Archive for July, 2012


Sunday, July 15th, 2012

Minix v. Roberts, 350 S.W.3d 449 (Ky., 2011)
I. Background
In January and April 2010, Appellant received nearly identical documents from the “Fayette County Court Annexed Mediator stating that the Fayette County Court” 1 received a complaint 2 against him for a violation of KRS 514.030.
Both documents were issued under the seal of the Court of Justice, with “Administrative Office of the Courts” written at the top, and each one explained that “[t]he judge has referred this complaint to mediation in an effort to resolve the dispute prior to the issuance of any formal charges against you” and that “[t]his meeting is an attempt to settle the matter out of Criminal Court.” The documents then directed Appellant to appear for mediation at the “Fayette County Fayette District Court”, warning further that the “[f]ailure to appear as directed may result in the issuance of a summons or warrant.”
While we agree that the Court of Appeals is without jurisdiction to address Appellant’s claims, and we affirm its decision to dismiss Appellant’s petition, we do so because a writ of prohibition may not be issued against nonjudicial parties such as the Appellees. The substantive relief Appellant seeks is within the original jurisdiction of the circuit court, not the Court of Appeals.
Appellant’s arguments are replete with concerns about the constitutional issues that may arise from the Fayette County Attorney’s use of a document that appears to be a court order directing persons accused of crimes to attend mediation, where they may be expected to discuss the allegations without the protections of counsel and Miranda warnings.
We decline to discuss such concerns here, finding it prudent to wait until such issues are squarely presented within a fully developed record.
However, we do express our concern that the documents used to hale persons into the county attorney’s mediation program strongly and improperly invoke the imprimatur of the Court of Justice and its administrative agency. The appropriation of the seal of the Court of Justice and the name of the “Administrative Office of the Courts” to imply that the directive to attend mediation originates from, and will be enforced by, the judicial power of this Commonwealth will not be tolerated. We trust that it will immediately cease.
For the foregoing reasons, we affirm the order of the Court of Appeals.


Saturday, July 14th, 2012

Richard Posner is the most influential conservative judge outside the Supreme Court. And he thinks its campaign-finance ruling encourages bribery. James Warren on Posner’s latest shot—and Scalia’s gun love.
The American political system is marked by legal corruption in which “wealthy people essential bribe legislators” with campaign contributions, according to one of the nation’s most influential federal judges.
Speaking to foreign educators, Judge Richard Posner told the assembled that the wealthy give lots of money to legislators and that an individual legislator “knows that if he doesn’t promote the interests of the donor,” he won’t get any more money.
Posner is a renowned member of the Chicago-based Seventh Circuit Court of Appeals. He is not only the nation’s most prolific jurist-academic, he is seen by some as the most influential judge outside of the nine members of the U.S. Supreme Court.
Posner is intellectually fearless and, increasingly, far from the reflexively conservative thinker that he’s been long seen to be. In a recent National Public Radio interview, he spoke of the “real deterioration in conservative thinking” in recent years. “I’ve become less conservative since the Republican Party started becoming goofy.”
Posner has taken a poke at the high court’s controversial ruling before. But he’s taking his disdain for the decision to a broader audience. His latest comments came at a post-luncheon appearance Thursday before visiting Asian legal academics at the University of Chicago Law School, where he remains a faculty member.
“Our political system is pervasively corrupt due to our Supreme Court taking away campaign-contribution restrictions on the basis of the First Amendment,” Posner said.
Posner left no doubt about his criticism of the Supreme Court’s Citizens United campaign-finance decision. He said, “Our political system is pervasively corrupt due to our Supreme Court taking away campaign-contribution restrictions on the basis of the First Amendment.”
He also didn’t mind naming some names, in particular that of Justice Antonin Scalia, a onetime member of the law school faculty who lectured and taught at the school in February. Posner brought up the Supreme Court’s 2008 decision in District of Columbia v. Heller, affirming the right of individuals to have handguns at home for self-defense.
Posner doesn’t think the Second Amendment has anything to do with an individual’s right to bear arms, a basis of the decision for which Scalia wrote the majority opinion.
“That didn’t slow down Scalia,” Posner told his Asian listeners. “He loves guns. He’s a hunter.”
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Saturday, July 14th, 2012

Harry v. Commonwealth of Ky., 348 S.W.3d 627 (Ky., 2011)

In a similar case, Thacker v. Commonwealth, 194 S.W.3d 287, 290–91 (Ky.2006), we acknowledged that “[i]n [ United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995) ], the Supreme Court held that the jury should have been entitled to decide the entire essential element, including the application of law to fact,” i.e., whether the weapon used was in fact a “deadly weapon” or a “dangerous instrument.” However, following Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), we acknowledged that the instructional error was harmless. Thacker, 194 S.W.3d at 291. Here, the trial court erred in a similar manner, and, again, following precedent, we find this error to be harmless in this instance.

That is not to say we will continue to do so should trial errors such as this continue. The finding of harmless error should not be used blindly as a means to continue a practice this Court has previously condemned as error. Id. (“This … ensures that the jury ultimately determines the essential elements of the offense, and acts in accordance with the law.”)

Unauthorized Practice of Law (UPL) – Licensing of Para Legal To prepare Forms…Is it time for Ky. to get aboard?

Saturday, July 14th, 2012

Competition in the Legal Marketplace

The medical profession has long recognized that not every patient needs to see a doctor. Nurses, nurse practitioners, physician assistants, and midwives all can expertly – and independently – handle medical issues within their fields. They also can recognize when a doctor is needed. In contrast, the legal profession has resisted the simple truth that not every legal question needs to be handled by an attorney.

Legal Document Assistants (LDAs)
Recognizing the fact that trained paralegals working in law offices already handle a significant amount of many attorneys’ workloads on their own, California, Arizona and a few other states have begun to license those paralegals and others with equal competence to prepare documents on their own as “Legal Document Assistants.” But there has been resistance.

Responsive Law has drafted legislation that would open the legal marketplace to new types of legal professionals and service providers. Become a member today and learn how you can help see it enacted in your state.

Unauthorized Practice of Law (UPL)
In some states, LDAs and other innovators, such as online self-help website operators, have found themselves charged with the Unauthorized Practice of Law (UPL) by incumbents who see them as threats. Although we recognize that consumers must be protected from incompetent and unprofessional operators, we do not regard those values as being incompatible with competition. Indeed, we regard affordability of legal services to be as important a concern as quality. Indeed, competition has the effect of improving quality as well as reducing prices.
For more than a year, Responsive Law has been active in the proceedings of the American Bar Association’s Commission on Ethics 20/20. This commission, which has been meeting for the past several years to consider changes to the ethics rules governing lawyers, has worked on numerous issues that would affect the business of law and how consumers receive legal services. Responsive Law has been the only consumer voice at these hearings, which have been dominated by lawyers and others with an interest in maintaining the status quo of a lawyer monopoly over legal services.

Responsive Law has spoken on multiple occasions about how to open the legal system to improve consumer access. For example, we testified in favor of more widespread multijurisdictional practice, where a lawyer in one state can provide services to people in other states. More multijurisdictional practice will allow consumers to have a greater choice among lawyers, and will allow customers to more conveniently obtain legal services on the internet.

We have also testified to the committee in favor of lifting the prohibition on non-lawyer ownership of law firms. Outside investment could foster innovative, low cost models for legal services that are not possible now. Innovative companies are able to get goods and services to consumers cheaply because they have the capital to invest in new ideas and because they have business expertise to identify those ideas. Law firms are not run by business experts and are not large enough to rollout new business ideas in the way that a Wal-Mart or a Google can.

The ABA has continued to act to protect the lawyer monopoly rather than to act in the interests of access to justice for those who use the legal system. The Ethics 20/20 Commission refused to endorse any significant changes to outside ownership restrictions and has made only incremental improvements on other issues, such as allowing clients in one state to use the services of lawyers from other states. While the ABA continues to promote lawyer regulation that places the business interests of the legal profession above the interests of its clients, Responsive Law will continue to be a lone voice calling out for reform on behalf of the people the legal system is meant to serve.

Massachusetts Considers Requiring Written Lawyer Fee Agreements

Responsive Law testified in favor of a proposed Massachusetts court rule that would require lawyers to give their client’s fee agreements in writing. “Lawyers always tell clients to ‘get it in writing’ when they’re making a business arrangement with another person,” said Responsive Law Executive Director Tom Gordon, “so it’s only fitting that clients should ‘get it in writing’ when arranging the terms of their relationship with their lawyer.”

The proposed rule mirrors provisions of Responsive Law’s Clients’ Bill of Rights, which provides customers of lawyers with information about rights they have under the law and educates them and their lawyers about how to avoid confusion and conflict in the lawyer-client relationship. The state of New York currently requires its version of a clients’ bill of rights to be posted in lawyers’ offices. If Massachusetts adopts this proposal it will be the second state to provide this sort of protection to legal consumers, and the first to require that fee agreements be in writing.

Responsive Law Appears in New York Times and Wall Street Journal

Responsive Law continues to speak on behalf of legal consumers, including recent appearances in the New York Times and the Wall Street Journal. Responsive Law Executive Director Tom Gordon was quoted by the Journal on non-lawyer investment in law firms (see ABA Ethics 20/20 article above), saying “people who can’t pay $500 an hour but could pay a $500 flat fee for a divorce” could benefit from adopting policies like those of Great Britain, where a major retailer has been licensed to provide legal assistance with family-law matters. Our letter to the editor in the Times applauded a proposal to require lawyers to provide pro bono service before being admitted to the New York bar, but pointed out that simplifying the legal system and allowing people to use non-lawyer help are both needed to create full access to justice.

All of our press appearances can be found on the Press page of our website.

Self-Help Resources Available

Check out our Self-Help section and get the assistance you need on your legal matters today! Self-Help tools are a low-cost way of getting the resources and support that you need to face legal issues. Our Self-Help tools come from trusted experts in the legal self-help industry. They cover a broad range of topics and can help you get answers to legal questions, help with legal documents, and even advice from lawyers online. As an added bonus, the companies providing these services are donating a portion of sales through our website to Responsive Law and its mission of making the legal system more responsive to consumer needs.

Responsive Law Welcomes Summer Interns

Responsive Law has been assisted this summer by two interns. Jen Roy is a law student at the University of the District of Columbia. Dara Brown is an undergraduate at Cornell University. Anyone interested in interning with us should send a cover letter and resume to

Help Support Our Mission

To continue helping consumers have a more user-friendly legal system, Responsive Law relies upon the generosity of its supporters. Please consider making a tax-deductible donation today!

Judge in Alabama Halts Private Probation Program Which Was Extorted Participants

Saturday, July 14th, 2012

By ETHAN BRONNER July 13, 2012
A county judge in Alabama has temporarily shut down a system in a town near Birmingham where people fined for speeding and unable to afford the ticket are handed over to a private probation company and sometimes sent to jail, where additional fees are imposed.
Judge Hub Harrington of Shelby County issued the order this week, saying that he was “appalled” by what he characterized as a “debtors’ prison.”
“From a fair reading of the defendants’ testimony, one might ascertain that a more apt description of the Harpersville Municipal Court practices is that of a judicially sanctioned extortion racket,” he added. “Most distressing is that these abuses have been perpetrated by what is supposed to be a court of law. Disgraceful.”
Judge Harrington was responding to a class-action lawsuit alleging that constitutional rights were violated by the town and the company, Judicial Correction Services, based in Georgia, because inability to pay a fine is not a legitimate basis for jail, according to several Supreme Court rulings. The New York Times reported on the lawsuit this month as part of an article about the aggressive use of fees and private companies by towns and court systems seeking income.
Judge Harrington ordered a preliminary injunction against the town and company, calling their officials to a hearing on Aug. 20. He also barred any further detention in local jails of those placed on probation without his written permission. He ordered that anyone convicted in Harpersville Municipal Court be given 30 days to pay the fine without further fines or fees being imposed by the probation company.

Rule allowing corporate lawyers to practice law in Kentucky without a Kentucky license Demonstrates Favoritism to Corporate Defense Lawyers .

Friday, July 13th, 2012

By LawReader Senior Editor Stan Billingsley
SCR 2.111. This rule was adopted to allow corporations to bypass the rules that apply to other attorneys. This rule is apparently being used to allow the President of UK to employ as his legal advisor a Tennessee attorney who is not licensed in Kentucky.
Why should a corporation be exempt from licensing requirements imposed on all other lawyers?
In 1971 when I graduated from UK Law and was admitted to practice law in Kentucky there were about 3500 licensed Kentucky. Today there are 17,200 licensed Kentucky lawyers.
A recent article revealed that on the average the annual income of most lawyers has been falling. We have seen many instances where new attorneys have not been able to find a job. Nationally another report states that we are producing 28,000 more attorneys per year than that are legal jobs available.
This overproduction of lawyers, affects the fees existing lawyers can charge, and raises a question about the necessary of adding some 300 to 500 new lawyers a year in Kentucky.
With the lack of enough legal positions for graduates of Kentucky’s three law schools, why is Kentucky making it easier for out of state corporate lawyers to practice in Kentucky?
SCR 2.111 Limited certificate of admission to practice law
(1) Every attorney not a member of the Bar of this Commonwealth who performs legal services in this Commonwealth solely for his/her employer, its parent, subsidiary, or affiliated entities, shall file with the Kentucky Office of Bar Admissions on a form provided, an application for limited certificate of admission to practice law in this Commonwealth. Such application shall be reviewed by the Character and Fitness Committee. If approved, a limited certificate of admission to practice law shall be granted, and shall be effective as of the date such application is approved, provided that the following prerequisites are satisfied.
(a) The applicant must be admitted to practice in the highest court of another state or the District of Columbia, and be a member in good standing at the Bar of such court, or in such state, at the time of filing such application.
(b) The attorney applying for limited certificate of admission to practice law shall sign a sworn statement certifying to the Court that:
(i) He/she has completed the study of law in an accredited law school;
(ii) He/she has been admitted to practice in the highest Court of another state or the District of Columbia;
(iii) He/she is presently in good standing at the Bar of such Court, or such state;
(iv) He/she will perform legal services in this Commonwealth solely for his employer, its parent, subsidiary, or affiliated entities.
(c) A statement signed by a representative of such applicant’s employer stating that such applicant is an employee for such employer, and performs legal services in this Commonwealth for such employer, its parent, subsidiary, or affiliated entities, shall be filed with the application.
(2) Such applicant shall pay to the Kentucky Office of Bar Admissions, at the time of submission of such application a fee of one thousand dollars ($1,000) and shall make payment of the current annual dues or fees to the Kentucky Bar Association, as authorized under SCR 3.040.
(3) Upon granting of such limited certificate of admission to practice law, and issuance of said limited certificate by the Clerk of the Supreme Court of Kentucky, such applicant shall be and shall remain, during the period the limited certificate of admission to practice law remains in effect, an active member of the Kentucky Bar Association, subject to all duties and obligations of members admitted under SCR 2.110, SCR 2.120 and SCR 3.661.
(4) The only restrictions and limitations applicable to such membership in the Kentucky Bar Association and to such attorney’s right to practice in this Commonwealth shall be:
(a) Such attorney shall perform legal services in this Commonwealth solely for his employer, its parent, subsidiary, or affiliated entities, and shall not provide legal services in this Commonwealth, to any other individual or entity.
(b) Such attorney shall not appear as attorney of record for his employer, its parent, subsidiary or affiliated entities, in any case or matter pending before the Courts of this Commonwealth, without first engaging a member of the Association, admitted under SCR 2.120 or SCR 2.110, as co-counsel, whose presence shall be necessary, when required by the Court, at all trials or other times specified by the Court. Nothing herein shall prevent such attorney from appearing on his/her own behalf or representing himself/herself in any case or matter to which he/she is a party, or appearing in the Small Claims Division of the District Court as otherwise provided in Rule 3.020.
(5) The performance of legal services in this Commonwealth solely for such attorney’s employer, its parent, subsidiary, or affiliated entities, following admission to the Kentucky Bar on a limited certificate shall be considered to be the active engagement in the practice of law for all purposes.
(6) The limited certificate of admission to practice law in this Commonwealth shall expire if such attorney is granted a certificate of admission to practice, or is admitted to the Bar of this Commonwealth under any other rule of this Court, or if such attorney ceases to be an employee for the employer or its parent, subsidiary, or affiliated entities, listed on such attorney’s application, whichever shall first occur; provided, however, that if such attorney, within thirty (30) days of ceasing to be an employee for the employer or its parent, subsidiary, or affiliated entities listed on such attorney’s application, becomes employed by another employer for which such attorney shall solely perform legal services, such attorney may maintain his admission under this Rule by promptly filing with the Clerk of the Supreme Court a statement to such effect, stating the date on which his prior employment ceased and his new employment commenced, identifying his new employer and reaffirming that he shall not provide legal services, in this Commonwealth, to any other individual or entity. In the event that the employment of an attorney admitted under this rule shall cease with no subsequent employment by a successor employer within thirty (30) days, such attorney shall promptly file with the Clerk of the Supreme Court a statement to such effect, stating the date that such employment ceased.
(7) Except as specifically limited herein, the rules, rights and privileges governing the practice of law shall be applicable to an attorney admitted under this Rule
HISTORY: Amended by Order 2009-12, eff. 1-1-2010; prior amendments eff. 1-1-04 (Order 2003-4), 1-1-02 (Order 2001-2), 2-1-00 (Order 99-1), 8-1-92 (Order 92-1), 1-13-86; adopted eff. 7-5-85


Friday, July 13th, 2012

Please reach out to Katie Lange-Dardugno to set up your interview.
She will be onsite at the NKBA at 529 Centre View Boulevard, Crestview Hill, KY 41017
Tuesday, August 7, 2012 from 9 AM to 4 PM.
Katie can also be reached at or (513) 618-2665 if you are interested in setting up a time to meet prior to this date in the Cincinnati office located at 901 Adams Crossing, Cincinnati, OH 45202.
Pro Tem Legal Solutions is the Greater Cincinnati’s newest company to help you land your next job in the legal industry.
Pro Tem offers lawyers/paralegals and legal support staff the following opportunities:
Contract to Hire
Permanent Placement
E-Discovery/Document Review Projects
The downturn in the economy and more law school graduates than current demand has resulted in a tough legal job market. However, there are ways for you to develop skills, strengthen your resumes and improve/expand your options in the legal field.
Temporary legal staffing is growing. During the latest economic downturn, many law firms downsized to cut costs. However, when those law firms took on large cases they found themselves understaffed and in need of assistance, particularly during the discovery phase of the lawsuit. To meet their staffing needs, law firms are turning to temporary legal staffing companies to help them “staff-up.” We understand Pro•Tem will only be as good as the talent we recruit and we believe the best way to recruit the best talent is to provide recruits with an opportunity to improve their skills.
Pro•Tem provides the first step towards the legal job you really want. We will give you the opportunity to make yourself more marketable so you can obtain the permanent legal position you desire. Pro•Tem will help you become more marketable by offering resume and interviewing workshops. In addition, Pro•Tem offers business advice on how to start your own law practice by providing advice in the following areas: how to obtain financing; how to take on a partner; how to bill your time; and most importantly, how to attract business. Furthermore, Pro•Tem offers insurance advice through Gallagher SKS on how best to obtain cost effective health and professional liability insurance.
Pro•Tem is a community where you can improve your skills, make some money and ultimately get the job you went to law school to obtain.
Please reach out to Katie Lange-Dardugno to set up your interview. She will be onsite at the NKBA in Crestview Hills on Tuesday, August 7, 2012 from 9 AM to 4 PM. Katie can also be reached at or (513) 618-2665 if you are interested in setting up a time to meet prior to this date in the Cincinnati office located at 901 Adams Crossing, Cincinnati, OH 45202.

Kentucky Landlords Made Liable for Tenant’s Dog Bite – By David Kramer

Wednesday, July 11th, 2012

By David Kramer |

In a very recent decision, Benningfield v. Zinsmeister, — S.W.3d —, 2009-SC-000660-DG (6/25/12), the Kentucky Supreme Court interpreted Kentucky statutes as permitting a landlord to be held liable when a tenant’s dog attacks someone on or about the leased premises. In a plurality opinion, the Court determined that the landlord can be considered the statutory owner of the dog under KRS 258.095(5) if the landlord has permitted the dog to be kept on the leased premises.
In Benningfield, a child was attacked by a tenant’s Rottweiler on a sidewalk across the street from the leased premises. There was evidence the landlord had previously given permission for the tenants to keep the dog. The child’s parent sued both the tenant who owned the dog and the landlord. The trial court dismissed the claim, holding that the landlord could not be held liable because the attack occurred off the leased premises. The Court of Appeals agreed, adding that the landlord would also have to know of the dog’s dangerous propensities in order to be liable for the attack.
The Supreme Court granted discretionary review and focused on the language of KRS 258.235(4) and KRS 258.095(5) in order to determine the landlord’s liability. The dog-bite liability statute, KRS 258.235(4), creates liability for the owner of a dog who causes damage to person, property, or livestock. KRS 258.095(5) defines a dog owner as “every person having a right of property in the dog and every person who keeps or harbors the dog, or has it in his care, or permits it to remain on or about the premises owned or occupied by him.”
The Supreme Court in Benningfield explained that under these statutes a landlord is an owner of a tenant’s dog on the leased property when he or she allows the tenant to keep the dog on or about the property. In order to be considered “on or about” the property, the attack must occur either on the leased premises or within immediate physical reach (e.g., a sidewalk directly abutting the leased property). Because the attack in Benningfield did not occur on or immediately adjacent to the leased premises, the Supreme Court upheld the dismissal of the claim against the landlord.
The Court briefly discussed the question whether a landlord’s liability can be affected by the common-law “one free bite” rule, under which a dog’s owner is not liable for a dog-bite injury unless he or she is aware of the dog’s propensity to cause harm (e.g., because of a prior dog bite). If the owner is aware of the dog’s dangerous propensities, the owner is strictly liable for any injuries the dog causes others. In determining when this rule applies, the Kentucky Court of Appeals in a 2006 unpublished opinion said that “[KRS 258.235(4)] imposes liability only in circumstances where the owner could reasonably expect a plaintiff to be in close proximity to the dog.” Otherwise, the Court of Appeals stated the common-law rule of “one free bite” prevails. Adkins v. Johnston, 2006 WL 3759549 (Ky. App. 2006). The plurality opinion in Benningfield observed that one seeking recovery for a dog bite may proceed under either the statute or common law, while stating that the statute had modified the common law and made it “simpler” for plaintiffs to establish liability.
As noted above, Benningfield was a plurality (i.e., less than a majority) opinion, meaning it is not necessarily binding precedent on future courts. Also, the opinion is not yet final, but was designated for publication in the South Western Reporter. Cases that are not final may not be cited as authority in Kentucky. Unless and until the statutes are changed or interpreted differently by the Kentucky Supreme Court, landlords should consider revising their leases, reviewing their insurance coverage, and/or adjusting their property management practices to protect against or avoid liability for tenants’ dogs.
David Kramer is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc


Wednesday, July 11th, 2012

LegalZoom Sued in Class Action for Unauthorized Law Practice

The State of Washington has just entered into an Assurance of Discontinuance with LegalZoom relating to charges that LegalZoom is engaging in the unauthorized practice of law. The Attorney General of the State of Washington initiated an investigation into the business practices of LegalZoom, who offers certain legal forms over the Internet to consumers throughout the United States and including the State of Washington. As a result of this investigation LegalZoom offered and the Attorney General accepted an Assurance of Discontinuance. The Assurance of Discontinuance is not considered a finding of fact or admission of any violation or the commission of any particular act, but the failure to comply with the Assurance of Discontinuance would constitute prima facie evidence of such violations. Notwithstanding the unauthorized practice of law charges, LegalZoom was also investigated for turning over sensitive, privately identifying personal and financial information to third parties.

LegalZoom offers a variety of legal forms and, in my opinion, crosses the line from offering a passive form to actually engaging in the practice of law. The primary difficulty, although certainly not the only difficulty, for LegalZoom is that consumers call them and their customer service people provide answers to questions asked. The questions asked sometimes, if not frequently, are legal questions and the responses constituted the provision of legal services without a license to practice law.

The investigation initiated by the State of Washington did not deal with LegalZoom’s patent or trademark service offerings (see Patent Office Disciplinary Actions and Lack Thereof), but rather focused on their wills and probabe legal services. But the most egregious charge leveled against LegalZoom is that they sold, transfered or otherwise disclosed consumer information to third parties. So not only was LegalZoom offering to provide legal services to individuals without a legal license but they seem to have been collecting private information and giving away sensitive, personally identifying information such as financial information, information relating to real or personal property and information relating to family relationships. This screams for further investigation by other State Attorneys General and the United States Patent and Trademark Office. Not only does LegalZoom’s advertising lull unsuspecting consumers to believe they are being represented, but what LegalZoom learns during such representation is given away to third parties? If an attorney did that they would lose their license. This is exactly why the unauthorized practice of law cannot be tolerated.

The other claims investigated by the Washington State Attorney General include:
• LegalZoom comparing, directly or by implication, the costs of their self-help products and clerical services with those provided by an attorney without in close proximity to each such comparison clearly and conspicuously disclosing to Washington consumers that Respondent is not a law firm and it not a substitute for an attorney or law firm.
• LegalZoom misrepresenting, directly or by implication, the costs, complexity and time required to probate an estate in Washington.

• LegalZoom misrepresenting, directly or by implication, the benefits or disadvantages of any estate distribution document as compared to any other estate distribution document in Washington.
• LegalZoom engaging in the unauthorized practice of law, specifically by providing individualized legal advice about a self-help legal form to Washington consumers.
• LegalZoom failing to offer estate planning legal forms in Washington that conform to Washington law, and to provide information about community property agreements in the education center or similar area of the website for Washington last will and testament customers.
• LegalZoom failing to have an attorney licensed to practice law in Washington review all self-help estate planning forms offered for sale to Washington consumers.
• LegalZoom failing to clearly and conspicuously disclose that communications between them and Washington consumers are not protected by the attorney-client or work product privilege.
Again, LegalZoom did not admit to any of these things, but a casual review of their website and business practices suggests that there seems to be more than prima facie evidence to support each of these allegations. In any event, the Assurance of Discontinuance becomes effective on October 1, 2010, so it will be interesting to see what changes, if any, are made to and to their business practices. If these activities continue then that would be a violation of the Assurance of Discontinuance which would be prima facie evidence of violations that could cost LegalZoom $2,000 per occurrence, which could add up quickly.

On December 18, 2009, LegalZoom was sued in the 19th Judicial Circuit Court in Cole County Missouri for engaging in the unauthorized practice of law (see Janson v. LegalZoom complaint). The plaintiffs are also seeking to certify a class action against LegalZoom. On February 5, 2010, LegalZoom filed a Notice of Removal, seeking to remove the case from State Court to the United States District Court for the Western District of Missouri. LegalZoom invoked in its papers the Class Action Fairness Act (CAFA), codified at 28 USC 1332(d) and 28 USC 1453, to remove the action to federal court. The CAFA provides that a district court has original jurisdiction over a class action with at least 100 plaintiffs, which involves an amount in controversy over $5,000,000 and in which minimal diversity exists between the defendant and at least one plaintiff. In its removal papers LegalZoom vigorously denies “the allegations of wrongful conduct and intend to file at an appropriate time a dispositive motion showing that they are entitled to judgment as a matter of law.”
As far as I can tell, there are no allegations presented by the plaintiffs that relate to LegalZoom’s business practices relative to patents, copyrights or trademarks, but instead focus on other LegalZoom offerings such as wills and other court filings. Nevertheless, this caught my attention because since the United States Patent and Trademark Office changed the rules of practice in September 2008 relative to patent and trademark matters pending before the Office I have believed, and openly expressed such belief, that the LegalZoom model is in fact a model that put LegalZoom squarely in the category of offering legal services without a law license, thus engaging in the unauthorized practice of law. For example, just over 1 year ago I wrote about e-mails being sent out to former LegalZoom customers by LegalZoom that explain what needs to be done moving forward in Trademark applications already filed. Not only was the advice incorrect, but it seems to me to be utilizing legal information, synthesizing such information and making recommendations to another, which is what I have always understood to be the practice of law, and certainly is what I taught was the practice of law when I taught Legal Ethics at Syracuse University. See LegalZoom Continues Unauthorized Practice of Law.
The complaint filed against LegalZoom explains that in May 2008 the North Carolina State Bar’s Unauthorized Practice Committee undertook an investigation of LegalZoom, and the complaint summarizes the charges as follows:
Among the documents LegalZoom prepares or offers to prepare are articles of incorporation, wills, trusts, divorce pleadings, and deeds. LegalZoom represents that it prepares the articles of incorporation and ‘customized bylaws and resolutions’ for its business formation customers. The legal documents are prepared through LegalZoom’s website where, once the customer purchases the service, the customer is presented a questionnaire that the customer completes online. LegalZoom transcribes the responses onto a form template that LegalZoom has determined appropriate for the customer’s legal document and in a form or manner determined by LegalZoom or through software developed by or on behalf of LegalZoom. The customer is presented with a finished document that is represented to be legally sufficient for the customer’s needs without review or edit and has not been approved by an attorney.
In my opinion this is the part of the LegalZoom business that is on the strongest footing and most likely not going to be deemed the unauthorized practice of law. The use of forms is not the practice of law, and to the extent there is any practicing of law here it would seem to me to be in the choice of form to be used. I have always understood the LegalZoom process was dictated based on an attorney who created the form and then provided the created form to be used passively in defined circumstances. I don’t see that as being the practice of law, although LegalZoom would certainly be better off if they did not have a real person doing the transcribing work. Still, the work of a scribner has never been considered the practice of law.
Where LegalZoom is much more at risk is with respect to what their customer service representatives do, and follow up communications advising of what action need to be taken moving forward. If you call LegalZoom (and I know this because I tried it several times) the customer service representatives will answer your questions and do seem to be providing legal advice, which would be the unauthorized practice of law. In some cases customer service representatives told me things that if done would immediately cause the loss of rights. For example, I asked one representative whether I needed to file a patent application first or if I could just start selling the product. I was told there was no reason why I couldn’t start selling immediately and filing a patent application first was of no importance insofar as the decision to sell was concerned. Of course, if you followed this advice you would immediately lose any ability to obtain a patent outside the US. In the US you can, in some circumstances, avail yourself of a 12 month grace period between public use or offers for sale and the filing of a patent application (see The Risk of Not Immediately Filing a Patent Application), but in virtually all places outside the US an absolute novelty rule is followed, which means you must apply for a patent before you sell or publicly use the invention.
So while the LegalZoom model is one that has a lot of appeal, it seems to me that it is just too difficult to pull off without engaging in the unauthorized practice of law. I have no doubt that the customer service representatives want to do a good job, and try and do a good job, but if you are not trained in the law then you have no way of knowing whether what you are saying is always true, sometimes true or could be misinterpreted by the hearer on the other end of the phone. The follow up e-mails that try and generate further work are certainly more troubling, even if they contain appropriate guidance and information. It seems to me that there is no way to make follow-up suggestions on what needs to be done or should be done without offering legal advice, which when provided by those who are not attorneys would constitute the unauthorized practice of law.
What will ultimately happen as a result of this complaint is anyone’s guess, but it should be a case that is carefully watched throughout the business and legal community. The relief that these plaintiffs are asking for in the complaint is real and substantial, including:
1. Actual damages in the sum of the fees charged to the Plaintiffs.
2. Punitive damages in a sum sufficient to punish LegalZoom for its misconduct and to deter if from such misconduct in the future.
3. Reasonable attorneys fees and expenses, including the costs and expenses of the class notice and claim administration.
I also suspect that with this being forced into the spotlight there may be other plaintiff’s groups and classes that emerge, and perhaps even a State Attorney General or two become interested enough to take a look, which would be a very good thing indeed. While many think that lawyers just complain about LegalZoom and others, the truth is that if there is the unauthorized practice of law those who ultimately suffer are the customers/clients. The inescapable reality is that it is far more expensive to pay someone to do something incorrectly and then have to pay someone else later to fix it. It is even more costly if in certain circumstances there is no fix that can be accomplished.

Important Update

The Court approved the Settlement on April 18, 2012, and has entered Judgment in this case. The Court also entered an Order Awarding Attorneys’ Fees and Costs and Class Representative Incentive Award. To review the Final Approval Order, Judgment, and Fee Order please visit the Court Documents page of this website.

Your free enrollment in the Legal Advantage Plus or Business Advantage Pro program or payment will be made after any appeals are resolved. If there are appeals filed, resolving them can take time, perhaps more than a year. Please be patient. For additional updates on the status, please visit this website or call toll free 1-888-928-8088.

Please remember to notify the Settlement Administrator, in writing, of all changes to your mailing and e-mail addresses. Address changes cannot be made by telephone.

Overview Of The Settlement

A settlement has been finally approved in a class action lawsuit, Webster v., Inc. Case No. BC438637 (“lawsuit”), in the Superior Court of the State of California for The County of Los Angeles (“Court”). The lawsuit claims that (“LegalZoom”) made misleading advertising statements and over-promised the services that LegalZoom would provide. It also claims that LegalZoom failed to comply with the California Legal Document Assistant Act. LegalZoom continues to deny it did anything wrong. THERE ARE NO CLAIMS OR ASSERTIONS IN THIS CASE ABOUT THE VALIDITY OF ANY LEGALZOOM DOCUMENT OR SERVICE.

Am I a Class Member?

You are Class Member if you purchased a legal document or legal document assistant service from LegalZoom from 9/15/2005 through 6/16/2011.

What Does the Settlement Provide?

You may be eligible to receive 60 days of free enrollment in LegalZoom’s Legal Advantage Plus or Business Advantage Pro program (the “Programs”). These Programs include the opportunity to consult by telephone with an attorney in your state for free on matters of your choosing (including the document you prepared using LegalZoom) plus other benefits. These programs are described in detail in the full Settlement Notice. Instead of free enrollment in the Programs, Class Members who previously requested, but did not receive, a refund from LegalZoom may be eligible to claim up to $100. You must have submitted a valid claim. This is only a brief summary of the benefits. For complete details, and information on submitting a claim, please see the complete Notice.

What are my rights and options in this Settlement?

Stay in and submit a claim. In order to receive the economic benefits, you must have stayed in the Class in this lawsuit and submitted a valid claim form online by May 15, 2012. By staying in the Class, you will not be able to sue or be part of any other lawsuit against LegalZoom about the legal issues in this case. You will be bound by the Court’s decisions.

Exclude yourself. You could keep your right to sue LegalZoom on your own, by sending a written request for exclusion to the Settlement Administrator so that it was received by March 1, 2012. If you did not exclude yourself, you will be bound by the terms of the Settlement and give up your rights to sue regarding the Settled Claims.

LegalZoom Reaches Agreement in Principle for Proposed Settlement of Class Action
Settlement Contains No Admission or Finding of Wrongdoing by LegalZoom
GLENDALE, Calif., June 30, 2011 (GLOBE NEWSWIRE) —, Inc. has reached an agreement in principle to settle the pending class action, Webster v., Inc. The settlement will also resolve claims in a related class action, Whiting v., Inc. The Plaintiffs alleged claims related to LegalZoom’s offering of legal self-help products over the Internet. Neither case alleged that LegalZoom’s documents were defective in any manner.

Plaintiffs have now requested that the Court certify a class, for settlement purposes only, consisting of all LegalZoom customers over the past six years. Under the terms of the proposed global settlement, which must be approved by California Superior Court Judge William Highberger, LegalZoom will provide two months of membership in LegalZoom’s Legal Advantage Plus or Business Advantage Pro plan, depending on the product each customer purchased. LegalZoom’s Legal Advantage plans are monthly membership plans which provide members with access to attorney consultations, access to LegalZoom’s extensive legal form database, and other benefits.

“Our intent is to achieve a resolution of these lawsuits and avoid a prolonged and costly litigation process. While we continue to dispute the basis of the allegations in the cases, and are confident we are not engaged in any of the activities set forth in the complaints, we believe it is in the best interests of the Company and our customers to move forward with the proposed settlements,” said Kenneth Friedman, Vice President of Legal and Government Affairs at LegalZoom.

“Our customers will have access to Legal Advantage plans, enabling them to speak to a locally-licensed attorney to supplement the self-help legal forms available on,” said John Suh, CEO of LegalZoom. “A final settlement will allow us to focus on what we do best; provide Americans greater access to high quality, reasonably priced legal solutions that leverage modern technology.”

In Webster, plaintiffs’ lawyers alleged that LegalZoom’s website included misleading statements that LegalZoom would provide legal advice to its customers, which lead to the unjustified belief that LegalZoom was engaged in the unauthorized practice of law. In Whiting, plaintiffs’ lawyers alleged technical non-compliance with an outdated statute that was never intended to apply to the Internet age.

“The proposed settlement contains no admission or finding of wrongdoing by the Company. LegalZoom believes that all Americans have the right to affordable and convenient legal protection. We look forward to continuing our important work,” added Friedman.


LegalZoom is the nation’s leading provider of online legal document services to small businesses and families. Since our founding in 2001, we’ve helped more than 1 million customers create a will or living trust, form a corporation or LLC, apply for a patent or trademark, and more. The company was founded by top talents in law and technology, including famed attorney Robert Shapiro. LegalZoom is not a law firm. We provide self-help services and a legal plan where customers have access to attorneys at a fixed monthly fee. Headquartered in Glendale, California, with offices in Austin, Texas, the company has over 500 employees. For more information, visit

CONTACT: Chas Rampenthal, (323) 962-7052

Kentucky Recognizes Defense of Innocent Possession of Drugs

Wednesday, July 11th, 2012

Commonwealth of Ky. v. Adkins, 331 S.W.3d 260 (Ky., 2011)

The Commonwealth primarily maintains that Adkins’s defense was not the sort of affirmative, statutory defense at issue in the cases upon which the Court of Appeals relied, but is better understood, as the trial court understood it, as simply the denial or converse of one of the elements of the actual offense, and thus does not require its own express instruction. We disagree.

With the adoption of the Penal Code, of course, our criminal law became exclusively statutory, KRS 500.020, and since then, accordingly, our jury instruction cases have focused on whether the evidence would permit the finding of a statutory defense. If so, they have required an instruction affirmatively reflecting that defense in some manner. See, e.g., Thomas v. Commonwealth, 170 S.W.3d 343 (Ky.2005) (extreme emotional disturbance); Mondie, 158 S.W.3d at 209 (protection against burglary); Walker v. Commonwealth, 127 S.W.3d 596 (Ky.2004) (mistake of law).

The evidence in this case similarly supports the giving of an instruction affirmatively reflecting the defense of innocent possession of a controlled substance.

What constitutes innocent possession of a controlled substance? As courts in several sister states which have addressed the “innocent possession” defense have noted, it is easy to imagine numerous circumstances in which a person might take possession of a controlled substance without any unlawful intent. See, e.g., State v. Miller, 193 P.3d 92 (Utah 2008); Ramsubhag v. State, 937 So.2d 1192 (Fla.App.2006); People v. E.C., 195 Misc.2d 680, 761 N.Y.S.2d 443 (N.Y.Supr.Ct.2003); People v. Martin, 25 Cal.4th 1180, 108 Cal.Rptr.2d 599, 25 P.3d 1081 (2001); [331 S.W.3d 264] Adams v. State, 706 P.2d 1183 (Alaska App.1985) .

A parent confiscating drugs from his or her child, a teacher finding drugs in his or her classroom, a daughter picking up a prescription for her bedridden parent, a homeowner finding medicine left behind by a guest, all could be, deemed illegal possessors under strictly construed possession statutes. Moreover, if the teacher transferred the drugs to his or her principal, or the homeowner gave the drugs to the guest’s spouse who came by to pick them up, the teacher and homeowner could be deemed guilty of trafficking as well. We are confident that the General Assembly did not intend to criminalize the possession or transfer of controlled substances in circumstances such as these, and it is for that reason, among others, that our statutes prohibiting possession and trafficking all require that the possession or trafficking be “knowing and unlawful.” See KRS 218A.1412—KRS 218A.1417.

We agree with Adkins, therefore, that these statutes implicitly recognize an innocent possession or innocent trafficking defense, and whenever the evidence reasonably supports such a defense—where there is evidence that the possession was incidental and lasted no longer than reasonably necessary to permit a return to the owner, a surrender to authorities, or other suitable disposal—the instructions should reflect it.


Wednesday, July 11th, 2012


KRS 413.140 Actions to be brought within one year.
(1) The following actions shall be commenced within one (1) year after the cause of action accrued:
(a) An action for an injury to the person of the plaintiff, or of her husband, his wife, child, ward, apprentice, or servant;
(b) An action for injuries to persons, cattle, or other livestock by railroads or other corporations, with the exception of hospitals licensed pursuant to KRS Chapter 216;
(c) An action for malicious prosecution, conspiracy, arrest, seduction, criminal conversation, or breach of promise of marriage;
(d) An action for libel or slander;
(e) An action against a physician, surgeon, dentist, or hospital licensed pursuant to KRS Chapter 216, for negligence or malpractice;
(f) A civil action, arising out of any act or omission in rendering, or failing to render, professional services for others, whether brought in tort or contract, against a real estate appraiser holding a certificate or license issued under KRS Chapter 324A;
(g) An action for the escape of a prisoner, arrested or imprisoned on civil process;
(h) An action for the recovery of usury paid for the loan or forbearance of money or other thing, against the loaner or forbearer or assignee of either;
(i) An action for the recovery of stolen property, by the owner thereof against any person having the same in his possession;
(j) An action for the recovery of damages or the value of stolen property, against the thief or any accessory; and
(k) An action arising out of a detention facility disciplinary proceeding, whether based upon state or federal law.
(2) In respect to the action referred to in paragraph (e) of subsection (1) of this section, the cause of action shall be deemed to accrue at the time the injury is first discovered or in the exercise of reasonable care should have been discovered; provided that such action shall be commenced within five (5) years from the date on which the alleged negligent act or omission is said to have occurred.
(3) In respect to the action referred to in paragraph (f) of subsection (1) of this section, the cause of action shall be deemed to accrue within one (1) year from the date of the occurrence or from the date when the cause of action was, or reasonably should have been, discovered by the party injured.
(4) In respect to the action referred to in paragraph (h) of subsection (1) of this section, the cause of action shall be deemed to accrue at the time of payment. This limitation shall apply to all payments made on all demands, whether evidenced by writing or existing only in parol.
(5) In respect to the action referred to in paragraph (i) of subsection (1) of this section, the cause of action shall be deemed to accrue at the time the property is found by its owner.
Louisville Trust Co. v. Johns-Manville Products Corp., 580 S.W.2d 497 (Ky., 1979)
The thrust of Urie is that when an injury does not manifest itself immediately the cause of action should accrue not when the injury was initially inflicted, but when the plaintiff knew or should have known that he had been injured by the conduct of the tortfeasor. An action accrues only at the time the plaintiff suffers an actionable wrong. In Saylor v. Hall, Ky., 497 S.W.2d 218, 225 (1973) we stated: “A cause of action does not exist until the conduct causes injury that produces loss or damage.”
We followed the rationale just stated in concluding to reject previous case law and to apply the so-called “discovery” rule to actions for medical malpractice when in 1970 we decided Tomlinson v. Siehl, Ky., 459 S.W.2d 166, and in 1971 when we decided Hackworth v. Hart, Ky., 474 S.W.2d 377.
These cases announced a discovery rule in medical malpractice cases in these terms: An action for medical malpractice accrues, and begins the running of the limitations period “on the date of the discovery of the injury, or from the date it should, in light of ordinary care and diligence, have been discovered.” Hackworth v. Hart, supra, at 379 (italics omitted)
A cause of action will not accrue under the discovery rule until the plaintiff discovers or in the exercise of reasonable diligence should have discovered not only that he has been injured but also that his injury may have been caused by the defendant’s conduct.” 9

McCollum v. Sisters of Charity of Nazareth Health Corp., 799 S.W.2d 15 (Ky., 1990)
413.140. Actions to be brought within one year.–(1) The following actions shall be commenced within one (1) year after the cause of action accrued:
(e) An action against a physician, surgeon, dentist or hospital … for negligence or malpractice.
(2) In respect to the action referred to in paragraph (e) of subsection (1) of this section, the cause of action shall be deemed to accrue at the time the injury is first discovered or in the exercise of reasonable care should have been discovered: Provided That such action shall be commenced within five (5) years from the date on which the alleged negligent act or omission is said to have occurred.” (Emphasis added.)
Statutes of limitations limit the time in which a plaintiff may bring suit after a cause of action accrues, whereas statutes of repose potentially bar the plaintiff’s suit before the cause of action arises. The Constitutionality of Statutes of Repose: Federalism Reigns, 38 Vand.L.Rev. 627, 628-29 (1985) (emphasis added); see Tabler, 704 S.W.2d at 184-85. Applying these definitions to KRS 413.140, it is clear that the statute provides both a limitations period and a repose period. Subsection 1(e), read with the discovery rule contained in the first part of subsection 2, provides that an action must be brought against physicians, etc., within one year after the cause of action accrues, and that the cause of action accrues at the time the injury is first discovered, or with reasonable care should have been discovered. This is a statute of limitations, since it limits the time in which a plaintiff may bring suit after a cause of action accrues. The second part of subsection 2–the part at issue in this case–provides that in no event shall a plaintiff commence an action more than five years after the date on which the alleged negligent act was inflicted. Since it is possible that an injury and damages brought about by an allegedly negligent act may not be discovered within the five years provided by this part of the statute, as the McCollum case illustrates, the cause of action would be destroyed before it legally existed. Thus, this portion of the statute constitutes a statute of repose, as movants claim.
Labeling the five-year cap of KRS 413.140(2) as a statute of repose does not dispose of the matter but does establish the potential for a constitutional conflict. Movants argue that by cutting off claims that have not accrued within the five-year period, KRS 413.140(2) runs afoul of sections 14, 54 and 241 of the Kentucky Constitution, the so-called “open courts” provisions. We agree.
McCollum could not recover until a cause of action existed. Proof of damage is an essential part of his medical malpractice cause of action. Such proof was not available to him until 1985, when he first discovered his injury. Yet the legislature, through the five-year cap in KRS 413.140(2), would require McCollum to do the impossible–sue before he had any reason to know he should sue. This is antithetical to the purpose of the open courts provisions in the Kentucky Constitution. Movant need not board this bus to Topsy-Turvy Land.
We are aware of the social policy considerations that exist on both sides of this argument. Respondents argue that if causes of action are not limited, defendants face a series of problems in presenting a proper defense: lost evidence, fading memories, missing witnesses. We note, however, that the passage of time operates to the disadvantage of injured plaintiffs, as well. Respondents also state that the legislature’s power to enact statutes of limitations governing the time in which a suit must be brought after a cause of action accrues is unquestioned. We agree, but point out that it is equally well settled that the legislature may not abolish an existing common-law right of action for personal injuries or wrongful death caused by negligence. Saylor v. Hall, Ky., 497 S.W.2d 218, 224 (1973). While there may be certain salutary effects from limiting to five years the period in which suits can be brought, these cannot outweigh a plaintiff’s constitutional right to have his or her day in court.
Thus, we hold that portion of 413.140(2) which purports to cut off negligence and malpractice actions against physicians, surgeons, dentists, and hospitals at five years to be unconstitutional under sections 14, 54, and 241 of the Kentucky Constitution. The decision of the Court of Appeals in McCollum v. Sisters of Charity is reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion.
Clearly, then, the one-year statute has run on appellants, unless it was tolled by the conduct of the appellee hospital in fraudulently concealing the true circumstances surrounding the deaths, or otherwise misleading the appellants, as they stated in their complaints. See Resthaven Memorial Cemetery v. Volk, 286 Ky. 291, 150 S.W.2d 908, 912 (1941); Lashlee v. Sumner, 570 F.2d 107, 110 (6th Cir.1978) (construing Kentucky law). Since an issue of material fact exists as to whether the hospital in these five cases fraudulently concealed information or misled appellants, it was improper for the circuit court to grant appellees’ motion for summary judgment. Rowland v. Miller’s Adm’r, Ky.,
Page 20
307 S.W.2d 3, 6 (1956); see Lashlee, 570 F.2d at 111.


Wednesday, July 11th, 2012

Since Chief Justice John Roberts’ decision validating the Affordable Care Act, questions have been raised about confidentiality at the Supreme Court. This has ignited a vigorous public debate about the court’s methodology for assigning and deciding cases as well as the appearance — or reality — of undue political influence on a legal outcome.
Even before the Jan Crawford’s long investigative piece on, the level of detail reported about the court’s internal decision-making process has been extraordinary. For the court as an institution, this is a potentially harmful development — if one values deliberation, collegiality and candor. And if you were justice, what else would you value?
Well, winning for one. And, if denied that pleasure, retribution.
Law clerks have been sources in the past. But they are read the riot act about speaking with the press — so something else may be amiss. It would be devastating if we learned that the source of the leak was a justice — which would be the equivalent of having Secretary of State Hillary Clinton be the source of WikiLeaks.
There is a case to be made for greater transparency in the court’s decision making. There has been a legislative and media drumbeat for years to have cameras in the Supreme Court. They would do no harm and a fair amount of good in certain high-profile cases — where it would strengthen the court’s legitimacy to separate law from politics in the public mind.
Cameras might also enhance open-minded decision making, since justices might go out of their way to demonstrate evenhandedness. And, in the demonstration, sometimes discover it.
There is a slight downside: Cameras might also prompt a justice to commit too quickly to a position though oral or written advocacy commends the opposite.
Yet cameras are only part of it. Most Supreme Court decision-making occurs behind closed – very closed – doors, which are not about to be swung open for TV. This secrecy is designed to foster open deliberation and candor. But with greater leaking, this is jeopardized.
Even without leaks, the existing method of decision making invites politics to guide law, rather than the other way round. Within two to four days of each oral argument, the justices convene to vote the outcome of a case and assign the writing of the opinion that explains it.
There are problems here. The chief justice begins by asking each justice for their vote and a brief explanation. If the chief is in the majority, he either assigns the opinion-writing task to himself or others in the majority. If the chief is in the minority, he loses the assignment privilege. The senior justice in the majority then exercises that same prerogative.
This process of opinion-following-decision has all the appearance of providing a post-hoc rationalization for an intuitive — and perhaps politically-influenced — judgment already reached. Under current practice, then, judgment precedes law. But should not law precede judgment?
The justices are briefed by clerks before each oral argument, and primed with questions. They are tutored by able advocates during each hearing. But justices have seldom studied in depth the particular question being decided — and certainly none has prepared a full opinion analyzing the law as it exists and making application to the presented facts.
Reaching judgments and assigning opinions at this premature stage invites a greater need for change later, if a justice’s personal philosophy or political perspective is not to unduly influence the ultimate decision.
So how else could opinion writing be assigned? One option would be to delay the vote until after the research supporting an informed decision is completed. The opinion writer could be any of a running list of available justices — those up to date with their work. The first justice available to write on the list, would do so.
No effort would be made to steer a case to a desired result in a straw vote. Instead, the opinion writer will not know the specific outcome until after research and legal reasoning have led to it.
How might this have affected the health care case? First, without straw vote, there would be less occasion to lobby – at least it will curtail lobbying that occurs so early that those being lobbied are still too uninformed to make a sound judgment.
Second, there would be a greater, practical check on leakage — since only the clerks of the drafting justice would have an early inkling of a proposed outcome.
Third, assuming Roberts himself was the next available justice, there would have been no occasion for him to announce his initial opinion, and so no appearance problem with “flipping” or modifying his initial point of view. Given his questions at oral argument, Roberts could well have conceived his conference view as tentative, while his conservative pals assumed it to be more akin to a blood oath.
We ought to commend open-mindedness rather than chastise it. The opinion drafter still has to merit the confidence of four other justices. Succeeding in this, however, should be demonstrated as much as possible to not be based on ideological friendship — but made in light of research and precedent.
In short, an opinion needs to yield a conclusion — not vice versa.
No system will eliminate all non-legal influences on a justice. But this one certainly helps create an internal process based on law — not politics.
Former Amb. Douglas W. Kmiec served as head of Office of Legal Counsel in the Reagan administration, where he worked with John Roberts. Barry McDonald, like Roberts, clerked for the late Chief Justice William Rehnquist. Both authors are now law professors at the Pepperdine University.

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Wednesday, July 11th, 2012

July 11, 2012
COLUMBUS — Clark County Common Pleas Judge Douglas Rastatter dropped his head in his hands and sobbed Tuesday after a disciplinary hearing panel dismissed a six-count complaint of judicial misconduct against him.
The three-member Board of Commission on Grievances and Discipline of the Ohio Supreme Court dismissed the case after a two-day hearing.
Complainants described Rastatter as rude, biased, vindictive, disrespectful to attorneys and someone who ruled without regard for the law and higher courts.
Rastatter testified that he struggled to adjust to the bench. He declined to comment after the hearing, but his attorney George Jonson said he and co-counsel Lisa Zaring were pleased with the ruling.
“I think they reached the right result, and I couldn’t be any happier if I won the lottery,” Jonson said.
Jonson had only asked the panel to dismiss two counts in the complaint prior to the decision to end the whole case.
The Ohio State Bar Association accused Rastatter of failing to follow the law, failing to uphold the integrity of the judiciary, engaging in conduct prejudicial to the administration of justice, lacking decorum and acting in a manner that does not promote confidence in the judiciary.
The allegations, brought to the association by attorneys Richard Mayhall and John R. Butz, could have resulted in a range of sanctions for Rastatter, including permanent disbarment.
Rastatter spent more than three and a half hours on the witness stand Tuesday, answering questions about his actions in six cases he presided over after taking the bench in January 2005.
His testimony followed former Clark County Prosecutor Stephen A. Schumaker, who is now the current deputy attorney general for law enforcement, and Clark County Assistant Prosecutor Andrew Picek.
Rastatter denied all misconduct charges, but admitted to struggling early in his career as judge and agreed with testimony by Schumaker and Picek that his cases have been singled out by Clark County Appeals Court Judge Thomas Grady.
“I believe I have not” committed any ethical violations, Rastatter said.
He told the court that his transition from an assistant Clark County prosecutor to judge was not smooth, but that he’s learned since his early years as judge.
During his testimony he said in certain cases he could have responded to attorneys’ objections differently, allowed attorneys to speak to him after certain rulings, and sequestered jurors in a capital murder trial instead of moving forward with a mitigation hearing.
“I think some of these things were growing pains. Attorneys learning to react to me and me learning to react to them,” Rastatter said.
He adamantly denied disregarding the law and ignoring rulings by the appeals court and Ohio Supreme Court.
In 2008, Rastatter sentenced Jon A. Watkins to 18 years on kidnapping and robbery charges. In 2010, the Second District Court of Appeals reversed and remanded the decision, saying the facts did not support a maximum sentence.
According to the complaint, Rastatter responded to the appeals court mandate “I can’t just do something that I don’t think is right; and if I think the facts in the record do justify maximum consecutive sentences, I think that’s not just within my discretion, but it’s my duty to impose sentences I see fit.”
Rastatter testified he re-sentenced Watkins to 18 years and provided additional information or justification to the higher court.
“I certainly didn’t want to disregard a mandate. I was trying to do what I thought they wanted me to do,” Rastatter testified.
Schumaker and Picek told the panel cases Rastatter presides over are targeted by Grady.
“If Judge Grady was on a panel for an appeal involving Judge Rastatter, we weren’t going to get a fair shake,” Schumaker said.
Grady declined to comment after the hearing.
The complaint against Rastatter comes six years after Rastatter had a confrontation with Mayhall and Butz, who were defense attorneys in the Jason Dean capital murder trial.
During the hearing, Rastatter and Schumaker accused Butz and Mayhall of “manipulating the court” and attempting to get the judge removed from the case.
Rastatter at one point addressed the men “red-faced” and said he had concerns about their actions. After Dean was sentenced to death, Rastatter held the two in contempt of court and fined them $2,000 each.
The contempt charges against Mayhall and Butz was dismissed and so, too, was Dean’s sentence as an appeals court found Rastatter “harbored bias against defense counsel that was manifest through his comments and rulings during the trial.”
Dean was recently re-sentenced to death on murder charges before a retired judge.
Mayhall said he felt threatened by Rastatter during the trial and testified that Rastatter had left the bench as he had objected to a ruling in a separate case.
After the judicial misconduct complaint against Rastatter was dismissed, Mayhall would only say: “I respect the panel’s decision.”
Rastatter declined comment, but his father, Martin, said his son prays for Mayhall and Butz daily and also prays for the people who appear in his courtroom and are sentenced to prison.
With tears in his eyes, Martin Rastatter admitted, however, that the complaint took its toll on the family.
“It’s been extremely difficult on him, the kids and the family.”


Tuesday, July 10th, 2012

(The court decided Alvarez the same day as the Obama care ruling.)
By RICHARD L. HASEN | 7/10/12 11:40 AM EDT
An obscure procedural order issued the day after the Supreme Court’s decision to uphold President Barack Obama’s health care law got lost in the saturated media coverage of the health ruling and the palace intrigue over whether Chief Justice John Roberts switched his vote and alienated his conservative colleagues. Without comment or dissent, the justices declined to hear Minnesota’s appeal of a federal appeals court ruling in 281 Care Committee v. Arneson — holding that Minnesota’s law banning false campaign speech about ballot measures is likely unconstitutional under the First Amendment. The result could be even nastier campaigns and more political dirty tricks.
Minnesota had asked the Supreme Court to hold its petition until the court decided United States v. Alvarez, the so-called “Stolen Valor” case. The court decided Alvarez the same day as health care, striking down as a free speech violation a federal law making it a crime to falsely claim to be a recipient of the Congressional Medal of Honor.
Alvarez casts considerable doubt over when, if ever, states can take actions to combat false campaign statements and campaign dirty tricks — including lying about the location of a polling place or the voting date. The court could have used the 281 Care Committee case to clear up the muddle next term. But it just denied the petition.
Without new clarity, I expect anyone charged with making election-related lies to raise a First Amendment defense. Which they just may win.
It’s too bad the Supreme Court didn’t take the 281 Care Committee case, because the current uncertainty over false campaign speech laws provides an opening for those who might using consider political dirty tricks in November. The government has a compelling interest in stopping that kind of voter suppression — even if we don’t trust it to police campaign statements.
Before Alvarez, the Supreme Court had recognized certain categories of speech and expression, like “fighting words,” which were not entitled to any First Amendment protection. The U.S. government, defending the Stolen Valor law in Alvarez, relied on statements in earlier Supreme Court cases suggesting that deliberately false speech is similarly undeserving of First Amendment protection.
Four justices, led by Justice Anthony Kennedy, rejected the government’s argument, ruling that laws regulating lying are subject to “strict scrutiny” under the First Amendment — the court’s toughest standard of review, under which few laws can survive. (The court did indicate that certain longstanding laws barring certain false statements, like perjury laws, remained constitutional.)
“Only a weak society,” these four justices concluded, “needs government protection or intervention before it pursues its resolve to preserve the truth. Truth needs neither handcuffs nor a badge for its vindication.”
Justice Stephen Breyer, joined by Justice Elena Kagan, agreed with Kennedy’s conclusion that even false speech is usually entitled to some First Amendment protection, and that the Stolen Valor law was unconstitutional. But Breyer applied an “intermediate scrutiny” test for laws punishing false speech — determining a law’s constitutionality by balancing the speaker’s First Amendment rights against the government’s interest in preserving the truth in particular contexts.
Breyer’s opinion noted the special difficulty of laws punishing false statements in the context of political campaigns, where prosecutors might use false campaign speech laws for political reasons, going after political opponents. In this area, the “risk of censorious selectivity by prosecutors is… high.”
Breyer noted, more generally, that laws punishing political speech raised especially difficult questions under his balancing test. “In the political arena a false statement is more likely to make a behavioral difference (say, by leading the listeners to vote for the speaker) but at the same time criminal prosecution is particularly dangerous (say, by radically changing a potential election result) and conse¬quently can more easily result in censorship of speakers and their ideas.”
Applying this test, Breyer expressed doubts about the constitutionality of a law that barred a candidate from falsely claiming to be an incumbent. “Without ex¬pressing any view on the validity of those cases,” Breyer wrote, “I would also note, like the plurality, that in this area more accu¬rate information will normally counteract the lie.”
Even the dissenters who would have upheld the Stolen Valor law—Justices Samuel Alito, Antonin Scalia and Clarence Thomas — indicated a concern about laws regulating false political speech. When the government, for example, decides whether a statement about history is false, “the potential for abuse of power…is just too great.”
There is much to be said for the justices’ skepticism of laws that punish false statements made about candidates or ballot measures in campaigns. Rather than rely on a government body or state court to find the “truth,” we expect rival campaigns, the media and the public to accomplish this function. We don’t need a government truth commission to tell us if Sen. X really voted for a middle class tax increase five years ago.
But the rule should be different for prosecutions involving campaign dirty tricks perpetrated through lies. When a person deliberately gives wrong information about where or when to vote, the kinds of identification that must be presented to vote or other false statements about the mechanics of voting, the state should be able to punish the liar.
Such speech is aimed at suppressing the vote — not about whether to convince the public whom to vote for. Punishing false speech aimed at voter suppression won’t chill legitimate activity; it will just punish the wrongdoers.
First Amendment scholar Eugene Volokh considered the impact of Alvarez on political campaign speech laws. He says that the courts “might” uphold a narrow law punishing false campaign speech about where and when to vote. “It’s just hard to tell,” Volokh wrote, “given both the limited scope of the opinions and the 4-2-3 split.”
Let’s hope that uncertainty doesn’t embolden more political operatives to cross the line into chicanery and dirty tricks.
Richard L. Hasen is professor of law and political science at University of California, Irvine School of Law and author of the Election Law Blog. His book, “The Voting Wars: From Florida 2000 to the Next Election Meltdown” is due out this summer.

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Tuesday, July 10th, 2012

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Under Kentucky’s dog-bite liability statutes, KRS 258.095 and .235, the owner of a dog is strictly liable for damages caused by the dog. This case presents the questions whether a landlord can be liable under the statutory scheme’s broad definition of “owner” and whether that liability can extend to injuries caused by a tenant’s dog off the leased premises.

We hold that a landlord can be the owner of a tenant’s dog for the purposes of liability under certain circumstances, but that any such liability extends only to injuries caused on or immediately adjacent to the premises.

For that reason, the landlord in this case cannot be liable under the statutes.

III. Conclusion
In summary, this Court concludes that a landlord can be the statutory owner of a tenant’s dog for the limited purpose of establishing the landlord’s liability under KRS 258.235(4), if the landlord has permitted the dog to be on
or about the premises.

The landlord’s ownership status and resulting liability are limited by the scope of the landlord’s permission, meaning liability can only arise for attacks occurring on or about the premises. Though Benningfield has raised other questions of law in this appeal, answering them is unnecessary to resolve this case. Because the attack in this case occurred off the premises and the dog was therefore beyond the scope of any permission that may have been
given, the landlord cannot be liable under the statutory scheme. For these reasons, the judgment of Court of Appeals is affirmed.

Abramson and Cunningham, JJ., concur. Schroder, J., dissents but concurs in result by separate opinion in which Scott, J., joins. Minton, C.J., concurs in part as to the opinion of the court but dissents as to the result by
separate opinion in which Venters, J., joins. Venters, J., concurs in part as to the opinion of the court but dissents as to the result by separate opinion in
which Minton, C.J., joins.

Vanessa B. Cantley
Bahe, Cook, Cantley 86 Nefzger, PLC
Marion E. Taylor Building, 6th Floor
312 S. Fourth Street
Louisville, Kentucky 40202

Douglas Bruce Taylor
Taylor Law Office
Suite 610 North
First Trust Centre
200 South 5th Street
Louisville, Kentucky 40202


Tuesday, July 10th, 2012

Jul. 9, 2012 |
MIDDLETOWN — Ohio’s controversial breath-testing machine has cleared an important legal hurdle.
In a precedent-setting decision released Monday, an appeals court reversed a Clermont County judge’s decision to throw out test results from the Intoxilyzer 8000 machine, which is used to test motorists’ breath for evidence of drunken driving. As a result, the case is headed back to Clermont County with test results that can be used against a driver whose case has been pending since December 2010.

As a case of “first impression,” which had never before been considered by the the Ohio 12th District Court of Appeals, the ruling applies to all similar cases in eight southwest Ohio counties, including Butler, Clermont and Warren. The decision also may exert influence in Hamilton County, although appeals from that county go to a separate court, the 1st District Court of Appeals in Cincinnati.

In a decision last August, Clermont County Municipal Judge Kenneth Zuk ruled that authorities weren’t following their own rules governing use of the machine. But on Monday the appeals court agreed with Clermont County Assistant Prosecutor David Hoffmann, who had argued that Zuk’s reasoning was faulty. The appeals court concluded that Zuk “misinterpreted” wording in the Ohio Administrative Code. That set of rules specifies that a “dry gas control test” must be done “before and after every subject test.” People who are given the test are required to blow into the machine twice.
While Zuk agreed with defense lawyers that a “subject test” was done each time a person blew a breath sample into the machine, the appeals court cited the ordinary dictionary definition of “subject,” which refers to an individual person.

“It is clear there is only one ‘subject test’ per person breathalyzed, even if the test includes two incidents of blowing,” the appeals court said. “As a result, we decline to interpret the code phrase that requires dry gas control tests ‘before and after every subject test’ as requiring them ‘before and after every separate blow.’…They are nothing more than consecutive breath samples taken during the same ‘subject test.’”

Jeff Meadows, the defense attorney who had argued for the appeals court to uphold Zuk’s decision, could not be reached for comment Monday.

But Mark Krumbein, another defense lawyer who has also been critical of the machine and procedures surrounding it, predicted: “This fight is not over. There are many other issues of great concern over the Intoxilyzer 8000, and I’m sure this case will go to the Ohio Supreme Court – and many other issues with the Intoxilyzer 8000 will follow.”

SCOKY Holds “Gap-Filler” IIED Claim Does Not Lie If Facts Fit Traditional Tort

Tuesday, July 10th, 2012

By David Kramer |

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The Kentucky Supreme Court, in Childers v. Geile, — S.W.3d —, 2009-SC-000790-DG (6/21/12), discussed whether a claim for intentional infliction of emotional distress can be maintained when the same facts also support a traditional tort claim.

In Childers, a pregnant woman was told by an ER physician that she was having a miscarriage. The physician then prescribed medication to stop the bleeding. After visiting her obstetrician, the woman learned that she had not had a miscarriage. However, the medication she had been given resulted in delivery of the fetus at approximately 15 weeks, at which point it was unable to survive. The woman filed suit for medical negligence and intentional infliction of emotional distress (IIED), before amending her complaint to assert only the IIED claim. The physician then filed two motions for summary judgment, one arguing that the elements of IIED were not met, and the other arguing that the emotional distress claim was not proper, as the underlying facts would support a medical negligence claim. The trial court granted the physician’s second motion for summary judgment, which the Court of Appeals affirmed.

The Supreme Court granted discretionary review in order to determine when a claim for IIED is appropriate. An IIED requires that outrageous conduct be done with the intent to cause severe emotional distress, such that the ensuing emotional distress is a direct result of that conduct. No physical impact or personal injury is required for a plaintiff to recover.

The Court explained that a negligent act cannot give rise to an IIED claim because the requisite intent is not present. Thus, an injured party cannot maintain an IIED claim and a negligence claim based on the same set of facts. The Court also recognized an IIED claim as a “gap-filler” tort in that it allows for recovery when no other remedy is available because of the lack of injury to one’s person or reputation. In a personal injury action, the emotional distress of the injured party will be used to support the damages element, precluding the injured party from using that same emotional distress as the basis for its own tort. It follows then, that where a claim can be brought under a traditional tort, an IIED claim will not be allowed.

The Court held that the first summary judgment motion should have been granted because the physician’s conduct did not meet all of the elements required for the tort of intentional infliction of emotional distress. The Court further held that the physician was negligent in prescribing the medication that resulted in the miscarriage and emotional distress. Therefore, the physician’s second motion for summary judgment was properly granted because her conduct, and the resulting emotional distress, could have been subject to a medical negligence claim.

The Childers decision is not yet final but was designated for publication in the South Western Reporter. Decisions that are not final should not be cited as authority in a Kentucky court.


Monday, July 9th, 2012

Published: July 8, 2012 Updated 23 hours ago

By ROGER ALFORD — Associated Press

FRANKFORT, Ky. — A long list of new laws are set to go in effect this week, including one that will allow Kentucky to offer beefed-up tax incentives to encourage automobile manufacturers and parts suppliers to expand production in the state.

Gov. Steve Beshear is heralding the new tax incentives as a means to create more manufacturing jobs in a state that’s already home to Toyota, Ford and General Motors assembly plants and more than 400 related businesses. In all, they employ more than 68,000 people, making Kentucky one of the top automobile-manufacturing states in the U.S.

“The auto industry is to Kentucky what a V-8 is to a truck,” Beshear said. “It’s the power. It’s what makes us go.”

Beshear signed about 150 bills into law earlier this year, nearly all of which take effect Thursday. Some are aimed at cracking down on makers of methamphetamine, on thieves who steal copper and other recyclable metals, and even on rogue pigs that have been destroying crops in rural Kentucky.

The Democratic governor has especially heralded the one that he said has the potential to spark additional growth in the state’s automobile industry, creating good-paying jobs as the state recovers from economic recession.

Lawmakers initially passed the Kentucky Jobs Retention Act in 2007 to offer tax breaks only to Ford Motor Co., which made a $1.2 billion investment in its two Louisville assembly plants. Earlier this year, those same lawmakers opted to expand the incentives to all carmakers or affiliated companies that make at least a $100 million investment and hire at least 1,000 new employees.

“My hope is that they will all take advantage of it the way Ford has, because it has the potential to generate thousands of new jobs and hundreds of millions of dollars of investment,” said Democratic state Rep. Larry Clark of Louisville, who sponsored the expanded legislation. “Such a move would further solidify Kentucky’s already strong standing nationally and internationally in the automotive industry.”

Lawmakers also promoted the newly enacted anti-meth initiative for its economic development potential. The idea is to make sure employers have a drug-free pool of potential workers.

Kentucky has been dealing with widespread abuse of meth, an illegal drug that producers make by mixing a variety of common household products, including certain cold and allergy medications.

The new law tightens rules on the purchase of the medications, allowing people to purchase no more than two packages per month of popular medications like Advil Cold & Sinus, Allegra D, Claritin-D, Mucinex-D and Sudafed. The goal is to limit access to large quantities of medications that contain ephedrine and pseudoephedrine, without which meth can’t be readily produced.

Another law that takes effect Thursday is intended to stop the long-held practice of paying people immediately for copper and other scrap metals at the state’s recycling centers. Instead, sellers will have to leave their address so that payments can sent in the mail, giving police a way to find them if the material turns out to be stolen. The law also requires that recycling center workers review reports on recently stolen scrap metal so that they can alert police to suspicious materials.

The state also will have a law in effect Thursday that will strip coal miners of their credentials if they test positive for drug or alcohol use. More than 1,500 coal miners have tested positive for drug use since Kentucky began screenings six years ago. The Office of Mine Safety and Licensing urged lawmakers to pass the new law to close legal loopholes that had allowed some miners who test positive to return to their jobs within days.

People caught releasing wild hogs in Kentucky would face up to a year in jail under another new law. That law is intended to help reduce the growing population of feral pigs that are destroying corn and other crops in rural parts of the state.

Motorists also can begin watching and listening for “Blue Alerts” on the state’s highways. Lawmakers created an emergency alert system to help catch people suspected in attacks on police officers. Modeled after the Amber Alert system, the Blue Alerts will be broadcast on radio and be displayed on electronic highway signs.

A notable gun law also takes effect Thursday to allow people to carry concealed deadly weapons without a license on their own property, including their places of business.

A highway safety law also goes into effect that will require people to wear seatbelts in 15-passenger vans. That law was sparked by a 2010 crash on Interstate 65 that killed 11 people, most of whom weren’t wearing seatbelts. In the past, seatbelts were required to be worn only in vehicles designed for 10 passengers or less.

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Scalia’s critics fault justice over politics

Thursday, July 5th, 2012

Published July 05, 2012 Associated Press
WASHINGTON – Justice Antonin Scalia ended his 26th year on the Supreme Court with a string of losses in the term’s biggest cases and criticism that he crossed a line from judging to politics.
Scalia’s willingness to do battle with those on the other side of an issue long has made him a magnet for critics. But some of his recent remarks stood out in the eyes of court observers.
His dissent in the Arizona immigration case contained a harsh assessment of the Obama administration’s immigration policy and prompted a public rebuke from a fellow Republican-appointed judge.
Scalia’s aggressive demeanor during argument sessions even earned him some gentle teasing from his closest personal friend on the court, Justice Ruth Bader Ginsburg. Speaking at a Washington convention, Ginsburg said the term’s high-profile cases may explain why Scalia “called counsel’s argument ‘extraordinary’ no fewer than 10 times.”
Ten lawyers who appear regularly before the Supreme Court, including two former Scalia law clerks, were interviewed for this story and said they too had taken note of Scalia’s recent comments. But mindful that they might appear before the high court or be in a position to submit legal briefs, they all declined to be identified by name.
Scalia, 76, has been a powerful voice and an entertaining presence since he joined the high court in 1986. Especially in dissent, he never has been shy about explaining why his side had the better of an argument.
Measured by wins and losses, the court term did not end well for Scalia. He was on the losing end of the court’s biggest cases involving health care, immigration, lying about military medals and prison sentences, both for crack cocaine offenders and juvenile killers.
The last words Scalia uttered in court this term dealt with his disagreement with the court’s majority in a decision that watered down Arizona’s crackdown on illegal immigrants.
Summarizing his views in court, Scalia commented on President Barack Obama’s recent announcement changing the deportation rules for some children of illegal immigrants. And in his written opinion, he referenced anti-free black laws of slave states as a precedent for state action on immigration. Both drew critical notice.
“The president said at a news conference that the new program is ‘the right thing to do’ in light of Congress’ failure to pass the administration’s proposed revision of the Immigration Act. Perhaps it is, though Arizona may not think so. But to say, as the court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the president declines to enforce boggles the mind,” Scalia said.
The outcry over his reference to Obama’s announcement was immediate and included a call by liberal Washington Post columnist E.J. Dionne for Scalia to resign. Conservative Judge Richard Posner of the 7th U.S. Circuit Court of Appeals in Chicago, who was appointed by President Ronald Reagan, contributed this passage to Slate magazine’s annual end-of-term discussion:
“These are fighting words. The nation is in the midst of a hard-fought presidential election campaign; the outcome is in doubt. Illegal immigration is a campaign issue. It wouldn’t surprise me if Justice Scalia’s opinion were quoted in campaign ads. The program that appalls Justice Scalia was announced almost two months after the oral argument in the Arizona case. It seems rather a belated development to figure in an opinion in the case,” wrote Posner, who had taken Scalia to task in the past.
Doug Kmiec, a conservative legal scholar who backed Obama’s election in 2008 and served as his ambassador to Malta, said, “To broadly assert, as Justice Scalia seems to do in his Arizona dissent, that the Obama administration’s enforcement priorities are ‘too lax,’ substitutes the unelected Antonin Scalia for the elected Barack Obama.”
Scalia’s defenders say the criticism is misplaced. They say the justice was doing something much more familiar and common, attacking the majority opinion by Justice Anthony Kennedy. “He really wasn’t criticizing the Obama administration’s position. He was just using it as a timely example of why he thought his position was the better one in the Arizona case,” said Brian Fitzpatrick, a Vanderbilt University law professor who once served as a law clerk to Scalia.
Separately, in defending the tough Arizona law, Scalia’s written dissent refers to the laws of Southern slave states that excluded freed blacks to support the notion that states had control over immigration in the era before Congress enacted national legislation. Liberal commentators seized on that reference as a particularly bizarre twist in an otherwise angry opinion.
But Scalia’s supporters say the justice is held to a different standard in the media than other justices. Ginsburg, for instance, won wide praise when she used her dissent in a sex discrimination case in 2007 to urge Congress to take action to undo the court’s decision.
During the three days of health care arguments in March, Scalia spoke more than anyone else, mainly posing hostile questions to defenders of the law, according to a study of the arguments.
In an exchange with Solicitor General Donald Verrilli Jr., he left little doubt about what he thought of the eventual winning argument that the individual insurance requirement could be found constitutional under Congress’ taxing powers.
“You’re saying that all the discussion we had earlier about how this is one big uniform scheme and the Commerce Clause, blah, blah, blah, it really doesn’t matter. This is a tax and the federal government could simply have said, without all of the rest of this legislation, could simply have said, everybody who doesn’t buy health insurance at a certain age will be taxed so much money, right?” Scalia asked.
Eventually, Verrilli said, “It is justifiable under its tax power.”
“OK. Extraordinary,” Scalia said.
The next day, he said the court should not have to go through each and every page of the massive law to sort out what stays and what goes should the justices invalidate the requirement that people carry insurance.
“What happened to the Eighth Amendment?” Scalia asked, referring to the Constitution’s ban on cruel and unusual punishment. “You really expect us to go through 2,700 pages?”

Poor Land in Jail as Companies Add Huge Fees for Probation

Tuesday, July 3rd, 2012

By ETHAN BRONNER Published: July 2, 2012 802 Comments
CHILDERSBURG, Ala. — Three years ago, Gina Ray, who is now 31 and unemployed, was fined $179 for speeding. She failed to show up at court (she says the ticket bore the wrong date), so her license was revoked.
fees added up to more than $1,500. Unable to pay, she was handed over to a private probation company and jailed — charged an additional fee for each day behind bars.
For that driving offense, Ms. Ray has been locked up three times for a total of 40 days and owes $3,170, much of it to the probation company. Her story, in hardscrabble, rural Alabama, where Krispy Kreme promises that “two can dine for $5.99,” is not about innocence.
It is, rather, about the mushrooming of fines and fees levied by money-starved towns across the country and the for-profit businesses that administer the system. The result is that growing numbers of poor people, like Ms. Ray, are ending up jailed and in debt for minor infractions.
“With so many towns economically strapped, there is growing pressure on the courts to bring in money rather than mete out justice,” said Lisa W. Borden, a partner in Baker, Donelson, Bearman, Caldwell & Berkowitz, a large law firm in Birmingham, Ala., who has spent a great deal of time on the issue. “The companies they hire are aggressive. Those arrested are not told about the right to counsel or asked whether they are indigent or offered an alternative to fines and jail. There are real constitutional issues at stake.”
Half a century ago in a landmark case, the Supreme Court ruled that those accused of crimes had to be provided a lawyer if they could not afford one. But in misdemeanors, the right to counsel is rarely brought up, even though defendants can run the risk of jail. The probation companies promise revenue to the towns, while saying they also help offenders, and the defendants often end up lost in a legal Twilight Zone.
Here in Childersburg, where there is no public transportation, Ms. Ray has plenty of company in her plight. Richard Garrett has spent a total of 24 months in jail and owes $10,000, all for traffic and license violations that began a decade ago. A onetime employee of United States Steel, Mr. Garrett is suffering from health difficulties and is without work. William M. Dawson, a Birmingham lawyer and Democratic Party activist, has filed a lawsuit for Mr. Garrett and others against the local authorities and the probation company, Judicial Correction Services, which is based in Georgia.
“The Supreme Court has made clear that it is unconstitutional to jail people just because they can’t pay a fine,” Mr. Dawson said in an interview.
In Georgia, three dozen for-profit probation companies operate in hundreds of courts, and there have been similar lawsuits. In one, Randy Miller, 39, an Iraq war veteran who had lost his job, was jailed after failing to make child support payments of $860 a month. In another, Hills McGee, with a monthly income of $243 in veterans benefits, was charged with public drunkenness, assessed $270 by a court and put on probation through a private company. The company added a $15 enrollment fee and $39 in monthly fees. That put his total for a year above $700, which Mr. McGee, 53, struggled to meet before being jailed for failing to pay it all.
“These companies are bill collectors, but they are given the authority to say to someone that if he doesn’t pay, he is going to jail,” said John B. Long, a lawyer in Augusta, Ga., who is taking the issue to a federal appeals court this fall. “There are things like garbage collection where private companies are O.K. No one’s liberty is affected. The closer you get to locking someone up, the closer you get to a constitutional issue.”
The issue of using the courts to produce income has caught the attention of the country’s legal establishment. A recent study by the nonpartisan Conference of State Court Administrators, “Courts Are Not Revenue Centers,” said that in traffic violations, “court leaders face the greatest challenge in ensuring that fines, fees and surcharges are not simply an alternate form of taxation.”
J. Scott Vowell, the presiding judge of Alabama’s 10th Judicial Circuit, said in an interview that his state’s Legislature, like many across the country, was pressuring courts to produce revenue, and that some legislators even believed courts should be financially self-sufficient.
In a 2010 study, the Brennan Center for Justice at the New York University School of Law examined the fee structure in the 15 states — including California, Florida and Texas — with the largest prison populations. It asserted: “Many states are imposing new and often onerous ‘user fees’ on individuals with criminal convictions. Yet far from being easy money, these fees impose severe — and often hidden — costs on communities, taxpayers and indigent people convicted of crimes. They create new paths to prison for those unable to pay their debts and make it harder to find employment and housing as well as to meet child support obligations.”
Most of those fees are for felonies and do not involve private probation companies, which have so far been limited to chasing those guilty of misdemeanors. A decade or two ago, many states abandoned pursuing misdemeanor fees because it was time-consuming and costly. Companies like Judicial Correction Services saw an opportunity. They charge public authorities nothing and make their money by adding fees onto the bills of the defendants.
Stephen B. Bright, president of the Southern Center for Human Rights, who teaches at Yale Law School, said courts were increasingly using fees “for such things as the retirement funds for various court officials, law enforcement functions such as police training and crime laboratories, victim assistance programs and even the court’s computer system.” He added, “In one county in Pennsylvania, 26 different fees totaling $2,500 are assessed in addition to the fine.”
Mr. Dawson’s Alabama lawsuit alleges that Judicial Correction Services does not discuss alternatives to fines or jail and that its training manual “is devoid of any discussion of indigency or waiver of fees.”
In a joint telephone interview, two senior officials of Judicial Correction Services, Robert H. McMichael, its chief executive, and Kevin Egan, its chief marketing officer, rejected the lawsuit’s accusations. They said that the company does try to help those in need, but that the authority to determine who is indigent rests with the court, not the company.
“We hear a lot of ‘I can’t pay the fee,’ ” Mr. Egan said. “It is not our job to figure that out. Only the judge can make that determination.” Mr. Egan said his company had doubled the number of completed sentences where it is employed to more than two-thirds, from about one-third, and that this serves the company, the towns and the defendant. “Our job is to keep people out of jail,” he said. “We have a financial interest in getting them to comply. If they don’t pay, we don’t get paid.”
Mr. Bright, of the Southern Center for Human Rights, said that with the private companies seeking a profit, with courts in need of income and with the most vulnerable caught up in the system, “we end up balancing the budget on the backs of the poorest people in society.”