchanan happened to utter prior to the ceremonies has been shared; no doubt his comments would be full of the punctilious pleasantries the former ambassador perfected at the palace of St. Petersburg and the Court of St. James’s. But it would be what he was thinking as he sat on that exalted rostrum and listened to his successor’s address that one would dearly love to know. He, after all, has been scorned, and Mr. Lincoln celebrated, by the very same editorialists. And yet a number of their key statements have been nearly identical.

For example, when Mr. Lincoln said, “The Union of these states is perpetual. . . no government proper ever had provision in its organic law for its own termination,’’ Mr. Buchanan no doubt recalled his annual message that he sent to Congress last December, where he said, “The Union of these states was designed to be perpetual. . . .Its framers never intended the absurdity of providing for its own destruction.’’

There are other parallels. Where Lincoln said, “No state upon its own mere motion can lawfully get out of the Union,’’ Buchanan said, “No state has a right upon its own to secede from the Union.” Where Lincoln said, “I shall take care that the laws. . . be faithfully executed,’’ Buchanan said, “My province is to execute the laws,’’ and while Lincoln said that the would use his power “to hold, occupy, and possess the property belonging to the government,’’ Buchanan offered a bit more flourish in saying, “It is my duty at all times to defend and protect the public property.’’

Of course, the parallels did not continue all the way through. Mr. Buchanan may have been waiting for Mr. Lincoln to imitate him, and offer an explanation of the origins of the conflict that would prominently feature a sharp and lengthy condemnation of a quarter century’s worth of abolitionist provocations. Instead Mr. Lincoln was succinct. “One section of our country believes slavery is right and out to be extended,’’ he tartly summarized, “while the other believes it is wrong, and ought not to be extended. That is the only substantial dispute.’’

Documents Lincoln’s Inaugural Speech

Read Lincoln’s speech, with handwritten edits.

His tone left no doubt which opinion he held. And while Mr. Buchanan may have expected something similar to his long, lawyerly explanation of why the Constitution left him powerless to prevent states from seceding, Mr. Lincoln, though not overtly threatening, was nonetheless clear that he felt far from impotent : “In your hands, my dissatisfied fellow countrymen, and not in mine, is the momentous issue of civil war. The government will not assail you. You can have no conflict, without being yourselves the aggressors. You have no oath registered in Heaven to destroy the government, while I shall have the most solemn one to `preserve, protect and defend’ it.’’ Mr. Buchanan found no authorization for action in the Constitution; Mr. Lincoln sees one in his constitutionally mandated oath.

Reaction to Mr. Lincoln’s address has run the gamut, not only among political views, but within them. The abolitionist Frederick Douglass was disappointed, telling friends that the speech, in which Lincoln “prostrated himself before the foul and withering curse of slavery,’’ was “little better than our worst fears.’’ The equally ardent abolitionist Senator Charles Sumner, however, approved of the way the speech showed “a hand of iron in a velvet glove.’’

Most of the voices in the seceded states, predictably enough, condemned the speech, with the Atlanta Confederacy calling it “a medley of ignorance, sanctimonious cant and tender-footed bullyism’’ and the Charleston Mercury saying that a “more lamentable display of feeble inability to grasp the circumstances of this momentous emergency could scarcely have been exhibited.’’

And yet Alexander Stephens, the newly minted vice president of the Confederacy, is reported to have privately admired the address as “the most adroit state paper ever published on this continent.’’ The smirking secessionist Senator Wigfall, the fire-eating Edmund Ruffin and the legalistic disunionist Thomas Cobb have all concluded that Lincoln’s words mean war. But Lincoln’s old adversary, Senator Stephen Douglas of Illinois, disagrees. “He does not mean coercion; he says nothing about retaking the forts, or Federal property,’’ said Douglas in response to queries. “Every point in the address is susceptible of a double construction, but I think he does not mean coercion.’’ And there are many editorialists, not from northern cities but from Chattanooga and Raleigh and Lexington, all in slaveholding states that have yet to secede, who agree.

It is to these men, the pro-unionists of the upper south, and especially to the delegates of the Virginia Secession Convention, to whom Lincoln was speaking when he said in the address, “My countrymen, one and all, think calmly and well upon this whole subject. Nothing valuable can be lost by taking time. If there be an object to hurry any of you in hot haste to a step which you would never take deliberately, that object will be frustrated by taking time; but no good object can be frustrated by it.’’

Call it coincidence, but when Mr. Lincoln faced a different conflict this week, he took the same approach. Consider: Senator Seward, the man long-designated as Mr. Lincoln’s secretary of state, at the last moment withdrew his name from selection, apparently in protest that the new Cabinet would include Senator Chase of Ohio and other ironbacks who advocate taking a tougher, less conciliatory approach to the South than Mr. Seward prefers.

Was it principle? Pique? A power grab? Regardless — rather than confront Seward’s demand directly, Mr. Lincoln responded with a two-prong approach. He made it clear to a group of Seward’s friends that even though it would be regrettable to lose Seward, he was prepared to name to the State Department William Dayton, the attorney general of New Jersey; and of course he would keep Chase. At the same time, Lincoln wrote to Seward, requesting that he reconsider his withdrawal. In other words, he took a position, and waited for Seward to make the next move; and Seward, of course, acquiesced. “I can’t let Seward take the first trick,’’ Lincoln told a confidant.

Lincoln hoped to do something similar with the seceded states: take a strong position, and then wait until they either came to him on terms he found acceptable or took responsibility for starting the conflict. Shockingly, Lincoln’s plan was dead before he could articulate it. Two hours before the swearing in, President Buchanan received an urgent message from Major Anderson at Fort Sumter, informing his superiors that he was running out of supplies. If not relieved — and Anderson estimated that because of the Confederate forces massed on the shore, it would take 20,000 men to accomplish that mission — he would have to surrender the fort in six weeks. Lincoln had devised a strategy that could be expressed in one phrase: Nothing valuable can be lost by taking time. Now, suddenly, time was running out.

Related Civil War Timeline

An unfolding history of the Civil War with photos and articles from the Times archive and ongoing commentary from Disunion contributors.

This news did not reach President Lincoln until the afternoon following the inauguration, when the outgoing secretary of war, Joseph Holt, gave him a complete report — complete, that is, with explanations and assurances that the previous administration knew nothing of Major Anderson’s difficulties, that he had submitted no request for supplies, nor for reinforcements, nor had he warned about the construction of the rebels’ works. By that point, Buchanan was on a train, on his way back to his beloved Wheatland.

He had spoken to Lincoln since receiving the news; at the reception at the White House after the inauguration, the two men had a tete a tete. Buchanan was observed to be doing nearly all the talking, holding forth with urgent animation. Was the outgoing president imparting some final advice, sharing some guidance that would prove vital in the days ahead? Indeed. “I think you will find the water of the right hand well of the White House better than that at the left,’’ an eavesdropper overheard Buchanan say. Insights about the pantry and kitchen followed. The state of Sumter was never a topic.

Sources: To learn more about these events, please see “President Lincoln: The Duty of a Statesman,’’ by William Lee Miller (Alfred A. Knopf, 2008); “Lincoln President-Elect,’’ by Harold Holzer (Simon and Schuster, 2008); and “Days of Defiance,” by Maury Klein (Alfred A. Knopf, 1997).

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Jamie Malanowski has been an editor at Time, Esquire and Spy, and is the author of the novel “The Coup.”

See for yourself the John Berry Letter which resulted in a KBA sanction. If you can find an ethical violation here please share it with us.

Sunday, March 6th, 2011

     Anyone concerned about Free Speech Rights should review what John M. Berry Jr. said in his 2007 letter to the Legislative Ethics Commission that resulted in a two year investigation by the KBA and a Warning Letter telling him his letter was “inappropriate”.

The Kentucky and U.S. constitutions both guarantee the right of all citizens to speak freely and to petition their government for a redress of their grievances. 

    A Federal Judge is currently in the process of issuing his decision in Berry and the ACLU against the KBA.  This decision is important because if the KBA decision is upheld no lawyer will ever be allowed to debate with a government agency over their rulings.

       The KBA never explained how Berry’s letter violated the Supreme Court Rule which they said he violated.  Read the SCR and the letter for yourself.  If you believe that Berry’s letter warranted an Ethics sanction by the KBA then we will be glad to publish your letter with your name on www.lawreader.com.  E-mail to Firstjudge@aol.com.

The KBA Inquiry commission alleged that Berry violated SCR 3.130 8.2(a) which states:

SCR 3.130 8.2(a) ” a lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal office, or a candidate for election or appointment to judicial or legal office.”

THE BERRY LETTER  STATED:

********

Oct. 5, 2007

Kentucky Legislative Ethics Commission                                                                                                                             22 Mill Creek Park                                                                                                                                                         Frankfort, Ky. 40601

Dear Chairman Troutman and Commission Members:

   As you know, my brother Wendell, and I attempted to attend your meeting on August 14, 2007.  Before commencing the preliminary inquiry relative to the complaint filed against Senator David L. Williams, we were asked to leave along with other members of the public, the media and the complainant, Richard Beliles, on behalf of Common Cause of Kentucky.  The Inquiry was conducted entirely behind closed doors with the exception of Senator Williams who was allowed to be present throughout the preliminary inquiry.  The exclusion of the pubic (sp) and the media was enough to arouse suspicion, but the exclusion of the complainant (except for a brief appearance as a witness) coupled with the inclusion of the alleged violator throughout the proceeding gave cause for some to speculate that the deck was stacked and the Senator would be exonerated. I was not, and am not, willing to go that far, but I do believe that your Order entered July 29, 2007 that exonerated him, was contrary to the undisputed evidence that was presented.

  It is very unlikely that a legislator would ever come before the Commission and confess guilt. it is almost as unlikely that witnesses consisting of legislative staff, lobbyists, or others who have a special interest in the public policy decisions which are influenced by the legislator would take a chance of alienating  by testifying, in his presence, to anything except their high regard for him. Your Order implies that the absence of such testimony warrants the finding that there is no probable cause to believe that there was any wrongdoing, or even the appearance of it, and, therefore, no adjudicatory proceeding would be in order.  I do not agree with your conclusion and I believe that the evidence filed with the complaint, with the other facts you found by the order, clearly indicate that what was going on was unethical and a violation of the statutes which your are charged to enforce.

   I looked first at the letter written by Senator Williams which was an invitation to all of the invitees to participate in a joint venture to raise money to finance the campaigns of Republican candidates for the State Senate.  The letter itself depicts the capitol dome with the senator’s name and high office printed underneath.  Across the capitol dome are the words, “Senate Majority Event”. The letter stresses the importance of Senator Williams in the conduct  of Senate business and the personal importance to him of the invitee’s cooperating in this effort to elect Republican candidates to the Senate.  The purpose of the solicitation is to maintain and grow the Senate Republican majority which is necessary to keep Senator Williams in the position of President and therefore, well positioned to attend to the business of the invitees.   The letter is signed by Senator Williams and underneath his signature the invitees are once again reminded that he is the Senate President.

   The letter, although not an exact copy of senate stationary, is set up so as to appear to be his letterhead and he repeatedly speaks of himself as the Senate President. Anyone aware of the importance of public policy decisions to fund-raisers would be aware also of the extent to which the power and influence of Senator Williams could affect their interests and, therefore, of the importance of having his goodwill.  To ignore the invitation would be risky business for them. All of this is clearly contrary to, or in violation of, or questionable under, the follows:

KRS 6.606 Purpose of Code

The proper operation of democratic government requires that a public official be independent and impartial; that government policy and decisions be made through the established processes of government; that a public official not use public office to obtain private benefits; that a public official avoid action which creates the appearance of using public office to obtain a benefit; and that the public  have confidence in the integrity of its government and public officials.

KRS 6.731 General Standards of conduct; penalties

A legislator, by himself or through others, shall not intentionally:

(1) Use or attempt to use his influence as a member  of the General Assembly in any matter which involves a substantial conflict between his personal interest and his duties in the public interest. Violation of this subsection is a Class A misdemeanor; ……

(3) Use or attempt to use his official position to secure or create privileges, exemptions, advantages, or treatment for himself or others in direct contravention of the public interest at large. Violation of this subsection is a Class A misdemeanor. …..

(5) Use public funds, time, or personnel for partisan political campaign activity, unless the use is:

(a) Authorized by law, or

(b) properly incidental or another activity required or authorized by law, such as elections to constitutional or party offices within the General Assembly. Violation of this subsection is a Class A misdemeanor.

(6) Use of his official legislative stationery, or a facsimile thereof, to solicit a vote or a contribution for his or another person’s campaign for election or reelection to public office, or use the great seal of the Commonwealth on his campaign stationery or campaign literature. For purposes of this subsection, “official legislative stationery” means the stationery used by a legislature on a day-to-day basis for correspondence related to his duties as a member of the General Assembly. Violation of this subsection is ethical misconduct.

KRS 6.767 Prohibition against acceptance of campaign contributions from legislative agents penalty

A member of the General Assembly, candidate for the General Assembly, or his campaign committee shall not accept campaign contributions from a legislative agent. Violation of this provision is ethical misconduct.

OLEC 06-03 OPINION

1. A member of the General Assembly may not ask or direct a lobbyist to solicit campaign contributions for a political party or a legislative campaign.

    A careful reading of the letter which Senator Williams sent to the invitees leads but to one conclusion, which is that the most powerful member of the Kentucky State Senate, representing himself personally and the Majority Caucus, was putting the arm on people, who have a vital special interest in public policy decisions, for campaign contributions, and that he was doing so in order to maintain the majority and to keep himself in his position as President. If the letter is then read in the context of the above statues, it is just as clear that his conduct violates those statutes.

    This conclusion is reenforced by all of the things that occurred between the time that the letter was written and the luncheon on May 23rd. The material distributed at the luncheon is especially offensive in that it solicits contributions to the senate political caucus, which will finance the campaigns of individual senators. It further recommends that, in addition to the $2,000 per person ticket of admission to the fundraiser, invitees should contribute a minimum of $5,000.  And it further suggests that attendees can achieve much greater benefit, including  seat at the head table with the featured speaker and Senate President David L. Williams, for $50,000.

   In all of these documents, from the letter of invitation to the fact sheet and the benefit sheet, Senator Williams is prominently featured. he was the featured speaker at the event at which the information was given to all guess including the lobbyists.  This episode as a whole constitutes a blatant misuse of power in order to obtain large contributions from lobbyists and others with a big stake in government programs and projects.  It is not clear how the Commission could have justified Senator Williams conduct and dismissed the complaint.  There is no question that he as well as his official position and influence were being used for the benefit and advantage of the senate candidates and himself.

   There were approximately seven grounds cited by you in your order to support your exoneration of Senator Williams. None of these grounds either standing alone or collectively warrant the result. How many complainants could be expected to have firsthand knowledge of violations?  Mr. Beliles did have first-hand knowledge of the documents that clearly set forth the plan and the motive behind it. They were presented to your and admitted as evidence. What value is it to know that an alleged violator made a telephone call verbally requesting an opinion, without all of the facts and asking only one very limited and irrelevant question?  When did the hiring of go-betweens to carry out an illegal plan in order that the planners and organizers “could get away from it” become a justification for anything? Is it further mitigating if the people you hire know little or nothing about the law?  The implications here are obvious, but in the opinion of the Commission, appear to be sufficient to establish nothing less than the best of intentions.  If the lobbyists question the legality of what is being done, you solve the problem by simply instructing them to make their checks payable to the party and not to the caucus. If all else fails, but the Senator was at the time in a hurry, then he is exonerated on the basis of the legal proposition that “haste makes waste”.

   If the law as it stand is inadequate to allow you in this case to find any violation, ethical misconduct, impropriety, or even the appearance of it, then the law needs to be changed and I hope that you would be instrumental in attempting to get that done.

Very truly yours,

(s) John M. Berry Jr.

JMBjr:mc

******************

         After this letter was mailed to the Legislative Ethics Commission by John M. Berry, Jr. a lawyer who served eight years in the Kentucky State Senate, a complaint was filed with the KBA.  The KBA began a two year investigation which resulted in a non-appealable Warning Letter saying his letter was “inappropriate”. 

     Our reading of this letter does not find any “false” accusation that questions the “integrity” or “qualifications” of a judge or judicial officer.

WHY DID JOHN M. BERRY, Jr. WRITE HIS LETTER – WHAT DOES IT MEAN TO OTHER ATTORNEYS WHO WISH TO PETITION THEIR GOVERNMENT FOR A REDRESS OF THEIR GRIEVANCES?

Saturday, March 5th, 2011

By LawReader Senior Editor  Stan Billingsley    March 5, 2011

 The Common Cause Complaint filed in July of 2007 by Richard Beliles, Attorney and State Chair of Common Cause of Kentucky generally alleged that Senator David Williams violated the Legislative Ethics Code regarding solicitation of campaign contributions from lobbyists.  The Legislative Ethics Commission dismissed the complaint.

The complaint filed by Common Cause alleged: 

“Senator Williams solicited numerous legislative agents to give and/or raise campaign contributions for a fund raising event for the Senate Republican Caucus Campaign Committee to be held July l9 2007 in Louisville, Kentucky…(this action was)..contrary to this Commission’s holdings in OLEC 05-01, 06-03, and 95-10.  In OLEC 05-01 this Commission held that a lobbyist may not make a campaign contribution to the Senate Republican Caucus Campaign Committee and that a legislator may not solicit a campaign contribution from a lobbyist for such committee. In OLEC 06-03 the Commission held that a legislator cannot direct a lobbyist to solicit campaign contributions for a political party. OLEC 95-10 is discussed later herein.”

   In 2007 the Legislative Ethics Commission dismissed the complaint against Senate President David Williams. The LEC held that since the solicitation was done by Williams staff and not directly done under his direction, and therefore he did not violate any ethics rule.

   Ronnie Ellis, CNHI New Service,  in 2007 interviewed Legislative Ethics Commission Chairman George Troutman about the complaint filed by Kentucky Common Cause against Senate President David Williams.  Ellis reported.  (emphasis added by LawReader)

“Troutman said Beliles’ complaint was not “a frivolous complaint. I can see after looking at the evidence how somebody could view it as perhaps being a problem.”

The order dismissing the complaint indicated that Senate staff – Becky Harilson, Williams’ Chief of Staff and Brad Metcalf, policy advisor for Williams – produced the forms and arranged the lunch but not at Williams’ direction.

Mike Malone, enforcement counsel for the commission, said that was key.”

“At least two lobbyists at the meeting addressed the group explaining they could not contribute to the Senate Caucus Committee. Lobbyists by law cannot contribute to the Senate campaign or legislator races nor can legislators ask them to do so.”

“I think it’s clear there was a form given out,” Troutman said of the lunch. “I also think it’s clear from the evidence we have that Sen. Williams did not ask for any money.”

“If someone acted at David Williams’ direction, then that conduct could be attributed to the legislator,” Malone said. “Unless they did it at the direction of the legislator, it can’t be attributed by the commission to the legislator.”

“Troutman was asked repeatedly if it wasn’t clear by Williams’ presence and because he’d signed a letter inviting guests that he endorsed the forms and the implied solicitation of the lobbyists in attendance. Troutman said there was no evidence of any intent to violate the law and the statute clearly requires intent.

Williams “did not ask any lobbyist there to go out and solicit money,” said Tony Wilhoit, the commission’s Executive Director. “The form indicates that, but he’s got to go out and intentionally do that.”

The lunch drew several lobbyists and non-lobbyist contributors to the Republican Party and Republican candidates. It was to plan and prepare for a July fund raising event which was later canceled. Wilhoit said the May 23 event did not constitute a fund raising event and because Williams did not produce the forms or ask those at the lunch to contribute, he’d done nothing to violate the law.”

“This was not a fund raiser, this was a meeting to inform people of a fund raiser,” Wilhoit said.

JOHN M. BERRY JR. TAKES EXCEPTION TO THE LEC REASONING FOR DISMISSAL OF THE DAVID WILLIAMS COMPLAINT

      The act which instituted a Kentucky Bar Association ethics complaint being filed against attorney John M. Berry, Jr. of New Castle, Ky. was a letter that Berry wrote in 2007 to Legislative Ethics Commission George Troutman after the Commission’s ruling. 

      In his letter Berry questioned the legal reasoning of the LEC.  No threats were made in the letter and no profanity was contained in his letter.  The letter did not “falsely” question the “integrity” or “qualifications” of a judicial officer as required by SCR 3.130 (8,2), (the rule with which Berry was charged by the KBA).  The Berry letter questioned the reasoning of the Board but did not question their integrity or qualifications.  

The KBA did not explain in their ruling against Berry (i.e. Warning Letter) how anything Berry said was “false” or specifically whose “integrity” or “qualifications ” was attacked, and we have seen no clear ruling by the KBA that SCR 3.130 can be read to define the Legislative Ethics Commission members as a “judge, adjudicatory officer, or public legal officer”  or other member of the protected class as required by SCR 3.130.

“ SCR 3.130 8.2(a)  A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.”

     The Legislative Ethics Commission is a creature of the legislature, it is not a court of law. It may be that they can be defined as “adjudicative officer(s)” or “public legal officer(s)” but we have found no clear legal ruling saying so.  Nevertheless, the most important material element of SCR 3.130 is that the statement be “false. “  

We note that LEC Board Chairman George Troutman offered the best defense for John M. Berry, Jr. when he observed as reported by Ronnie Ellis,  “Troutman said Beliles’ complaint was not “a frivolous complaint. I can see after looking at the evidence how somebody could view it as perhaps being a problem.”  

    If the Chairman of the Legislative Ethics Commission himself sees a basis for the argument that the  complaint by Common Cause was “not frivilous”, this appears to place the issue well within the arena of appropriate discussion and debate.  We note a complete absence of any statement by the recipient of Berry’s letter in which he says that Berry’s opinion letter was “false”.

      We suggest that SCR 3.130 (8.2) as applied against Berry is an unconstitutional abridgement of his free speech rights.  If this ruling holds up, then the KBA can sanction any lawyer anytime he expresses a political or legal opinion with which the KBA might disagree.

      We would suggest that the reasoning of the LEC that Senator Williams had not violated an ethics code rule is legitimately debated by Berry.   The LEC based their dismissal of the Williams complaint on the theory,  that his staff had done the offending acts:

 ” Senate staff – Becky Harilson, Williams’ Chief of Staff and Brad Metcalf, policy advisor for Williams – produced the forms and arranged the lunch but not at Williams’ direction.” “…that was key”.

    We do not intend to question the “integrity” or “qualifications” of Mr. Troutman, any member of the LEC or even of Senator Williams. The ruling of the LEC dismissing the complaint against Senator Williams is final but that does not mean that all discussion of their reasoning in reaching their decision is beyond public debate. 

   The KBA has certainly done no favor for Senator Williams by prolonging this debate since 2007. If the KBA had ignored Berry’s letter, this matter would not be a potential campaign issue as Senator Williams seeks the Office of Governor.   The issue continues as Berry and The ACLU have filed a civil action against the KBA in Federal Court. The action seeks to establish an attorney’s right to enjoy the same free speech rights as enjoyed by other citizens. A decision by the Federal Court is imminent.

  This article is necessary because the KBA has sought to limit the free speech rights of John M. Berry Jr.  If they succeed in silencing Berry, then they can limit the free speech rights of all attorneys.

    We would suggest that one legal argument that can be made about the reasoning behind the  the LEC’s ruling is found in  the doctrine of Respondent Superior which can impose upon an employer responsibility for the acts of his employees.

Berry’s letter in essence raised this question.

Respondent Superior Doctrine:

Tackett v. Inland Steel Co., 281 Ky. 313 (KY, 1940)

January 16, 1940.

        1. Master and Servant. — The test of relationship of master and servant or employer and employee is the right of control on part of alleged employer.

        The test of the relationship of master and servant or employer and employee is the right of control on the part of the alleged employer. McCoy v. Griffith, 196 Ky. 406, 244 S.W. 871; Corbin Fruit Company v. Decker, 252 Ky. 766, 68 S.W. (2d) 434; Slusher v. Hubble, 254 Ky. 595, 72 S.W. (2d) 39. In American Savings Life Insurance Company v. Riplinger, 249 Ky. 8, 60 S.W. (2d) 115, 117, it was said:

        ”A servant is a person subject to the command of his master as to the manner in which he shall do his work, and the master is the one who not only prescribes the work but directs, or may direct, the manner of doing the work. Bowen v. Gradison Construction Company, 236 Ky. 270, 32 S.W. (2d) 1014; Jarvis v. Wallace, 139 Va. 171, 123 S.E. 374. A master within the doctrine of respondent superior is the one who cannot only order the work, but also how it shall be done. Carter v. King County, 120 Wash. 536, 208 P. 5. The doctrine applies only where the relationship of master and servant exists at the time and in respect to the thing causing the injury, and from which it arose (Tilburne v. Burton, 86 Cal. App. 627, 261 P. 334; Martin v. Greensboro-Fayetteville Bus Line, 197 N.C. 720, 150 S.E. 501; Kennedy v. Wolf, 221 Ky. 111, 298 S.W. 188), and then only when the one sought to be charged has some right in some way to control the conduct of the party having caused the injury.”

 

Shedd Brown Mfg. Co. v. Tichenor, 257 S.W.2d 894 (Ky., 1953)

Charging one with the negligent acts of another, under the doctrine of respondent superior, is an arbitrary rule based on public policy; and its justification is that the employer should be vigilant in supervising those in his employ to protect the public generally. See Bowen v. Gradison Construction Company, 236 Ky. 270, 32 S.W.2d 1014. It would be an unfair application of the rule if the ‘employer’ had no way of guarding against liability by having some control over, or right to control, the particular act or instrumentality which causes the injury.

        The fundamental principle which governs this type of case is thus set forth in 2 Am.Jur., Agency, Section 8:

‘The theory which in many cases is adopted to differentiate between an agent and an independent contractor is that one is to be regarded as an agent or an independent contractor according to whether he is subject to, or free from, the control of the employer with respect to the details of the work.

        As stated in American Savings Life Insurance Company v. Riplinger, 249 Ky. 8, at page 17, 60 S.W.2d 115, at page 119:

‘The right of control of the means of doing the work, or want of it, is the determinative factor when considering the relationship in such cases, for one who has no right of control in this respect over another ought not to be required to respond in damages for his acts.’

        The difficulty lies in the application of this broad principle, and requires careful consideration of the principal’s actual or potential control over the particular activity in which the alleged agent was engaged at the time he injured another.

“To hold a master legally responsible for the act of a servant who is engaged in furthering his master’s business and who while doing so negligently uses some instrumentality that carries him from place to place, it must either be proved that the master exercises actual or potential control over that instrumentality, or the use of the instrumentality at the time and place of the act complained of must be of such vital importance in furthering the business of the master that the latter’s actual or potential control of it at that time and place may reasonably be inferred.”

 

SEE FOR YOURSELF WHAT ATTORNEY JOHN M. BERRY, Jr. SAID IN  HIS LETTER WHICH RESULTED IN A KBA ETHICS SANCTION?  If His Lawsuit To A Federal Court Is Not Successful Then No Lawyer Will Ever Be Safe In Petitioning Their Government For A Redress Of Their Grievances?  Read Story

KENTUCKY FEDERAL DISTRICT COURT SOON TO RULE ON IMPORTANT CASE RE: ATTORNEYS FREE SPEECH RIGHTS – John M. Berry and the ACLU seek limitation of the KBA’s attempt to limit free speech of Kentucky attorneys.

Friday, March 4th, 2011

    By LawReader Senior Editor Stan Billingsley  –   March 3, 2011

Author’s disclosure:   I have known John M. Berry Jr. since 1971.  I worked for him for three years just after getting out of law school.  Berry’s story inspired me to write a novel about this issue,  Alice vs. Wonderland.  The book is available on www.lawreader.com.

    Before I write the first sentence of this article, I would explain my intent.  I do not intend to question the “integrity” or “qualifications for office” of anyone.  We believe that it is our right to argue that a public official may have made a mistake, without questioning his “integrity” or “qualifications for office”. 

    U.S. District Judge Danny Reeves has taken under advisement motions in a civil action filed by John M. Berry, Jr. and the ACLU against the Inquiry Commission of the Kentucky Bar Association.  The ruling has been pending for almost two months as this article is written, a decision is expected at any time.

    Judge Danny C. Reeves joined the court after being nominated by President George W. Bush in 2001.  Judge Reeves is a graduate of Salmon P. Chase law school in 1981. 

   Reeves started his legal career as a Law clerk for former federal judge Eugene Siler in the United States District Court for the Eastern & Western Districts of Kentucky from 1981 to 1983 and entered into Private practice in the State of Kentucky from 1983 to 2001.  He is originally from Whitley County.

    The Berry/ACLU action seeks injunctive relief against enforcement of Kentucky’s Supreme Court Rule 3.130 (8.2) which was used by the KBA to launch a two year investigation of attorney John M. Berry of New Castle, Ky.  The KBA apparently found that Berry had violated the rule, but nevertheless they exercised their option to merely place an official “Warning Letter” in his KBA personnel file, and warned him that his “inappropriate” letter to the Legislative Ethics Committee, would be the basis for an enhanced penalty if he violated any ethical rule in the next twelve months.

   Berry’s letter pointed out  the lack of findings of fact by the Legislative Ethics Commission and suggested they had ignored any discussion of exhibits in the complaint filed by Common Cause against Senate President David Williams.  

The Common Cause complaint suggested that the letter to lobbyists which bore Williams signature, suggested a sliding scale of contributions from $5,000 to $50,000.  It is reported that if a lobbyist wanted to shake the Senate Presidents hand the donation required was $10,000.  For $25,000 they could sit at the head table of the event, and $50,000 provided maximum access to Senator Williams. These allegations by Common Cause were not mentioned in the findings of the Legislative Ethics Commission in dismissing the complaint against Senator Williams.  Senator Williams and his party have spoken out against public funding of political races in Kentucky. 

It is reported that one of the defenses that Senator Williams asserted was that he had been busy and didn’t have time to manage all the arrangements.  He said he left the arrangements and details to his staff.  (My wife would never buy such a defense, but that is another matter.)

It was the contention of Common Cause that the fund raising effort was a scheme to sell access to the Senate President.

   This SCR in question declares that an attorney may not make a “false” statement about a judge or judicial officer which questions his “integrity” or “qualifications for office”. (Or recklessly makes a false statement raising those issues.)

    The rule is taken from the ABA Model Code of conduct for lawyers.  Commentary and court rulings have suggested that this rule should only be applied in pending cases in which an attorney makes comments which might improperly interfere with the pending case.  Berry’s letter was not to a court of law, was not to a judicial judge, made no threats, made no false statements, and was merely an expression of his opinion that the Legislative Ethics Commission has misread the law in dismissing a ethics complaint against Senate President David Williams. 

(Caveat: I do not question the integrity of qualifications for office of any KBA official, I merely and humbly suggest that perhaps, just perhaps they made a mistake.)

We have read the Berry letter, and find nothing but the expression of Berry’s legal analysis that the Commission incorrectly interpreted and applied the law.  Berry appeared before the public portion of the Legislative Ethics Commission hearing with his brother Wendell Berry (the Kentucky author and poet) and Richard Beliles the chairman of the Kentucky Common Cause organization.

    Any charge of an “ethical” violation is damaging to a lawyer’s reputation.   But not all claims by the KBA should be taken at face value.  Not all claims of violations under the ethics rules really have anything to do with traditional concepts of “ethics”.

  The letter of John M. Berry, Jr. to the Legislative Ethics Commission, was written and mailed after the Commission had issued a final ruling in favor of Senator David Williams finding he had not committed an ethics violation when his employees solicited campaign contributions from lobbyists.  The ruling, as we understand it, held that while such a solicitation of campaign funds would have been improper for David Williams, that since his underlings did the solicitation that he was free of ethical taint. (??)

    As we see it, it is a little strange that the KBA would launch a two year investigation over a polite letter by a lawyer expressing his opinion about a ruling of a legislative agency.   Why is the KBA carrying water for the Legislature?

(Caveat: I do not question the integrity of qualifications for office of any KBA official, I merely and humbly suggest that perhaps, just perhaps they made a mistake.)

   We find nothing in the U.S. or Kentucky constitutions that make it illegal for a citizen to redress their government with their grievances.  There has never been a finding that anything Berry said in his letter was “false”.  We find nothing in his letter which challenged the “integrity” or “qualifications for office” of any judicial officer.  We emphasize that there was no intemperate language, no profanity, and no threats in Berry’s well written legal analysis of the actions of the Legislative Ethics Commission.

   The KBA indicated, in Berry’s view, that although they found he had violated SCR 3.130, they used their discretion in not filing a formal charge which would have provided Berry with a hearing and the right to appeal their ruling to the Board of Governors and to the Kentucky Supreme Court.  They chose to seek the disciplinary option of issuing a formal Warning Letter, from which there is no right to appeal.

 The KBA issued an official Warning Letter for his “inappropriate” comments to the Legislature.  The official “Warning Letter” issued by the KBA did not specify in any detail what Berry did that was “inappropriate”.  

The word “inappropriate” contained in the Warning letter is the only explanation of what he did to earn their punishment. The term “inappropriate” is not a legal term.  The dictionary defines the term as “unsuitable”.  Lady Astor might have one standard of conduct which she feels is “unsuitable” and those of us of the common classes, not privileged to have blue blood in our veins, might understand the rules of social decorum quite differently.   This author has read the brief warning letter to John Berry, and we cannot find any explanation as to what he did that was inappropriate other than to write a letter, as a citizen, objecting to the action of a legislative body.  Such vagueness denies Berry and the rest of us the ability to conform our future conduct to their secret standard.   

The law is based on the premise that before one is punished for an act, the act must be clearly spelled out and published prior to the wrongful act.  Rules and laws which are vague and overly broad are regularly dismissed by the courts as unconstitutional. 

Berry says that the KBA ruling implies that his conduct violated SCR 3.130.  It would appear that the KBA has been very liberal in applying the “implication” of improper conduct by Berry in writing his letter, but in the decision of the Legislative Ethics Commission ruling, a very restricted  application of the implication rule was applied to the conduct of Senator Williams.  

(Caveat: I do not question the integrity of qualifications for office of any KBA official, I merely and humbly suggest that perhaps, just perhaps they made a mistake.)

This implication rule is sometimes called the “Caesar’s Wife” Rule. (In her conduct, Caesar’s Wife should not even give the appearance of improper conduct.)  Such a rule has been used for centuries to suggest that those in power have a higher standard of conduct then guilt.  One in power must not even give the impression or implication that they have done anything wrong.

It is apparent that the Legislative Ethics Commission did not apply the Caesar’s Wife Rule to their finding regarding Senator Williams.  We will leave it to others to determine if this rule should have been applied by the Legislative Ethics Commission, but the use of this social rule by the KBA was certainly applied against Berry.

(Caveat: I do not question the integrity of qualifications for office of any KBA official, I merely and humbly suggest that perhaps, just perhaps they made a mistake.)

 We would submit that Caesar’s Wife Rule is not a rule of law, but is merely a rule of social conduct.  When someone violates a social rule, the proper penalty allowed is that you don’t invite them back to your party. You don’t threaten them with a loss of their law license. But perhaps it is written somewhere that Blue Bloods have different rules than the Common Folk.

We assume that this action if upheld, will mean that anytime the KBA finds that an attorney does or says anything the KBA considers “inappropriate” it deserves their attention, and since there is no appeal of a Warning Letter, there is no opportunity for an attorney to ever learn exactly which of his acts were “inappropriate”.

 It is a mystery to this author why the KBA ever took up this investigation of Berry, and it is troubling that those in authority of the Ethics machine in the KBA didn’t have the wisdom to immediately dismiss it and issue an apology to John Berry.  For some reason, they just couldn’t admit they were wrong, and the Warning letter was apparently a stubborn inability to admit they were wrong. They just had to have the last word.   

(Caveat: I do not question the integrity of qualifications for office of any KBA official, I merely and humbly suggest that perhaps, just perhaps they made a mistake.)

   The Berry /ACLU lawsuit seeks a finding by the Federal Court that attorneys have the right of free speech to seek a redress of their grievances from their government.  If the Federal Court finds that the KBA erred, it may award court costs and attorney fees to the ACLU.  That penalty will be paid by the members of the KBA, which means it will come out of the collective pockets of the state’s 17,000 licensed lawyers.   If this happens, as a dues paying member of the KBA I will personally wonder how nice it would have been if the KBA had simply withdrawn their Warning Letter (or never issued it at all) so as to not run up the costs we will have to pay.  I would speculate that if any such cost award by the Federal Court came soley out of the pockets of the officials at the KBA who chose to issue the Warning Letter, then they might have given more weight to Berry’s constitutional right to write a letter to the legislature. 

    If Judge Reeves dismisses Berry’s lawsuit, and upholds the right of the KBA to sanction attorneys for making political comments, and for the expression of any opinion found “inappropriate” by the KBA, then our rights as attorneys will have been seriously affected.

    We would not suggest, and Berry’s lawsuit does not suggest, that Rule 3.130 should be completely stricken.   It may well be appropriate for the KBA to limit the speech of attorneys appearing in court or who may be disrupting a pending trial or action through the use of “false” allegations. 

    But when that rule is expanded to restrict the out of court free speech of lawyers, then every lawyer in Kentucky has a vested interest in this important case filed by Berry and the ACLU.

     Recently Judge Reeves issued a 29 page opinion involving a case filed by Eric Deters.  That opinion was issued some two hours after the hearing in which Deters sought relief from the Federal Court when his motion to recuse the KBA Trial Commissioner hearing the Deters case was not granted.  Judge Reeve’s decision strongly pointed out that Deter’s request for relief was interlocutory, and that he had the option of appealing his issues with the KBA Board of Governors, and the Ky. Supreme Court.  Deters promptly dismissed his federal action, and has appealed to the Board of Governors.

     We would speculate and conclude that Judge Reeves is taking a close look at the Berry case and is taking his time, because his ruling will have far ranging consequences. 

     We believe, that he must consider where to draw the line in the application of SCR 3.130.  If he totally throws out SCR 3.130 there will be no control over attorney comments in the courtroom which may interrupt the trial and which directly question the integrity of the trial court.   That would not be good.  On the other hand, if he totally upholds the law as applied by the KBA, then no attorney will ever be able to question a ruling of any court or question the action of any prosecutor even after the conclusion of the trial.  No attorney will be able to write a letter which is critical of a judge or prosecutor.

   This suggests that Judge Reeves will have to use a surgeon’s scalpel to cut out only the offending applications of SCR 3.130.   That effort has taken two months so far.  We hope that Judge Reeves will take all the time necessary to get this one right.

    If you are reading this article, you are probably an attorney.  That means that the impending ruling is of great importance to you.

(Caveat: I do not question the integrity of qualifications for office of any KBA official, I merely and humbly suggest that perhaps, just perhaps they made a mistake.)

BAR COMPLAINT FILED AGAINST JUSTICE CLARENCE THOMAS IN MISSOURI – IF DISBARRED HE WOULD NOT BE REMOVED FROM SUPREME COURT

Friday, March 4th, 2011

March 4, 2011  Alter Net Report

U.S. Supreme Court Justice Clarence Thomas should be disbarred for his failure to truthfully complete financial-disclosure forms over a 20-year period, according to a complaint filed by the watchdog group Protect Our Elections (POE). This would not affect his ability to sit on the Supreme Court, but it would add to mounting pressure on the Department of Justice to investigate Thomas.

In a bar complaint filed with the Missouri Supreme Court, POE attorney Kevin Zeese says Thomas committed multiple violations of the Missouri Rules of Professional Conduct. (See full complaint below.) Zeese asks the Office of Chief Disciplinary Counsel to take immediate action against Thomas, including disbarment.

Thomas became a member of the Missouri Bar in 1974, and former U.S. Sen. John Danforth (R-MO) was a primary supporter during Thomas’ confirmation hearings in 1991. How is the justice responding to recent allegations against him? He struck a defiant tone in a speech over the weekend in Virginia.

 Delivering the keynote speech at an annual symposium for conservative law students, Thomas spoke in vague, but ominous, terms about the direction of the country and urged his listeners to “redouble your efforts to learn about our country so that you’re in a position to defend it.”

He also lashed out at his critics, without naming them, asserting they “seem bent on undermining” the High Court as an institution. Such criticism, Thomas warned, could erode the ability of American citizens to fend off threats to their way of life.

What threats is Thomas talking about? He did not make it clear. But the justice apparently feels threatened by recent reports that he repeatedly failed to disclose his wife’s non-investment income. The story, broken by Common Cause, should lead to serious consequences, Zeese says. From the bar complaint:

Clarence Thomas breached his legal duty and violated the Rules of Professional Conduct by knowingly and willfully failing for 20 years to state truthfully on required AO 10 Financial Disclosure Forms that his wife Virginia earned non-investment income. Clarence Thomas further labored under a financial conflict of interest by failing to disclose $100,000 in support for his nomination by the Citizens United Foundation when he sat in judgment of a case involving Citizens United. Finally, he made rulings that his wife benefited from financially and professionally, and by extension, that benefited him. In short, this unethical and criminal conduct violates the Rules of Professional Conduct, and undermines the rule of law, respect for the law and confidence in the law.

Thomas has sought to resolve the issue by filing amended financial-disclosure forms. But Zeese says that should not be the end of it:

Justice Thomas acted knowingly and willfully. First, judges are presumed to know the law and at least four of Justice Thomas’ colleagues on the Supreme Court–Justices Breyer, Ginsberg, Kennedy and Roberts–knew well enough to disclose their spousal income during the same time frame that Justice Thomas did not.

Second, according to the Department of Justice Handbook on Prosecutions, a defendant’s signature on a document is strong evidence of willfulness and knowledge. See United States v. Tucker, 133 F.3d 1208, 1218 n. 11 (9th Cir. 1998) (noting that signature proved knowledge of contents of return); United States v. Mohney, 949 F.2d 1397, 1407 (6th Cir. 1991) (holding that signature is prima facie evidence that the signer knows the contents of the return); United States v. Drape, 668 F.2d 22, 26 (1st Cir. 1982) (finding that defendant’s signature is sufficient to establish knowledge once it has been shown that the return was false).

Perhaps most alarming is Thomas’ failure to disclose conflicts that might have affected his decision-making:

It appears that Justice Thomas had a reason for not disclosing that his wife was working for a conservative think tank and a conservative 501c(4) group; he did not want litigants who had cases pending before the Supreme Court to have information that could be used to disqualify him from hearing those cases, and he wanted his family to benefit financially from his decisions.

Does the law apply to all Americans? That question is at the heart of the POE complaint:

Hundreds of Americans have been federally prosecuted since 1989 for various types of false statements, many involving checking or not checking a box on a form. Many of those prosecutions involved a single form, and most defendants were not given the opportunity to amend their forms before being prosecuted. Many were found guilty, fined and sent to prison. And some even appealed their cases to the Supreme Court where Justice Thomas sat in judgment of them, upholding their sentences.

POE makes a compelling argument that Clarence Thomas has no business sitting on the U.S. Supreme Court:

A lawyer who commits a crime is subject to disbarment. A lawyer who fails to disclose important financial information as require by law is subject to disbarment. A lawyer who makes rulings on cases that will benefit himself and his wife is subject to disbarment. A Judge who commits 20 crimes by falsifying 20 disclosure forms in order to enrich himself and his family, as did Justice Thomas, is subject to disbarment. A lawyer who withholds information about a supporter when ruling on a case involving that support is subject to disbarment.

Justice Thomas violated the Rules of Professional Conduct: he committed crimes that carry serious jail time if prosecuted, he acted in a untrustworthy manner, his conduct involved dishonesty, deceit and misrepresentation, and he engaged in conduct that seriously interfered with the administration of justice. Therefore, he must be disciplined.

Below is the full bar complaint against Clarence Thomas:

Clarence Thomas Bar Complaint

NEW BUSINESS MAGAZINE FOR LAWYERS LAUNCHED IN LOUISVILLE – Features Louisville Area Lawyers

Thursday, March 3rd, 2011

  Review by LawReader Senior Editor Stan Billingsley

LawReader has been hearing rumblings about a new magazine about Louisville Lawyers.  We dropped by to check them out and met with the publisher, Anna Barker.  We are very impressed with their design, and their graphics are out of sight.   We bet that many lawyers and law firms will find this magazine a great way to promote their practice.

Ms. Barker says they will feature small law offices as well as the larger firms.  LawReader applauds them for recognizing the important contribution of small law firms and individual lawyers.

Louisville’s hottest new business magazine for and about Louisville attorneys is about to launch its premier issue this spring!
On a monthly basis, Attorney at Law will publish a tightly focused, 4-color glossy print and digital, business-to-business trade magazine created specifically for and delivered directly to attorneys in Louisville, Kentucky. Every month, Attorney at Law Magazine brings influential readers and respected advertisers together in one publication putting your message directly in their hands and at the top of their minds.

Each month, Attorney at Law editors create themed features that focus on the most important topics of interest to our targeted professional readers. While advertising in every issue of Attorney at Law magazine will increase the awareness of your company, you can achieve maximum impact by marketing your products and services every month.

Circulation Profile:
5,000 printed editions to Greater Louisville Metro attorneys as well as those practicing in Lexington and Northern Ky.
14,000 digital editions will be emailed to every attorney in Kentucky, reaching 100% of the Target Market

Through the power of controlled circulation, Attorney at Law Magazine can deliver TOTAL MARKET SATURATION!

Attorney at Law Magazine is also distributed every month to a variety of related industry professionals in the local legal community including legal practice professionals who make major marketing and buying decisions.

To gain the most powerful distribution, Attorney at Law Magazine is mailed directly to individual attorneys, not dropped off or mailed in bulk to law firms.

Attorney at Law Magazine’s utilizes a compiled database of call verified, CASS certified, NCOA validated mail lists along with sophisticated technology to insure that the circulation is always up-to-date and accurate.

Editorial Profile:

Attorney at Law Magazine offers a very focused mix of informative and educational, monthly columns and articles covering the trends, developments, and industry news together with feature stories and profiles on leading attorneys, law firms, and related professionals.

ENGAGING EDITORIAL

Talk of the Town – local news and information
Recent industry specific news of events, achievements, and announcements within the local legal community.

• New firm associate announcements
• New firm partnership announcements
• Industry related awards, achievement, or recognition
• Industry events
• Career promotions or retirements
• Mergers & acquisitions
• Charity or non-profit industry related events
• Civic or community industry related activities
• New firm ownership/name changes
• Firm expansions or renovations
• Information from professional associations
• Employee anniversaries
• Office openings
• Industry events

Readers Respond – Local opinions from attorneys you know
Insightful opinions from a diversity of local attorneys on the industry’s hot topics.

Regular Columns – Compelling & informative industry specific editorial from local market experts
Regular departments encompassing topics of importance and interest to local attorneys.

Personal Financial Planning
Business Financial Solutions
Career Development
Practice Management
Legal Trends
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Practice Marketing
Client Relations
Business Development
Total Practice Solutions
Client Development
Litigation Solutions
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e-discovery solutions
Time & Billing Solutions
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Resolution & Mediation
Work & Life balance
Articles and OP-Ed – Enlightening and educational articles on a diversity of legal practices
Articles straight from the most experienced local attorneys sharing their expertise of legal practice

Environmental Law
Real Estate Law
Personal Injury
Bankruptcy Law
Criminal Defense
Divorce & Family Law
International Law
Business Law
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DUI/DWI Law
Corporate Law
Litigation
Will, Estates, Trusts & Probate
Tax Law
Juvenile Justice
Immigration Law
Arbitration and Mediation
Copyright & Patent Law
Employment Law
Sports and Entertainment Law
Medical Malpractice Law
Intellectual Property Law
Criminal Practice
INSIGHTFUL FEATURE STORIES

Complimenting Attorney at Law Magazine’s editorial package will be standard selection of Monthly Profiles and Feature Stories on local industry professionals and firms.

Cover Story – “Attorney of the Month” – Each issue of Attorney at Law Magazine will recognize a different “Attorney of the Month” feature cover story on a truly noteworthy, high profile local attorney proven to be a consummate professional and an example for other attorneys. This must be a highly respected partner or owner with a significant position within the firm and at least 10 years of outstanding local practice experience.

The following criteria will be used in the evaluation and selection; overall professional achievement, dedication & involvement in the local legal community, unique or diverse area of practice, active civically or in a charitable organization(s) / Community pro bono work, well respected by peers, professional certifications, and professional honors, awards, and recognitions.

Law Firm Feature Story – “Practice or Law Firm of the Month” – A feature story on a different law firm with a desire to maintain a well balanced representation of firms in areas of size, location, and focus of practice.

Professional Profile Feature Story “Associate of the Month” – A feature story on an associate in private practice with noteworthy achievements, an unique storyline, or outstanding professional or community activities.

New Attorney Feature Story – “New to the Bar” – This feature story will be on an up and coming attorney that has been practicing for less than 3 years.

Expert Witness Feature Story – “Expert Witness Profile” – Feature stories on a diversity of experienced and well respected expert witnesses from a variety of fields.

Solo Practitioner Feature Story – “Solo Profile” – A feature story on an outstanding, established, and successful attorney in practice by themselves.

Unique Area of Practice Feature Story – “Specialty Law Practice Profile” – A feature story on an attorney or firm specializing in a very uniquely focused area of law.

Professional Mediator Feature Story – “Mediator Profile” – A feature story profiling a local experienced and outstanding, well respected, mediation or arbitration professional.

Industry Professional Feature Story – “Professional Profile” – A feature story on a company or individual the provides products or services specific to the legal profession.

If your success depends on getting through to the highly targeted decision makers… then Attorney at Law Magazine offers the ideal solution. Get noticed and make an immediate and long lasting impact by telling your whole story in Attorney at Law Magazine!

You can nominate a professional for any Attorney at Law Feature Story by filling out and submitting a nomination form on the nomination link on the home page.

For more information on a feature story for you or your company…call us today at (502)291-7115, or email the publisher, Anna Barker at abarker@attorneyatlawmagazine.com

Anna Barker has formerly published several magazines including: Builder/Architect Kentucky, the Midway Exchange and the MidTown News and has served as senior layout artist on Chamber of Commerce magazines throughout the state of Kentucky. Daughter of retired attorney who was a solo practitioner for 51 years, Gerry Barker and Ann Barker, a retired Eclipse Award winning journalist of horse racing, Anna lives in Louisville with her three children: Virginia (13), William (11) and Hannah (19).

Anna Barker, Publisher
Louisville’s Attorney at Law magazine

(502) 291-7115
abarker@attorneyatlawmagazine.com
www.targetmarketmediallc.com

U.S. SUPREME COURT – JUDGES POWERS AT RESENTENCING OF REHABILITATED FELON EXPANDED

Thursday, March 3rd, 2011

Posted Mar 2, 2011 11:39 AM CST

An Ohio state law professor says a U.S. Supreme Court decision issued today on judges’ powers at resentencing will likely provide fodder for defense lawyers.

The court held that a defendant’s efforts to rehabilitate himself may be taken into account at resentencing, despite a sentencing guideline to the contrary.

The court ruled in the case of Jason Pepper, who had argued that the resentencing judge should have considered that he had found a job and gotten married after serving an initial 24-month sentence that was overturned on appeal. The resentencing judge had added 41 months to Pepper’s sentence. The Associated Press and SCOTUSblog reported on the decision (PDF).

Justice Sonia Sotomayor wrote in her majority opinion that resentencing courts may consider rehabilitation, and such evidence can support a downward departure from the sentencing guidelines. She noted that the federal sentencing guidelines banned consideration of postsentencing rehabilitation, but said the provision did not survive United States v. Booker, the 2005 Supreme Court decision that effectively made the guidelines advisory.

Sotomayor also said the resentencing judge was not bound to follow the same percentage credit for cooperation as the first judge.

The blog Sentencing Law and Policy calls the decision in Pepper v. United States “the biggest federal sentencing case of the term to date.” The author, Ohio State law professor Douglas Berman, says defense lawyers are likely to cite this section of Sotomayor’s opinion dealing with judges’ ability to reject policy statements within the federal sentencing guidelines:

“Our post-Booker decisions make clear that a district court may in appropriate cases impose a non-guidelines sentence based on a disagreement with the Commission’s views. That is particularly true where, as here, the Commission’s views rest on wholly unconvincing policy rationales not reflected in the sentencing statutes Congress enacted.”

Justice Clarence Thomas dissented and Justice Samuel A. Alito Jr. dissented in part. Justice Elena Kagan did not participate in the case.

KENTUCKY FEDERAL DISTRICT COURT SOON TO RULE ON IMPORTANT CASE RE: ATTORNEYS FREE SPEECH RIGHTS – John M. Berry and the ACLU seek limitation of the KBA’s attempt to limit free speech of Kentucky attorneys.

Thursday, March 3rd, 2011

    By LawReader Senior Editor Stan Billingsley  –   March 3, 2011

Author’s disclosure:   I have known John M. Berry Jr. since 1971.  I worked for him for three years just after getting out of law school.  Berry’s story inspired me to write a novel about this issue,  Alice vs. Wonderland.  The book is available on www.lawreader.com.

    Before I write the first sentence of this article, I would explain my intent.  I do not intend to question the “integrity” or “qualifications for office” of anyone.  We believe that it is our right to argue that a public official may have made a mistake, without questioning his “integrity” or “qualifications for office”. 

    U.S. District Judge Danny Reeves has taken under advisement motions in Section 1983 civil rights action filed by John M. Berry, Jr. and the ACLU against the Inquiry Commission of the Kentucky Bar Association.  The ruling has been pending for almost two months as this article is written, a decision is expected at any time.

    Judge Danny C. Reeves joined the court after being nominated by President George W. Bush in 2001.  Judge Reeves is a graduate of Salmon P. Chase law school in 1981. 

   Reeves started his legal career as a Law clerk for former federal judge Eugene Siler in the United States District Court for the Eastern & Western Districts of Kentucky from 1981 to 1983 and entered into Private practice in the State of Kentucky from 1983 to 2001.  He is originally from Whitley County.

    The Berry/ACLU action seeks injunctive relief against enforcement of Kentucky’s Supreme Court Rule 3.130 (8.2) which was used by the KBA to launch a two year investigation of attorney John M. Berry of New Castle, Ky.  The KBA finally found that Berry had not violated the rule, but nevertheless they placed an official “Warning Letter” in his KBA personnel file, and warned him that his “inappropriate” letter to the Legislative Ethics Committee, would be the basis for an enhanced penalty if he violated any ethical rule in the next twelve months.

   This SCR in question declares that an attorney may not make a “false” statement about a judge or judicial officer which questions his “integrity” or “qualifications for office”.

    The rule is taken from the ABA Model Code of conduct for lawyers.  Commentary and court rulings have suggested that this rule should only be applied in pending cases in which an attorney makes comments which might improperly interfere with the pending case.  Berry’s letter was not to a court of law, was not to a judicial judge, made no threats, made no false statements, and was merely an expression of his opinion that the Legislative Ethics Commission has misread the law in dismissing a ethics complaint against Senate President David Williams. 

We have read the Berry letter, and find nothing but the expression of Berry’s legal analysis that the Commission incorrectly interpreted the law.  Berry appeared before the public portion of the Legislative Ethics Commission hearing with his brother Wendell Berry (the Kentucky author and poet) and Richard Beliles the chairman of the Kentucky Common Cause organization.

    Any charge of an “ethical” violation is damaging to a lawyer’s reputation.   But not all claims by the KBA should be taken at face value.  Not all claims of violations under the ethics rules really have anything to do with traditional concepts of “ethics”.

  The letter of John M. Berry, Jr. to the Legislative Ethics Commission, was written and mailed after the Commission had issued a final ruling in favor of Senator David Williams finding he had not committed an ethics violation when his employees solicited campaign contributions from lobbyists.  The ruling, as we understand it, held that while such a solicitation of campaign funds would have been improper for David Williams, that since his underlings did the solicitation that he was free of ethical taint. (??)

    As we see it, it is a little strange that the KBA would launch a two year investigation over a polite letter by a lawyer expressing his opinion about a ruling of a legislative agency.   Why is the KBA carrying water for the Legislature?

   We find nothing in the U.S. or Kentucky constitutions that make it illegal for a citizen to redress their government with their grievances.  There has never been a finding that anything Berry said in his letter was “false”.  We find nothing in his letter which challenged the “integrity” or “qualifications for office” of any judicial officer.  We emphasize that there was no intemperate language, no profanity, and no threats in Berry’s well written legal analysis of the actions of the Legislative Ethics Commission.

    Nevertheless the KBA having failed to obtain from the Inquiry Commission, a probable cause finding of any violation of the  Supreme Court Ethics Rule (SCR 3.130 (8.2) just couldn’t cleanly dismiss the complaint against Berry.  They just had to have the last word by first dismissing the complaint against Berry (preventing Berry from appealing their next action), and they issued an official Warning Letter for his “inappropriate” comments to the Legislature. 

Their official “Warning Letter” did not explain what Berry did that was “inappropriate”.  

The word “inappropriate” contained in the Warning letter is the only explanation of what he did to earn their attention.  We assume that they are suggesting that anytime the KBA finds that an attorney does or says anything they consider “inappropriate” it deserves their attention.

   The Berry /ACLU lawsuit seeks a finding by the Federal Court that attorneys have the right of free speech to seek a redress of their grievances from their government.

If Judge Reeves dismisses Berry’s lawsuit, and upholds the right of the KBA to sanction attorneys for making political comments, and for the expression of any opinion found “inappropriate” by the KBA, then our rights as attorneys will have been seriously affected.

    We would not suggest, and Berry’s lawsuit does not suggest, that Rule 3.130 should be completely stricken.   It may well be appropriate for the KBA to limit the speech of attorneys appearing in court or who may be disrupting a pending trial or action through the use of “false” allegations. 

    But when that rule is expanded to restrict the out of court free speech of lawyers, then every lawyer in Kentucky has a vested interest in this important case filed by Berry and the ACLU.

     Recently Judge Reeves issued a 29 page opinion involving a case filed by Eric Deters.  That opinion was issued some two hours after the hearing in which Deters sought relief from the Federal Court when his motion to recuse the KBA Trial Commissioner hearing the Deters case was not granted.  Judge Reeve’s decision strongly pointed out that Deter’s request for relief was interlocutory, and that he had the option of appealing his issues with the KBA Board of Governors, and the Ky. Supreme Court.   Deter promptly dismissed his federal action, and has appealed to the Board of Governors.

     We would speculate and conclude that Judge Reeve’s is taking a close look at the Berry case and is taking his time, because his ruling will have far ranging consequences. 

     We believe, that he must consider where to draw the line in the application of SCR 3.130.  If he totally throws out SCR 3.130 there will be no control over attorney comments in the courtroom which may interrupt the trial and which directly question the integrity of the trial court.   That would not be good.  On the other hand, if he totally upholds the law as applied by the KBA, then no attorney will ever be able to question a ruling of any court or question the action of any prosecutor even after the conclusion of the trial.  No attorney will be able to write a letter which is critical of a judge or prosecutor.

   This suggests that Judge Reeves will have to use a surgeon’s scalpel to cut out only the offending applications of SCR 3.130.   That effort has taken two months so far.  We hope that Judge Reeves will take all the time necessary to get this one right.

    If you are reading this article, you are probably an attorney.  That means that the impending ruling is of great importance to you.

U.S. Supreme Court Upholds Use of Dying Statements as “Non-Testimonial” Evidence

Tuesday, March 1st, 2011

 The Supreme Court has ruled that a mortally wounded man’s dying statement is “non-testimonial” and can be used to convict a man of murder. The ruling, written by Justice Sonia Sotomayor raised serious concerns under the confrontation clause of the Constitution. Notably, the strongest voice against the ruling came from Justice Antonin Scalia. Justice Kagan did not participate in the decision in Michigan v. Bryant.

By treating the dying man’s words as non-testimonial, the justices allowed them to be admitted into evidence despite the fact that the accused could not confront the witness. In a 6-2 decision, the members ruled that the words of Anthony Covington could be used against Richard “Rick” Bryant in his murder trial –stemming from a shooting at a gas station in April 2001 in Detroit. Police questioned Covington at the scene and he implicated Bryant. He later died at the hospital.

Sotomayor ruled that the police questions “were the exact type of questions necessary to allow police to assess the situation, the threat to their own safety, and possible danger to the potential victim.” Thus, the police “did not conduct a structured interrogation.”

Justice Ruth Bader Ginsburg dissented and noted that the Court did not have to resolve this question since it was never raised in the original appeal. The strongest language, however, came from Scalia who condemned the majority decision as nothing short of “judicial mischief.” Scalia wrote:

 “Today’s tale — a story of five officers conducting successive examinations of a dying man with the primary purpose, not of obtaining and preserving his testimony regarding his killer, but of protecting him, them, and others from a murderer somewhere on the loose — is so transparently false that professing to believe it demeans this institution . . . In its vain attempt to make the incredible plausible, however — or perhaps as an intended second goal — today’s opinion distorts our Confrontation Clause jurisprudence and leaves it in a shambles. Instead of clarifying the law, the court makes itself the obfuscator of last resort.”

Scalia is particularly effective in demolishing Sotomayor’s claims of the purpose of the questioning:

 Worse still for the repute of today’s opinion, this is an absurdly easy case even if one (erroneously) takes the interrogating officers’ purpose into account. The five officers interrogated Covington primarily to investigate past criminal events. None—absolutely none—of their actions indicated that they perceived an imminent threat. They did not draw their weapons, and indeed did not immediately search the gas station for potential shooters.3 To the contrary, all five testified that they questioned Covington before conducting any investigation at the scene. Would this have made any sense if they feared the pres- ence of a shooter? Most tellingly, none of the officers started his interrogation by asking what would have been the obvious first question if any hint of such a fear existed: Where is the shooter?

But do not rely solely on my word about the officers’ primary purpose. Listen to Sergeant Wenturine, who candidly admitted that he interrogated Covington because he “ha[d] a man here that [he] believe[d] [was] dying [so he was] gonna find out who did this, period.” App. 112. In short, he needed to interrogate Covington to solve a crime. Wenturine never mentioned an interest in ending an ongoing emergency.

The Court has been repeatedly accused of adopting such opportunistic views of the facts in outcome-determinative analysis. Scalia adds the following:

 A final word about the Court’s active imagination. The Court invents a world where an ongoing emergency exists whenever “an armed shooter, whose motive for and lo- cation after the shooting [are] unknown, … mortally wound[s]” one individual “within a few blocks and [25] minutes of the location where the police” ultimately find that victim. Ante, at 27. Breathlessly, it worries that a shooter could leave the scene armed and ready to pull the trigger again. See ante, at 17–18, 27, 30. Nothing suggests the five officers in this case shared the Court’s dystopian4 view of Detroit, where drug dealers hunt their shooting victim down and fire into a crowd of police officers to finish him off, see ante, at 30, or where spree killers shoot through a door and then roam the streets leaving a trail of bodies behind. Because almost 90 percent of murders involve a single victim,5 it is much more likely— indeed, I think it certain—that the officers viewed their encounter with Covington for what it was: an investigation into a past crime with no ongoing or immediate consequences.

  Scalia notes:

 Neither Covington’s statements nor the colloquy between him and the officers would have been out of place at a trial; it would have been a routine direct examination. See Davis, 547 U. S., at 830. Like a witness, Covington recounted in detail how a past criminal event began and progressed, and like a prosecutor, the police elicited that account through structured questioning.

 Scalia chastised the majority for offering a “hollow constitutional guarantee” and noted “For all I know, Bryant has received his just deserts. But he surely has not received them pursuant to the procedures that our Constitution requires. And what has been taken away from him has been taken away from us all.”

Here is the link to 59 page opinion: 09-150