Archive for March, 2012

SIXTH CIRT. CLARIFIES FAIR LABOR STANDARDS ACT REGULATON

Thursday, March 15th, 2012

 

By Kevin Hoskins | khoskins@dbllaw.com

 

Courts often deal with the issue of whether a particular employee is exempt under the Fair Labor Standards Act (“FLSA”). The results are significant. Exempt employees are not entitled to overtime wages or the minimum wage. As well, an employer does not have the same record keeping obligations for exempt employees.

 

The Sixth Circuit Court of Appeals recently considered whether an employee is no longer exempt when the company stops paying his or her annually base salary. In Orton v. Johnny’s Lunch Franchise, the plaintiff filed suit when his employer began to experience cash flow problems and stopped paying his annual salary. The district court dismissed the claim, holding that the employer’s failure to pay the plaintiff did not convert his position from salary based to hourly, stressing that “administrative employees are exempt from coverage within the meaning of the FLSA based on the salary that they were owed under their employment agreements and not based on the compensation that they actually received.”

 

Under Section 213(a)(1) of the FLSA, an employee is exempt if they are employed in a “bona fide executive, administrative, or professional capacity,” as defined by the Secretary of Labor. For each of these three functions, the Secretary of Labor has promulgated rules regarding when an employee is exempt. For each rule, the defendant must satisfy three “tests” to qualify: (1) a duties test; (2) a salary-level test; and (3) a salary-based test. This Orton appeal focused entirely on the salary-based test.

 

The Sixth Circuit reversed and remanded the matter, finding the lower court had applied an outdated rule of law. The appellate court clarified that the 2004 amendment to the regulations governing the salary-based test changed the test to “focus on pay received,” rather than the terms of the employment agreement. Accordingly, the question was not what the employee was owed under the employment agreement; rather, it was what compensation the employee had actually received. Likewise, the Sixth Circuit noted that an improper deduction alone will not necessarily render an employee non-exempt. Rather, “[a]n employer who makes improper deductions from salary shall lose the exemption if the facts demonstrate that the employer did not intend to pay employees on a salary basis.” 29 C.F.R. § 541.603(a) (2004).

 

Kevin Hoskins is a Cincinnati attorney practicing at Dressman Benzinger LaVelle psc.

 

DID THE KBA BAR COUNSEL COMMITT CONTEMPT OF FEDERAL COURT BY HIRING ATTORNEY JANE GRAHAM TO MONITOR FEN PHEN CRIMINAL TRIAL AND REPORTING TESTIMONY TO BAR COUNSEL LINDA GOSNELL IN VIOLATION OF FEDERAL JUDGES TRIAL ORDER?

Tuesday, March 13th, 2012

 

On December 7, 2011 LawReader reported that Stan Chesley had filed pleadings alleging that the cost bill submitted to him by the Bar Counsel included a bill for $15,736.86 for the time attorney Jane Graham of Lexington spent attending the Fen Phen criminal trial. Chesley was not a defendant at that trial.

Attorney Dave Helmers also reported that his KBA ethics prosecution bill included a fee for Jane Graham attending the second Gallion/Cunningham criminal trial. Helmers reports that he had to pay $4000 for Grahams attendance at the criminal trial at which he was not a party.

The purpose of Graham attending the criminal trial was to keep Bar Counsel Linda Gosness informed of the ongoing testimony.

If this did occur as reported it would appear to be in direct violation of a trial order issued by U.S. District Judge Danny Reeves..

The transcript of the Gallion and Cunningham criminal trial reveals that Judge Reeves said at the commencement of the Gallion-Cunningham criminal trial:

 

“If we have anyone here — attorneys, paralegals, otherwise — that are associated with potential witnesses in the case, if I discover that any testimony has been reported back I will consider that to be an issue of contempt. I will hold the person in contempt that would report back any testimony to a potential witness, as well as the witness that

it’s reported to.”

“So just so we’re crystal-clear on that, I want to make sure that if that were to occur I will hold the responsible people in contempt and perhaps even let you sit in the lockup

for a while, while we decide what to do about that. I know the attorneys are aware of that in the case — I’ve certainly discussed it with the attorneys — but I want

to make sure everyone else is, as well.”

“if there’s information reported back directly or indirectly to potential witnesses in the case, I will not –that will not be a good thing. I can guarantee you of that.”

Graham explained her work in June of 2011 by saying her “…services had been rendered in connection with Ms. Gosnell’s appearance as a witness in the federal prosecution of Gallion and Cunningham.”

Chesley was billed some $88,000 as a condition of having the right to file an appeal to the Ky. Supreme Court. This bill included the bill of Jane Graham.

The invoices from attorney Graham were alleged to have been so severely redacted that it is unclear what services were rendered for which the KBA paid Jane Graham $15,736.86.

David Helmers (who was not a defendant in the criminal trial but who was disbarred) reports that he was billed $4000 for Jane Graham’s services in sitting in on the Gallion criminal trial at the direction of the KBA Bar Counsel. Helmers was not a criminal defendant but nevertheless received a bill for the KBA participation in the Gallion criminal trial.

“The legal services rendered by Ms. Jane Graham to Bar Counsel Linda Gosnell were described in a letter written in June 2011, two years after the fees had been paid by the KBA.”

One of the letters “tersely explained that Ms. Graham’s services had been rendered in connection with Ms. Gosnell’s appearance as a witness in the federal prosecution “ of Gallion and Cunningham.”

If these cost demands are correctly reported, it suggests that the Bar Counsel was hiring outside counsel to help her prepare for her testimony in the criminal trial. Gosnell in fact testified in the second Fen Phen criminal trial and outlined all of the allegations used in the KBA discipline proceedings against Gallion and Cunningham.

If this did in fact occur it would appear to be in direct violation of an order by U.S. District Judge Danny Reeves. Judge Reeves language in the transcript seemed to leave little doubt that he would sanction anyone who violated his order. It is not known by LawReader if this allegation was ever brought to the attention of Judge Reeves. From what we can conclude, this monitoring of the criminal trial by the KBA was not revealed until Jane Grahams’s bill was added to the cost bill of Chesley and Helmers after the Board of Govenors recommended disbarment for both attorneys. Chesley’s disbarment appeal is still pending before the Ky. Supreme Court.

The current criminal case appeal of Gallion and Cunningham to the 6th. Circuit Court of Appeals contained an argument objecting to the introduction of Gosnell’s testimony in their criminal trial.

 

This argument was described as a violation of Evidence Rule 404-B. (Testimony of prior bad acts.)

 

 

NY Times -A Way Forward on Judicial Ethics

Monday, March 12th, 2012

Published: March 11, 2012      Editorial

The New York times

Last Tuesday, an alliance of government watchdog groups delivered 100,000 signatures to the Supreme Court along with a letter from hundreds of law professors
calling on the justices to voluntarily adopt the code of conduct that applies to all other federal judges and to reform how they handle requests for
recusals.

Related ·
Chief Justice Defends Peers’ Hearing Case on Health Law(January 1, 2012)

Related in Opinion
Editorial: The Supreme Court’s Recusal Problem(December 1, 2011)

A federal appeals court ruling the next day on the case of a federal trial judge illustrates why recusal over a conflict of interest cannot be left solely to the judge involved and needs to
be reviewed by other jurists
. Yet the Supreme Court operates with no such mechanism, which is critical to preserving confidence in the court’s integrity.

Judge Loren Smith, applying a federal statute, had awarded four oil companies $87.3 million from the federal government in October 2009 to reimburse them for their costs in cleaning up hazardous waste from World War
II. A few weeks later, he told the parties he realized his wife owned 98 shares of stock in Chevron, the parent company of Texaco and Union Oil, two companies
in the lawsuit.

The government filed a motion to require that Judge Smith recuse himself from the case under the Code of Conduct for United States Judges, which applies to all federal judges except the
Supreme Court justices. He acknowledged the conflict of interest about Texaco and Union Oil and asked that their claims be assigned to another judge. But he said he would retain control over the judgment for the other two companies in
the case, Shell and Arco.

The government appealed his partial recusal decision, and the appeals court agreed, saying that the code of conduct required the judge to disqualify himself from the entire proceeding as soon as he discovered the
conflict. Though he may have acted with proper intentions, the court said his decision contradicted the mandate of the code to remove himself from “any
proceeding in which his impartiality might reasonably be questioned.”

The Supreme Court, not bound by the code, leaves recusal decisions to each justice. The justices almost never explain how they handle requests for recusal. And if a justice reasoned incorrectly on a recusal
request, there would be no independent review.

Without limiting its independence, the court could adopt a sensible recusal process like one proposed by Stephen Gillers, the legal ethics expert. Any recusal motion would be sent to both the justice involved and to the chief
justice (or the senior associate justice if the motion concerned the chief justice); if the justice decided not to recuse, the reviewing justice would consider whether the motion had merit and, if so, he would refer it to the full
court (minus the justice at issue) for a ruling, with recusal requiring a majority. Any decision by the full court, to recuse or not, would require a written opinion.

This approach would add little to the court’s workload since recusal motions are rare. But it would add considerably to the court’s credibility with the American public.

 

Treaty of Tripoli Ended the War With the Barbary Pirates – Declared that U.S. was not a Christian Nation

Sunday, March 11th, 2012

 

The Treaty of Tripoli Authored by American diplomat Joel Barlow in 1796, the following treaty was sent to the floor of the Senate, June 7, 1797, where it was read aloud in its entirety and unanimously approved. John Adams, haven seen the treaty, signed it and proudly proclaimed it to the Nation.

 

The Treaty of Tripoli (Treaty of Peace and Friendship between the United States of America and the Bey and Subjects of Tripoli of Barbary) was the first treaty concluded between the United States of America and Tripolitania, signed at Tripoli on November 4, 1796 and at Algiers (for a third-party witness) on January 3, 1797. It was submitted to the Senate by President John Adams, receiving ratification unanimously from the U.S. Senate on June 7, 1797 and signed by Adams, taking effect as the law of the land on June 10, 1797.

The treaty was a routine diplomatic agreement but has attracted later attention because the English version included a clause about religion in the United States.

“As the Government of the United States of America is not, in any sense, founded on the Christian religion,—as it has in itself no character of enmity against the laws, religion, or tranquility, of Mussulmen,—and as the said States never entered into any war or act of hostility against any Mahometan nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.”

The treaty is cited as historical evidence in the modern day controversy over whether there was religious intent by the founders of the United States government. Article 11 of the treaty has been interpreted as an official denial of a Christian basis for the U.S. government.[3]

President Adams’ signing statement

“Now be it known, That I John Adams, President of the United States of America, having seen and considered the said Treaty do, by and with the advice and consent of the Senate, accept, ratify, and confirm the same, and every clause and article thereof. And to the End that the said Treaty may be observed, and performed with good Faith on the part of the United States, I have ordered the premises to be made public; And I do hereby enjoin and require all persons bearing office civil or military within the United States, and all other citizens or inhabitants thereof, faithfully to observe and fulfill the said Treaty and every clause and article thereof.”

 

IS THE KBA USING THE LATERAL ARABESQUE TO AVOID EMBARRASING DISCOVERY REQUEST BY STAN CHESLEY?

Saturday, March 10th, 2012

 

ARISTOTLE’S OBSERVATION — “The whole is greater than the sum of the parts.”

Several weeks ago Cincinnati attorney Stan Chesley filed a motion with the Ky. Supreme Court seeking the right to obtain answers to a dozen questions regarding actions of the Bar Counsel’s office which he believes supports his argument that he was denied due process of law in the ethics prosecution brought against him by the KBA. His attorney discipline case is currently on appeal to the Kentucky Supreme Court.

The Kentucky Bar Association submitted a responsive brief in February asking the Supreme Court to deny Chesley’s discovery request. The argument of the KBA Bar Counsel was largely based on the theory that somehow this discovery involved the civil suit against Gallion, Cunningham, and Chesley in the Boone Circuit Court civil action, and that these questions should not be involved in the ethics action against Chesley.

We are aware of a deceptive move in the business world where a troubling employee can’t be fired or defeated due to a lack of evidence, so he is moved laterally on the organization chart, given a new title and a new office. In fact it is a diversionary method to remove the employee from the leadership of the organization without ever having to explain to him why he was “demoted” . this practice is called a “Lateral Arabesque”.

It could well be argued that the response of the Bar Counsel seeking to prevent Chesley’s discovery, is not a direct argument against Chesley’s motion, it is just a Lateral Arabesque to avoid the real issue.

The resolution of the Boone County civil case is currently on appeal to the Supreme Court. It may take years before it is concluded. On the other hand the ethics prosecution against Chesley is actively pending before the Supreme Court. The trial Judge in the Boone County civil case excluded Chesley from the summary judgment he granted against Gallion, Cunningham and Mills. Therefore, Chesley still has the right to a trial in the Boone Circuit Court.

Chesley appears to have argued in his pleadings that there is valid reason for him to be allowed to discover if the plaintiff’s lawyer, Angela Ford made any payments from funds she has seized in the Fen Phen case to the husband of Linda Gosnell, the former Bar Counsel. His motion for discovery is given some merit in view of the dilatory actions of Angela Ford in fighting a motion by the U.S. Attorney to seek an accounting of Ford’s handling of the Fen Phen funds.

If the Supreme Court denies the discovery request submitted in the ethics appeal, then information within the knowledge of the KBA may never be revealed, or at least not revealed until it is too late for Chesley to raise his defense and attempt to save his law license.

Chesley argues that he was denied due process during his discipline trial. He seeks in the interrogatories he has tendered to the Supreme Court, to find out if the Chief Bar Counsel Linda Gosnell should have recused herself from his case. She was at all times in the ethics prosecution of Chesley the manager of the eight other prosecutors in the Bar Counsel’s office.

Chesley is seeking an answer to the question, “Did Gosnell’s husband, Leslie Rosenbaum, receive money from Chesley’s chief accuser Angela Ford, during the time Chesley was being investigated and prosecuted.” If so then there would have been a clear duty for Gosnell to have recused herself from the Chesley investigation.

Chesley notes in his motion, that there were three Trial Commissioner’s in his case. The first Trial Commissioner was recused when it was disclosed that he had tried numerous cases in which Chesley was the opposing attorney. The second Trial Commissioner recused himself after five days of trial, after Chesley discovered that the Trial Commissioner’s son was on the Angela Ford payroll due to his work in collecting assets based on the Boone Civil case summary judgment.

Other cases brought by the Bar Counsel’s office have raised questions about the process used by the KBA to select KBA Trial Commissioners. These Commissioners are appointed by the Chief Justice with approval of the entire Supreme Court.

The Supreme Court rules suggest that the Trial Commissioner selected to hear any particular complaint must be selected randomly (i.e. next available) by the Disciplinary Clerk. Chesley seeks to discover if the Bar Counsel may have intervened in the selection process of Trial Commissioners who heard his case. We would suggest that if this has occurred, then it would be akin to a prosecutor selecting the judge to hear the case.

One allegation claims that the first Trial Commissioner was selected due to his knowledge of “complex” cases such as Chesley’s. If the Trial Commissioner is supposed to be randomly selected, why would there be a discussion about his “knowledge of complex cases?”

During the second Trial Commissioner’s five days of hearings, he made numerous rulings that were upheld by the third Trial Commissioner who was brought in to complete the Chesley prosecution. One of the significant rulings by the second Trial Commissioner that sat on Chesley’s prosecution, denied Chesley a copy of the Houlihan Report which reportedly investigated the conduct of former KBA President Barbara Bonar. That case involved a fee dispute by the KBA President against Chesley’s firm. The KBA has sealed that report, and has rebuffed LawReader’s request for a copy of the report.

No justification has been given by the KBA as to why that report was sealed.

Bonar sued Chesley over a fee in the Catholic Church child sexual abuse class action. Special Judge McGinnis heard Bonar’s fee request and denied her a fee due to her misconduct in settling cases outside the class after she had joined the class. Bonar is believed to have served her year as KBA President during at least part of the Chesley ethics prosecution.

LawReader does not know if KBA President Barbara Bonar ruled on any issues in the Chesley ethics case. But if she did, there would be a very good argument that she should have recused herself as one of his “judges” on his appeal to the Board of Governors.

Chesley’s main request for discovery concerns his effort to find out if Bar Counsel Linda Gosnell’s husband was actually on Ford’s distribution list for the attorneys who assisted her in her civil suit against Chesley. The Kentucky Revised Statutes clearly require a prosecutor to recuse themself if they or their spouse have a financial interest in the outcome of a prosecution. In fact there are two statutes which make it a misdemeanor for a prosecutor to fail to recuse themselves from a prosecution when they or their spouse has a financial interest in the case.

LawReader notes that KBA President Maggie Keane has denied that Gosnell’s firing “…had anything to do with the Ford distribution list”. That same carefully worded quote has been offered to LawReader by other KBA officials. Sometimes one must look at a statement and consider what is not being said.

The statement of the KBA does not deny that there was a distribution list and does not deny that Gosnell’s husband was on the Ford payroll. The statement just suggests that Gosnell’s firing by the Board of Governor’s was for some other reason. We have no knowledge of the names of any attorney on the Ford distribution list of attorneys whom she shared her Fen Phen attorney fees with.

Efforts are underway by the U.S. Attorney to discover this information. Chesley has filed a motion in the Boone Circuit Court for release of this information, and of course Chesley has filed a motion before the Ky. Supreme Court.

It would appear that at some point in the future this information will be revealed. We have heard of no statements by Gosnell or her husband on this issue. Angela Ford has filed her second appeal to the 6th. Circuit to prevent the release of this information.

Chesley’s motion before the Supreme Court is supported by evidence that Gosnell’s husband advertised on his law firm web site in 2007, that he was experienced in “Fen Phen” cases, and “Mass Drug Tort Litigation”. This would seem to be sufficient evidence for the court to justify an order for the discovery requested by Chesley. Further it is been admitted by Angela Ford to the Courier-Journal that she has shared a $13 million dollar fee in her Fen Phen case in the Boone Circuit Court “with other lawyers”. She refuses to reveal who these “other lawyers” were.

The U.S. Attorney in the Gallion criminal trial has been seeking a full accounting of Ford’s distribution of Fen Phen funds she seized. She has not answered the questions submitted by the U.S. Attorney and in December Ford filed her second appeal to the 6th. Circuit again seeking to avoid disclosing the names of the “other lawyers” which whom she shared legal fees.

The bottom line is whether or not Chesley was denied due process of law in his ethics prosecution by the KBA.

The argument by the Bar Counsel to the Supreme Court, suggests that Chesley’s request for discovery is a question that should be raised in the Boone Civil case and not before the Supreme Court who is currently reviewing Chesley’s appeal. This argument appears to be a procedural Lateral Arabesque ….i.e. an effort to avoid answering the question raised by Chesley. This attempt to deny Chesley access to discovery suggests, that such discovery if granted, may be embarrassing to the Bar Counsel Office.

If Chesley is denied answers to his dozen questions, then any disbarment due to ethics violations will be forever questioned, and the meaning of a “fair trial” in KBA ethics proceedings will be forever blackened.

We would comment that that the Supreme Court adopted the current version of Supreme Court rules in 1990*. We would suggest that those rules have one major flaw. That flaw is the excessive lack of transparency regarding the actions of the KBA and the Bar Counsel.

Circuit Judge Tyler Gill was recently quoted in the Courier-Journal:

“Secrecy allows people to do things in ways that they would not dare to in a public setting.” So true!

The pending motion of the U.S. Attorney seeking a full accounting of the Fen Phen funds handled by Angela Ford, if successful, will many of Chesley’s discovery questions. That issue is currently on appeal to the 6th. Circuit Court of Appeals in Cincinnati. Perhaps it would be prudent for everyone to wait and see what the 6th Circuit orders?

If Chesley is denied the right to obtain answers to his twelve questions before the Supreme Court rules on his disbarment appeal, if he is then disbarred, and then it is later revealed that a serious conflict of interest occurred in his prosecution by the Bar Counsel, there are few remedies available to him.

The result would be a black mark against the Supreme Court and the entire attorney discipline process in Kentucky.

*None of the current members of the Ky. Supreme Court were on the bench in 1990 when the current Supreme Court Rules were adopted. We understand that the current Supreme Court may be reviewing new rules regarding the conduct of attorney discipline cases.

 

 

 

 

A Complaint Need Not Be Both Plausible and Persuasive – Todd McMurty

Friday, March 9th, 2012

 

By Todd McMurtry | tmcmurtry@dbllaw.com

More Sharing ServicesShare|Share on aolmailShare on facebookShare on twitterShare on email

.In the case, Mediacom Southeast LLC v. BellSouth Telecommunications, Inc. d/b/a AT&T Kentucky, No. 10-6117 (2012), the United States Court of Appeals for the Sixth Circuit recently issued an opinion addressing the Iqbal and Twombly plausibility standard for pleadings.[1] In this case, the City of Hopkinsville and the Kentucky League of Cities had brought suit against AT&T Kentucky seeking a declaration that AT&T Kentucky’s Commonwealth-wide phone franchise did not permit it to offer a video television service through its phone lines without first seeking a cable franchise from the City.

 

The City settled this suit, but shortly after settlement, Mediacom Southwest LLC intervened and sought a declaration on the same issue. AT&T Kentucky moved to dismiss Mediacom’s intervening complaint pursuant to Fed. R. Civ. P. 12(b)(6), arguing that its video service was governed by its phone franchise. The district court granted AT&T’s motion finding that Mediacom had failed to state a claim upon which relief can be granted. Id. at *4.

 

On appeal, the Sixth Circuit discussed the Twombly/Iqbal standard and found that the district court had “failed to apply the appropriate standard of review for a motion to dismiss, improperly assigning the burden of proof to the non-moving party.” Id. at *4. The Court faulted the district court for its finding that Mediacom’s complaint was “unpersuasive.” Id. at *5. It also found that the district court credited the defendant’s version of the facts, which “unduly raises the pleading standard beyond the heightened level of Iqbal and Twombly, forcing the plaintiff’s well-pleaded facts to be not only plausible, but also persuasive.” Id. at *7 (emphasis added). The Court found this burden was not proper for a motion to dismiss. Instead, the Court found that Mediacom’s complaint went beyond conclusory statements and was not speculative, thus satisfying Twombly/Iqbal. Id. at p. *5.

 

The judgment of the district court was reversed and the matter remanded for further hearing.

 

Todd McMurtry is a Cincinnati attorney practicing at Dressman Benzinger LaVelle psc.

 

Subscribe to the DBL Civil Litigation blog.

 

——————————————————————————–

[1] Bell Atl. v. Twombly, 550 U.S. 544, 555 (2007), and Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).

FORMER KBA PRESIDENT BONAR SEEKS FEE IN CLASS ACTION FROM WHICH SHE WITHDREW – SEE BRIEFS

Friday, March 9th, 2012

Supreme Court Briefs for former KBA President Barbara Bonar and Stan Chesley regarding Bonar’s attempt to set aside Circuit Court ruling that she was not entitled to fees in a Class Action (Catholic
Church Pedophile case).

Oral Argument  were heard Feb 16, 2012 at 9:00 A.M.
Bonar v. Waite, Schneider, Bayless & Chesley,  2010-SC-087

These briefs are posted on the Supreme Court Website, click to read.

Appellant’s Brief (Barbara Bonar)

Appellee’s Brief (Stan Chesley)

Appellant’s Reply Brief (Barbara Bonar)

A TWO MINUTE PRIMER ON JOINT CHECKS AND MISSING ENDORSEMENTS By Christopher Markus

Friday, March 9th, 2012

A TWO MINUTE PRIMER ON JOINT CHECKS AND MISSING ENDORSEMENTS

By Christopher Markus | cmarkus@dbllaw.com

When a check is issued to joint payees, the Uniform Commercial Code (as adopted in both Ohio and Kentucky) requires that all payees endorse the check before the check may be properly cashed or accepted for deposit by a bank. Situations involving joint checks arise in a variety of circumstances. For example, when a lender makes a loan secured by a mortgage on real estate, the lender will often require that – as a condition to making the loan – the lender be added as a loss payee to the mortgagor’s hazard insurance policy covering the real estate. In such a case, the lender-mortgagee will also likely require that any checks issued by the insurance company under the terms of the hazard insurance policy be made payable to the mortgagor and mortgagee, jointly. If a joint check is issued by an insurance company in this situation and that check is accepted by a cashing or collecting bank without the endorsement of both the mortgagee and the mortgagor, the bank may be liable to the party whose endorsement is missing from the check under various legal theories.

In the event that a person identified as a payee on a joint check learns that the check has been deposited or cashed without such person’s endorsement, that person should immediately notify the bank that accepted the check. Often in such cases, the bank that accepted the check will request that the party whose endorsement is missing from the check complete a “form” affidavit of forged or missing endorsement. After such an affidavit is properly completed and returned to the bank that accepted the check with the missing endorsement, that bank should pay the party whose endorsement was missing from the check an amount equal to that portion of the check to which the party is entitled to receive.

 

Christopher Markus is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.

 

 

Amazing Video of Japanese Surrender to U.S. Sent in by LawReader President Mike McMain

Thursday, March 8th, 2012

Japanese Surrender – Amazing Video  Footage Sept 2, 1945…

ACTUAL VOICE OF GENERAL MACARTHUR NEVER BEEN SHOWN TO GENERAL PUBLIC BEFORE.  Sent in by
LawReader President Mike McMain
Click here: Japanese Surrender

Ky. Legislator Higdon Introduces Resolution for Constitutional Amendment that Could Allow Application of Muslim Sharia Law to override Kentucky Law

Thursday, March 8th, 2012

By LawReader Senior Editor Stan Billingsley

Senate Bill 158 introduced by Sen. Jimmy Higdon, R-Lebanon, would require the government to exempt people from laws that contradict their religious beliefs unless there is an overriding reason why those laws should be enforced. We have seen no language that explains who gets to determine what an “overriding reason” means, and who gets to make the determination when it should be allowed or disallowed. This constitutional amendment would seriously attack the current constitutional separation of religion and the state, and would allow anyone.

We can’t understand how the separation of the state and religion can be argued by Senator Higdon to have failed us over the last two centuries. Why would anyone want to make the Commonwealth a Theocracy?

Kentucky courts would have to let people opt out of obeying some laws that run counter to their religious beliefs if a constitutional amendment that passed a Senate committee Wednesday becomes law.

Once you allow one religious body to be exempt from the laws of the state, then you allow all religions, and quasi-religions, and weird fringe groups who call themselves religions to also be exempt from State Laws. Sharia law has been cited to justify physical violence against authors, wives, daughters etc. The law requires women to wear veils and robes, be totally subject to her husband, and condones the killing of women by their family if they have sexual relations outside of marriage. (Author’s note: There are many pretty women in Lebanon, Kentucky and we can’t understand why Sen. Higdon would want to hide their faces behind veils.)

The Family Foundation of Kentucky and the Catholic Conference of Kentucky supports the proposed constitutional amendment.

 

I would suggest that if this amendment passes that I be the one allowed to determine when the law will be applied and when it will be denied. The resolution allows someone to determine if there is an “overriding reason’ the law should be upheld or ignored. I am the only person I trust to make such decisions, and I fear this great power to be granted to anyone else. If we will have a Dictator who has the power to give thumbs up to enforcement of the law, or the power to give thumbs down, I want to be that person. I don’t trust anyone who reads this with that awesome power.

If this resolution passes, then we can expect a battle royal between Baptists and Catholics, Evangelicals and Mormons (will they reinstitute the right to have multiple wives since this practice will no longer be forbidden by state law?), Every little group that calls itself a religion will surely use their power to override state laws in all types of situations.

. Sharia is the entire body of Islamic law. The term literally means “the way to the water source.” It is a wide-ranging body of law and personal rules, regulating matters of jurisprudence, hygiene, politics, business, banking, family, sexuality, diet, and society. It is meant to serve as the governing principle both within the Muslim world and for Muslims living outside it.

Sharia law dictates the Halal, or the famous Muslim dietary laws that prohibit the consumption of pork and alcohol, among other things. Sharia also requires the use of the right hand for eating and drinking, mostly because it is common practice to use the left hand for cleansing after defecation. Sharia describes the major Islamic religious festivals, such as Eid il-Fitr. Sharia also contains the famous dictate of verse 9:29: “Fight those who believe not in Allah nor the Last Day, nor hold that forbidden which hath been forbidden by Allah and His Messenger, nor acknowledge the religion of Truth, (even if they are) of the People of the Book, until they pay the Jizya with willing submission, and feel themselves subdued.” This law is generally interpreted as requiring Muslims to bring non-Muslims under their political domination, but to be tolerant of other religions that exist under their rule. However, the Jizya, or tax on non-Muslims, is required.

 

Read more: What Is Sharia Law? | eHow.com http://www.ehow.com/about_4572297_what-sharia-law.html#ixzz1oYBBXy2w

 

 

DISTINGUISHED KENTUCKY FEDERAL AND STATE PROSECUTORS MAKE ARGUMENT FOR CHANGES IN DEATH PENALTY RULES

Thursday, March 8th, 2012

 

Distinguished Kentucky Federal and State Prosecutors make argument for changes in rules re: Death Penalty Cases

The names of the eleven current and retired prosecutors appear at the bottom of this posting.

“Of the 78 people sentenced to death in Kentucky since 1976, 50 have had a death sentence overturned on appeal by Kentucky or federal courts because of significant legal errors. That is an unacceptable error rate of more than 60 percent.

Kentucky’s justice system is at an historic moment. As a matter of basic fairness, we must pause to understand and reform the way capital punishment is administered in our state.

Each of us is a current or former prosecutor, some of whom have prosecuted capital cases in our commonwealth. As prosecutors, we continue to believe that heinous criminal conduct must be punished severely in a way that advances public safety. However, punishment must be a result of a fair process that produces valid results in which we have full confidence. It is time to suspend executions in Kentucky until the reforms recommended by a groundbreaking professional study are implemented.

Over the last two years, the American Bar Association Kentucky Assessment Team on the Death Penalty, consisting of two retired Kentucky Supreme Court justices, a former chair of the House Judiciary Committee, distinguished law professors and bar leaders, conducted the most extensive evidence-based analysis of the manner in which the death penalty is administered in Kentucky in the history of the commonwealth. Its report focuses on fairness and accuracy in capital cases. It takes no position with regard to whether or not the death penalty should be abolished. It is only concerned with its proper administration.

The independent, comprehensive evaluation of all death penalty cases prosecuted in Kentucky identified a number of very serious problems with the use of the death penalty. The study makes a series of critically important recommendations that will address the problems identified with the way the death penalty is administered in our state.

We endorse these sensible recommendations:

• Adopt legislation exempting the severely mentally ill from the death penalty. There is a bill pending before the Kentucky General Assembly that would accomplish this reform, HB 145, introduced by Rep. Darryl Owens with 11 bipartisan co-sponsors;

• Guarantee proper preservation of all biological evidence in capital cases. Courts should order DNA testing if the results could create a reasonable probability that a defendant should not have been sentenced to death. The Kentucky Supreme Court has been asked to consider a rule change that would rectify this problem;

• Provide additional funding to ensure that defense attorneys who represent indigent capital defendants are paid at a rate that will enable them to provide high quality legal services in matters as complex and demanding as a death penalty case. Recently, a report issued by the KBA Task Force on the Provision and Compensation of Conflict Counsel for Indigents made recommendations endorsed by the KBA Board of Governors to provide improved funding for capital cases. As a result, Kentucky’s statewide public defender program has requested additional funds for this representation, but such funding is not now a part of the budget bill before the General Assembly;

• Law enforcement training and practices should comport with well-known best practices in areas such as interrogations, confessions and eyewitness identification in order to promote the apprehension of the guilty and prevent the conviction of the innocent. Rule proposals that would begin to address these issues have been submitted to the Kentucky Supreme Court for its consideration;

• Adopt statewide standards governing the qualifications and training required of defense attorneys handling capital cases;

• Adopt guidelines governing the exercise of prosecutorial discretion in death penalty cases. Today, at great expense to the system, many cases are prosecuted as capital cases when the likelihood of a death sentence is very low;

• Establish a statewide clearinghouse to collect specific, pertinent data on all death-eligible cases;

• Amend Kentucky’s post-conviction rules and practices to permit adequate development and consideration by the courts of an inmate’s claims of constitutional error. A rule proposal has been submitted to the Kentucky Supreme Court to address this issue;

• Revise the jury instructions typically given in capital cases to improve death penalty juror understanding and comprehension of the law to be applied;

• Correct shortcomings of the Kentucky Racial Justice Act to ensure that the act serves as an effective remedy for racial discrimination in death penalty cases.

The hallmark of our criminal justice system is that its process is fair and its results are reliable and accurate. Our reversal rate undermines this hallmark. These troubling issues in capital cases must be addressed, now.”

Signed:

John L. “Jack” Smith, former U.S. Attorney for the Western District of Kentucky; Alexander T. “Sandy” Taft, former U.S. Attorney for the Western District of Kentucky; Stephen B. Pence, former U.S. Attorney for the Western District of Kentucky and former Lt. Governor of the Commonwealth of Kentucky; Marc S. Murphy, former Jefferson County Commonwealth’s Attorney; Michael J. “Mike” O’Connell, Jefferson County Attorney; Joe Gutmann, former Jefferson County Assistant Commonwealth’s Attorney; Scott C. Cox, former Assistant U.S. Attorney; Larry D. Simon, former Jefferson County Assistant Commonwealth’s Attorney; Will Collins, former Letcher County Commonwealth’s Attorney; Jeffrey A. Darling, former Fayette County Assistant Commonwealth’s Attorney; J. Stewart Schneider, former Boyd County Commonwealth’s Attorney.

 

 

 

JUROR BIAS DISCLOSED AFTER TRIAL WARRANTS NEW TRIAL

Thursday, March 8th, 2012

Confession Of Juror Bias Brings New Trial

A juror who had served on a jury that delivered a defense verdict in a medical malpractice case went into a bar and spoke to a member of the Bar on the day that the verdict was rendered. A discussion of the juror’s service ensued.

As a result, the Oklahoma Supreme Court has ordered a new trial.

The court described the incident:

In the case at hand, a jury returned verdicts in favor of the defendants on plaintiffs’ medical malpractice claims. Plaintiffs raised the issue of juror bias for the first time in their motion for new trial. The record of the evidentiary hearing on the motion for new trial reveals that plaintiffs did not learn of the bias on the part of a particular juror until after the verdicts were rendered and the jury discharged. The record reflects that the juror in question went to an Oklahoma City bar later in the day after the trial was concluded. It is undisputed that the juror talked to another individual at the bar about his service on the jury in this case. The other individual was an attorney and a member of the Oklahoma Bar Association. This attorney was employed as a deputy general counsel for an agency of the State of Oklahoma and had no connection to the case or the attorneys for the parties.

According to this attorney, the juror related, inter alia, that (1) the plaintiffs would have never won the case with him (the juror) serving in the case, (2) he (the juror) was not impartial despite stating in voir dire he could be, and (3) he (the juror) wanted to “play the judicial system” and believed plaintiffs had the burden to prove the defendants intended harm beyond a reasonable doubt before they could recover. The attorney also related that the juror expressed his dislike for African Americans. The plaintiffs in this case are African Americans.

The juror also had been untruthful in the voir dire.

The Court:

One of the significant facts in this case is that the disqualifying bias was disclosed by the juror himself, and not by other jurors repeating statements made by the juror during deliberations. Another significant fact is that the juror spontaneously disclosed the bias to a person unconnected to the parties and their counsel, and not in response to prying questions by the parties or their counsel. We stress these points to limit our holding in this case to cases with comparable circumstances.

We also stress these points to make it clear that this Court does not condone jurors impeaching verdicts, or disclosing statements made by other jurors during deliberations. Neither do we endorse efforts by the parties or their counsel to discover a juror’s thoughts or personal decision-making process. In a few words, the shocking circumstances of this rogue juror are an absolute factual anomaly that we hope is never to be seen again in Oklahoma jurisprudence. We caution that we will not permit the holding in this case to be used to manufacture a ground for new trial, but we are likewise not hesitant to afford the remedy of new trial free from bias, if such circumstances are ever repeated.

A concurring opinion states in part:

The facts of this case, must be viewed very narrowly. The juror openly volunteered to a total stranger his predilection to deny the litigants a fair trial. The stranger happened to be a member of the Oklahoma Bar Association whose very oath as an attorney includes the support and defense of the Oklahoma Constitution. If we allow the open, intentional destruction of the justice system, by jurors whose agenda is to deny to others the basic principles of equality and justice by reason of personal bias or prejudice concerning a party, we erode the pillars of our constitution.

There is also a dissent. (Mike Frisch)

 

PRIVATE PRISON GROUP SEEKS TO BUY PRISONS BUT GOV. MUST GUARANTEE 90% OCCUPANCY!

Thursday, March 8th, 2012

A Reason Against Private Prisons

 

From USA Today:

 

“At a time when states are struggling to reduce bloated prison populations and tight budgets, a private prison management company is offering to buy prisons in exchange for various considerations, including a controversial guarantee that the governments maintain a 90% occupancy rate for at least 20 years.

 

 

 

The $250 million proposal, circulated by the Nashville-based Corrections Corporation of America to prison officials in 48 states, has been blasted by some state officials who suggest such a program could pressure criminal justice officials to seek harsher sentences to maintain the contractually required occupancy rates.”

 

REDISTRICTING 2.0 SHOULD INCLUDE KENTUCKY’S TRIAL COURTS

Wednesday, March 7th, 2012

Article submitted by Hon. Jason Nemes:

With the recent Kentucky Supreme Court decision declaring the redistricting package for the state legislature unconstitutional, the General Assembly must redistrict the state during the 2013 session to comply with federal equal protection law and Section 33 of the Constitution of Kentucky. And, in addition to redrawing the legislative lines, it appears that there is interest, once again, to redraw the districts that apply to Supreme Court justices and Court of Appeals judges. (Though the appellate court plan was not challenged, it was voided along with the state legislative plan because it was included in the same bill, which contained a non-severability clause.)

However, redistricting should not stop there. While it is true that federal one-person, one-vote principles do not apply to the judiciary (judges don’t “represent” anyone), judicial and governmental efficiency require significant attention to judicial circuits, which, in many cases, are grossly out of proportion when considering caseloads and population shifts. Redistricting circuit courts would more effectively employ the state’s limited resources and enable expansion of family courts to the rest of the state, among many other benefits.

The Court of Justice is in constant need of additional resources, but some of this is because it is operating in an anachronistic system. The current circuit plan, with its wildly divergent caseloads and populations, is a major impediment to judicial efficiency, and it annually wastes millions of taxpayer dollars. (The antiquated filing system is the other major overhaul necessary to improve Kentucky’s courts. A modern electronic filing system would bring the system into the 21st century while enabling the courts to charge for access to its electronic records and reduce circuit-clerk-staffing needs, which are chronically understaffed in many counties. Of course, this is to say nothing of the benefits such a system would provide the public and the bar.)

The case for re-circuiting is incontrovertible. We have 95 non-family circuit judges across the state, with an average caseload of 1,209 filings per year. However, there are circuits in this state with nearly double the average caseload, and those areas (e.g., Jessamine, Bullitt, and northern Kentucky) are experiencing explosive growth. On the other end of the spectrum, there are circuits with half the average caseload, and those areas are experiencing drastic population decreases (e.g., Floyd, Knott/Magoffin, and far western Kentucky). For example, Floyd County is its own circuit, has three circuit judges (one is a family court judge), lost 7 percent of its population over the past 10 years, and would still be well below the average caseload if it lost one of its circuit judges.

With regard to population, Harlan (29, 278), Perry (28,712), Letcher (24,519), and Bell (28,691)—contiguous counties—is each its own circuit, with a total of four circuit judges. This is two more than their aggregate population would warrant. One suggestion is to combine Bell, Harlan and Letcher counties, keep their three circuit judges, but make one of them a family court judge. Then combine Perry County with Magoffin and Knott, keep their combined two circuit judges and make one of them a family court judge. Currently a family court judge elected in Floyd County covers family court cases in Magoffin and Knott. This judge could be discontinued, since Floyd County currently has about 1.5 more judges than its caseload and population warrants. This proposal would reduce one circuit judge that could be assigned to another area of the state that needs more judges. It would also expand family court to an area badly in need of the focused services provided by these courts.

Fortunately, there is no better time than the 2013 session to address the judicial circuits. Every trial judge in the state will be on the ballot in 2014, as the circuit judges’ eight-year terms and the district judges’ four-year terms come to an end. And to properly address this complex issue, months of study and the interests of numerous constituencies need to be considered. For instance, re-circuiting will affect commonwealth’s attorney, whose districts are the same as the judicial circuits. But commonwealth’s attorneys are on a six-year election cycle as opposed to the eight-year cycle for the circuit judges. Another issue that requires considerable study is the expansion of family courts. But without re-circuiting, it will be effectively impossible to expand family courts to the approximately 25 percent of the population that currently do not have them.

With that in mind, the Kentucky Supreme Court should certify the necessity to “reduce, increase or rearrange” the judicial circuits pursuant to Section 112(2) of the Constitution, and then the Chief Justice and the leaders of the House and Senate should appoint a committee to make recommendations to re-circuit the state. This committee could recommend a few options to re-circuit the Commonwealth, including one limited to addressing the most glaring inefficiencies, such as the one identified above. The result could be either a reduction in the total amount of judges, or, more likely, a better reallocation of the judges currently in existence.

Re-circuiting the Commonwealth’s trial courts is a major undertaking, and it should not be done with haste. However, re-circuiting is long overdue and, because of the upcoming 2014 elections, there is no better time than the 2013 legislative session to get it done.

Caseload statistics may be found at this link: http://courts.ky.gov/NR/rdonlyres/6BC06A12-9779-4710-B578-01E886BBB12A/0/ins015_ci_judge_ranking_bycircuit.pdf

 

Admittedly, I have focused on southeastern Kentucky, which has the most glaring disparities. But similar problems exist in other places.

 

 

BRENDA POPPLEWELL DISCUSSES FIRST AMENDMENT PROTECTION AGAINST POLICE RETALIATION

Wednesday, March 7th, 2012

In Hamblin v. Thornton, 10-209-GFVT R. 23, Order Denying in Part, Summary Judgment (E.Dist. Ky.), Somerset Attorney Brenda Popplewell represented Easter Hamblin in a civil rights action against Whitley County Constable Jim Thornton in the Federal District Court, Eastern District, at London. Ms. Hamblin alleged that Constable Thornton violated her First Amendment right to free speech when after she criticized him, the constable retaliated against her by telling her to shut her mouth, get in her car, or her would arrest her. Ms. Hamblin also alleged that Constable Thornton used excessive force when he reacted to Ms.. Hamblin’s remarks by grabbing her arm, jerking her forward and bruising her arm. The Federal District Court agreed and denied summary judgment against Constable Thornton in his individual capacity and upheld Ms. Hamblin’s First Amendment claim that her speech was protected and Fourth Amendment claim that Constable Thornton used excessive force. Here are excerpts from the Court’s opinion:

Hamblin’s first claim is that Thornton violated her First Amendment rights by retaliating against her for engaging in protected conduct. The facts, when looked at in a light most favorable to Hamblin, reveal that shortly approached the accident she told Thornton that she did not want Thornton’s towing service to tow her truck. After surveying the accident, Hamblin and Thornton interacted again when Hamblin reiterated her request, justifying her preference on the grounds that she did not trust Thornton’s towing service. ……

Hamblin and Thornton’s second interaction occurred while Hamblin stood close to the truck’s back bumper and “no more than eight or ten inches” off of the paved road. After Hamblin spoke, Thornton grabbed Hamblin’s left arm. Hamblin claims, he “jerk[ed] me forward . . . and told me to shut my mouth, get in my vehicle and leave, or he will take me to jail.”…..

To state a First Amendment retaliation claim, Hamblin must show: “(1) [she] engaged in protected conduct; (2) [she] suffered an adverse action which would deter a person of ordinary firmness from continuing to engage in the protected conduct; and (3) the adverse action was motivated at least in part by the protected conduct.” Smith v. Craven, 61 F. App’x 159, 161 (6th Cir. 2003) (quoting Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999)). “A motivating factor is essentially a but-for cause—‘without which the action being challenged simply would not have been taken.’” Leonard v. Robinson, 477 F.3d 347, 355 (6th Cir. 2007) (quoting Greene v. Barber, 310 F.3d 889, 893 (6th Cir. 2002)…..In satisfying the first element of a First Amendment retaliation claim, Hamblin quotes Sixth Circuit precedent which outlines the broad contours of protected speech, especially when criticizing the state or a state actor. McCurdy v. Montgomery Cnty., 240 F.3d 512, 520 (6th Cir. 2001) (citing numerous cases). Especially relevant here is the Sixth Circuit’s statement that “[t]here can be no doubt that the freedom to express disagreement with state action, without fear of reprisal based on the expression, is unequivocally among the protections provided by the First Amendment. Id. (quoting Glasson v. City of Louisville, 518 F. 2d 899, 904 (6th Cir. 1975); see also Barrett v. Harrington, 130 F.3d 246, 264 (6th Cir. 1997) (“The First Amendment right to criticize public officials is well-established and supported by ample case law.”). Moreover, Thornton does not contest that Hamblin engaged in protected conduct. Given the facts as they must be accepted at this stage of the litigation, as well as McCurdy and the precedent cited therein, the Court finds that Hamblin’s speech was protected.(Bold Added).

 

FLORIDA AND OTHER STATES SEEK TO MODIFY AND LIMIT ALIMONY

Monday, March 5th, 2012

The following article might explain why some 50% of couples in the United States are living together without the benefit of a formal marriage.  The penalites imposed on men by the marriage contract make marriage a very expensive risk.

In Age of Dual Incomes, Alimony Payers Prod States to Update Laws

By LIZETTE ALVAREZ

MIAMI. — In the waning days of this year’s legislative session, Florida lawmakers and advocacy groups are pushing to overhaul the state’s alimony law in a bid to better reflect today’s marriages and make the system less burdensome for the alimony payer.

Florida joins a grass-roots movement in a growing number of states that seeks to rewrite alimony laws by curbing lifelong alimony and alleviating the financial distress that some payers — still mostly men — say they face. The activists say the laws in several states, including Florida, unfairly favor women and do not take into account the fact that a majority of women work and nearly a third have college degrees.

The Florida House recently approved legislation that would make lifelong alimony more difficult to award and less onerous for the payer and, in the case of a remarriage, would place a new spouse’s income off-limits in awarding payments. Attention turns to the Senate, where the companion bill is less far-reaching. Florida had already changed some provisions in alimony law two years ago.

Traditionally, alimony was designed to prevent divorced women who did not work and were less educated from falling into poverty. According to this view, the woman’s job was to raise children and run the household. Today, with both spouses often working, that situation is far less common. The question now is: What is fair alimony in the 21st century?

“I think that with my parents and certainly their parents, there were far less women in the work force,” said State Representative Ritch Workman, a Melbourne Republican who is sponsoring the House bill. “The concept of a woman, after 15 years being married, to enter the work force and survive on her own was ludicrous. It was an obligation of the ex-husband to support her until she found another husband. I am sure that’s insulting to today’s women that they have to go from one husband to the next to be supported. It is not anti-woman to say that out loud.”

Last year, the legislature in Massachusetts, which had some of the country’s most antiquated alimony laws, passed without opposition a measure to rewrite the laws and make them more equitable, following the recommendations of a special commission. The changes in Massachusetts, which were supported by the state bar association and women’s groups, have spurred alimony payers in other states to organize and begin lobbying lawmakers.

In New Jersey, a resolution calling for the creation of a similar commission to study the state’s alimony laws has gained momentum. Connecticut lawmakers are drafting an alimony bill, with hearings expected in the next month, lobbyists say. And in Arkansas, the Carolinas, Oregon, West Virginia and other states, activists are setting up “Alimony Reform” groups, collecting stories about the hardships of long-term alimony payments and presenting them to lawmakers.

Because laws vary greatly from state to state and grant judges broad discretion with few guidelines, alimony judgments diverge wildly, sometimes within the same jurisdiction. In Florida, marriages lasting longer than 20 years typically trigger lifetime alimony payments, but it is also not uncommon for the higher-income earner in shorter marriages to wind up paying permanent alimony, which can stretch for decades and end only after the payer dies or the former spouse remarries.

For many payers, reducing alimony is difficult, even when circumstances and incomes change. Appeals are often lost. The high cost of legal representation can make it impossible to continue battling in court. Payers say alimony should not deplete retirement funds, discourage women from working or remarrying, or sap the income of a new spouse.

If the standard of living must drop after a divorce, as it often does, the burden should be equally shared, they say. In Florida, that is not always the case.

“It can strangle the person that is paying it,” said Alan Frisher, the founder of Florida Alimony Reform, an organization of 2,000 members, several of whom testified recently at legislative committee hearings. “Oftentimes, we can’t afford to pay that amount of alimony. It can provide a disincentive for the receiver to ever go back to work, to make more money or remarry. I don’t think anybody should have to be an indentured servant for the rest of their lives.”

But Barry Finkel, a family law lawyer in Fort Lauderdale, said the bill would heedlessly chisel at judges’ discretion.

“There certainly is a national trend against long-term alimony,” he said, “but the answer is not to create these roadblocks and hurdles because there is an unhappy payer.”

Cynthia Hawkins DeBose, a law professor at Stetson University in Gulfport, said the bill, and others like it, could remedy some inequities of permanent alimony, like protecting a new spouse’s income and ensuring that an ex-wife does not live in a $700,000 house while her husband lives in a $180,000 one. Former spouses, she said, should be permitted to move on and not be tethered forever.

“Over all, I’m mixed about this,” she said. “I don’t think alimony should be welfare for the middle class, but I’m fearful of the tail wagging the dog.”

In Florida, as in most states, the alimony system works mostly as it should. Ninety-five percent of those who divorce settle out of court, and judges often make fair decisions, legal experts say.

David L. Manz, the chairman of the Florida Bar Family Law Section, said his organization opposed the House bill because it was too loosely written and would remove too much judicial discretion. In remedying the plight of a small number of men, Mr. Manz said, the bill could leave more divorced women vulnerable. He said he was negotiating to change parts of the bill.

Even today, Mr. Manz said, divorce is more likely to hurt women. They are still the ones who typically give up their jobs to focus on raising children. Even when they do not give up jobs, their child-rearing responsibilities can sidetrack their careers. Returning to jobs after long absences is difficult.

“For every guy, there is a wife or former wife who got the short end of the stick,” Mr. Manz said. “Look at the standard of living of most people in a long-term marriage: divorced men’s standard of living goes up, and the women’s goes down. That happens every day.”

“We are not in favor of disenfranchising someone who has given up her career,” he added. “What you are hearing about is a very vocal, persuasive minority.”

The men, and the few women, in Florida Alimony Reform agree they are a minority. But they say the injustice in the system is no less gut-wrenching. They say judges’ attempts to follow the law and maintain, after divorce, the same standard of living a couple shared in marriage is mathematically impossible. Former wives often benefit from this, they say.

Dr. Jose A. Aleman-Gomez, a Cape Coral cardiologist who was married for 21 years, said he must pay $50,000 a year, or about 25 percent of his salary, to his ex-wife, a practicing dentist with a solid income. And Dr. Bernard R. Perez, a Tampa eye surgeon with throat cancer who was married for 20 years, said he had been ordered to pay his former wife 85 percent of his income; for the last three years, he has lived in his brother’s garage and is near bankruptcy, he said.

Each man was also ordered in court to carry a life insurance policy naming his former wife as sole beneficiary.

The aggrieved men say they are not opposed to alimony. They are opposed to alimony payments with no end in sight. In their view, alimony should be awarded for long enough to allow a former spouse to get an education, find a decent job or rehabilitate a career or, when both spouses agree, until children reach a certain age. The Florida bill would allow exceptions, like older women who cannot easily find decent jobs.

“I am maintaining her standard of living but not mine,” Dr. Aleman-Gomez said of his former wife. He said he was paying off $70,000 in lawyer’s fees. “A person with a doctorate degree, with a six-figure income, should not be receiving alimony,” he said. “Alimony is for the people who need it.”

 

 

Senator Rand Paul Provides Links to Tornado Aid Sites- Doesn’t include Federal Resources

Monday, March 5th, 2012

Senator Rand Paul Provides Links to Resources for Kentuckians Affected by Friday’s Tornadoes

(Senator Paul’s presidential candidate father, announced this week that he opposed any federal aid for tornado victims. We note that the Paul press release does not mention any resources for federal agencies.)

Sen. Rand Paul press release

My staff in Kentucky has been on the ground surveying the damage from Friday’s tornado devastation. They have compiled the following information to share with affected Kentuckians and opportunities for those who wish to volunteer or donate items. Please share this information with your friends and neighbors. As more information comes in, we will send additional updates.

I would also like to offer my deepest sympathy and prayers to the families of those who lost their lives and all those affected by these horrific storms. I am dedicated to serving the people of Kentucky and it is times like these our state motto rings most true, as communities come together united for the good of the Commonwealth.

- Senator Rand Paul

###

VOLUNTEERS AND DONATIONS:

PERRY COUNTY – Hazard

Hazard National Guard Armory accepting donations through 5 p.m. ET, Sunday, March 4

BREATHITT COUNTY – Jackson

Jackson National Guard Armory accepting donations through 5 p.m. ET, Sunday, March 4

651 Armory Drive

Jackson, KY 41339

606-666-2440

KENTON COUNTY – Independence

Sprint Store – Accepting clothing, children’s items, water, food, cleaning supplies through 7 p.m. Saturday, noon-5 p.m. Sunday

2081 Centennial Blvd.

Independence, KY 41051

859-363-9000

LAUREL COUNTY – East Bernstadt

East Bernstadt Fire Department – accepting volunteers and donations

2541 N US Highway 25

East Bernstadt, KY 40729

606-843-6511

AMERICAN RED CROSS

SAFE AND WELL PROGRAM

• A service for survivors to register and leave an “I’m safe” message so loved ones can search for them to check their status: https://safeandwell.communityos.org/cms/index.php

DONATIONS TO THE KENTUCKY CARES CAMPAIGN

• Text “Redcross” to 90999

• Drop off a check at any Central Bank location

 

SHELTERS:

ELLIOTT COUNTY – Sandy Hook

Elliott County High School

Main Street

Sandy Hook, KY 41171

GRANT COUNTY – Dry Ridge

Grant County High School

715 Warsaw Rd.

Dry Ridge, KY 41035

LAUREL COUNTY – London

Laurel Fire Department

911 TLC Lane

London, KY 40741

LAUREL COUNTY – East Bernstadt

First Baptist Church – East Bernstadt

226 School St.

East Bernstadt KY 40729

606-843-6211

LAWRENCE COUNTY – Louisa

Lawrence County High School

100 Bulldog Lane

Louisa, KY 41230

MAGOFFIN COUNTY – Salyersville

Magoffin County Health Department

132 E Mountain Parkway

Salyersville, KY 41465

MENIFEE COUNTY – Frenchburg

Menifee County High School

119 Indian Creek Rd

Frenchburg, KY 40322

MORGAN COUNTY – West Liberty

Morgan County High School

150 Road to Success

West Liberty, KY 41472

 

SEN. PAUL STAFF MEMBERS

Our office’s state staff is hard at work on the ground helping connect constituents with the resources they need. Please do not hesitate to contact the following staff – or the contact information at the top of this release – with updates to open shelters and donation sites.

Eastern Kentucky (including West Liberty/Morgan County)

Chris Musgrave

chris_musgrave@paul.senate.gov

859-338-7348

Bryan Mills

bryan_mills@paul.senate.gov

606-854-3296

Northern Kentucky (including East Bernstadt/Kenton County)

Bernie Kunkel

bernie_kunkel@paul.senate.gov

859-322-3499

 

 

AMICUS BRIEF FILED BY THOMAS JEFFERSON SOCIETY IN BEHALF OF JOHN M. BERRY JR. VS. KBA

Sunday, March 4th, 2012

 

Case Nos. 11-5456 / 11-5515

______________________________________

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

______________________________________

John M. Berry, Jr.

Plaintiff-Appellant Cross-Appellee,

v.

Michael J. Schmitt, In His Official Capacity as

Chair of the Kentucky Bar Association Inquiry

Commission

Defendant-Appellee Cross-Appellant.

_________________________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF KENTUCKY

__________________________________________

BRIEF FOR AMICUS CURIAE THE THOMAS JEFFERSON CENTER

FOR THE PROTECTION OF FREE EXPRESSION

IN SUPPORT OF APPELLANT

__________________________________________

J. Joshua Wheeler

The Thomas Jefferson Center for

The Protection of Free Expression

400 Worrell Drive

Charlottesville, VA 22911

(434) 295-4784 (telephone)

(434) 296-3621 (fax)

Attorney for Amicus Curiae

6CA-1

8/08 Page 1 of 2

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Disclosure of Corporate Affiliations

and Financial Interest

Sixth Circuit

Case Number: Case Name:

Name of counsel:

Pursuant to 6th Cir. R. 26.1,

Name of Party

makes the following disclosure:

1. Is said party a subsidiary or affiliate of a publicly owned corporation? If Yes, list below the identity of the parent corporation or affiliate and the relationship between it and the named party:

2. Is there a publicly owned corporation, not a party to the appeal, that has a financial interest in the outcome? If yes, list the identity of such corporation and the nature of the financial interest:

 

CERTIFICATE OF SERVICE

 

I certify that on _____________________________________ the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by placing a true and correct copy in the United States mail, postage prepaid, to their address of record.

s/

This statement is filed twice: when the appeal is initially opened and later, in the principal briefs,

immediately preceding the table of contents. See 6th Cir. R. 26.1 on page 2 of this form.

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES………………………………………………………………………i

STATEMENT OF INTEREST OF AMICUS CURIAE………………………………..1

SUMMARY OF ARGUMENT………………………………………………………………….1

ARGUMENT…………………………………………………………………………………………..3

I. THERE IS NOT A COMPELLING STATE REASON TO JUSTIFY

RESTRICTING ATTORNEYS’ SPEECH CONCERNING THE

ETHICS COMMISSION. ………………………………………………………………..3

II. THE DISTRICT COURT FAILED TO GIVE PROPER WEIGHT TO

THE FACT THAT THE REGULATION RESTRICTS SPEECH ON

MATTERS OF PUBLIC CONCERN………………………………………………..7

CONCLUSION………………………………………………………………………………………10

ii

TABLE OF AUTHORITIES

Case Page

Anthony v. Va. State Bar, 621 S.E.2d 121 (Va. 2005)……………………………………5

Burson v. Freeman, 504 U.S. 191 (1992)…………………………………………………….2

Butterworth v. Smith, 494 U.S. 624 (1990) …………………………………………..2, 7, 8

Carey v. Brown, 447 U.S. 455 (1980) …………………………………………………………7

Cohen v. California, 403 U.S. 15 (1971)……………………………………………………..1

Connick v. Myers, 461 U.S. 138 (1983) ………………………………………………………7

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975)…………………………………9

Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985)………7

Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991)…………………………………..5

Ky. Bar Ass’n v. Waller, 929 S.W.2d 181 (Ky. 1996)……………………………………4

Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978) …………….7, 8

NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982)…………………………2, 7

In re Palmisano, 70 F.3d 483 (7th Cir. 1995) ………………………………………………5

Republican Party of Minnesota v. White, 536 U.S. 765 (2002) ………………………4

Simon & Schuster, Inc. v. Members of New York State Crime Victims Bd., 502

U.S. 105 (1991)………………………………………………………………………………………..3

Smith v. Daily Mail Pub. Co., 443 U.S. 97 (1979) ………………………………………..9

Snyder v. Phelps, 131 S. Ct. 1207 (2011)…………………………………………………….8

iii

The Florida Bar v. Ray, 797 So. 2d 556 (Fla. 2001)……………………………………..5

The Florida Star v. B.J.F., 491 U.S. 524 (1989) …………………………………………..9

U.S. Dist. Court for the E. Dist. of Wash. v. Sandlin, 12 F.3d 861 (9th Cir.

1993) ………………………………………………………………………………………………………5

OTHER:

U.S. Const.

Amend. I ………………………………………………………………………………..passim

Statutes and Rules

Fed. R. App. Proc. 29………………………………………………………………………………..1

1996 Ky. Acts 865 ……………………………………………………………………………………5

Ky. Sup. Ct. R. 3.130(8.2 (a)) (1989) ………………………………………………….passim

KY. REV. STAT. ANN. § 6.651(2) (West 2010)………………………………………………5

KY. REV. STAT. ANN. § 6.666 (West 2010) ………………………………………………….6

KY. REV. STAT. ANN. § 6.691(6) (West 2010)………………………………………………6

KY. REV. STAT. ANN. § 6.691(7) (West 2010)………………………………………………6

1

STATEMENT OF INTEREST OF AMICUS CURIAE1

The Thomas Jefferson Center for the Protection of Free Expression is a

nonprofit, nonpartisan organization located in Charlottesville, Virginia.

Founded in 1990, the Center has as its sole mission the protection of free speech

and press. The Center has pursued that mission in various forms, including the

filing of amicus curiae briefs in this and other federal courts, and in state courts

around the country.

 

SUMMARY OF ARGUMENT

It is unquestionable that the speech for which John Berry was

reprimanded did not fall under any of the established exceptions to First

Amendment protection. See Cohen v. California, 403 U.S. 15, 24 (1971)

(“[M]ost situations where the State has a justifiable interest in regulating speech

will fall within one or more of the various established exceptions.”). There is

no allegation, for example, that his speech constituted fighting words or a true

1 Pursuant to Fed. R. App. Proc. 29, a motion has been filed requesting the

Court to permit consent for the filing of this amicus brief. This brief was

authored in whole by counsel for amicus curiae. No party or any person other

than amicus contributed money to fund the preparation and submission of this

brief.

 

Nor did he say anything that could be considered obscene, defamatory,

or an imminent incitement of illegal conduct.

 

In fact, Mr. Berry’s speech should have been accorded especially strong

First Amendment protection because it was addressing matters clearly political

involving a commission established by Kentucky’s elected state legislature. See

Burson v. Freeman, 504 U.S. 191, 217 (1992) (“The statute directly regulates

political expression and thus implicates a core concern of the First

Amendment.”) (emphasis added). Moreover, it was expression that concerned

the legislatively created process for investigating claims of ethical misconduct

by Kentucky’s elected General Assembly. See Butterworth v. Smith, 494 U.S.

624, 632 (1990) (“Here[the state] seeks to punish the publication of information

relating to alleged governmental misconduct—speech which has traditionally

been recognized as lying at the core of the First Amendment.”) (emphasis

added). As such, Berry’s speech was on a matter of profound public concern

entitling it to heightened First Amendment protection. See NAACP v. Claiborne

Hardware Co., 458 U.S. 886, 913 (1982) (“This Court has recognized that

expression on public issues has always rested on the highest rung of the

hierarchy of First Amendment values.”) (emphasis added) (citations omitted).

3

Further, as the district court correctly determined, Ky. Sup. Ct. R.

3.130(8.2 (a)) regulates speech on the basis of content, thereby creating a

presumption of its unconstitutionality. See Simon & Schuster, Inc. v. Members

of New York State Crime Victims Bd., 502 U.S. 105, 115 (1991). The district

court erred, however, in its determination that attorneys lose the core

Constitutional right to question and criticize political officials on matters of

public concern simply because of their status as members of the legal

profession.

 

ARGUMENT

 

I. THERE IS NOT A COMPELLING STATE REASON TO JUSTIFY

RESTRICTING ATTORNEYS’ SPEECH CONCERNING THE

ETHICS COMMISSION.

The right of free speech enshrined in the First Amendment of the

Constitution provides that “Congress shall make no law . . . abridging the

freedom of speech . . ..” U.S. Const. amend. I. While some “content-neutral”

restrictions on freedom of speech can be tolerated under the Constitution,

restrictions that are “content-based” are presumptively invalid. Simon &

Schuster, Inc., 502 U.S. 1 at 115. In order to stand Constitutional muster,

content-based restrictions must pass strict scrutiny review, which requires that

the restriction be “(1) narrowly tailored, to serve (2) a compelling state

interest.” Republican Party of Minnesota v. White, 536 U.S. 765, 774 (2002).

While the district court correctly determined that Rule 8.2(a) is a contentbased

restriction on speech, it failed to give appropriate weight to Constitutional

concerns in assessing whether the regulation is narrowly tailored to serve a

compelling government interest. Rule 8.2 (a) is aimed at speech that “unfairly

undermines public confidence in the administration of justice.” Ky. Sup. Ct. R.

3.130(8.2 (a)) cmt. 1 (1989). By its own terms, however, the regulation reaches

a substantial amount of speech beyond that which implicates its purported

government interest. Rule 8.2(a) prohibits false or recklessly made statements

by lawyers “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.” Ky. Sup. Ct. R. 3.130(8.2(a)). The district court

incorrectly assumed that prohibiting attorneys’ criticism of the Ethics

Commission serves a state interest equally compelling to that served by

prohibiting attorneys’ criticism of a judge or official in the judicial branch of

government. (It is worth noting that each of the cases cited by the district court

to justify regulations on attorney speech involved speech directed at the judicial

branch: Ky. Bar Ass’n v. Waller, 929 S.W.2d 181 (Ky. 1996) (suspending

attorney for calling judge a “lying incompetent ass-hole” in court-filed papers);

In re Palmisano, 70 F.3d 483 (7th Cir. 1995) (affirming disbarment of attorney

who characterized almost every judge who had participated in his cases as

corrupt); Anthony v. Va. State Bar, 621 S.E.2d 121 (Va. 2005) (affirming

reprimand of attorney who had alleged without evidence misconduct by

Virginia Supreme Court Justices); The Florida Bar v. Ray, 797 So. 2d 556 (Fla.

2001) (ordering public reprimand of attorney who had written three letters

questioning the veracity and integrity of judge, as well as judge’s fairness at

hearing); Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) (reversing

private reprimand where attorney had made statements at press conference that

he knew or reasonably should have known would have substantial likelihood of

materially prejudicing impending criminal jury trial); U.S. Dist. Court for the

E. Dist. of Wash. v. Sandlin, 12 F.3d 861 (9th Cir. 1993) (affirming suspension

of attorney who had accused United States District Judge of tampering with

official court transcript)).

But the Ethics Commission is not court of law. Members of the

Commission are appointed to four-year terms by one of three legislative

officials, KY. REV. STAT. ANN. § 6.651(2) (West 2010). A previous requirement

that two members be retired judges was repealed in 1996. 1996 Ky. Acts 865.

 

Membership on the Commission does not confer judicial status on its individual

members; it is merely an investigatory body. See KY. REV. STAT. ANN. §

6.691(6) (West 2010) (“[T]he Attorney General shall have responsibility for all

prosecutions under the law and may request from the commission all evidence

collected in its investigation.”); see also KY. REV. STAT. ANN. § 6.691(7) (West

2010) (“[F]indings of fact or final determinations by the commission that a

violation of this code has been committed . . . shall not be admissible in

criminal proceedings in the courts of the Commonwealth of Kentucky.”). Its

function is to investigate claims of ethical misconduct by elected members of

the state legislature. See KY. REV. STAT. ANN. § 6.666 (West 2010).

 

As officers of the court who play an integral role in the judicial system, it

is understandable that attorneys could undermine public confidence in the

administration of justice with recklessly made false comments about judges or

judicial officers. The same simply cannot be said about the Ethics Commission.

Attorneys have no special role to play in the operation of the Ethics

Commission, and their comments about it are like those of doctors, teachers,

plumbers, or members of any other profession—those of a concerned citizen.

As such, the government has no more compelling reason to restrict the speech

of John Berry than it does that of Joe Wurzelbacher (“Joe the Plumber”).

 

II. THE DISTRICT COURT FAILED TO GIVE PROPER WEIGHT TO

THE FACT THAT THE REGULATION RESTRICTS SPEECH ON

MATTERS OF PUBLIC CONCERN.

The Supreme Court has frequently held that speech on matters of public

concern “occupies the ‘highest rung of the hierarchy of First Amendment

values,’ and is entitled to special protection.” Connick v. Myers, 461 U.S. 138,

145 (1983); NAACP v. Claiborne Hardware Co., 458 U.S. 886, 914 (1982);

Carey v. Brown, 447 U.S. 455, 467 (1980). Speech on matters of purely private

concern, by contrast, “is not totally unprotected by the First Amendment, [but]

its protections are less stringent.” Dun & Bradstreet, Inc. v. Greenmoss

Builders, Inc., 472 U.S. 749, 760 (1985) (citation omitted).

 

The Court has repeatedly been called upon to characterize expression as regarding either a matter of public or private concern. Its holdings have protected speech far less pertinent to public affairs than the concerns about legislative impropriety that

animated the speech in this case. See, e.g., Landmark Communications, Inc. v.

Virginia, 435 U.S. 829, 841 (1978).

 

In cases involving issues of public official misconduct, the Supreme

Court has consistently held that such matters are of public concern. In

Butterworth v. Smith, the Court held that a grand jury witness who wanted to

speak publicly about his own grand jury testimony regarding a corruption

investigation could not be prohibited from doing so. 494 U.S. 624, 632 (1990)

(“Here Florida seeks to punish the publication of information relating to alleged

governmental misconduct–speech which has traditionally been recognized as

lying at the core of the First Amendment.”). The Supreme Court also has held

that a law prohibiting disclosure of information about the proceedings of a

commission reviewing accusations of judicial misconduct violated the First

Amendment. Landmark, 435 U.S. at 839 (“The operations of the courts and the

judicial conduct of judges are matters of utmost public concern.”) In light of

these cases, Mr. Berry’s questions about, and accusations of, governmental

misconduct by the Ethics Commission were plainly issues of the utmost public

concern.

 

Moreover, in contexts in which the injuries were far more compelling and

directly linked to speech, the Supreme Court has nonetheless found that

concerns about limiting expression on matters of public import outweighed

those injuries. The Court recently held that a church’s protests outside a

soldier’s funeral constituted speech on matters of public concern. Snyder v.

Phelps, 131 S. Ct. 1207, 1217 (2011). Although the manner of speech in

Snyder shocked the conscience and offended the sensibilities of most

Americans, the Supreme Court still held that the import we ascribe to speaking

on matters of public concern carried the day. Similarly, laws prohibiting the

publication or broadcast of the name of a rape victim have also been held

unconstitutional. The Florida Star v. B.J.F., 491 U.S. 524, 537-38 (1989)

 

(“[T]he article generally, as opposed to the specific identity contained within it,

involved a matter of paramount public import: the commission, and

investigation, of a violent crime which had been reported to authorities.”); Cox

Broadcasting Corp. v. Cohn, 420 U.S. 469, 495 (1975) (“Public records by their

very nature are of interest to those concerned with the administration of

government, and a public benefit is performed by the reporting of the true

contents of the records by the media.”). And a newspaper which published the

name of a juvenile offender could not be prohibited from doing so. Smith v.

Daily Mail Pub. Co., 443 U.S. 97, 103 (1979) (“[I]f a newspaper lawfully

obtains truthful information about a matter of public significance then state

officials may not constitutionally punish publication of the information, absent

a need to further a state interest of the highest order.”). In each of these cases,

even severe injury to specific private individuals was insufficient to overcome

the right to speak on issues of public concern.

 

CONCLUSION

 

For the foregoing reasons, amicus respectfully urges this Court to reverse

the District Court’s grant of summary judgment to the KBA, and award

summary judgment to Mr. Berry on his facial challenge to Rule 8.2(a).

Respectfully submitted,

 

/s/ J. Joshua Wheeler

J. Joshua Wheeler

The Thomas Jefferson Center for

The Protection of Free Expression

400 Worrell Drive

Charlottesville, VA 22911

(434) 295-4784 (telephone)

(434) 296-3621 (fax)

Attorney for Amicus Curiae

11

CERTIFICATE OF COMPLAINCE

Pursuant to Rules 32(a)(7)(B) and (C) of the Federal Rules of Appellate

Procedure, I hereby certify that this Amicus Curiae brief was prepared using a

proportional 14-point typeface and contains 1,875 words (excluding parts of the

brief exempted by Rule 32(a)(7)(B)(iii) as calculated by the word processing

system used to prepare this brief.

/s/ J. Joshua Wheeler

J. Joshua Wheeler

The Thomas Jefferson Center for

The Protection of Free Expression

400 Worrell Drive

Charlottesville, VA 22911

(434) 295-4784 (telephone)

(434) 296-3621 (fax)

Attorney for Amicus Curiae

CERTIFICATE OF SERVICE

I hereby certify that on Monday, June 20, 2011, I electronically filed this

document with the Clerk of the Court using the CM/ECF system, which will

send a notice of electronic filing to the following:

Mark R. Overstreet

moverstreet@stites.com

Bethany A. Breetz

bbreetz@stites.com

William E. Sharp

sharp@aclu-ky.org

/s/ J. Joshua Wheeler

J. Joshua Wheeler

The Thomas Jefferson Center for

The Protection of Free Expression

400 Worrell Drive

Charlottesville, VA 22911

(434) 295-4784 (telephone)

(434) 296-3621 (fax)

jjw@tjcenter.org (email)

Attorney for Amicus Curiae

 

DURHAM PROSECUTOR REMOVED FROM OFFICE FOR COMMENTS ABOUT JUDGE

Saturday, March 3rd, 2012

 

By J. ANDREW CURLISS – McClatchy Newspapers

Cline was immediately and permanently removed from her office as the elected district attorney in Durham by a judge who found she had made statements with malice and reckless disregard for the truth against chief Durham Superior Court Judge Orlando Hudson.

Judge Robert H. Hobgood found that Cline’s conduct in court filings was “prejudicial to the administration of justice” which brought her office into “disrepute.”

Under state law, any DA whose behavior violates that standard shall be removed from office.

Cline is the second consecutive elected DA in Durham to leave mid-term. Former District Attorney Mike Nifong was stripped of his law license in 2007 over ethics violations committed while seeking to prosecute false accusations that three Duke lacrosse players had raped a woman. Cline had been Nifong’s chief assistant.

Cline first won election in 2008. A Democrat, she was re-elected without opposition in 2010. It is unclear when an election might be held to replace Cline. She has the right to appeal, and that would first have to be resolved.

Hobgood suspended Cline from her position on Jan. 27, issuing a “probable cause” ruling that Cline had crossed the line in unrelenting attacks on Hudson that already had been tossed out of court by two different judges. Cline also was admonished along the way by a third judge, who warned her to be accurate in her court filings after finding she presented false motions to him.

Hobgood convened an inquiry that included two days of testimony from Cline, who defended her actions.

Hobgood also heard from lawyers who said Cline was “out of control” or could not be trusted as a prosecutor, and from a jury expert who said Cline’s actions lessen the public’s confidence in the courts.

The decision was up to Hobgood as a finder of fact, much like a jury acts in a criminal case. Hobgood is a widely respected judge, the senior judge for a four-county area northeast of Durham. He has resolved a range of sticky issues in the courts over the years, including the redistricting court battles last decade and deciding the powers of the state’s elected schools superintendent. Cline was adamant in testimony that she has done nothing wrong. She did not apologize for her actions against Hudson but said she should have chosen some words more carefully.

Cline’s allegations are that Hudson is a biased, unfair judge who does not follow the law and who makes up facts to fit his views.

In lengthy filings, Cline said Hudson’s rulings had “raped” victims, that he had ruled with the “reprobate mind of monarch,” and that he engaged in “moral turpitude, dishonesty and corruption.” The filings include hundreds of pages.

Hobgood found that much of what Cline said enjoyed protections under the First Amendment.

But the language about “corruption,” an accusation that Hudson was “kidnapping the rights of victims and their families” as well as an allegation that Hudson was in “total and complete violation” of the code of judicial conduct were beyond free speech, Hobgood ruled.

“Tracey E. Cline has lost the confidence of attorneys and the public necessary to continue as an effective District Attorney for Durham County,” Hobgood said, in reading his order from the bench.

He said her allegations “confirm a lack of sound judgment on her part.”

Hobgood specifically found that language in a handful of passages was written with malice and a reckless disregard of the truth in alleging a sweeping but unspecific conspiracy by Hudson.

These paragraphs were cited by Hobgood as grounds for Cline’s removal:

-Hudson’s “misconduct involves more than an error of judgment of a mere lack of diligence; this Court’s actions encompasses conduct involving moral turpitude, dishonesty and corruption.”

-”The District Attorney may personally accept the planned purposeful personal attacks of this Court (Judge Hudson), but there are some sacrifices that are too great for the District Attorney to accept, kidnapping the rights of victims and their families, holding these rights for hostage until the prosecutor plays the game would bankrupt the credibility of our court system and Justice will not play that Game.”

-”The intentional malicious misconduct of this Court is covered by the robe, and rationally relied on by reporters and the public. Then media mayhem – another prosecutor withheld evidence; this shameful disgraceful conduct is unimaginable, but true with this Honorable Court. This is gross misconduct.”

-”This Honorable Court is in total and complete violation of the North Carolina Code of Judicial Conduct and … will continue to violate the North Carolina Code of Judicial Conduct with regard to the rights of others, no regard of the constitutional protections of the victims of crime, and no regard to the simple difference between right and wrong.”

-”(F)or the root of this unjustified contempt to be conceived in the womb of justice, a judge, sworn to be fair and impartial, destroys the dignity of the office of this Honorable Court and for those who use this Court for special situations outside the lines of right and wrong; don’t hide your dirty hands; and to those who have seen, and know, yet turn a blind eye, acknowledge your hands are covered with the blood of justice. And be ashamed.”

Cline did not visibly react at the removal order. The courtroom, the benches full, was silent.

Cline rose and briefly thanked Hobgood.

Hobgood thanked Cline for being an effective litigator “in the past.”

Hudson has not responded in detail to what Cline has said, citing rules that restrict judges’ comments. He disputes what she alleges.

Hudson had ruled against Cline in dismissing two murder cases in 2010, issuing lengthy orders that found she and other state agents violated the rights of defendants. Both are on appeal.

But Cline called the dismissals a purposeful plan to discredit her.

Cline alleges that Hudson was then behind a series of News & Observer articles published in September that raised questions about Cline’s methods and actions in some cases. The paper and Hudson disputed that.

And Cline says Hudson has continued to take actions against her that are unwarranted, such as issuing delays in two murder cases late last year.

Cline testified that she filed court documents to remove Hudson from criminal cases and stop him in what she believed was the only right things to do. She said she had no other choice and had exhausted her options.

All of Cline’s claims are in dispute; at the removal inquiry, many things Cline has said were refuted by documents.

The inquiry was initiated by Durham lawyer Kerry Sutton, who said in a closing argument that she could not rebut every single thing Cline has alleged in a range of cases – and doesn’t believe she had to. Sutton highlighted a half-dozen instances in which Cline’s testimony was cast in doubt.

“I picked up a few things … I was able to say, well, look, that may not be correct,” Sutton said. “Here’s one example of how we didn’t get the whole truth from Ms. Cline as it relates to those cases.”

Sutton argued that Cline had clearly lost her patience, but that it was not an excuse to tie up court time and resources when the courts already have ways to deal with conflicts. Cline should have let appeals of the case dismissals run their course, Sutton said. Cline should have let the judicial standards commission review the issue, Sutton said.

An email message introduced in the inquiry shows that Cline filed a complaint with judicial standards on the same day she made public her filings that attacked Hudson.

Sutton said the focus should not be on anything but what Cline has done.

“It’s not the motive,” Sutton argued. “It’s not what caused her to do this. It’s not her justifications, her reasoning, her beliefs. It’s her conduct.”

The only process for removing a DA in the midst of a four-year term is spelled out in a rarely used state law that says top prosecutors who engage in, among other things, willful misconduct, habitual intemperance, willful failure to perform their duties, and prejudicial conduct that brings disrepute on the office, shall be removed.

Lawyers for Cline argued that law is unconstitutionally vague and that Cline’s actions were protected from sanction as free speech under the First Amendment. The judge did not agree.

The removal law has been applied to oust a DA once before, in the mid-1990s, after a white DA used a racial slur against a black man in a bar. The state Supreme Court upheld the law and the removal.

More often, judges have faced scrutiny after engaging in various types of misconduct, from fixing orders improperly to using harsh language, for violating the same standard of “prejudicial conduct” which brings “disrepute.” Once, a judge who advised a lawyer to use his “big boy voice” in court was found to have crossed that line. But judges are not automatically removed for violations; most have received lesser sanctions, such as censure, for such conduct.

Cline immediately filed a notice of appeal. She has said that she did the right thing, even knowing it could lead to sanctions. Separately, the N.C. State Bar has been gathering records related to Cline in an apparent investigation of her.

And, Cline has said, her efforts to seek the “truth” will continue “at all costs.”

On Wednesday, Cline’s chief assistant prosecutor filed papers to run for election as a judge for the seat now held by Hudson, promising the issue will be discussed in Durham at least through Election Day in November.

Sutton said after the hearing that it was clear the judge gave the issue “serious” thought and she hopes that his written order clarifies any lingering doubts by anyone who questions if Cline’s removal was necessary.

 

Read more here: http://www.bellinghamherald.com/2012/03/02/2418901/durham-prosecutor-removed-from.html#storylink=cpy

 

A Truce In the Religious Wars

Friday, March 2nd, 2012

 

A Truce In The Religious Wars By Richard Meyer | rmeyer@dbllaw.com

Share|.Last month, a federal court in Texas celebrated a rare event in the long and contentious history of church-state relations in the United States. In a “prayer-in-public-schools” case, what the court celebrated was a landmark settlement agreement which the complaining students and the school district hammered out and agreed to in a voluntary mediation process. A copy of the settlement agreement appears in the very brief court opinion approving the agreement as a model for other school districts. The court opinion also expressed the court’s gratitude to the parties for their heroic efforts in working together over a period of months on a compromised set of solutions. Judge Biery also noted that it “signifies a bright point in our nation’s long and difficult effort to harmonize the competing interests written into the First Amendment.” In an Appendix to his opinion, Judge Biery also provided an interesting summary of “our nation’s long and difficult” struggles over First Amendment issues. The unusual significance of the opinion is that even with emotionally and politically charged First Amendment debates, reasonable compromises can be achieved by parties of good will.

 

Also recently, the United States Supreme Court in a 9 to 0 opinion brought some peace to a frequent First Amendment battleground, deciding when anti-discrimination employment laws apply or do not apply to religious employers. In that case, a teacher with a disability was fired from her position in a K through 8 private religious school. She said she was fired due to her disability. The employer said she was fired for her refusal to engage in an internal dispute resolution process rather than filing a civil lawsuit. The Supreme Court held that anti-discrimination laws cannot be enforced against religious employers where the employee qualifies as a “minister” in the religious organization. The majority and concurring opinions by Chief Justice Roberts and Justice Alito cited no less than seventeen Court of Appeals opinions in which the federal courts have had to decide whether the employee was or was not a church “minister.” The Supreme Court held this particular teacher was a “minister” of the Lutheran church and the Court gave helpful guidance for resolving this issue with regard to other employees of religious organizations.. This opinion, and the 17 cases preceding it, demonstrate how difficult it can be to apply First Amendment principles to real-life situations, especially when there are legitimate competing religious and employment issues at stake.

 

Despite the promise of less litigation over religious battles offered by the preceding two opinions, an opinion issued last week by a federal court in the State of Washington shows that many such battles are just heating up, especially in cases brought and financed by The Becket Fund for Religious Liberty. After a 12-day trial, the court concluded that a state law governing pharmacists who are asked to dispense contraceptive products may not, on religious or moral grounds, refer the customer to another pharmacist. The court held that this law overly burdened the free exercise of religion. The major problem with this state statute was that it provided for a number of exceptions, all of which were nonreligious in nature, but did not offer any exception for pharmacists acting out of moral or religious convictions, as do most such statutes. Therefore, after 12 days of trial, the statute was found to be invalid under the First Amendment. This opinion makes clear that the long history of First Amendment court battles will continue for years into the future. See for example the Complaint recently filed in federal court in Alabama by The Becket Fund challenging federal contraception regulations of health insurers.

 

Richard Meyer is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.

Sign up for email updates.Litigation Alerts NewsA Truce In The Religious Wars

Lawyers’ Super Bowl Blacked Out!

Businesses Must Be Sure That No Part of a Credit Card Expiration Date Appears on a Customer Receipt

see all

 

© 2012 Dressman Benzinger LaVelle psc DisclaimerContactBookmark & ShareDBL LawXSelect from these web-based feed readers:

sent! Share again.

Sending message…AddThis for Internet ExplorerMake sharing easier with AddThis for Internet Explorer.Download

 

 

Don’t show theseTo: (email address)From: (email address)Note: (optional)255 character limitMore:AddThisSettingsPrivacy

Bookmark & ShareDBL LawXMake sharing easier with AddThis for Internet Explorer.

Don’t show theseAOL MailFacebookTwitterEmailPrint