Archive for July, 2012


Tuesday, July 31st, 2012

SCR 3.600-Definitions (for CLE approval): “Legal writing” is a publication which contributes to the legal competency of the applicant or other attorneys or judges and is approved by the Commission. Writing for which the author is paid shall NOT be approved.

Therefore, if your research and writing on a legal subject is good enough to actually be sold, it is ineligible for CLE credits. (???)

National Legal Expert and TV commentator Jonathan Turley comments on John M. Berry Jr. victory in Sixth Circuit. Turley criticizes the Ky. Bar Association for bringing this prosecution.

Monday, July 30th, 2012

National Legal Expert and TV commentator Jonathan Turley comments on John M. Berry Jr. victory in Sixth Circuit. Turley criticizes the Ky. Bar Association for bringing this prosecution.
July 30, 2012
Appellate Court Finds Kentucky Bar Violated Attorney’s Rights In Criticism of Judge Published 1, July 30, 2012 Constitutional Law , Free Speech , Lawyering , Society10 Comments

The United States Court of Appeals for the Sixth Circuit has ruled that the Kentucky State Bar violated the rights of John M. Berry Jr. who was threatened with an ethics charge after criticizing the state Legislative Ethics Commission. In an important victory for free speech, the panel found that the bar violated the first amendment rights of the attorney.
The bar sent Berry a warning that his criticism of a state judge could result in punishment for lawyers who make reckless or false comments about judges. We have previously discussed the trend of cases where lawyers have been charged over their criticism of judges. I have been critical of those cases on first amendment grounds.
Barry challenged the integrity of a ruling dismissing an ethics complaint against Senate President David Williams. Here is the set up by the panel on the facts:
John Berry, an attorney, attended a public session of the Kentucky Legislative Ethics Commission regarding alleged fund-raising violations by Senate President David Williams. Berry was unhappy with how the session was conducted—the Commission closed the session to the public but allowed Williams to remain—and Berry drafted a letter expressing his displeasure. The letter stated that the Commission’s procedures could cause the public to think that the “deck was stacked.” The Commission complained of the letter to the Kentucky Bar Association’s Inquiry Commission. After investigating the matter, the Inquiry Commission issued a letter warning Berry that his conduct violated Kentucky Rule of Professional Conduct 8.2(a), and advising him to refrain from similar conduct in the future. After exhausting his state remedies, Berry brought this First Amendment challenge to Rule 8.2(a). The district court granted summary judgment for the KBA. This decision was improper because Rule 8.2(a) is unconstitutional as applied to Berry’s speech.
What is astonishing is that the letter has raised a valid point in relatively moderate language. On October 5, 2007, Berry wrote:
The inquiry was conducted entirely behind closed doors with the exception of Senator Williams who was allowed to be present throughout the preliminary inquiry. The exclusion of the pub[l]ic and the media was enough to arouse suspicion, but the exclusion of the complainant (except for a brief appearance as a witness) coupled with the inclusion of the alleged violator throughout the proceeding gave cause for some to speculate that the deck was stacked and the Senator would be exonerated. I was not, and am not, willing to go that far, but I do believe that your Order . . . that exonerated him, was contrary to the undisputed evidence that was presented.
It is astonishing that any bar official would consider such a letter to be worthy of a referral, let alone possible punishment. What is even more astonishing is that the Bar President and counsel would persist in litigating this case — asserting the right to punish lawyers for speaking out in the public interest.
The panel drew a distinction between opinion and false statements:
An opinion can “be the basis for sanctions only if it could reasonably be understood as declaring or implying actual facts capable of being proved true or false.” Yagman, 55 F.3d at 1438–39 (citing Milkovich, 497 U.S. at 21)). An opinion relies on implied facts where a speaker utters an opinion without providing the underlying factual basis. Take, for example, a statement by A to B, “‘I think [C] must be an alcoholic.’ A jury might find that this was not just an expression of opinion but that it implied that A knew undisclosed facts that would justify this opinion.” See Restatement (Second) of Torts § 566, cmt. c, illus. 3. If A has no factual basis to support the assertion, then the statement would be actionable even if couched as A’s opinion. See Yagman, 55 F.3d at 1439.
Notably, the Yagman case involved a far more serious and pointed criticism but was found protected by the first amendment. In that case, an attorney was sanctioned by a judge and went public with a claim that the judge “has a penchant for sanctioning Jewish lawyers: me, David Kenner and Hugh Manes. I find this to be evidence of anti-[S]emitism.” Id. The court found that the three lawyers mentioned were in fact Jewish and that the lawyers were all sanctioned by the judge. The court found that charge of anti-Semitism was an opinion that was based on stated facts of the religion of the attorneys and their being sanctioned.
Notably, the panel reserved judgment on even more serious or offensive comments by lawyers: “We also take no position on the constitutionality of sanctioning a lawyer’s profanity or threats directed against the courts, or other examples of a lawyer’s unmitigated expression of disrespect for the law, even outside the courtroom. Nothing like that was going on in this case.”
This type of prosecution has occurred more often in other countries. I have spoken on multiple occasions to Kentucky bar groups and I have always found the state to be the home of truly outstanding lawyers, including our friend Frank Mascagni. I am for that reason astonished by the lack of judgment shown in this litigation by bar officials. While the Kentucky Bar Association President W. Douglas Myers said the bar would accept the judgment, a more welcomed response would have been an apology on the part of the bar.
Here is the opinion: 12a0231p-06
To access this article and to read the many comments from lawyers across the country go to:

Ky. Supreme Court Clarifies Law Re: Contempt of Court

Monday, July 30th, 2012

Riley v. Gibson (Ky., 2011)

Riley v. Gibson (Ky., 2011) – Dated: May 19, 2012 Dated: June 9, 2011- 2010-SC-000619-MR.pdf

There is continuing confusion about the process and parameters of an action for contempt. Unfortunately, many courts exercise this inherent power to protect the sanctity of the courts without regard for the type of contempt alleged and the type of penalty to be given to one held in contempt. A contempt is “willful disobedience toward, or open disrespect for, rules or orders of court.” Commonwealth v. Burge, 947 S.W.2d 805 (Ky. 1996) . A contempt occurring in the presence of the court is direct contempt, while a contempt committed outside the presence of the court is indirect contempt. Id. at 808. A contempt may be civil, which requires performance of a court order, or criminal, which allows punishment rather than obedience. Id. The latter requires a hearing and presentation of evidence, and must comport with due process, including the right to counsel and public access. Commonwealth v. Pace, 15 S.W.3d 393 (Ky. App. 2000); In re Oliver, 33,3 U.S. 257 (1948). If a court intends to punish a defendant for contempt with a serious fine for a single contempt, or confinement in excess of six months, there must be a trial by jury. Codispoti v.Pennsylvania, 418 U. S. 506 (1974) . Jurors may be punished for criminal contempt for disobeying the orders of the court. KRS 432.230.

Clearly, the trial court here was trying to balance respectful treatment of a juror with a possibility that she may have to punish a juror for misconduct. During a juror’s term of service, the trial court has the additional duty of jury management, ensuring that jurors are available and present for trial, that they are properly instructed on their conduct, and following up on indications that they might have violated that conduct requirement. In doing this, the trial court has any number of communications with some or all of the jury venire outside the confines of any specific trial.

From the scant record before us, it appears that the trial court may have been prepared to issue a contempt ruling and punishment if her further inquiries convinced her that the accused juror had committed the contempt. However, the “hearing” was not an appropriate contempt hearing, lacking the requisite due process. The juror was not represented by counsel; the juror was not allowed to cross-examine his accusers, and there was no public access. By questioning the jurors in her chambers, the trial court recognized the importance of protecting jury deliberations, even after trial, and referenced the fact that she had no wish to cause a “chilling effect” on future jurors. What she was really doing was examining jurors about their respect for the importance of the court’s orders, and whether one juror in particular had disobeyed her orders. Thus, despite the judge’s apparent willingness to hold the juror in contempt, this hearing could be viewed more as a preliminary investigation as part of the court’s power to manage the jury, rather than a true contempt hearing. From such a preliminary inquiry, the trial court could have decided to hold a full contempt hearing by issuing a rule or show cause order, followed by a public hearing at which the accused was represented by counsel, had the right to testify, present witnesses, and question all witnesses, and which was tried to a jury if more than six month’s confinement or a serious fine was an option.

Nonetheless, as far as the media was concerned, this hearing was labeled a criminal contempt proceeding, and as such, the media was entitled to be present, as was the public at large. If the court had intended simple jury management, practice would have allowed an initial inquiry to the jurors, which would not have required placement on a docket or making a record. Such a limited inquiry should be kept separate from an actual, formal contempt proceeding. Although conducted improperly, due to the time spent on the issue and the desire to make a record, we conclude that the trial court intended a contempt hearing in this instance.

Because the public’s interest in a criminal contempt proceeding is essentially the same as its interest in any criminal trial, criminal contempt proceedings must be open to the public, including the media. Although it is arguable here that after the first hearing the court was more interested in making a record to support her trial ruling denying a mistrial, the second proceeding, labeled a contempt hearing, must be taken at face value and regarded as such for purposes of public access. It is not sufficient to hold the hearing first, and then determine what it is. The media and the public have the right to rely on what the docket says in pursuing their right to access.
III. Conclusion
For the aforementioned reasons, the Court of Appeals’ denial of a writ of mandamus or prohibition on grounds of mootness is reversed. An exception to the mootness doctrine allows the media to pursue a writ when a case is capable of repetition but evades review. Additionally, The Courier-Journal and Mr. Riley are entitled to a writ stating that criminal contempt hearings are to be afforded public access. Public access is not required, however, for the court’s jury management functions, which are to be kept separate from contempt proceedings.

Minton, C.J.; Abramson, Cunningham, and Venters, JJ., concur. Schroder, J., concurs in result only by separate opinion in which Scott, J., joins.

SCHRODER, J., CONCURRING IN RESULT ONLY: The majority struggles too much to uphold the right of access in this case. In my view, the case is a simple one. The right of the public and press to attend criminal trials is implicit in the guarantees of the First Amendment. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980). The proceeding at issue was to consider punishing a juror for disobeying the trial court’s admonition in a prior trial. This is a criminal contempt trial. It is subject to the press and public’s right of access. Id. Case closed.
Scott, J., joins.

Supreme Court Justice Scalia Recognizes Possibility Gun Control Legislation Might be Upheld

Monday, July 30th, 2012

Supreme Court Justice Antonin Scalia said Sunday the Second Amendment leaves open the possibility of gun-control legislation, adding to what has become a slow-boiling debate on the issue since the Colorado movie theater massacre earlier this month.
Scalia, one of the high court’s most conservative justices, said on “Fox News Sunday” that the majority opinion in the landmark 2008 case of District of Columbia v. Heller stated the extent of gun ownership “will have to be decided in future cases.”
“We’ll see,” he said.
Scalia’s comments follow the July 20 massacre at the Aurora, Colo., movie theater in which the alleged gunman, with the help of a semi-automatic weapon and an ammunition clip that could hold as many as 100 rounds, killed 12 and wounded 59 others.
His comments also follow those of lawmakers who have called for tougher gun-related laws in the wake of the shootings – most recently New Jersey Sen. Frank Lautenberg and New York Rep. Carolyn McCarthy, Democrats who said Sunday they will introduce legislation this week to “make it harder for criminals to anonymously stockpile ammunition through the Internet, as was done before the recent tragic shooting in Aurora, Colorado.”
They are scheduled to announce the bill to the public Monday outside City Hall in New York City.
New York City Mayor Michael Bloomberg, a Republican turned independent, has been among the most vocal on the issue since the mass shooting.
On Friday, Bloomberg in an editorial for his Bloomberg News, suggested the problem in Washington is that lawmakers do not want to vote for tougher gun laws out of fear of retribution from the powerful National Rifle Association.
The editorial was titled “How to Break NRA’s Grip on Politics” and suggested the political impact of the group might be exaggerated.
“In Congress, the NRA threatens lawmakers who fail to do its ideological bidding, although its record in defeating candidates is much more myth than reality,” the editorial stated.
Just hours after the shooting, Bloomberg, co-founder of Mayors Against Illegal Guns, called on President Obama and Mitt Romney to address the issue from the campaign trail.
“Soothing words are nice, but maybe it’s time that the two people who want to be president of the United States stand up and tell us what they are going to do about (gun violence) because this is obviously a problem across the country,” Bloomberg said.
Then late last week he suggests police officers go on strike until additional laws are passed. He backed off that statement but has continued to press the presidential candidates and others in Washington to make changes.
Congress passed a 10-year ban on assault-style weapons that expired in 2004, but there has since been no real interest among Capitol Hill lawmakers to reinstitute a ban.
On Wednesday, Obama talked about possible changes, but the following day Senate Majority Leader Harry Reid said he couldn’t fit the gun control debate into the schedule.
Asked if the Senate might debate the issue next year, Reid said, “Nice try.”
The president was not specific about what measures he’d like to see enacted when he touched on the issue in a speech to the National Urban League. He affirmed his belief in Americans’ right to own guns, but he singled out assault rifles as better suited for the battlefield.
“I believe the Second Amendment guarantees an individual the right to bear arms,” he said. “But I also believe that a lot of gun owners would agree that AK-47s belong in the hands of soldiers, not on the streets of our cities.”
Obama also called for stepped-up background checks for people who want to purchase guns and said he would also seek a national consensus on combating violence.
White House Press Secretary Jay Carney clarified Thursday that the president is not necessarily talking about new laws.
Scalia said exceptions to gun rights were recognized when the Second Amendment was written, including a tort that prohibited people from carrying a “really horrible weapon just to scare people like a head ax or something.”
Republicans have largely said new laws are not the answer. Romney, pressed on the gun control issue in an NBC News interview during his visit in London, said changing laws won’t “make all bad things go away.”
“I don’t happen to believe that America needs new gun laws,” he said.
Romney said a lot of what alleged shooter James Holmes did was clearly against the law.
“But the fact that it was against the law did not prevent it from happening,” he said.
According to a Gallup poll in 1990, 78 percent of those surveyed said laws covering the sale of firearms should be stricter, while 19 percent said they should remain the same or be loosened.
By the fall of 2004 support for tougher laws had dropped to 54 percent. In last year’s sounding, 43 percent said they should be stricter, and 55 percent said they should stay the same or be made more lenient.
Scalia, in his wide-ranging interview with Fox News also repeated his criticism of Chief Justice John Roberts and the majority opinion this summer that largely upheld President Obama’s Affordable Care Act, particularly the part that called the consequence for non-compliance a tax, not a penalty.
“You don’t interpret a penalty to be a pig,” he said. “It can’t be a pig. … There is no way to regard this penalty as a tax.”

Attorney files motion seeking contempt citation and dismissal of charges in case involving a Bengals Cheerleader – Prosecutor alleged to have released document sealed by court order.

Saturday, July 28th, 2012

Attorney files motion seeking contempt citation and dismissal of charges in case involving a Bengals Cheerleader – Prosecutor alleged to have released document sealed by court order.

Defense attorney Eric Deters pleads that he obtained a court order directing that certain text messages of the defendants be kept sealed. Deters alleges in his motion for contempt and dismissal that the Prosecutor, Sarah Farmer allowed the “sealed” text messages to be released to the media, thereby harming the rights of the defendants.

See: The pleading filed by Attn. Deters:
CASE NO. 12-CR-260-00l
CASE NO. 12-CR-260-002

Comes now Sarah Jones and Cheryl Jones, by and through counsel, and moves the Court for an Order of contempt and sanctions against Sara Farmer. The text messages were ordered sealed. On page three at the bottom of the Commonwealth’s Motion to Preclude Hearing, Sara Farmer references the content to the text messages and places in quotes a text message attributed to Sarah Jones which could be interpreted as damaging to her case. This is in direct violation of a Court Order sealing the text messages.
Sara Farmer’s reference and publication ofthis text content in quotes is no different than if she showed the world the text. The Court knows we were concerned and called asking if it was sealed. We found out this morning it wasn’t. We were drafting a Motion to Seal. Too late. In fact, as I was writing the Motion to Seal, I received a phone call from the news, who in checking the Court file found the pleading and not only reported on their noon news, it is already on the internet! Now all the other stations are calling. Sara Farmer filed this pleading as a public record in the Circuit Clerk’s office for
the world to see. The sanction should be suppression of the text

messages or dismissal of all charges. The publication is extremely

prejudicial to Sarah Jones. Furthermore, it can’t be undone. This is not a

situation where ajury could be admonished. In fact it’s far worse. This

information will be disseminated to the world through the internet. Sara
Farmer expresses a concern about the jury pool in her publicity motion?
What does she think about what she has done here? Potential jurors and
the public have access to this information and can draw conclusions
based upon the disclosure which can’t be resolved by any other
sanction. The Court should suppress the texts or dismiss all charges.

Eric . Deters. (81812)
5247 . . e
Independence, KY 41051-1444
859-363-1900 Fax: 859-363-1444
Please take notice that the Motion to Dismiss Hearing will be heard on July 30,
2012 at 9 a.m. before the Honorable Patricia Summe of the Kenton Circuit Court, or as
soon thereafter as the business of the court will permit.
I certify that a copy of the foregoing was served upon the persons named below byU .S. Mail, faxed and emailed on July 27, 2012 +~~~~~~~~~_
Hon. Sara Farmer
Assistant Commonwealth’s Attorney
514 West Liberty Street
Louisville, Kentucky 40202


Saturday, July 28th, 2012

By LawReader Senior Editor Stan Billingsley July 28, 2012

On Friday July 27, 2012, the Sixth Circuit Court of Appeals issued a decision that Supreme Court Rule 8.2, which allows a Kentucky Attorney to be sanctioned for “truthful but reckless” statements, was unconstitutional as applied to the statements of John M. Berry Jr.

The Sixth Circuit, the second highest court in the United States, did not throw out the entire rule, but they clearly held that the John M. Berry Jr’s. letter to the Legislative Ethics Commission was a first amendment right, and that the actions of the KBA Inquiry Commission improperly imposed a “chilling effect” on all lawyers free speech rights.

In, A Parliament of Owls, a novel to be published in August, authored by Stan Billingsley and published by LawReader Books, this author reports that Ohio and Arkansas have both amended their Bar Rules which until recently contained identical wording to the Kentucky Rule.

Both states have removed the language in their rule which allows sanctions against attorneys who make “truthful but reckless” statements. Both Ohio and Arkansas also limited the application of the “speech” rule to “judges and adjudicatory officials. The Kentucky rule continues to impose limits on free speech for lawyers “truthful but reckless” comments about “judges and other public legal officers”.

Attorneys Mark R. Overstreet, Stites & Harbison, Pllc, Frankfort, Kentucky, and Bethany A. Breetz, Stites & Harbison, Louisville, represented the Inquiry Commission and the Kentucky Bar Association in their attempt to limit the free speech rights of Kentucky lawyers.

I attended the oral arguments in Cincinnati in the Berry/ACLU case against the KBA Inquiry Commission. Mr. Overstreet lost this case, but as LawReader reported some months ago, Overstreet, in our opinion, did a very professional job. It was the law that was defeated not Mr. Overstreet and not Bethany Breetz.

After the oral arguments before the Sixth Circuit ended, I approached Mr. Overstreet and identified myself. I asked him how much the KBA paid him and his firm for their legal services. Mr. Overstreet politely smiled and said, “You’ll have to ask my client.” We have asked “his client” and to this date, we have received no answer.

We have asked the KBA how much they have paid for outside counsel in the last two years. We wrote the KBA President Maggie Keane in April and she never responded to our letter.

The first week of July a new President of the KBA was sworn in. We addressed a request to KBA President Doug Myers to provide us with the answers that Maggie Keane refused to provide. Our question is “How much has the KBA paid for outside counsel in the last two years?” That question if answered should reveal how much the KBA paid to Overstreet and Breetz to attempt to uphold SCR 8.2, which limits attorneys free speech rights.

We do not in any way suggest that Stites and Harbison didn’t earn whatever fee they got paid, that is not the point. As we have repeatedly said, we think they did a very professional job in trying to defend a very bad law. They were hired to defend a client and they did the best that could be done in trying to uphold a very bad law.

The point is that the entire KBA is financed by a membership dues of every Kentucky lawyer. I personally have paid dues to the KBA for 41 years. As a dues paying member of the KBA, I believe any lawyer (and any member of the public) have the right to know how the KBA spends “our” money.

Stites and Harbison is not finished in their work in the Berry/ACLU case. Even though KBA President Myers told the press that the KBA will not appeal the decision of the Sixth Circuit, the issue of attorney fees claimed by the ACLU in defense of Berry is still to be decided by U.S. District Judge Danny Reeves. We assume that the KBA will oppose the award of attorney fees, which are authorized in Section 1983 Federal Civil Rights actions.

We are awaiting Judge Danny Reeves ruling on the attorney fees to be awarded to the ACLU attorneys for their successful challenge to SCR 8.2. It is an important issue of concern to the dues paying members of the Kentucky Bar Association. We should be entitled to understand how much the KBA paid Stites and Harbison . This payment will provides a basis to evaluate the fee awarded (if any) by Judge Reeves to the ACLU attorneys who represented Berry.

We estimate that the fee to Stites and Harbison will be at least $100,000. That fee is a bill to be paid by the KBA, and Judge Reeves has no authority to limit the defendant’s fee.

But Judge Reeves does have the discretion to award attorneys fees as court costs for “the prevailing party.” See below: Civil Rights Attorney’s Fees Awards Act of 1976 (42 U.S.C.A. § 1988)

We believe the members of the bar are entitled to compare the fee award of Judge Reeves to the ACLU, against the fee paid to Stites and Harbison by the KBA. It is likely that the fee claim of the ACLU will at least be equal to the fee paid to Stites and Harbison. The KBA is liable for both fees since Berry’s challenge to SCR 8.2 was successful.

It would be a sad ending to this case if Judge Reeves exercises his discretion to deny a “reasonable” fee to the ACLU attorneys. A comparison of the KBA fee to Stites and Harbison is essential to evaluate the “reasonableness” of Judge Reeves fee award.

So the information we have requested from the KBA President revealing how much the KBA has paid to Stites and Harbison in this case, is a very relevant public issue of concern, at least to the 17,200 dues paying members of the Kentucky Bar Association.

We respectfully believe the ACLU should be treated fairly. A comparison between the attorney fees the KBA paid to Stites and Harbison and the discretionary fee award of Judge Reeves will reveal much about our system of justice.

If the ACLU is not awarded a “reasonable” fee, then Judge Reeves will be revealing his level of concern for the rights of attorneys who have had their constitutional rights abridged by the Kentucky Bar Association.

Not a penny of this money will go to Berry!

It would be a blow to all attorneys, if Judge Reeves fails to send a message to the KBA that if they intend to unconstitutionally limit the rights of attorneys, that they will at least have to pay the court costs of the prevailing party.

We trust that the fact that Judge Reeves was overruled by the Sixth Circuit will have no bearing on his fee award.


Civil Rights Attorney’s Fees Awards Act of 1976 (42 U.S.C.A. § 1988)
§ 1988. Proceedings in vindication of civil rights
(b) Attorney’s fees
In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318 [20 U.S.C.A. § 1681 et seq.], the Religious Freedom Restoration Act of 1993 [42 U.S.C.A. § 2000bb et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C.A. § 2000d et seq.], or section 13981 of this title,, [FN1] the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity such officer shall not be held liable for any costs, including attorney’s fees, unless such action was clearly in excess of such officer’s jurisdiction.
(c) Expert fees
In awarding an attorney’s fee under subsection (b) of this section in any action or proceeding to enforce a provision of section 1981 or 1981a of this title, the court, in its discretion, may include expert fees as part of the attorney’s fee.

Courthouses to close, court services to shut down statewide Aug. 6, 2012 – Chief Justice Minton comments on state of judiciary

Friday, July 27th, 2012

Courthouses to close, court services to shut down statewide Aug. 6, 2012
First of 3 furlough days to help balance Judicial Branch budget

FRANKFORT, Ky., July 27, 2012 – Courthouses will be closed statewide and all court services will be unavailable Monday, Aug. 6, as the Kentucky Judicial Branch shuts down for the first of three furlough days in 2012. This will be the first time since Kentucky’s modern court system was formed in 1976 that the Judicial Branch must close courthouse doors to balance its budget.

The furloughs will affect only non-elected court personnel, who will be off work without pay as part of the Judicial Branch’s Fiscal Year 2013 Budget Reduction Plan. The entire court system will be closed Monday, Aug. 6; Tuesday, Sept. 4; and Monday, Oct. 15. This includes the Supreme Court, Court of Appeals, Circuit Court, District Court, Offices of Circuit Court Clerk, the Administrative Office of the Courts and all court services, including Pretrial Services, Drug Court, the Court Designated Worker Program, Court Interpreting Services, the State Law Library and driver license branches.

The Supreme Court of Kentucky has approved two orders that provide guidance on how the statewide court closures are to be implemented. While the two orders provide more detail, below is a summary of what the public and the law enforcement and legal communities should expect on furlough days:

· Trials and other court proceedings will not be scheduled on furlough days as there will be no staff available.
Items already on the docket for those days will be rescheduled.

· Driver licenses will not be issued.

· The Supreme Court will suspend its rule requiring pretrial officers to interview a defendant within 12 hours after incarceration.
No Pretrial Services staff will be working on furlough days.

· Deputy clerks will not be available to process bonds and no release orders will be issued.

· Existing after-hours protocol will be followed for processing domestic violence orders (DVOs) and emergency protective orders (EPOs).

· Local court designated workers will not be available. The Court Designated Worker Program will have a supervisor available to
ensure that law enforcement adheres to its statutory requirements in cases involving the arrest and custody of juveniles.

· Technology Services staff will not be available to recover the CourtNet database in the event the system experiences an interruption in service.

· County offices that share space with the state court system in courthouses and judicial centers will not be affected.

Furloughs are one of several measures included in the Judicial Branch’s FY 2013 Budget Reduction Plan. The 2012 Kentucky General Assembly reduced the total funds available to the Judicial Branch by $25.2 million for FY 2013. This included a permanent reduction to the annual base operating budget of $16.2 million and a one-time transfer of $9 million in payroll to the state’s general fund on June 30, 2012. Since the economic crisis began in 2008, the Judicial Branch has sustained repeated reductions to its budget and has cut 282 employees statewide, eliminated court programs and trimmed operating costs at all four levels of the court system to stay within its budget.

The Supreme Court and leadership from the Administrative Office of the Courts will meet in January 2013 to determine if additional furloughs and reductions are necessary for the remainder of FY 2013, which runs July 1, 2012, to June 30, 2013. They will also begin drafting a budget reduction plan for FY 2014, which presents an even greater shortfall than in FY 2013.

Kentucky Judicial Branch
The chief justice of Kentucky is the administrative head of the state court system and is responsible for its operation. The Administrative Office of the Courts is the operations arm of the court system. The AOC executes the Judicial Branch budget and supports the activities of nearly 3,300 court system employees and 403 elected justices, judges and circuit court clerks.


Budget Cuts Hollowing Out Court System

By Chief Justice of Kentucky John D. Minton Jr.
Guest Opinion Piece, 531 words
July 27, 2012

As chief justice, I find it disheartening that I can no longer assure you that the courts in Kentucky will be open when you need them. For the first time in modern history, we will have to close every courthouse in the state to balance the Judicial Branch budget. For three days in 2012, we must furlough all court personnel and close all courthouse doors because the General Assembly has not allotted enough money to fund court operations at current levels.

The 4.3 million people in Kentucky generate nearly 1.1 million court cases each year. To meet that demand, the Judicial Branch needs only about 3 percent of the state budget. Yet since 2008 our court system has experienced a cumulative budget reduction of 48 percent.

We began addressing our funding crisis four years ago by downsizing our staff by 282 employees, leaving judicial vacancies unfilled, eliminating valuable programs such as Juvenile and Family Drug Courts, implementing broad operating cuts and streamlining the organizational structure of the Administrative Office of the Courts, the operations arm of the court system.

Responding to deeper cuts imposed in the most recent state budget, we announced a drastic reduction in service by closing courts for three days in 2012, capping the number of adult Drug Court participants and implementing greater restrictions on our personnel complement. In January, we will regroup to determine if we can make it through the fiscal year without taking other significant measures.

Four years of implementing cuts is hollowing out our court system. We must set aside innovative plans for new technology to replace our obsolete case management system and improve efficiency through e-filing. Meanwhile many of our most experienced and dedicated employees are forced to leave for higher paying jobs in the other branches of state government or the private sector.

With great vision, the drafters of the federal and Kentucky constitutions provided for three branches of government, including the judiciary as a separate and equal branch of government. That’s how important our founders considered the role of the courts in our system of checks and balances.

While the constitutional argument for properly funding our courts has been made, the practical argument is just as important. The courts decide matters that go to the very core of our daily lives and the public suffers when the court system is inadequately funded.

The toll of underfunded courts is more than three days of customer inconvenience. Growing caseloads and declining budgets diminish the ability of the courts to swiftly and efficiently mete out justice. Whether it is the state attempting to bring a criminal to justice, or a private citizen renewing a driver’s license or seeking the judgment of a court in a child custody case or a business dispute, the courts are there to protect a person’s fundamental rights under the law.

As citizens of this commonwealth, we need to speak up for the courts. Further financial choking will erode the capacity of the courts to carry out their constitutional duty as an equal partner in state government. The courts must be available to respond to the daily demands for justice, which is truly the most basic responsibility of state government.


Friday, July 27th, 2012


NEWS FLASH: LawReader has just been advised that the Sixth Circuit Court of Appeals has reversed the District Court ruling of Judge Reeves, and held that the Federal Courts do have a right to review unconstitutional bar rules.

This ruling was in the John M. Berry Jr. case filed by the ACLU. The full ruling will be published by LawReader as soon as possible.
The Berry suit challenged the right of the Kentucky Bar Association to sanction an attorney for making truthful statements of fact, “if the statement was true but reckless”. This ruling is a victory for the First Amendment.


This ruling will be posted here today.


Lawsuit Challenged Authority of
Kentucky Bar Association

CINCINNATI – Today the United States Sixth Circuit Court of Appeals ruled that the Kentucky Bar Association (KBA) violated Newcastle attorney John M. Berry, Jr.’s First Amendment free speech rights by preventing him from criticizing the Kentucky Legislative Ethics Commission.

John Berry, a Kentucky attorney and former state senator, wrote a letter in 2007 to the Legislative Ethics Commission expressing concerns over its handling and resolution of an inquiry into alleged fundraising irregularities by Senate President David Williams. A retired judge on the Ethics Commission then filed a complaint against Mr. Berry with the KBA alleging that he challenged the integrity of the Ethics Commission in violation of professional ethics rules governing attorneys’ conduct.

In March 2009, the KBA notified Mr. Berry that his letter had indeed violated an ethics rule prohibiting attorneys from making statements that they “know[] to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer[.]” According to the KBA, Mr. Berry violated this rule “by publicly implying that the Legislative Ethics Commission did not conduct its review appropriately,” but the KBA did not specify what error Mr. Berry had made.

The ACLU of Kentucky filed suit on Mr. Berry’s behalf asserting that the KBA’s authority to sanction attorneys for criticizing judicial officers in these circumstances violated the First Amendment. United States District Judge Danny Reeves dismissed the ACLU’s suit. Today’s ruling reverses that decision and finds that KBA officials did violate Mr. Berry’s First Amendment rights. The Court of Appeals concluded that “it is evident that the KBA acted unconstitutionally.”

In describing why this case implicates significant First Amendment principles, Mr. Berry stated, “The right of every citizen, including attorneys, to publicly express opinions about the performance of public agencies and officials is a constitutional right that is vital to the success of our democracy.”

Mr. Berry was represented by ACLU staff attorney William Sharp and cooperating attorneys David Tachau and Kate McKune of the Louisville law firm Tachau Meek PLC.

Berry 6th Circuit 7_27_2012


Friday, July 27th, 2012

The Kentucky Supreme Court disfavors a mandatory mediation program operated by the Fayette County Attorney. The court found that the use of the name of the Admin. Office of the Courts to give impression the courts were involved in endorsing this program was improper.

The Fayette County Attorneys’ program was ordering mediation before any criminal charge was filed, and therefore the court had no jurisdiction. Mediation orders must come from a court and not from a County Attorney. Justice Scott concurred in result only, but clearly stated that mediation orders must come from a court which has jurisdiction of an actually pending case. The county attorney’s pre-arrest mediation “order” is not supported by any court.

See: Minix v. Roberts, 350 S.W.3d 449 (Ky., 2011)

“While it is true, as the Court of Appeals held, that original jurisdiction to consider an action arising from district court is vested in circuit court, 4 we agree with Appellant that this action did not arise from the district court. Appellant was not directed to attend mediation by an order of the district court, despite the fact that the summonsing documents were apparently designed to resemble or simulate Court of Justice documents.
Roberts’s program materials describe it as a “precursor” to a district court charge, arranged by the county attorney before the district court ever acquires jurisdiction over the matter.
Until the district court issues some process, ordinarily a summons or warrant, or a defendant is presented to the court following a warrantless arrest, the district court has no jurisdiction over the persons involved in the dispute and there is no criminal “case” to be referred. 5 Therefore, Roberts’s mediation program is not a function of the district court, and does not arise from the district court.
Further, we do not find in the record an order of a district judge, or of any other judicial officer, directing Appellant to attend mediation. At most, we find a 1992 order of the Fayette District Court generally establishing a “Mediation Pilot Project” by which Fayette district judges may “refer to mediation any civil or criminal case.” The “judge,” who the summonsing documents claim to have ordered the mediation, is never identified in the record, leading to a reasonable conclusion that there was none. Notably, Appellant’s writ petition did not seek relief against any judge, named or unnamed.”

MINTON, C.J., ABRAMSON, CUNNINGHAM, and SCHRODER, JJ., concur. SCOTT, J., concurs in result only by separate opinion. NOBLE, J., not sitting.

SCOTT, J., concurring in result only:

While I concur on alternative grounds, my primary concern is the continued practice of referring persons to an expensive mandatory mediation program, exercised without court discretion.

Thus, although I join the majority in denouncing the appropriation of the seal of the Court of Justice and the name of the “Administrative Office of the Courts,” I do not believe this denouncement goes far enough.

Simply put, no court, and certainly no county attorney, should set up a mandatory mediation program prior to an action being instigated, especially when the cost of such a program is to be paid by the attendees. And, even then, such a mediation order should be exercised within the court’s discretion.

Because I find this mandatory practice to be particularly objectionable, I am compelled to concur in result only.

Justice Will T. Scott testifies about plans to help Kentucky veterans gain better access to legal and other services

Tuesday, July 24th, 2012

FRANKFORT, Ky., July 24, 2012 – Supreme Court Justice Will T. Scott testified about initiatives to help Kentucky veterans gain better access to legal and other services July 12 at the Capitol Annex in Frankfort. He appeared before the Interim Joint Committee on Veterans, Military Affairs and Public Protection.
Justice Scott, who is a decorated Vietnam veteran, was named by Chief Justice John D. Minton Jr. in 2010 to head the Veterans Task Force as part of the work of the Kentucky Access to Justice Commission. The Veterans Task Force is working to improve the court system’s ability to identify veterans in need; to connect those veterans with appropriate services, programs and treatment; and to create new programs to help veterans involved in the justice system, such as the first Veterans Treatment Court in Kentucky. The task force is composed of leaders from all levels of state government as well as other stakeholders involved with veterans’ issues.
“By coordinating efforts and resources among various agencies, the Veterans Task Force hopes to create a comprehensive effort to help new veterans reintegrate into society and assist those who may have previously fallen through the cracks,” Justice Scott said.
The Veterans Task Force is focusing on the areas of awareness, education, information sharing and courts designed for veterans.
The veteran population in Kentucky – already estimated at more than 350,000 – is expected to significantly increase now that the wars are ending in Iraq and Afghanistan. Moreover, with the high incidents of brain injuries and post-traumatic stress disorder (PTSD), many veterans will need treatment, counseling and other social services to help them transition into civilian life.
The task force wants to enhance awareness of who is a veteran by improving how veterans are identified when they come into contact with the justice system. Determining who is a veteran is critical to proving assistance. By intervening at an early stage in a veteran’s experience with the justice system, veterans can more quickly obtain services that can reduce criminal recidivism and the rates of homelessness and suicide.
The task force is exploring several ways to increase awareness, including changes that would let veterans indicate their status on civil and criminal legal forms, driver licenses, the Kentucky State Police uniform citation form and identification cards for parolees.
The task force also wants to improve how veterans are connected with the appropriate services, programs and treatment. In many cases, judges and veterans’ advocates may not be aware of resources, such as funds to help veterans avoid eviction or get reliable transportation to work.
This initiative would train judges and veterans’ advocates on how to access services available for veterans. The training curriculum would cover a broad range of legal issues that affect veterans, such as divorce and other family law matters, housing, consumer matters, probate, wills, guardianship and bankruptcy. The training would also include education on areas unique to veterans, such as how to navigate the complex structure of benefits available to those who have served in the military.
In addition, the Kentucky Bar Association has changed its membership questionnaire to identify attorneys who are veterans. This information will be used to establish Veteran Lawyers Pro Bono Assistance Committees in every Kentucky county. The veteran attorneys can volunteer to assist the various legal aid societies that provide civil legal aid to veterans. To date, the KBA has identified more than 1,100 Kentucky attorneys who are veterans.
Information Sharing
The task force is also working to improve the ability to share information about a veteran’s status with the Veterans Administration, the Department of Defense and other agencies that can provide assistance.
Jefferson County Veterans Treatment Court
The Veterans Task Force has endorsed the work of the Administrative Office of the Courts to implement the Jefferson County Veterans Treatment Court in conjunction with the Robley Rex Veterans Administration Medical Center, Jefferson County Drug Court, the Jefferson County Attorney’s Office and others. This pilot project will be the first of its kind in Kentucky and will address the needs of veterans with mental health and substance abuse issues who enter the criminal justice system. The project has widespread support from all three branches of state government and representatives from the justice system, treatment providers and the community. The JCVTC will be implemented in October 2012 if federal grant funding is approved. The program is expected to serve 25 to 30 veterans per year.
About Justice Scott
Justice Scott was elected in 2004 to represent the 7th Supreme Court District,* which consists of 22 counties in Eastern Kentucky. He served as deputy chief justice of the Supreme Court from 2006 to 2010. He was a circuit Judge from 1984 to 1988 and was elected second vice president of the Kentucky Circuit Judges Association in 1986. Before serving the judiciary, he practiced law as a trial attorney from 1975 to 1980 and was an assistant commonwealth’s attorney for Pike County from 1981 to 1982.
Justice Scott was born in Pike County and attended Eastern Kentucky University for one year before volunteering for service in the U.S. Army. Enlisting as a private in 1966, he finished his tour of duty in 1969 in Vietnam as a first lieutenant. During his service, he was awarded his Airborne wings, the Bronze Star, the Vietnamese Cross of Gallantry and the Combat Infantryman’s Badge, among others. After completing his military service, he graduated with a bachelor’s degree from Pikeville College and then earned a juris doctor in 1974 and a master’s degree in taxation in 1975 from the University of Miami School of Law in Coral Gables, Fla.
*The 7th Supreme Court District consists of Boyd, Breathitt, Carter, Elliott, Floyd, Greenup, Harlan, Johnson, Knott, Lawrence, Letcher, Magoffin, Martin, Menifee, Montgomery, Morgan, Owsley, Perry, Pike, Powell, Rowan and Wolfe counties.
About the Kentucky Access to Justice Commission
Under the leadership of Chief Justice Minton, the Supreme Court of Kentucky formed the Kentucky Access to Justice Commission in 2010 to identify the most pressing legal needs of those unable to afford lawyers and create a statewide plan to address those needs. Kentucky is one of nearly two dozen states where supreme courts have formed Access to Justice Commissions. Each year, civil legal aid programs in Kentucky help about 68,000 low-income families and children who have nowhere else to turn. About half of those eligible for civil legal aid are turned away because there aren’t enough resources, a situation made worse by recent state budget cuts.

Harlan Circuit Judge Russel D. Alred Removed From Office for Misconduct

Monday, July 23rd, 2012

By Jack Brammer —

FRANKFORT — The Kentucky Supreme Court has upheld a decision by the Judicial Conduct Commission to remove Harlan Circuit Judge Russell D. Alred from office for misconduct.

In a 62-page opinion Monday written by Chief Justice John D. Minton Jr., the state’s highest court agreed with the commission’s finding of eight of nine counts of misconduct by Alred.

“From our review of the record, it is clear that Judge Alred engaged in a pattern of misconduct, displaying disregard for the law and the Kentucky Code of Judicial Conduct,” said the opinion. “He continually refuses to accept responsibility for his actions or acknowledge his wrongdoing.”

An attorney for Alred, Marcus Carey of Erlanger, argued before the Supreme Court in April that Alred was treated unfairly and should be allowed to keep his job.

The Judicial Conduct Commission ordered Alred removed last September.

Alred agreed not to preside over cases after the commission ruling last year, but he still receives his salary.

The high court’s ruling does not take effect immediately. Alred can ask the court for a rehearing.

Alred was the fourth judge since 1984 to be removed from office by the commission.

The commission had offered a deal in which Alred would receive a 90-day suspension if he would admit ethics breaches, but he refused.

The panel judged Alred guilty of numerous ethics violations, including having improper involvement in cases, failing to dispose of cases fairly, using his office to advance personal interests and misrepresenting his actions.

In the Supreme Court ruling, Justices Mary Noble and Wil Schroder concurred with Minton’s opinion. Justice Daniel J. Venters concurred in a separate opinion, which Justice Lisabeth Hughes Abramson joined.

Justice Bill Cunningham concurred in part and dissented in part in a separate opinion, which Justice Will T. Scott joined.

In his opinion, Cunningham wrote, “Judge Alred has not killed or physically injured anyone. He has not molested his secretary. He has not stolen a dime.

“In fact, he hasn’t even been charged with a crime of any kind — misdemeanor or felony. None of his friends or family members has gotten rich or gone free because of his missteps. He has not enriched himself financially nor engaged in any kind of debauchery.

“His judicial misconduct has been primarily on behalf of children and against criminals. In all his excessive exuberance, he has failed to grasp his professional responsibility. He simply has not learned how to conduct himself as a judge.”

Jack Brammer: (859) 231-1302. Twitter: @BGPolitics. Blog:

Read more here:

In a separate opinion, Venters wrote that the conduct “most deserving of condemnation” was when two accused drug traffickers appeared before Alred and “were permitted by the judge to pay a total of a half million dollars ($500,000.00) in exchange for the judge’s order dismissing the charges.”

“One of three things occurred:

â–  “Two innocent defendants paid a king’s ransom in order to buy an acquittal.

â–  “Two guilty defendants were allowed to buy their way out of the justice system for a very large ‘slush fund’ controlled by the judge.

â–  “Or, one defendant was innocent and the other guilty, resulting in a combination of the aforementioned evils.”

Alred then tried to muscle the Harlan Fiscal Court into using the $500,000 to build a water park.

As part of a larger pattern of misconduct, Alred also abused the grand jury process by ordering a special grand jury investigation on election eve to discredit Harlan County’s judge-executive.

Despite all that, Venters wrote, if Alred had given any convincing assurances that he was sorry for what he had done and would try to do better, he would have supported leaving him on the bench.

Alred, who has not presided over cases but has been paid since the Judicial Conduct Commission’s ruling, should look for a new line of work.

Read more here:

The Supreme Court’s Most Recent Ruling on Free Speech – Even False Statements May be Protected by First Amendment – Limits on Speech Restrictions

Monday, July 23rd, 2012

The Supreme Court’s Most Recent Ruling on Free Speech – Even False Statements May be Protected by First Amendment – Limits on Speech Restrictions
On June 28—the same day that the blockbuster Affordable Care Act (ACA) opinion was handed down—the Court also handed down another opinion, involving the Stolen Valor Act (SVA). Predictably, the SVA opinion, United States v. Alvarez, attracted little attention in light of all the attention that the ACA opinion garnered. But I will argue in this column that Alvarez was also important in its own way.
The SVA’s Prohibition, and the Majority’s Holding
The SVA makes it a crime to falsely claim that you have received a military decoration or medal. Doing so carries enhanced penalties if you falsely claim to receive the Congressional Medal of Honor. The Court held, 6-3, that the SVA violated the First Amendment. In dissent were Justices Alito, Scalia, and Thomas.
The Justices in the majority noted that content-based restrictions on speech—that is, restrictions based on the meaning of what is said or written—are rarely upheld. The instances where such speech is upheld include, the Court noted, incitement to violence; obscenity; defamation; speech that is integral to the commission of a crime; “fighting words,” which are inclined to trigger violence; child pornography; fraud; true threats; and speech presenting a grave and imminent threat that the government has the power to prevent.
In each type of First-Amendment-permitted, content-based restriction on speech, the majority Justices saw a legally cognizable harm, not simply false speech alone. That, in their eyes, made each of these kinds of speech different from the kind of speech that is penalized under the SVA, which the majority saw as pure false speech.
The majority also noted that “historically and traditionally” the Court is loath to expand on the categories of content-based speech that the government can restrict.
Moreover, the majority Justices, while acknowledging that some of the Court’s precedents deem false speech valueless, limited those precedents to their contexts—each of which, the Justices said, included not just a false statement, but also some legally cognizable harm, such as suffering an invasion of privacy or having to pay court costs.
The majority also noted that even in the defamation context, where speech can trigger monetary penalties, the intent standard can be high—requiring a knowing falsehood or reckless disregard for the truth—reflecting the special importance of protecting First Amendment rights.
The majority honored Medal of Honor recipients and other award-holders in its opinion, and acknowledged that those who falsely claim to be medal holders, with their lies, “may offend the true holders of the Medal.” Yet, the majority also noted that counterspeech—here, speech making clear who does, and does not, have the Medal—can be at least somewhat effective in setting the record straight.
So, the Court suggested, could a comprehensive government-created database of Medal of Honor winners; there are, the majority noted, private databases online that serve exactly this purpose. But it turns out that such a comprehensive database might be impossible to create for other medals.
Justice Breyer’s Concurrence
Justice Breyer, joined by Justice Kagan, voted with the majority to void the conviction at issue, but he did so on somewhat different grounds. (Full disclosure: I was a clerk for then-Chief Judge Breyer when he served on the U.S. Court of Appeals for the First Circuit.)
Justice Breyer rejected the majority’s analysis insofar as it went through the categories of content-based restrictions on speech that are permissible, and found that the SVA’s restriction did not fit into any of the categories.
Instead, Justice Breyer used a different approach—looking to the First-Amendment harm that the SVA could cause, the importance of the SVA’s objectives, and whether there are less restrictive alternatives that could also achieve the same objectives. This approach, seeking out less restrictive alternatives, is a classic one that the Court has used in many other contexts.
Justice Breyer was more frank than the majority Justices had been, when it came to the prior Court precedents clearly suggesting that false speech is close to valueless, acknowledging that there are many such precedents. Interestingly, though, Breyer used the “close to” language in the “close to valueless” formulation, to then point out the possible value of even clearly false speech.
After all, Justice Breyer noted, false speech may—to give a few examples—serve the positive aims of preventing embarrassment, protecting privacy, shielding a person from prejudice, providing comfort to the sick, preserving a child’s innocence, and so on.
Justice Breyer also noted the Court’s prior recognition of the “chilling effect” that laws regarding speech can have, and noted, as well, that many prohibitions on false speech are narrower than the SVA is.
That narrowing occurs via requirements of additional showings—showings, Breyer notes, of specific harm to identifiable victims; of a context where harm is likely to occur; and/or that the lies themselves are especially likely to cause harm. Along these lines, Justice Breyer cited fraud statutes, perjury statutes, and more.
Justice Breyer’s analysis showed how very unusual the SVA is, by highlighting its lack of limits. Moreover, Justice Breyer underlined the point that the consequence here is prosecution—not, say, a civil damages award. Justice Breyer was thus especially concerned—rightly so, I think—about mere “bar stool braggadocio” landing someone in jail. In the end, Justice Breyer did not rule out a “more finely tailored statute” to the same effect, but voted to strike down the SVA itself.
The Dissent’s Argument
In dissent, Justices Alito, Scalia, and Thomas focused mainly on the Court precedents stating that false speech is valueless. In addition, they made the case that prosecution—not just, say, a civil penalty—is necessary to prevent false medal claims, in light of the proliferation of false claims, for which the dissenters cite striking evidence; and in light of the apparent impracticability of creating a comprehensive online medal database. Moreover, the dissenters suggest that medal lies alone, without more, still do sufficient damage that criminal penalties are merited when such lies are told.
Ultimately, I think this that is an ideal case to illustrate the difference between liberals and conservatives—both on the Court and otherwise.
Virtually all liberals, I think—and I count myself among them—will feel enough pity for the guy who exercises “bar room braggadocio” to make a false medal claim to let him off the hook when it comes to criminal penalties, although we might seriously consider harsh civil penalties as an alternative, because we, too, greatly value the medals’ meaning.
In turn, virtually all conservatives, I think, will feel repelled by that very same person’s bar room braggadocio, and will want to see him serve at least some jail time for his lie.
Ultimately, I think that virtually any American will want to see the medal liar punished, in light of what medal winners have risked—their very lives—and endured, in battle. The question here, though—and perhaps also the political litmus test, as well—is whether the penalties ought to be civil or criminal.
Julie Hilden, a Justia columnist, graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99 and has been writing about First Amendment issues for over a decade. Hilden is also a novelist. In reviewing Hilden’s novel, 3, Kirkus Reviews praised Hilden’s “rather uncanny abilities,” and Counterpunch called it “a must read… a work of art.” Her website’s address is

The Kentucky Court of Appeals ruled in the challenge by Angela Ford for garnishment of attorney fees for Fen Phen Defendants -Generally attorneys allowed to keep earned fees

Friday, July 20th, 2012

The Kentucky Court of Appeals ruled in the challenge by Angela Ford for garnishment of attorney fees for Fen Phen Defendants -Generally attorneys allowed to keep earned fees

** ** ** ** **

CLAYTON, JUDGE: This is an appeal from interlocutory orders of the Boone Circuit Court. For the foregoing reasons, we affirm in part, reverse in part and remand this action to the trial court for further findings consistent with this opinion.

The Appellants are former clients of Appellees Shirley A. Cunningham, Jr., William J. Gallion and Melbourne Mills, Jr. (the “Judgment Debtors”). The Judgment Debtors were members of Tandy, LLC. The originaljudgment from which this action sprang was a 2007 money judgment in theamount of $42,000,000 against the Judgment Debtors. Appellees David E. Davidson and Stephen S. Dobson, III were attorneys for Cunningham with whom they had a written flat fee agreement in a 2007 criminal case in federal court (the “Criminal Case”).

Appellees Cors and Bassett, LLC were also attorneys for Cunningham and Gallion and were paid out of their client trust account on an hourly basis.
Appellee Mary Meade-McKenzie was counsel for Gallion in the Civil Case.

Appellee James A. Shuffett represented Mills in the Criminal Case and Civil Case matter pursuant to a flat fee agreement. Fulkerson & Kinkel represented Mills in amalpractice action. At the time the garnishment was received, the deductible that
Mills had paid had been exhausted and Fulkerson & Kinkel were being paid by the malpractice insurance carrier.

O. Hale Almand, and W. Robert Lotz represented Gallion. Almand had a flat fee agreement to represent Gallion in the Criminal Case. Lotz had a
retainer agreement with Gallion which was paid to Lotz as the work was performed. Lotz was contractually obligated to represent Gallion in the federal Criminal Case. Andre F. Regard represented Tandy, LLC and was paid by the interim receiver. The attorneys representing the Judgment Debtors will hereinafter be referred to collectively as the “Attorneys.”

In compensation for fees in both cases, the Judgment Debtors transferred monies to the Attorneys. Thereafter, the Appellants filed garnishments on the accounts of the Attorneys and eventually filed a petition in the Boone Circuit Court to enforce the garnishments through attachment of assets.

Attorneys fought the attachment, arguing that the transferred cash was payment for services they provided and would continue to provide in the Criminal Case and/or the Civil Case. The trial court denied the Appellants’ petition to attach garnished
assets. After an in camera review of the fee, the trial court granted the Attorneys leave to apply the money they held in client trust accounts as legal fees accrued by the Judgment Debtors and gave the Appellants a lien on any monies which were
not used as attorney’s fees.

Appellants now ask us to review the trial court’s denial of their petition, arguing that the trial court incorrectly found that the contents of an attorney’s client trust account either do not belong to the client or are not subject to garnishment.

Cors & Bassett, Fulkerson & Kinkel, and Regard had already applied all the funds that they held as retainers as fees in their escrow accounts prior to service of the garnishment. Consequently, we find there were no remaining fees upon which an attachment would stand against these Attorneys and affirm the decision of the trial court as to them.

Appellants argue that since the garnishment statute does not provide an exception for garnishees that have been retained as counsel of the debtor, the money paid to the Attorneys and which remained in their trust accounts at the time of their judgment was subject to garnishment. The Attorneys representing the Judgment Debtors in the Criminal Case, however, argue that their written flat fee agreement with the Judgment Debtors existed months before the Appellants obtained their judgment against them in August of 2007.

Appellants argue that funds held by a debtor’s attorney are not exempt from attachment even if they have been transferred to the attorney. In other words, they contend that they are entitled to recover the monies the Attorneys have in their
escrow/client trust accounts.

Rules of the Supreme Court (SCR), Rules of Professional Conduct, 3.130, provides that the contents of an attorney’s escrow account belong to the clients for which they have been deposited.

The Attorneys, however, argue that a “flat fee” arrangement is different. In SCR 3.130(1.5(8)), a “flat fee” is considered different due to the added risk the
attorney takes should litigation and representation of the client be more difficult than first expected.

Appellants, on the other hand, contend that the “flat fee” agreements for legal services do not defeat the impact of the garnishments and that
the funds may be attached. In the present case, however, there was not a “portion” of the fee designated as nonrefundable. Instead, the entire fee was earned when the Attorneys took their fee from the Judgment Debtors. Their argument, in essence,
is that the fee was earned upon their acceptance of it.

Kentucky Bar Association Ethics Opinion E-380, which provides that:
Lawyers may designate some amount of a client’s written fee payment for a particular case or matter as a “NON-REFUNDABLE RETAINER” with the intention to make it clear to the client that a portion of the fee is earned at the time of payment and commencement of the representation, and that if the client discharges the lawyer, this advanced fee payment will not be returned.

the trial court found there were no remaining monies which could be attached until after representation by the Attorneys had come to a conclusion. The trial court also reserved the right to examine the fees of Davidson, Almand, Dobson and Lotz for “reasonableness”after the Criminal Case was over.

We conclude that a “flat fee,” such as the ones accepted in the Criminal Case herein, is earned immediately by the attorney due to the inherent risk the attorney takes by accepting the fee and representation of the client regardless of the time
and effort which could be involved. There is no indication in this action that the Attorneys did not continue to represent the Judgment Debtors. However, nonrefundable fees must be reasonable. The trial court acknowledged this fact and
reserved the issue until after the conclusion of the Criminal Case.

the trial court reserved to make a finding on the issue of the reasonableness of the fees until after the Criminal Case was finished. We must, therefore, remand this action to the trial court for a finding on this issue


Angela M. Ford
Seth Jared Johnston
Lexington, Kentucky

James A. Shuffett
Lexington, Kentucky

Jeffrey J. Harmon
Cincinnati, Ohio

W. Robert Lotz
Covington, Kentucky

Katherine W. Ross
Andre F. Regard
Lexington, Kentucky

Calvin R. Fulkerson
J. Christian Lewis
Lexington, Kentucky

J. Stephen Smith
Fort Mitchell, Kentucky



Friday, July 20th, 2012

One of four shoplifters in 2005 mall death set free after double jeopardy ruling.Prosecutor says decision doesn’t mean defendants were innocent.
Y. Latta – July 19, 2012
One of four Columbus women convicted of killing a man while they fled after shoplifting from Upper Valley Mall in a hit-and-run accident seven years ago was released from prison Thursday evening.
A divided Ohio Supreme Court ruled Thursday that Clark County Common Pleas Judge Douglas Rastatter erred when he declared a mistrial in Toneisha Gunnell’s 2007 trial. That error violated Gunnell’s rights against double jeopardy — a rule that forbids someone being tried twice on the same charge — when she was convicted in 2009.
“I just feel blessed, blessed and thankful… and ready to go home,” said Gunnell. “God is good.”
When asked what she is looking forward to, she said: “Going home to be with my babies.”
Her children, 8- and 9-years-old, did not yet know that their mom was coming home.
The 4-3 ruling affirmed the Second District Court of Appeals’ 2010 decision to overturn her conviction. Her attorney, James Griffin, said he and Gunnell’s family are pleased with the ruling.
“I was relieved to finally get it. After seven and a half years, I can close this case, and I hope that Toneisha has learned her lesson and is able to lead a better life,” Griffin said.
Co-defendant Alicia McAlmont appealed her sentence on the same grounds. Griffin expects justices to overturn McAlmont’s conviction and for her to be released from prison, too.
Gunnell and McAlmont were sentenced to 18 years to life in prison on several charges, including robbery and murder, for their role in the June 2005 death of John Deselem, 49, in the parking lot of the mall.
The two women, along with Mahoghany Patterson and Renada Manns, stole a car in Columbus on June 7, 2005, and took $3,500 worth of clothing from Macy’s. With story security in pursuit, the four sped away, hitting and killing Deselem as he either stepped off the curb or attempted to stop them.
Clark County Prosecutor Andy Wilson said he agrees with the three dissenting justices, but respected the court’s decision. He also noted that a federal district court, a federal appellate court, and three Ohio Supreme Court justices agreed that double jeopardy did not bar retrial of the women.
“I know that everyone involved in the case did their best to reach a decision that protected the rights of the state, the victim’s family and the defendants,” Wilson said. “ … Today’s decision bars the State of Ohio from retrying the case again. Today’s decision does not equate to the innocence of these defendants.”
The women argued in court that Deselem’s death was an accident, but two separate juries found them guilty of murder.
The court of appeals overturned the women’s November 2005 conviction and ordered a new trial, saying a prospective black juror was improperly dismissed.
A second trial in 2007 ended when Rastatter declared a mistrial after a juror researched two legal terms online after deliberations had started.
Later, Gunnell and McAlmont were found guilty and sentenced to prison in a third trial in 2009.
In 2010, Patterson and Manns took a plea deal and were sentenced to 10 and 11½ years, respectively, with credit for time served. They forfeited their appeal rights as part of their guilty pleas.
But Chief Justice Maureen O’Connor, Paul E. Pfeifer, Judith Ann Lanzinger and Yvette McGree Brown ruled Thursday that in the second trial Rastatter improperly declared a mistrial in the case based on a juror’s actions.
O’Connor wrote that Rastatter speculated the juror who researched legal terms online was biased without “meaningful inquiry.”
“A mistrial upon the judge’s mere speculation of prejudice is not an act of ‘the greatest caution.’ It is a travesty. And that is exactly what is before us. The court of appeals was correct in holding that the mistrial was in error and that the Constitution demands reversal of these convictions,” O’Connor wrote.
Justices Terrence O’Donnell, Evelyn Lundberg Stratton and Robert R. Cupp disagreed and said Gunnell should have a new trial.
“In my view, double jeopardy principles do not preclude retrial in this case. The trial court here, in the exercise of its discretion, found that a manifest necessity existed to declare a mistrial,” O’Donnell wrote in court records.
O’Donnell continued: “ … In my view, the intermediate state appellate court misapplied the manifest necessity standard and substituted its judgment for that of the trial court, and I would reverse its judgement and remand the matter for retrial.”
Barbara Fitzwater, who had dated Deselem for seven years and was shopping with him the day of the incident, said she sent Deselem to the car to get her purse when he was killed.
Fitzwater said Rastatter and the local court system did nothing wrong.
“I think it was perfectly justified what these girls were sentenced to,” Fitzwater said.
She added that the the driver, Manns, was to blame for Deselem’s death and should remain behind bars.
“I felt the driver was the ring leader. Yes, the girls stole, but they were at her beckon call after they ran John down. I have a hard time with that because I felt the driver was to blame for killing him. I felt sorry for those girls. I really felt sorry for them.”
While in prison Gunnell has matured, obtained a high school diploma and tutored inmates, Griffin said.
“We’re grateful that we got the decision from the Supreme Court. We look forward to everybody being able to put this behind them and get on with their lives,” Griffin said.
He said Gunnell often prays for Deselem’s family.
“She’s always felt bad about what happened,” Griffin said.

Hon. DOUG MYERS TAKES OFFICE AS NEW PRESIDENT OF KENTUCKY BAR ASSOCIATION – Will he honor our request for information about the cost of the KBA’s hiring of outside counsel?

Thursday, July 19th, 2012

W. Douglas Myers, of Deatherage, Myers & Lackey in Hopkinsville, Ky. has been sworn in as President of the KBA. He will serve a one year term of office. We wish him the best and hope his service as President is as successful as his career has been to date.
The President-Elect is Thomas L. Rouse of Erlanger, and William E. Johnson is the Vice-President.
Last April LawReader wrote Margaret Keane, who was then the President of the KBA. We asked her for information regarding how much of KBA funds have been spent to hire outside counsel to represent the Bar Counsel and the KBA in appeals and civil suits. Then President Keane never responded to our request.
We have submitted the same request for information to President Myers on July 20,2012. He could demonstrate his respect for the members of the Bar which he represents, by answering a reasonable request for information about how our dues money is being used by the KBA.

Representative Harmon Pre- Files Bill to Allow Forfeiture of Vehicle Used in DUI if Def. Has Prior Offense – With penalties and imprisonment greatly expanded

Wednesday, July 18th, 2012

Representative Harmon Pre- Files Bill to Allow Forfeiture of Vehicle Used in DUI if Def. Has Prior Offense – With penalties and imprisonment greatly expanded

This seems like a harsh penalty.

BR 17 – Representative Mike Harmon (06/08/12)
AN ACT relating to driving under the influence.
Amend various sections in KRS Chapter 189A, relating to driving under the influence, to restructure the existing penalties from a four-tiered structure to a three-tiered structure; expand the look-back window for prior offenses from five years to ten years, and to allow forfeiture of motor vehicles used in a DUI if the operator’s license had been previously suspended; amend KRS 281A.2102 to conform.
(Prefiled by the sponsor(s).)
To: Interim Joint Committee on Judiciary
“, any motor vehicle owned by the violator and used in the commission of an offense under this section shall be subject to forfeiture under the same terms, conditions, and defenses and using the same process as set out in KRS 218A.405 to 218A.460 for property subject to forfeiture under that chapter.


Wednesday, July 18th, 2012

Knox v. Commonwealth (Ky., 2012)

Knox v. Commonwealth (Ky., 2012) MARCH 22, 2012 2010-SC-000816-MR.PDF

In McClanahan, the defendant triggered a hammer clause in his plea agreement by violating the conditions governing his presentence release from custody.

As a result, instead of a ten-year sentence, the trial court imposed a thirty-five-year sentence based upon the hammer clause. We reversed the sentence imposed in McClanahan for two reasons.

First, the thirty-five-year sentence exceeded the maximum sentence authorized by statute, and was therefore illegal. Id. at 702.

In addition, we determined that the trial court had failed to exercise independent discretion in setting the sentence, that it had imposed a sentence of imprisonment without giving due consideration to the contents of the presentence report as required by RCr 11.02 and KRS 532.050(1), and that it had imposed the sentence of imprisonment without considering “the nature and circumstances of the crime and the history, character and condition of the defendant” as required by KRS 533.010(2).

We reached that conclusion largely based upon the trial judge’s statements while taking the guilty plea and during the final sentencing. Upon taking the plea, the judge issued a stern warning that she would impose the hammer clause’s sentence if McClanahan failed to appear for final sentencing or otherwise violated the conditions of his release. McClanahan violated the conditions.

At final sentencing, the judge disclaimed responsibility for the sentencing decision, stating:

“I didn’t create the time [referring to the sentence] . . . Mr. McClanahan, you made the choice and I’m giving you your choice.” McClanahan, 308 S.W.3d at 703.

In reversing the sentence we stated “[b]y assuring Appellant upon acceptance of his guilty plea that should he violate the terms of his release, the full force of the hammer clause would be dropped upon him, the judge committed to the imposition of a specific sentence in a way that precluded true compliance with KRS 532.050(1), KRS 532.110(1), KRS 533.010(1) and (2), and RCr 11.02.” Id. at 704.

Here, the trial judge that took Knox’s guilty plea and later imposed the sentence made precisely the same mistake, using words nearly identical to those we saw in McClanahan.

Upon taking the plea, the judge told Knox that the hammer clause was a serious matter and that if any conditions of his release were violated, “your sentence is going to be twenty years to serve.” The judge reiterated, “The court is going to enforce the agreement if you violate [the conditions of release].”

This stated commitment to impose the hammer clause sentence upon any violation was echoed at the sentencing hearing. The judge characterized Knox’s violations as “relatively minor” and admitted that he was “troubled by the hammer clause,” and noted, “this one is quite harsh.”

However, when defense counsel requested that he consider some sentence other than the twenty-years called for in the hammer clause, the judge declined stating, “The court is most hesitant to get into the issue of negotiations on the plea agreement because … I’m not going to at this time try to decide . . . well, the amount of the hammer clause influence on the sentence that was agreed upon by the Commonwealth and the defendant in the first place, and how did it influence that at all, that sort of thing . . . I’m just reluctant to do that.” He then reminded Knox that the hammer clause was “something, Mr. Knox, you agreed to, and therefore I am going to impose it.” Without further comment, the judgment was entered.

KRS 533.010(2) directs the trial court, not only to consider “probation, probation with an alternative sentencing plan, or conditional discharge” before imposing a sentence, but to refrain from imposing a sentence of imprisonment unless, based upon “consideration of the nature and circumstances of the crime and the history, character and condition of the defendant,” the court is of the opinion that:

“imprisonment is necessary for protection of the public because: (a) There is substantial risk that during a period of probation or conditional discharge the defendant will commit another crime; (b) The defendant is in need of correctional treatment that can be provided most effectively by his commitment to a correctional institution; or (c) A disposition under this chapter will unduly depreciate the seriousness of the defendant’s crime.”

RCr 11.02 and KRS 532.050(1) requires the court to give “due consideration” to the results of the presentence investigation.

We have reviewed the record for some indication that, in fixing Knox’s sentence, the trial judge might have considered something other than the plea agreement hammer clause. We find nothing that supplements the statements made in open court at the plea colloquy or the sentencing hearing. While the final written judgment makes specific findings about Knox’s hammer clause violation, it says absolutely nothing that suggests compliance with any part of KRS 533.010(2) or that “due consideration” was given to the report of the presentence investigation. The only reference to the presentence report that was uttered at the sentencing hearing was defense counsel’s unsolicited remark that she had read the report and had no need to controvert anything in it. We therefore have no difficulty in concluding that the trial judge committed himself to enforcing the plea agreement without ever considering the content of the presentence report or “the nature and circumstances of the crime and the history, character and condition of the defendant.” Not only did he base his decision entirely upon the plea agreement, he expressly declined to consider anything else, lest he “get into the issue of negotiations on the plea agreement.”

We find it appropriate to note at this juncture: plea agreements between prosecutors and criminal defendants are a vital part in the administration of justice. They are certainly significant considerations in a judge’s sentencing decisions, and often will be the most influential factor. But a plea agreement can never be the only factor weighing into the judge’s sentencing decision. A plea agreement does not relieve the judge of the statutory directives with respect to sentencing and it does not supplant the judge’s duty to make an independent determination of the appropriate sentence

Dissolved Corporation Is Citizen of Its State of Incorporation

Wednesday, July 18th, 2012

By Todd McMurtry |

In a recently decided case, the United States Court of Appeals for the Eleventh Circuit addressed the issue of what status a dissolved corporation has when deciding if diversity jurisdiction exists. Holston Investments, Inc. B.V.I. v. LanLogistics Corp, 2012 WL 1293469 (11th Cir. 2012). The Court noted that circuits across the country were divided on this issue.
The facts are simple. LanLogistics sold two subsidiary corporations without first offering Holston its contractual right of first refusal. Holston, a Florida citizen, alleged diversity and sued LanLogistics in the Florida District Court. LanLogistics was a recently dissolved Delaware corporation that had maintained its principal place of business in Florida. Chapter 28 U.S.C. § 1332(c)(1) states that “a corporation shall be deemed to be a citizen of every State and foreign state by which it has been incorporated and of the State or foreign state where it has its principal place of business … .” LanLogistics argued that both parties were citizens of Florida and not diverse as required by 28 U.S.C. § 1332.
The Court sought the Supreme Court’s guidance to resolve for itself the conflicting statuses that various other circuits had given to dissolved corporations. In Hertz Corp. v. Friend, the Supreme Court held that simple jurisdictional tests were preferred. 130 S.Ct. 1181, 1193–94, 175 L.Ed.2d 1029 (2010). Hertz ruled that a corporation’s principal place of business is where its “nerve center is located.” The Court tried to emulate this simple approach in formulating its decision. The Court stated,
“Considering the jurisdictional tests in the various circuits and the guidance of the Supreme Court in Hertz, we join the Third Circuit in holding a dissolved corporation has no principal place of business. This bright-line rule may open federal courts to an occasional corporation with a lingering local presence, but undeserved access to a fair forum is a small price to pay for the clarity and predictability that a bright-line rule provides.”
Holston Investments, Inc. B.V.I. at p. 1071.
As a Delaware corporation now dissolved, the Court found LanLogistics a citizen of Delaware and affirmed the District Court’s decision that diversity of citizenship was present.
Todd McMurtry is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc


Tuesday, July 17th, 2012


Reprinted from Lexington Herald Leader July 18, 2012
By Karla Ward —
Nelson County District Judge Robert “Bob” Heaton, president of the Kentucky District Judges Association, died Monday at Flaget Memorial Hospital in Bardstown.
The Kentucky Standard reported that Judge Heaton, 65, of Bardstown, collapsed during the 6:30 a.m. Mass at St. Joseph Church on Monday after an apparent heart attack. Prior to his collapse, he had finished a reading before the congregation.
Judge Heaton was elected Nelson District Court judge in 1998. Before that, he had been an attorney in private practice and served for 19 years as Bardstown’s city attorney.
He was a member of the Judicial Review Board and several civic organizations and boards. He was elected to a two-year term as president of the district judges association last fall.
Kentucky Chief Justice John D. Minton Jr. said in a statement that he was saddened by Judge Heaton’s passing.
“I will miss his wisdom, guidance and affable personality,” Minton said. “He provided strong leadership in and outside Nelson County as a district judge and as president of the Kentucky District Judges Association. We looked to him for his vast experience, his knowledge of the court system and his ability to work with people.”
Judge Heaton was a graduate of St. Louis University and the University of Kentucky Law School and was a veteran of the U.S. Army National Guard.
He is survived by his wife, Lee, a son and a daughter.
Funeral Mass will be conducted at 11 a.m. Thursday at the Basilica of St. Joseph Proto-Cathedral in Bardstown. Visitation will be from 2 to 8 p.m. Wednesday and 9 to 10:15 a.m. Thursday at Barlow Funeral Home.

Read more here:

Kentucky Department for Community Based Services Launches New Web-based abuse/neglect Portal

Monday, July 16th, 2012

The Kentucky Department for Community Based Services is proud to announce the launch of a new web-based abuse/neglect reporting portal that will modernize and enhance the current intake system.

The online Kentucky Child/Adult Protective Services Reporting System makes it convenient to report non-emergency situations that do not require an immediate response from our staff.

The website is, and it will be monitored from 8 a.m. to 4:30 p.m. Eastern Time, Monday through Friday. Reports will not be reviewed during evenings, weekends or state holidays.

Reporting suspected abuse or neglect is the law. This new online reporting system is simple to use and will improve access to reporting for all Kentuckians by reducing wait times on our toll-free telephone hotline for non-life-threatening incidences.

Phase I of our rollout began, Monday, July 9, and will include our professional partners i.e.: law enforcement and judicial officials, medical professionals, educators, child and senior caregivers and other advocates. The website can be accessed from any computer. We are initiating access for our community partners during Phase I before launching it for the general public later this year. We will use this time to refine our system and to ensure its ease of use for the public.

Users are required to enter an email contact and will receive an immediate, automated response that their online referral has been made. Central intake staff will review reports as they are submitted. Users will receive a response message within 48 hours only if their report has not been accepted because it doesn’t meet the requirements for investigation. Reports that are accepted do not generate a follow-up email message.

The reporting portal has several mandatory input fields so our intake staff can get enough information about the incident, the alleged victim, the alleged perpetrator and any safety issues. Users who cannot register information in all the required fields should call the toll-free reporting hot line: (877) KY SAFE1, or (877) 597-2331.

Emergency situations when a child or adult is at risk of immediate harm should be reported to local law enforcement or 911.

We created this system to better protect Kentucky’s children and vulnerable adults. We appreciate your support in this mission. Thank you.


Teresa C. James
DCBS Acting Commissioner