Archive for August, 2012


Friday, August 31st, 2012

LEXINGTON, Ky. (June 5, 2012) — The University of Kentucky College of Law and the UK College of Law Alumni Association will honor 2012 Hall of Fame inductees and alumni award recipients June 6 at an alumni reception in conjunction with the Kentucky Bar Association Convention in Louisville.

The Hall of Fame was established to acknowledge graduates of the college who have achieved extraordinary professional success, have a high degree of character and integrity, and have made a profound positive impact on the College of Law. The four Hall of Fame inductees are William H. Cull, Marie A. Cull, William H. Fortune and William E. Johnson.

The College of Law Hall of Fame Award is the highest award presented jointly by the college and the UK Law Alumni Association. This distinction is awarded with great care to either alumni who have distinguished themselves by contributions that they have made in their own particular field of work, or in the betterment of humanity or to former faculty who have taught at the UK College of Law for at least 20 years.

Marie Alagia Cull (1979) is senior partner at Cull & Hayden, P.S.C., and she is regarded as a health care and government relations specialist. Cull has about 27 years of experience in health care law, is a frequent speaker and has a number of publications on the subject to her credit. She enjoys a great reputation in the lobbying community and for her work with members of the Kentucky state legislature and the executive branch.

Cull is a member of the Lafferty Society, the Building Campaign Committee, the Law Alumni Association (lifetime member), the Development Council and the Women in Philanthropy Leadership Council, and she is a Presidential Fellow. She and her husband established the Bill and Marie Cull Fellowship Endowment Fund to provide scholarships for law students. Her other civic engagements include service on the City of Frankfort’s Urban Forestry Advisory Board, the Frankfort Salvation Army Advisory Board, a recent member of the Board of Trustees of Ursuline Campus Schools of Louisville, Ky., and vice chair of the board for Capital Ovarian Cancer Organization, Inc.

Prior to attending law school, Cull studied for a year at Oxford University and obtained her undergraduate degree at Trinity College in Washington, D.C. She is an active member of the Kentucky Bar Association with prior service on the House of Delegates and several committees. Cull is also a member of the Florida Bar Association, the American Bar Association and its Health Law Forum and the American Health Lawyers Association. She is listed in the Best Lawyers in America and Kentucky Super Lawyers. Cull lives in Frankfort with her husband, William H. Cull, a 1977 graduate of the UK College of Law.

William “Bill” H. Cull (1977) is a veteran lawyer, investor and developer with experience in a variety of businesses, government and real estate development. His business experience included serving as general counsel and then president of Concept, Inc., once the nation’s third-largest private prison company, which merged with Corrections Corporation of America. His government experience included positions as deputy counsel for Gov. Julian Carroll and Gov. John Y. Brown Jr. and general counsel in the Commerce Cabinet for Gov. Brown. His real estate development experience included developing and co-owning Microtel Inns in Kentucky and Indiana and developing residential communities in Jefferson and Shelby Counties in Kentucky.

As president of Save The Grand Theatre, Inc., Cull led the effort to preserve and restore the Grand Theatre in downtown Frankfort, beginning in the 1980s. The theater, built in 1911, was converted in 1941 to a movie theater but closed in 1965. After restoration, the Grand Theatre now provides residents with a venue for performing arts, music, film and educational opportunities for children.

Cull is a member of the Lafferty Society, the Visiting Committee, the Building Campaign Committee, the Law Alumni Association (lifetime member), and he is a Presidential Fellow. He lives in Frankfort with his wife, Maria Alagia Cull, a 1979 graduate of the College.

William “Bill” H. Fortune (1964) practiced law for five years with the firm now known as Stites and Harbison and in 1969 joined the faculty of the College of Law. He has twice served the College of Law as associate dean, has served the University of Kentucky as academic ombud and University Senate chair, and in partial recognition of his great service to the students of the College of Law was honored with the University of Kentucky Great Teacher Award in 2001.

Fortune has shown unmatched commitment to some of the most crucial obligations of the legal profession. He was the first president of the Central Kentucky Legal Services Corporation, he has served as a member of Kentucky’s Public Advocacy Commission, and, most importantly, he has three times taken leave from the College of Law to provide legal services to the indigent — serving two years as a federal public defender in California, two years as a federal public defender in Kentucky, and one year as an assistant public advocate in Eastern Kentucky.

Additionally, he has served the Kentucky Bar Association (KBA) as very few lawyers have ever done, as a drafter of the state’s Evidence Rules, as a member of the Model Rules of Professional Conduct Committee, as counsel for the Ethics Committee of the Kentucky Judiciary, as the author of numerous books and articles on professional responsibility, and through more presentations on continuing legal education than perhaps any other Kentucky lawyer has ever made. In recognition of his service to the profession, Fortune was awarded the 2008 KBA Thomas B. Spain Award and in 2009 received from the Kentucky Supreme Court the Chief Justice’s Special Service Award.

William Edward Johnson (1957) is a partner in the law firm of Johnson, True & Guarnieri LLP, engaging in all areas of trial practice and administrative law. Johnson’s numerous achievements and memberships include the following:

KBA vice president (2012-2013); KBA Board of Governors (1981-1983); chairman of the House of Delegates (1979); Association of Trial Lawyers of America, board of governors (1980-1983); Kentucky Academy of Trial Attorneys, president (1979); Franklin County Bar Association, president (1980); KACDL, president (1990); ATLA Exchange, chairman (1983); former member, Kentucky Criminal Rules Committee; former member, Kentucky Civil Rules Committee; former member, Appellate Handbook Committee; ABA Litigation Trial Practice Committee (1983-1984); KBA Litigation Committee (1988); KBA Ethics Committee (2000); Public Advocacy Commission (2002-2006); and former member, Judicial Nominating Commission. He is a fellow of the American College of Trial Lawyers (1986), American Board of Criminal Lawyers (1980) and the International Academy of Trial Lawyers (1994).

Johnson is listed in Kentucky Super Lawyers and has been continuously listed in the Best Lawyers in America since 1984. In 1991, he was the recipient of the “War Horse” award by the Southern Trial Lawyers Association, and in 1997 he was a recipient of the EKU National Alumni Association Achievement Award. Johnson was awarded the Nelson Mandela Lifetime Achievement Award by the Department of Public Advocacy in 2001.

Johnson served his country as an infantry officer, attaining the rank of captain in the United States Army. He has tried hundreds of cases to verdict in his 50-plus years as an attorney.

Alumni awards to be presented at the reception include:

Distinguished Jurist — Chief Justice John Minton (1997)

This award is given to an individual who has distinguished himself or herself through a contribution of outstanding service to the legal profession, and demonstrated a high standard of ethical conduct and fairness in all court proceedings.

Professional Achievement — Jane Allen (1991), Rebecca White (1981)

This award is primarily designed to recognize a particularly noteworthy accomplishment in a given year, but may also be given to one who has achieved and sustained an extraordinary level of excellence in a particular area of the law or their chosen field.

Community Service — Dreama Gentry (1992)

This award is given to a graduate who has provided outstanding leadership in his or her local community, state or nation, to aid and benefit causes not necessarily related to the legal profession.

Young Professional — Ben Carter (2006), Lindsay H. Thurston (2003)

This award is designated for an individual who has graduated within the past 10 years, and who has distinguished herself or himself professionally, in her or his community, or in some other fashion.

MEDIA CONTACT: Keith Hautala (859) 323-2396;


Friday, August 31st, 2012

ASSOCIATE needed to serve as Assistant Commonwealth Attorney for Carroll, Owen and Grant Counties, Kentucky.

Relocation to Carrollton required. Send resume, salary request and writing sample to Office of the Commonwealth Attorney,

P.O. Box 353, Carrollton, Kentucky 41008, by October 15, 2012.


Julie L. Jones

NKBA Executive Director

P: (859) 781-1300, Ext. 104

F: (859) 781-1277


Friday, August 31st, 2012

By BENJAMIN WEISER Published: August 30, 2012 New York Times excerpt
A federal appeals court in Manhattan ruled on Thursday that a man convicted of weapons possession should have been able to tell the jury that the main witness against him, a New York City police detective, had been found to have testified untruthfully in proceedings involving an unrelated gun case.
The conviction of the man, Lance White, in 2009 was overturned, and he was granted a new trial in the decision by a three-judge panel of the United States Court of Appeals for the Second Circuit, which cited the trial judge’s ruling on what the jury could hear and what it called another error by that judge.
The panel noted that the judge in the earlier case had “unequivocally discredited” portions of Detective Paul Herrmann’s testimony, even suggesting that he had “recanted certain aspects” and implying that he had lied in a criminal complaint.
“These credibility judgments are plainly probative of Herrmann’s veracity and could affect a jury’s determination as to his willingness to lie to secure a criminal conviction,” Judge Guido Calabresi wrote in a two-to-one majority opinion for the panel.
… the judge in the earlier case, Frederic Block of Federal District Court in Brooklyn, repeatedly questioned the credibility of Detective Herrmann’s testimony in various proceedings and suppressed a gun and ammunition the police said had been found on Mr. Goines because of what he called an illegal seizure; the indictment was later dismissed.
The ruling comes at a time of intense public debate over the Police Department’s practice of stopping, and in many cases frisking, people on the streets, an approach that the department maintains is used only after officers develop reasonable suspicion of criminality. Officials say it has helped to reduce crime.
“This is what happens when the government does not take seriously when police officers are found to lie in stop-and-frisks,” said Deirdre von Dornum, a lawyer with the federal defenders’ office, referring to the Goines case and its aftermath. “It hurts everyone; it upturns our system of justice.” Ms. von Dornum represented both Mr. Goines and Mr. White, who was arrested under different circumstances.
At Mr. White’s 2009 trial, also in federal court in Brooklyn, his lawyer, Ms. von Dornum, had sought to cross-examine Detective Herrmann about Judge Block’s adverse findings concerning his credibility. But the judge, Nicholas G. Garaufis, agreed to a government request that she be precluded from doing so.
Judge Garaufis concluded that Judge Block had made no finding about the detective’s “general veracity” and that the Goines case was “entirely unrelated” to Mr. White’s, Judge Calabresi noted in his ruling.
But Judge Calabresi said that the appeals court had held that a witness can be cross-examined based on “prior occasions when his testimony in other cases had been criticized” by a court as “unworthy of belief.” His opinion was joined by Judge Rosemary S. Pooler; Judge Dennis G. Jacobs dissented.
Daniel C. Richman, a Columbia law professor and former federal prosecutor, noted that police officers involved in drug and gun interdiction would often testify repeatedly in court cases. A central question the ruling raised, he said, “is for how long and in what ways the finding that a police officer has lied in court will haunt him in future cases.”
He added that the panel’s decision made it “far more likely that future juries will hear that an officer has previously lied or somehow been found untruthful. And it will make prosecutors think twice before they use him in future cases.”


Thursday, August 30th, 2012

Aug. 31, 2012
A serious discussion of the proper application of expungement rules is being discussed in Louisville. The Jefferson County Attorney’s Office has in some cases been opposing expungement orders if the defendant has had a “violation” including traffic tickets. Even when the trial judge has granted expungement the Jefferson County Attorney prosecutors have filed appeals.
The legislator who wrote the current law says this use of “violations” to deny expungement of past criminal records was not the intent of the law, and is a misinterpertion of the law.
Former District Judge Benham Simms III has been a leading advocate for a liberal application of the expungement rules in order to achieve the intent of the legislature and to permit people who have had no violations of criminal law for five years can in some instance be eligible for expungement. This procedure makes it easier for people to apply for jobs, and many feel that this is a valid purpose.


To the dismay of some judges and attorneys, the Jefferson County attorney’s office has started making it much more difficult for misdemeanor offenders to get old convictions erased.
Kentucky’s law allowing expungement of some minor offenses was intended to give a second chance to those who show they’ve turned their lives around. Thousands have taken advantage of the expungement law every year, often in an effort to improve their chances of getting a job.

But since April, the county attorney’s office has taken a hard line on expungements, fighting requests by anyone who has had any new violation since the original offense — even if the new violation is as minor as a traffic ticket.

The prosecutor’s office says it’s simply following Kentucky law, which says expungement isn’t allowed for anyone convicted of a “felony, misdemeanor, or a violation” in the five years before the conviction as well as anytime after.

But others, including some judges and attorneys, say the county attorney’s office is defining “violation” too strictly and in a way that’s counter to the definition in a separate law.
Second chance

And regardless, they say, the policy ignores the legislature’s intent to give people a new start.
“It’s impacting thousands of people,” said defense attorney Benham Simms, “because they can’t get their case expunged, and employers look at their record and don’t call them back for an interview” without actually knowing the facts of the case. “It’s absolutely crazy for us to be doing this.”

Some judges have been going along with the prosecutors’ objections to expungement, but others have refused to, and dozens of cases are being appealed.
As a result, getting an expungement in Jefferson County right now may have more to do with luck than the merits of a case.
“It depends on which judge you get in the district level and which you get in circuit court, because there is a split,” said District Judge Donald Armstrong, who believes that speeding tickets and other violations do not prohibit a person from having a misdemeanor conviction expunged. “This is something the Supreme Court needs to clean up. They need to give us some guidance.”

None of the expungement cases in question have reached the state’s high court.
Michigan resident Samuel Tsapiddi — convicted of driving drunk in Jefferson County a decade ago — is among those caught up in the debate.
Tsapiddi’s crime is typically eligible to be expunged after five years, which Tsapiddi tried to do in April, as part of his effort to become a firefighter.
But after District Judge Stephanie Pearce Burke removed the conviction from Tsapiddi’s record, the county attorney’s office appealed the order to circuit court.
Prosecutors argue that Tsapiddi, who does not have a listed telephone number and could not be reached for comment, isn’t eligible for expungement because he was ticketed for speeding in September 2002, the same year as his drunken-driving conviction.

So why — after years of not letting minor violations get in the way of an expungement — did the county attorney’s office change its stance in April and begin uniformly objecting to erasing any cases in which a defendant had even a minor violation?

Jefferson County Attorney Michael O’Connell, through his spokesman, Bill Patteson, declined an interview with The Courier-Journal “because of the number of cases involved and the fact that expunged cases cannot be discussed.”

But the office did answer questions through email, and the newspaper obtained internal correspondence showing that prosecutors were ordered as of April 10 to “appeal any expungement that is not in complete compliance with the expungement statutes.”

Patteson said a recent district court “reorganization prompted us to review our performance as to expungement requests and make it more uniform.”
Defining ‘violation’

Several judges and lawyers said in interviews that not only does the county attorney office’s stance go against the spirit of the law, it ignores a newer state law that defines a “violation” as an offense “other than a traffic infraction.”
“Do we really want to keep someone from employment because they had a hunting violation or because they were 10 miles over the speed limit?” said Jefferson District Judge Anne Haynie. “They need to fix the statute. Someone who has a speeding ticket should be able to get their records expunged.”

Burke said she is continuing to expunge cases even when defendants have a minor violation on their record.
“In each case I have ruled on, the violation was so minor it seems patently unfair to rule otherwise,” said Burke, who has seen 10 of her expungement decisions appealed in the past few months. “And to me, it seems it could not have been the intent of the legislation.”
Former Rep. Mike Bowling, a Middlesboro Democrat who sponsored the expungement laws and was chairman of the House Judiciary Committee when it passed two decades ago, agreed, calling the county attorney’s stance “absolutely ridiculous.”

Bowling said he intended the law to help people who had a misdemeanor conviction but had stayed out of trouble for five years get the charge expunged and “be able to move on with their life and get a job. That’s the whole reason we wrote the law, to help people move on.”
“We did not anticipate or feel that a traffic ticket would be sufficient to keep someone from having an expunged record,” Bowling said. “Who would use a speeding violation (to object to an expungement) against a person who hasn’t had any other problems?”
Told of what Bowling and others said was the intent of the legislation, O’Connell’s office said in an email that “if speeding violations were not supposed to prohibit expungements, the definition provided” in the expungement law “needs to be clarified.”
No unanimity

Indeed, not even judges can agree on the law’s meaning.

While some district court judges are still approving the expungements, citing the separate law defining violations, others agree with the county attorney’s office. And in appeals, circuit court judges are issuing conflicting rulings.
For example, Robert Mellick asked to have drug and indecent exposure convictions from the 1990s expunged, telling a judge that his crimes were tied to substance abuse but he was sober now and unable to get a job because of his criminal history.
While a Jefferson District Court judge erased the cases for Mellick, the county attorney’s office objected and appealed, in part because Mellick had been cited for speeding and fishing without a license in 2002.
enior Circuit Judge Geoffrey Morris then overruled the expungement, saying that while he “believes that such a petty violation should not stand in the way of expunging Mellick’s record,” he must follow the law. The General Assembly, he said, chose to prevent expungement when a petitioner commits even minor violations.
Circuit Judge Charles Cunningham agreed in a separate ruling that overruled an expungement, finding however, that “from a policy perspective, it seems clear the District Court took the smarter, fairer path” in granting an expungement to a woman who had traffic tickets.
But Circuit Judge Brian Edwards rejected the county attorney’s appeal in a similar case, of a man who had a district court judge expunge a 2006 wanton endangerment conviction even though prosecutors objected because of multiple speeding tickets in the years since. Edwards found the district judge to be correct in relying on the newer law that says a violation doesn’t include traffic citations.

Armstrong said the county attorney’s office is “conveniently ignoring” the separate state law that defines “violations” as an offense “other than a traffic infraction” for which only a fine can be imposed. Since that law is newer, it takes precedent, Armstrong said.
But John Estill, president of the Kentucky County Attorneys Association and Mason County attorney, said O’Connell’s office is reading the law correctly, as he is following the definition of a violation from the same chapter of the law as the expungement statute, while some judges are differing by reaching into the penal code.
Asked if his office has objected to expungments for the same reason, Estill said he couldn’t remember one personally, but “it’s within our discretion. We have no hard or fast rule. I certainly think we could.”
still said he had not heard of any other counties having confusion over the law, but attorneys say the issue has come up elsewhere. Judge Michele B. Stengel, from Louisville, said she has talked with judges across the state and there is a split in how traffic violations are viewed.
“This is a statewide problem,” she said.

Louisville nurse Sharon Case recently tried to get an old reckless-driving conviction expunged out of Hopkins County and said she was “shocked” to learn it had been denied because she later had a citation for defective equipment in Jefferson County.
“I thought, ‘You’ve got to be kidding me,’ ” she said in an interview. “It made me so angry. Because of improper equipment! It just seems so trivial.”

431.078 Expungement of misdemeanor and violation records of convictions and dismissed or amended charges.

(1) Any person who has been convicted of a misdemeanor or a violation, or a series of misdemeanors or violations arising from a single incident, may petition the court in which he was convicted for expungement of his misdemeanor or violation record, including a record of any charges for misdemeanors or violations that were dismissed or amended in the criminal action. The person shall be informed of the right at the time of adjudication.
(2) Except as provided in KRS 218A.275(8) and 218A.276(8), the petition shall be filed no sooner than five (5) years after the completion of the person’s sentence or five (5) years after the successful completion of the person’s probation, whichever occurs later.
(3) Upon the filing of a petition, the court shall set a date for a hearing and shall notify the county attorney; the victim of the crime, if there was an identified victim; and any other person whom the person filing the petition has reason to believe may have relevant information related to the expungement of the record. Inability to locate the victim shall not delay the proceedings in the case or preclude the holding of a hearing or the issuance of an order of expungement.
(4) The court shall order sealed all records in the custody of the court and any records in the custody of any other agency or official, including law enforcement records, if at the hearing the court finds that:
(a) The offense was not a sex offense or an offense committed against a child;
(b) The person had no previous felony conviction;
(c) The person had not been convicted of any other misdemeanor or violation offense in the five (5) years prior to the conviction sought to be expunged;
(d) The person had not since the time of the conviction sought to be expunged been convicted of a felony, a misdemeanor, or a violation;
(e) No proceeding concerning a felony, misdemeanor, or violation is pending or being instituted against him; and
(f) The offense was an offense against the Commonwealth of Kentucky.
(5) Upon the entry of an order to seal the records, and payment to the circuit clerk of one hundred dollars ($100), the proceedings in the case shall be deemed never to have occurred; all index references shall be deleted; the persons and the court may properly reply that no record exists with respect to the persons upon any inquiry in the matter; and the person whose record is expunged shall not have to disclose the fact of the record or any matter relating thereto on an application for employment, credit, or other type of application. The first fifty dollars ($50) of each fee collected pursuant to this subsection shall be deposited into the general fund, and the remainder shall be deposited into a trust and agency account for deputy clerks.
(6) Copies of the order shall be sent to each agency or official named therein.
(7) Inspection of the records included in the order may thereafter be permitted by the court only upon petition by the person who is the subject of the records and only to those persons named in the petition.
(8) This section shall be deemed to be retroactive, and any person who has been convicted of a misdemeanor prior to July 14, 1992, may petition the court in which he was convicted, or if he was convicted prior to the inception of the District Court to the District Court in the county where he now resides, for expungement of the record of one (1) misdemeanor offense or violation or a series of misdemeanor offenses or violations arising from a single incident, provided that the offense was not one specified in subsection (4) and that the offense was not the precursor offense of a felony offense for which he was subsequently convicted. This section shall apply only to offenses against the Commonwealth of Kentucky.
Effective: June 8, 2011
History: Amended 2011 Ky. Acts ch. 2, sec. 97, effective June 8, 2011. — Amended 2008 Ky. Acts ch. 158, sec. 7, effective July 1, 2008. — Amended 1996 Ky. Acts ch. 374, sec. 3, effective July 15, 1996. — Created 1992 Ky. Acts ch. 325, sec. 1, effective July 14, 1992

532.005 Chapters 532, 533 and 534 to apply to crimes outside provisions of the Penal Code.
KRS Chapters 532, 533 and 534 apply to all classes of crimes committed outside the provisions of the Penal Code.
Effective: June 19, 1976
KRS 431.060 Felonies, misdemeanors and violations defined.
Offenses are felonies, misdemeanors, or violations:
(1) Offenses punishable by death or confinement in the penitentiary, whether or not a fine or other penalty may also be assessed, are felonies.
(2) Offenses punishable by confinement other than in the penitentiary, whether or not a fine or other penalty may also be assessed are misdemeanors.
(3) Offenses punishable by a fine only or by any other penalty not cited herein, whether in combination with a fine or not, are violations.
Effective: July 1, 1980
History: Amended 1980 Ky. Acts ch. 309, sec. 3, effective July 1, 1980. – Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. sec. 1127.

532.020 Designation of offenses.
(4) Any offense defined outside this code for which a law outside this code provides a sentence to a fine only or to any other punishment, whether in combination with a fine or not, other than death or imprisonment shall be deemed a violation.
Commonwealth v. Jones (Ky. App., 2012) – February 10, 2012 – 2010-CA-002324
In 1992, Jones was indicted by the grand jury with trafficking in a controlled substance, schedule II – cocaine, a class C felony, and complicity thereto. Jones pled guilty to an amended lesser charge of illegal possession of a controlled substance in the first degree, schedule II – cocaine, a class D felony, and the trial court probated her three-year sentence for a period of five years.
Approximately seventeen years later, Jones moved pro se for the trial court to expunge the record of her felony conviction. The Commonwealth opposed the motion on the basis that the court lacked statutory authority to expunge the conviction under either of the expungement statutes, KRS 431.076 or KRS 431.078. Jones, by counsel, then moved for the court to void her felony conviction pursuant to KRS 218A.275, which the Commonwealth did not oppose. The court subsequently entered an order voiding Jones’s felony conviction per KRS 218A.275.
On appeal, the Commonwealth argues that the trial court abused its discretion by granting Jones’s motion to expunge the voided felony conviction because CR 60.02 is not an avenue for expunging voided felony convictions when expungement is not authorized by statute. The Commonwealth emphasizes that KRS 431.076 does not provide for expungement of felony convictions ruled void by operation per KRS 218A.275.
Two Kentucky statutes grant trial courts the power to expunge criminal records: KRS 431.076 and KRS 431.078. Clements v. Commonwealth, 203 S.W.3d 710, 712 (Ky.App. 2006). KRS 431.076 grants courts the authority to expunge the criminal records of persons exonerated of the charges they faced by being found not guilty or whose charges have been dismissed with prejudice. KRS 431.078 grants courts the authority to expunge the criminal records of misdemeanor and violation convictions. Neither statute expressly grants courts the authority to expunge a criminal record after a felony conviction has been voided.
That being said, the issue before this court is the effect of a voided conviction, and whether it amounts to a dismissal of the charges. Jones argues that the statute addressing the voiding of convictions, KRS 218A.275, equates voiding with dismissal and thus, her voided conviction was properly expunged under the provision of KRS 431.076 permitting expungement of charges dismissed with prejudice. We agree.
We agree with the Commonwealth that a court’s ability to expunge criminal convictions is largely governed by statute. See Commonwealth v. Holloway, 225 S.W.3d 404, 406-07 (Ky. 2007) (holding that a court’s statutory authority to expunge records is governed by the clear and unambiguous language of KRS 431.076 and KRS 431.078, and the court’s inherent authority to expunge records is exceedingly narrow in scope, e.g., reserved for remedying the denial of one’s constitutional rights); Clements v. Commonwealth, 203 S.W.3d 710, 711 (Ky.App. 2006) (noting that the power to expunge criminal charges that have been dismissed or misdemeanor convictions is derived from statute). However, in this instance, the trial court’s ability to expunge Jones’s conviction necessarily followed from the statutory language contained in KRS 218A.275(9).
The Jefferson Circuit Court’s order is affirmed.
Commonwealth v. Smith, 354 S.W.3d 595 (Ky. App., 2011)
John Smith was indicted in October 2000 for first-degree trafficking in a controlled substance, tampering with physical evidence, and possession of drug paraphernalia. The charges arose following a traffic stop of the vehicle Smith was driving. He entered a plea of not guilty, and a jury trial was scheduled for February 21, 2001. The evidence against Smith was suppressed following a determination that the traffic stop had violated Smith’s Fourth Amendment protections. On the day of trial, the Commonwealth filed a motion to dismiss the indictment without prejudice. The circuit court did so.
The record reflects nothing further for more than nine (9) years. …..
On March 4, 2010, Smith filed a motion in circuit court to expunge the indictment. He also requested, in the alternative, that the circuit court dismiss the indictment with prejudice.1 The Commonwealth opposed Smith’s motion.
The circuit court correctly concluded that Kentucky Revised Statute (KRS) 431.076, governing expungement of criminal records, does not authorize the expungement of criminal charges when they are dismissed without prejudice. However, the court stated its belief that the interests of justice are not served by an individual being continuously prejudiced by the presence of unproven allegations on his criminal record when the Commonwealth has declined to pursue the charges for in excess of 10 years. Accordingly, Mr. Smith’s motion to amend the February 21, 2001 order to reflect that this indictment shall be Dismissed with Prejudice is GRANTED.
If we affirm this ruling, Smith will be eligible in sixty days to renew his motion for expungement pursuant to KRS 431.076. Unfortunately, we cannot.
On appeal, the Commonwealth contends the circuit court lost jurisdiction to alter the February 2001 order of dismissal ten days after its entry. We agree.
In Commonwealth v. Sowell, our Supreme Court stated:
In several cases we have held that a dismissal without prejudice is a final and appealable order. Notably, in Wood v. Downing’s Admr. [110 Ky. 656, 62 S.W. 487, 488 (1901) ], we held that an order dismissing without prejudice “fixed absolutely and finally the rights of the parties in this suit in relation to the subject matter of the litigation, and put an end to the suit. It was a final appealable order.” Notwithstanding the “without prejudice” language, an order of dismissal adjudicates all rights. Nothing remains to be done. 157 S.W.3d at 617.
Ten days after entry of a final and appealable order, the trial court loses jurisdiction over the order and cannot alter it. Kentucky Rules of Civil Procedure (CR) 59.05. Accordingly, if a criminal defendant desires that the dismissal of his charge without prejudice be amended to a dismissal with prejudice, he must file either a timely CR 59.05 motion to alter, amend, or vacate or pursue an appeal in compliance with CR 73.02(1)(a). See Sowell, 157 S.W.3d at 618.
Smith did neither, and the circuit court erred when it entered an order modifying the February 2001 order dismissing the criminal charges against Smith with prejudice.
…… Unfortunately, as the Commonwealth notes, this is a prerogative of the prosecutor protected by Kentucky’s jealously-guarded separation-of-powers doctrine. Gibson, 291 S.W.3d at 690.
Under a different legislative scheme, Smith would have a solution more to his liking. Under the current legislative scheme, Smith is left with the less-comprehensive relief of KRS 17.142. That statute permits application for the segregation of records when all charges have been dismissed, without the requirement of a dismissal with prejudice. KRS 17.142 reads:……
(4) Records subject to the provisions of KRS 431.076 or 431.078 shall be sealed as provided in those statutes.
This statute would allow Smith to have the records held by any public agency segregated and removed from the public record. This statute does not, however, apply to judicial records. Commonwealth v. Shouse, 183 S.W.3d 204 (Ky.App.2006) While this remedy does not rise to the level of an expungement, it does provide for some relief.
Harscher, III v. Commonwealth, No. 2009-CA-000661-MR (Ky. App. 5/21/2010) (Ky. App., 2010)
On appeal, Harscher makes two arguments. First, Harscher contends that the trial court erred in denying his motion to expunge because a pardon automatically entitles the pardoned individual to expungement of his court records. Second, Harscher argues that the trial court incorrectly applied KRS 431.078 instead of KRS 431.076 when it denied his motion to expunge. Because both issues raised by Harscher are purely matters of law, we review the circuit court’s ruling de novo. Commonwealth v. Groves, 209 S.W.3d 492, 495 (Ky. App. 2006).
The power to issue pardons is granted to the Governor in Section 77 of the Kentucky Constitution, which provides that the Governor “shall have power to remit fines and forfeitures, commute sentences, grant reprieves and pardons . . . .” While the Kentucky Constitution vests the Governor with the power to grant pardons, it does not expressly address the effects of a pardon, including the expungement of criminal records. The Legislature has addressed the expungement of criminal records in KRS 431.076 and KRS 431.078. However, neither KRS 431.076 nor KRS 431.078 addresses the expungement of pardoned convictions. Thus, we must look “to common law to determine the extent of the Governor’s pardoning power contained in Section 77 of the Kentucky Constitution.” Anderson v. Commonwealth, 107 S.W.3d 193, 196 (Ky. 2003) (citing Commonwealth ex rel. Meredith v. Hall, 277 Ky. 612, 126 S.W.2d 1056, 1057 (1939)).
Thus, while a full pardon has the effect of removing all legal punishment for the offense and restoring one’s civil rights, it does not wipe out either guilt or the fact of the conviction. See Nelson, 109 S.W. at 338 (concluding that a pardon “cannot wipe out the act that he did, which was adjudged an offense. It was done, and will remain a fact for all time.”) Because a pardon does not erase the fact that the individual was convicted, we conclude that a pardon does not entitle an individual to expungement of his criminal record.
We note that some of our sister jurisdictions have concluded that a pardoned individual is entitled to have his criminal record expunged. See State v. Cope, 676 N.E.2d 141 (Ohio Ct. App. 1996): State v. Bergman, 558 N.E.2d 1111 (Ind. Ct. App. 1990); Commonwealth v. C.S., 534 A.2d 1053 (Pa. 1987). However, this Court “is bound by and shall follow applicable precedents established in the opinions of the Supreme Court and its predecessor court.” Kentucky Supreme Court Rule (SCR) 1.030(8)(a). Thus, as set forth above and based on our jurisprudence, we are constrained to conclude that a pardon does not automatically entitle the pardoned individual to expungement of his court records.
Harscher also argues that the trial court erred in applying KRS 431.078 instead of KRS 431.076 when it denied his motion to expunge. Although Harscher moved the court to expunge his record pursuant to KRS 431.076, the trial court applied KRS 431.078. As correctly noted by the trial court, KRS 431.078 only applies to the expungement of certain misdemeanor convictions and does not permit the expungement of felonies. However, KRS 431.076(1) does permit the following individuals to make a motion for expungement of a criminal record:
A person who has been charged with a criminal offense and who has been found not guilty of the offense, or against whom charges have been dismissed with prejudice, and not in exchange for a guilty plea to another offense . . . .
Harscher argues that the trial court should have applied KRS 431.076 because the pardon of his conviction resulted in his felony charge being dismissed with prejudice. We disagree. Because a pardon does not have the effect of eliminating guilt or the fact of conviction, Harscher cannot maintain that he “has been found not guilty of the offense” or that his “charges have been dismissed with prejudice.” KRS 431.076(1). Thus, Harscher cannot satisfy the requirements of KRS 431.076. Accordingly, the trial court correctly denied Harscher’s motion to expunge, regardless of whether it applied KRS 431.076(1) or KRS 431.078.
For the foregoing reasons, we affirm the order of the Fayette Circuit Court.
Gahman v. Commonwealth, No. 2008-CA-000391-MR (Ky. App. 3/20/2009) (Ky. App., 2009)
The trial court took the matter under advisement and, approximately eight (8) months later, on July 2, 2008, issued its decision. The court denied Gahman’s request using (AOC Form 496) titled “Expungement Order (For Misdemeanor or Violation Conviction) with reference to KRS 431.0781. Notwithstanding the order has a section titled “Findings of Fact,” the court provides no findings and no explanation for its denial of the motion.
Com. v. Holloway, 225 S.W.3d 404 (Ky. App., 2007)
This appeal comes from a Fayette Circuit Court decision granting Darwin Holloway’s petition for the expungement of all records concerning a 1996 case. In May of 1996, Holloway was charged with various felony and misdemeanor theft crimes. The case was submitted to the Grand Jury, but a “No True Bill” was returned and the charges dismissed. In March of 2005, Holloway filed a Petition for Expungement pursuant to KRS 431.078, which states in pertinent part:
(1) Any person who has been convicted of a misdemeanor or a violation, or a series of misdemeanors or violations arising from a single incident, may petition the court in which he was convicted for expungement of his misdemeanor or violation record. The person shall be informed of the right at the time of adjudication.
The Commonwealth’s response to the petition noted that KRS 431.078 applies only to convictions for misdemeanors or violations. The Commonwealth also pointed out that KRS 431.076, which also concerns expungements, applied only to instances in which the accused was either acquitted of the charges or the charges were dismissed with prejudice. Holloway later asked for the expungement pursuant to KRS 431.076. This statute reads in part:
(1) A person who has been charged with a criminal offense and who has been found not guilty of the offense, or against whom charges have been dismissed with prejudice, and not in exchange for a guilty plea to another offense, may make a motion, in the District or Circuit Court in which the charges were filed, to expunge all records including, but not limited to, arrest records, fingerprints, photographs, index references, or other data, whether in documentary or electronic form, relating to the arrest, charge, or other matters arising out of the arrest or charge.
* * *
(4) If the court finds that there are no current charges or proceedings pending relating to the matter for which the expungement is sought, the court may grant the motion and order the sealing of all records in the custody of the court and any records in the custody of any other agency or official, including law enforcement records. The court shall order the sealing on a form provided by the Administrative Office of the Courts. Every agency, with records relating to the arrest, charge, or other matters arising out of the arrest or charge, that is ordered to seal records, shall certify to the court within sixty (60) days of the entry of the expungement order, that the required sealing action has been completed. All orders enforcing the expungement procedure shall also be sealed.
Thus, the Commonwealth argued, neither statute was a vehicle for relief for Holloway since a charge that results in a “No True Bill” finding by the Grand Jury is not dismissed with prejudice and can be refiled by the Commonwealth. RCr 5.22(3).
It was Holloway’s contention that the language of KRS 431.076 permitted an expungement
[225 S.W.3d 406]
because his charges were dismissed, albeit without prejudice, by virtue of the Grand Jury’s refusal to indict. Holloway reasoned that since the “probable cause” standard needed for a Grand Jury indictment is a lower standard than the “beyond a reasonable doubt” standard needed to convict, he was entitled to relief.
The trial court found this to be a situation that seemed to slip between the cracks of KRS 431.078 and KRS 431.076. Neither statute directly deals with the situation where a grand jury declines to take action on a felony charge. Sensing an injustice in this situation, the trial court found in its Order on Petition for Expungement that
it is the opinion of the Court that it is beyond reason that a defendant who is not even indicted by a Grand Jury would not be entitled to the relief sought of a expungement of his record whereas a defendant who was indicted by a Grand Jury and whose case was submitted to a Circuit Court trial by jury but found not guilty would be entitled to such relief.
Exercising the “sound discretion and inherent power of the Court to fairly administer justice,” the trial court granted the petition for expungement pursuant to KRS 431.076. The Commonwealth then brought this appeal.
The Commonwealth argues that the trial court ignored the language of the statute and failed to give it its plain meaning, that the court was without inherent power to order expungement absent legislative authorization, and that, by ordering expungement, the court violated the separation of powers. This Court agrees with the Commonwealth’s first argument, but disagrees with its other two. Regardless, this Court finds that there was no justification for expungement under the law and hereby reverses the order of the Fayette Circuit Court.
Flynt v. Commonwealth of Kentucky, 105 S.W.3d 415 (Ky., 2003)
By approving a defendant’s application for pretrial diversion, a circuit court permits the defendant to embark upon a path, which, if successfully negotiated, will result in the defendant’s charges being “dismissed-diverted” — a status indistinguishable from any other dismissal as it is defined by statute as one that “shall not constitute a criminal conviction.”33 Appellee Elliott argues that a circuit court’s authority to unilaterally order pretrial diversion is tantamount to the court’s authority under KRS 431.078 to expunge misdemeanor and violation convictions because, after expungement, “the proceedings in the case shall be deemed never to have occurred.”34 In response to this claim, and with the caveat that the constitutionality of KRS 431.078 is not an issue before the Court, we observe that the authority granted by KRS 431.078 arises only after the executive branch has discharged its prosecutorial function — in fact, it does not arise until any sentence imposed has been fully executed because KRS 431.078 permits expungement “no sooner than five (5) years after the completion of the person’s sentence or five (5) years after the successful completion of the person’s probation, whichever occurs later.”35 As such, unlike Appellee Elliott’s interpretation of KRS 533.250(2), the expungement authority granted by KRS 431.078 does not permit the judiciary to exercise executive authority by interrupting the prosecution prior to final disposition. To interpret KRS 533.250(2) as permitting a trial court toapprove pretrial diversion applications over the Commonwealth’s objection — and thus conferring upon circuit courts the discretionary authority that we have previously held to be within the exclusive province of the executive branch — would construe it in a manner inconsistent with Kentucky’s constitutional separation of powers provisions.36 In accordance with the rule of statutory construction referenced above, we therefore hold that KRS 533.250(2) gives a circuit court the discretion to approve or disapprove an application for pretrial diversion only when the Commonwealth has recommended that the court approve the application. Thus, in cases such as Appellee Elliott’s, where the Commonwealth objects to pretrial diversion, circuit courts cannot unilaterally approve a defendant’s diversion application.

U] Miller v. Commonwealth, No. 2003-CA-000964-MR (Ky. App. 02/20/2004)
Under KRS 431.078(4), an individual is entitled to have a misdemeanor or violation conviction expunged from his record if, inter alia, the trial court finds that “[t]he offense was not a sex offense or an offense committed against a child [emphasis added].”
We conclude that the plain and ordinary meaning of this provision is that our General Assembly specifically chose to exclude sex offenses and offenses committed against children from those offenses which may be expunged from an individual’s record. In using the word “child,” the Legislature has determined that individuals who commit offenses against a particularly vulnerable class of our citizenry, should not be entitled to the benefit of having those offenses expunged from their records.Certainly, Miller’s victim, who was less than ten-years-old when the offense at issue was committed against him, falls within the definition of a “child” as the term is used in KRS 431.078 Accordingly, Miller was not entitled to have expunged from his record the conviction for assault in the fourth degree.
Finally, Miller argues that the word “child” is ambiguous to the point of being unconstitutionally vague, and that specifically excluding sex offenses and offenses against children from those offenses which may be expunged under KRS 431.078, violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. However, neither of these arguments were presented to the trial court. Hence, we will not consider them for the first time on appeal. Furthermore, Miller has not served the Attorney General with a copy of the required documents specifying the nature of the alleged constitutional defects as required by KRS 418.075. The failure to comply with KRS 418.075 is fatal to the request for appellate review of the constitutionality of a statute.

Other Courier Journal articles on this issue:

Is the Government’s use of GPS information coming from a cell phone to track your real-time position without a warrant a violation of the Fourth Amendment to the Constitution?

Thursday, August 30th, 2012

By Nicholas M Nighswander

The United States Court of Appeals for the Sixth Circuit, which covers Michigan, Ohio, Kentucky, and Tennessee considered this issue in the recent case of United States of America v. Melvin Skinner, decided and filed on August 14, 2012.

Mr. Skinner was involved with a man named James West who was running a large scale interstate drug-trafficking operation. The operation would use various pay-as-you-go cell phones that would be purchased with a fake name, assigned a call number, given to couriers to communicate with on a drup trip, and eventually discarded.

In 2006, DEA agents got wind of West’s use of such telephones on a particular occasion. They obtained a search warrant to track the location of the use of certain numbered telephones by cell tower pings. The DEA also had a search warrant for a wire tap of West’s regular telephones. It was through the wire tap of West’s telephones that the DEA learned of a courier by the name of Big Foot and that he would be using a certain cell phone number on a trip starting from Tennessee to Arizona and back to Tennessee to bring marijuana to West’s home in the Knoxville area. Big Foot was later identified as Mr. Skinner and the pay-as-you-go cell telephone was not assigned to him by name or telephone number. It was just a telephone given to him to use for this trip.

By continuously pinging the cell phone number in Big Foot’s possession, the DEA was able to track his location without visual surveillance. They knew when he left Arizona and that he was travelling east on Interstate 40 through New Mexico and into Texas. At around 2:00 a.m. on July 16, 2006, the pings indicated Big Foot had stopped at a rest stop near Abilene, Texas. At the rest stop, the DEA agents located a motor home associated with the pings. An agent approached the vehicle, knocked on the door and identified himself. He then asked the person who opened the door to the vehicle to allow him to search it. The person, later identified as Mr. Skinner, refused. The agents then used a drug sniffing dog to verify the presence of drugs for probable cause to search the vehicle without a warrant. In the search, cash and 1,100 pounds of baled marijuana was found and Mr. Skinner and his son, who accompanied him, were arrested.

Mr. Skinner was charged with conspiracy to distribute and intent to possess to distribute in excess of 1,000 kilograms of marijuana; conspiracy to commit money laundering; and aiding and abetting the attempt to distribute more than 100 kilograms of marijuana.

Prior to trial, Mr. Skinner moved to suppress the evidence against him on the basis that the GPS tracking of the cell phone he was using was a warrantless search that violated the Fourth Amendment. The trial court denied his motion on the basis that he lacked standing to challenge the use of the pinging to track him as the phone he was using was not assigned to him or in his name. The phone and the motorhome were purchased by West as part of the drug-trafficking operation and not in Mr. Skinner’s name and therefore he did not have a reasonable expectation of privacy in using the phone or the motor home that was used on the public roadways.

After a ten-day trial, Mr. Skinner was convicted on all counts. His motions for a directed verdict of acquittal and for a new trial were denied and he appealed to the Sixth Circuit.

The Sixth Circuit affirmed the trial court’s denial of the motion to suppress and the conviction of Mr. Skinner. In doing so, the Sixth Circuit opined that cell phone pinging by law enforcement is a proxy for the Defendant’s visually observable location by the public and does not create the need for a warrant under the Fourth Amendment.

Tip: The Fourth Amendment may come into effect and give you standing to challenge a search of your cell phone if the phone is in your name and the number is assigned to you personally. The use of electronic mail and text messages on cell phones or smart phones means that the search of such devices by law enforcement will continue with more cases to be decided by the courts.

A full text of the United States Sixth Circuit Court of Appeals Opinion can be found at:

This case is not yet final and cannot be cited as authority until then.

Know your rights and stay within the law.

For more information about personal legal issues click on Read More

About Our Law Firm

Nicholas M Nighswander PLLC Attorney at Law was established to help clients with their personal legal problems. We do not represent big businesses and corporations. Your legal problem is our problem and we want to have a positive impact with you in doing the best to solve it.

Nicholas M Nighswander PLLC Attorney at Law
(859) 746-1259

e-mail address:


Thursday, August 30th, 2012

A New Plaintiff’s Firm (Private Investigation, Medical Malpractice and Products Liability) is seeking a young associate attorney.

Multiple offices, some travel and must have excellent writing and research skills.

Please email resume in full confidence to to be forwarded to the firm in request. Please place Code-B Resume in the subject line.


Julie L. Jones

NKBA Executive Director

P: (859) 781-1300, Ext. 104

F: (859) 781-1277


Thursday, August 30th, 2012

In April of 2012 LawReader asked the President of the KBA to provide information about the expenditures of the KBA for outside counsel. Then President Maggie Keane never responded to LawReader’s request. The new President of the KBA took office in July 2012. We wrote him and he provided the following response (see below).

President Myers was apparently informed that his predecessor had given this information to LawReader. We never received such information.
We have reviewed President Myers letter and while we appreciate his courtesy we find his response to be incomplete in a significant manner.

President Myers reported to the Lexington Herald Leader that the KBA has expended a sum in the “low 200,000′s” to pay the law firm of Stites & Harbison for their defense of the KBA in the John M. Berry Jr./ACLU lawsuit regarding the attempt by the Inquiry Commission to chill Berry’s right of free speech by the issuance of a “warning letter”. The Sixth Circuit Court of Appeals found in favor of Berry and the ACLU and awared them court costs and attorney fees of some $191,000. So the admission by President Myers that the KBA had paid (or is liable for) the Stites and Harbison fee admits that this attempt to limit an attorneys free speech rights has cost the KBA close to $400,000. No mention is made by President Myers to the Stites and Harbison fee in his following letter to LawReader.

President Myers told the Herald Leader that they had insurance coverage for this $400,000 legal bill. No explanation is given as to any deductible in the insurance policy that will have to be covered by the KBA. No mention is made of the increased insurance premiums that will be sure to follow by the award against the KBA. The licensed attorneys in Kentucky will have to pay any deductible and any increased premiums.

President Myers states in his letter that the Board of Governors authorizes the hiring of outside counsel. President Myers was on the Board of Governors when the decision to hire outside counsel, and the decision to fund this attempt to limit attorneys free speech rights was made. President Myers in his Herald Leader story pointed the blame at the Kentucky Supreme Court…”the Supreme Court appoints the members of the Inquiry Commission”. This statement does not mention the fact that the Board of Governors has the power to hire and fire the Bar Counsel office attorneys. The Bar Counsel prepared charges against Berry, prosecuted the charges, and was present when the Inquiry Commission found Berry guilty, chose to dismiss the complaint but still decided to issue a “warning letter”. The Bar Counsel is the instrument of the Board of Governors. The Supreme Court merely appoints a number of people to serve on the Inquiry Commission but have no control over the conduct of the Inquiry Commission, and are not present when the Inquiry Commission considers the charges filed by the Bar Counsel.

President Myers also suggests that the information we have requested is readily available. We have searched the KBA website and have found a budget and audit report, but that report does not state anything about outside attorney fees. If someone can direct us to this information we will be glad to report its existence. Our request for financial information concernng the funding by the KBA of the Berry appeal, fails to mention how much the KBA paid Stites and Harbison in 2009 and 2010…the following letter from President Myers to LaweReader only discusses fees paid in 2011 and 2012. We also recall that earlier this year the KBA asked for an additional $100,000 funding for the Bar Counsel’s office. What was that money needed for?

We wish the best to President Myers as he starts his one year term as KBA President. We hope that he will take time to weigh the significance of the Sixth Circuit’s ruling regarding attorneys free speech rights. The ruling of the Sixth Circuit does not repeal this rule used by the KBA to prosecute Berry, it merely found that in the facts “as applied” to the Berry case were unconstitutional. This means that President Myers and the Board of Governors can in the future see this same rule cited against an attorney. Will President Myers call on the Supreme Court to change this rule? Will President Myers announce a strong policy for the KBA to respect free speech rights of lawyers? Will President Myers take the opportunity to make the entire KBA more transparent? Will President Myers take the attitude that he represents the Board of Governors or will he recognize that he represents all 17,200 Kentucky lawyers? Will President Myers conduct a review of the conduct of the KBA which lead to these charges even being filed against Berry and will the need for accountability of the Bar Counsel’s office be recognized. We have heard reports that the KBA is looking for a new Bar Counsel and have written a list of job requirements. Will those job requirements provide for accountability to the Board of Govenors and to the KBA President? Will President Myers do anything to limit the heavy curtain of secrecy which hides most KBA actions?

The message sent to the KBA and other state Bar Associations by the Sixth Circuit Court of Appeals is that lawyers have constitutional rights, and that a failure of State Bar Associations to respect those rights can be a foolish and costly endeavor. The response LawReader has received from attorneys across the state concerning these issues is that the KBA is hostile to most lawyers. The Berry ruling of the Sixth Circuit has become a national issue and is discussed in newspapers and law journals across the nation. This provides President Myers the opportunity to redirect the anti-attorney direction the KBA has taken over the last few years.


(502) 564-3795
FAX (502) 564-3225
www.kv bal~o rg

Douglas Myers
Phone: (270) 886-6800
Fax : (270) 88S-71D

Reply to:
Post Office Box 1065
Hopkinsville, K Y 42241-1 06~
E–mail: dmyers@dmlfirm

August 29, 2012
Judge Stan Billingsley
314 7th Street
Carrollton, Kentucky 41008
RE: Kentucky Bar Association
Dear Judge Billingsley:


Thank you for your letter of July 19, 2012. In your letter, you mentioned that you had
written to Margaret Keane, my predecessor as President of the Kentucky Bar Association
(KBA), concerning the extent of KBA funds which were being spent on outside counsel. It is my
understanding that Ms. Keane had replied to you on this matter. At any rate, I would like to
address the issues you have raised in your letter.
First, you make the statement that Bar Counsel’s expenditure is $1,700,000.00, Being
precise, “Disciplinary and Unauthorized Practices” spent $1,753,745.00 in fiscal year ending
June 30, 2011. This includes the operation of the entire disciplinary system as well as
management of unauthorized practices activity. Professional fees within this amount were
$96,659.00. By far, the largest portion of these professional fees were spent for court reporters
and Sheriff’s service fees. Outside counsel is, on very rare occasions, employed in specific
cases only when the Bar Counsel office may have a conflict of interest.
The KBA does not use Bar Counsel’s office for representation in litigation in which the
KBA may be involved as a party. In these cases, the KBA employs outside counsel rather than
using the attorneys within the office of Bar Counsel whose role is to prosecute discipline cases
before the KBA Employment of outside counsel in these cases is approved by the Board of
Governors. In the fiscal year ending June 30, 2011, outside professional services were incurred
in the amount of $58,348.00, This represented fees to lawyers involved in providing legal
counsel in non-litigation matters and to counsel in civil suits in which the KBA or related entities
were named as a party. For the fiscal year ending June 30, 2012, the amount for outside
services is $58,292.73 (This amount has not yet been audited).

August 29, 2012
Page Two

You also made the comment in your letter of July 19, 2012, that you would think that
financial information about the KBA should not be considered confidential. As you have been
advised in the past, KBA budgets and audit reports are published and available, not only to
members, but to the general public.
Thank you again for your interests in these matters.

JUDGE BANS LICENSED ATTORNEY FROM APPEARING IN HIS COURTROOM – No explanation given to support this banishment order

Thursday, August 30th, 2012

LawReader has received several reports from Williamsburg in Whitley County concerning the conduct of Whitley Circuit Court Judge Dan Ballou.
LawReader has obtained a copy of a court order which was sent to a local attorney and to Paul E. Braden Chief Circuit Judge for the Whitley Circuit Court and to Kentucky Chief Justice John D. Minton Jr., in 2009.
The court order is a public record. The order states:
“IT IS HEREBY ORDERED that on days when Circuit Court is in session for Division 1, XXXX XXXX (we have omitted the attorneys name), shall not be present in the Judge’s Chamber or the non-public access secured area, as Mr. XXXX (we have omitted the attorneys name), has no cases in Division I, and to avoid disruption while the Court is conducting official business.”
/s/ Dan Ballou, Judge
Whitley Circuit Court – Division I”

This court order does not cite any legal authority for a blanket order forbidding a licensed attorney to enter his courtroom. The court order does not provide any findings of fact justifying the alleged threat of “disruption” of his court, nor does it cite any incidents where the attorney has actually disrupted a hearing or trial. LawReader invited a response and explanation from Judge Ballou but he has ignored our request for his version of this story.

No other judge in the 34th. Judicial District has barred this attorney from practicing in their courtrooms. We have been informed that local attorneys have obtained video tapes of the Judge Ballou’s conduct during hearings and trials, and that these videos are being passed around in Whitley County. We have not seen these videos and don’t know what they reveal.
It is reported that on one occasion the banned attorney happened to be in the courthouse on business, and was approached by two Deputy Sheriff’s and told that he could not remain near Judge Ballou’s courtroom or he would be arrested at the direction of Judge Ballou. This suggests that the order effectively bans the attorney from the Whitley Counthy Courthouse when Judge Ballou is also in the building. On another occasion the judge called the city police to assist the deputies in keeping the attorney away from Judge Ballou. We have no reports of any improper conduct by the attorney.

The Supreme Court of Kentucky has issued rules regarding the admission of lawyers to practice law. If the Bar Association licenses an attorney to practice law, this gives him the right to practice in all courts in the Commonwealth. Those Supreme Court rules do not grant trial judges the right to unilaterally determine who may be qualified to practice in their court.

This court order remains a standing order in Whitley County. While the court order of Judge Ballou mentins his chambers and private areas of the court house, in practice the attorney has been threatened with arrest for being in the courthouse when Judge Ballous is also in the courthouse.

Such a policy appears to be in violation of Canon 3 of the Code of Judicial Conduct which applies to all Kentucky judges.

“(4) A judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, and of staff, court officials and others subject to the judge’s direction and control.”

We know of no rule or law that allows a sitting judge to ban a lawyer from his courtroom without a hearing. It is one thing to order an attorney who disrupts a trial to be banned from the courtroom during that trial, but a blanket order restricting the attorney from ever entering his courtroom appears overly broad, and appears to violate the constitutional right of public trials.

If there is a justifiable reason for Judge Ballou’s banishment order, it was not disclosed in his order.
Other reports published in 2011 cite a sanction of Judge Ballou for improper campaigning for political candidates.

Whitley County judge charged with misconduct over campaign issues
January 28, 2011

By Beth Musgrave –

“FRANKFORT — A Circuit Court judge for McCreary and Whitley counties has been charged with two counts of judicial misconduct for contributing money to U.S. Sen. John McCain’s presidential campaign and for sending campaign material touting U.S. Sen. Rand Paul to other judges via e-mail.
Circuit Judge Daniel Ballou of Williamsburg was charged by the Judicial Conduct Commission in November for contributing $562 to McCain’s campaign in 2008. Ballou also sent out an e-mail in January 2010 about Rand Paul’s stance on the 2nd Amendment. The e-mail was sent to dozens of people.
The judicial canons, which govern judicial conduct, say a judge “shall refrain from inappropriate political activity.” According to the canons, political activity includes soliciting funds or making contributions to a political organization or candidate. The canons also say a judge can not publicly endorse or oppose a candidate for public office. “

The Associated Press reported:
“A circuit court judge for McCreary and Whitley counties has been publicly reprimanded for sending campaign materials via email to all Kentucky circuit court judges last year touting Republican Rand Paul’s bid for the U.S. Senate.
The commission said Ballou violated the state judicial conduct code by publicly endorsing Paul for public office and by engaging in political activity. Ballou agreed to the commission’s order.
Ballou sent an email in January 2010 about Paul’s stance on the Second Amendment dealing with the right to bear arms.
Ballou denied all the allegations in a motion filed with the Judicial Conduct Commission on Jan. 21.
The Judicial Conduct Commission took the action Monday against Circuit Judge Daniel Ballou who serves in McCreary and Whitley counties.
Ballou had acknowledged that he sent the email containing Paul’s campaign material to more than 50 other judges across the state. The commission determined that to be a violation of judicial rules that prohibit judges from endorsing political candidates and engaging in political activity.”

The Associated Press Reported on Sept. l9, 2011 that Judge Ballou had been reprimanded publically by the Judicial Conduct Commission.
Recent reports to LawReader state that Judge Ballou received a sanction letter from the Judicial Conduct Commission, and that he had the sanction letter autographed by Senator Rand Paul and that the autographed letter was posted on the Judge’s office wall.

The KBA Bar Counsel’s Office recently criticized an attorney for not being sufficiently “contrite” after he was sanctioned. LawReader does not believe that an attorney or a judge who is sanctioned must be “contrite” ….but in any event Judge Ballou is certainly proud of his sanction by the Judicial Conduct Commission.

We find it strange that Senator Rand Paul would autograph a sanction letter against a judge. The campaign donation by Judge Ballou went to Senator Rand. The sanction directly involved Judge Ballou’s support of Senator Paul. We wonder if Senator Paul is helping Judge Ballou thumb his nose at the Judicial Conduct Commission and at the same time demonstrating his support of Senator Paul.

Other claims from Whitley County state that Judge Ballou has posted political campaign posters on his judicial office wall. Judge Ballou was presented with this allegation by LawReader and he has not confirmed or denied this report.

The Judicial Canons that apply to the allegations re: Judge Ballou’s conduct are Canon 5 and Canon 2:

A. Political Conduct in General.
(1) A judge or a candidate for election to judicial office shall not:
(a) act as a leader or hold any office in a political organization;
(b) make speeches for or against a political organization or candidate or publicly endorse or oppose a candidate for public office;
(c) solicit funds for or pay an assessment or make a contribution to a political organization or candidate,… “


“A. A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

“Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on the judge’s conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.”

If Judge Ballou believes his rights supercede the requirements of the Code of Judicial Conduct, then perhaps he will share his theory with LawReader. We will publish anything Judge Ballou sends us.

TORT CASE PENDING BEFORE 5th. CIRCUIT COURT OF APPEALS – Can state limit noneconomic damages?

Thursday, August 30th, 2012

Sun-Herald – Biloxi-Gulf Port Published: August 30, 2012
JACKSON, Miss. — A federal appeals court is weighing its options in a pending civil damages case from Mississippi.
The 5th Circuit Court of Appeals had delayed a decision in the case while the Mississippi Supreme Court mulled a question involving the constitutionality of the state’s limits on noneconomic damages.
This past week, the Mississippi court said it did not have enough information to decide whether the state’s limit on noneconomic damages – as applied to a federal lawsuit – is constitutional.
Now, attorneys for both sides, in letters filed with the New Orleans court over the past week, have asked the 5th Circuit to rule in their favor.
Lisa Learmonth filed suit in federal court after she was injured in a collision with a Sears van near Philadelphia, Miss., in 2005.
A federal jury in 2008 determined Sears was liable for Learmonth’s injuries and awarded $4 million in damages but the panel did not itemize how much of the award was noneconomic damages.
Learmonth and Sears agreed $2.2 million of the verdict was for noneconomic damages. A federal judge reduced that part of the damages to $1 million in line with Mississippi law.
Attorneys for Learmonth told the 5th Circuit that the Mississippi court’s action means Learmonth should receive the full damage award decided by the federal jury.
Sears’ attorneys said the Mississippi court’s decision was meant not to tie the 5th Circuit’s hands in addressing the noneconomic damages question. They said noneconomic damages limitation should be upheld.
The $1 million cap on noneconomic damages applies to what a jury can award someone for such things as pain and suffering. The limits on damages were adopted by Mississippi lawmakers after years of contentious wrangling over tort changes.
Noneconomic damages under Mississippi law do not include punitive damages.
There is no cap on damages for economic losses, such as how much the person could have expected to earn in his or her lifetime or for such things as continuing medical expenses.
The initial limits on lawsuit awards came in 2002. The law was amended in 2004 amid complaints that the initial changes didn’t go far enough.

Read more here:


Wednesday, August 29th, 2012

LawReader has been seeking information since April of this year regarding the cost of the KBA ethics prosecution of John M. Berry Jr. We have speculated that the total cost to the KBA will approach $400,000. In a Lexington Herald-leader story President Myers admitted that the legal bill to Stites & Harbison was “in the low $200,000’s. “ That could be anything from $200,000 to $250,000.
We believed that Stites & Harbison earned every penny of their fee. The issues were extremely complex, and a highly skilled legal counsel was necessary. But we suggest that the dues paying members of the bar should be informed of the expense of this outside counsel and other outside counsels hired by the KBA when they determined that their nine full time lawyers were up to the skill level required for defending a case in Federal Court.
President Myers said that their insurer will cover this award.
The insurer is not the insurance carrier linked to the KBA. We have not been able to learn the name of the actual insurer.
We believe it is reasonable to assume that the insurance premium of the KBA will go up next year and the dues paying members of the bar will be charged for this expense in increased premiums.
President Myers has spoken to the press, and we wish he would come clean and speak frankly with the members of the bar who ultimately are liable for this obligation.
We believe the Supreme Court should be informed of the reasons they KBA is hiring outside counsel, and the KBA should disclose to the Supreme Court and the bar members the reasons they chose to defend the Berry free speech case which attempted to limit the constitutional rights of attorneys.
We note that the Sixth Circuit Ruling was an “as applied” decision. That means that the underlying Supreme Court Rule could still be used against a Kentucky lawyer with a different fact situation.
This message from the Sixth Circuit merits an amendment of the Supreme Court rule limiting the free speech of lawyers.

Chevron fire: Legal industry fares poorly – California Bar Crossed Line Between Prosecution and Persecution

Wednesday, August 29th, 2012

By Richard Zitrin Monday, August 20, 2012

Within two days of the Aug. 6 Chevron refinery fire that inundated Richmond with clouds of black smoke, a swarm of lawyers and their representatives descended on the city streets. Flyers appeared with the names and photographs of lawyers who stood ready to take on cases against the oil company. “File a claim with me and get the compensation you deserve!!!,” read one.
It is unfortunately the rule rather than the exception that when big accidents happen, the legal system rarely is at its best. Plaintiffs’ lawyers troll for clients, while company lawyers help set up claims centers to settle as cheaply as possible. And the State Bar’s enforcement division sometimes makes things worse, as it apparently did during the aftermath of the Chevron Richmond refinery fire.
It’s unethical for attorneys to solicit potential clients at the scene of a disaster or accident, or at nearby hospitals. But that doesn’t stop lawyers looking for big bucks from hiring cappers and runners to hand out flyers or to provide other encouragement to hire their bosses. Yet, for those claiming serious injury, a quick settlement without filing a lawsuit is rarely the way to maximize recovery.
The day after the fire, Richmond attorney Nick Haney arrived at his storefront office to find dozens of prospective clients lined up to request his services. Later that day he posted a sign that read, “Chevron Claims Filed Here.”
Chevron quickly opened its own nearby storefront office, which sported a similar sign: “Claims Help Center.” Chevron promised checks within 30 days – a policy that is both good PR and a good way to settle on the cheap.
On Aug. 9, State Bar investigators, most likely reacting to The Chronicle front-page picture of the crowd outside Haney’s office, headed to his storefront. Even though there was no evidence Haney had solicited anyone – his prospective clients had come to him, and his assistants had moved out to the sidewalk to gather information from them – the State Bar investigators handed out an intimidating flyer to those waiting in line.
The investigators then entered Haney’s office. It must have seemed to those who viewed the event on a KTVU-TV evening news report that the State Bar had raided Haney’s offices, possibly because investigators refused to explain their presence or purpose to the media.
That may have driven some people to participate in Chevron’s claims process rather than hiring their own lawyer.
By Aug. 10, according to reports in The Chronicle, Chevron had a modest lead in the claims race: 3,800 for Chevron versusabout 3,000 individuals Haney expected to represent. According to one report, Haney said he would try to settle cases before having to file lawsuits; meanwhile, lawsuits for multiple plaintiffs were being filed by other attorneys.
Even those lawyers who do file suit may face conflicts of interest among their clients, whose injuries may range from mild bronchitis to severe asthma or worse, and whose damages may range from hundreds of dollars to hundreds of thousands of dollars. When harm is so individualized, cases can’t be lumped into one class action.
That means lawyers must file cases on behalf of many, even hundreds of, clients. They are duty-bound to serve each of those individuals as fully as a single accident victim. How they balance those duties among hundreds remains a mystery.
The State Bar, which is charged with disciplining lawyers, does not (and perhaps cannot) do much about lawyers who represent too many clients at once. When it comes to unlawful solicitation, the State Bar sometimes does better, but not this time.
Putting a sign in a storefront window that says “Chevron Claims Filed Here” is a general advertisement. It is neither unlawful nor unethical. Those in line at Haney’s storefront office appeared to be soliciting his help, not the other way around.
But the investigators’ actions, coupled with the State Bar’s habitual silence and opacity, made it look like he had done something wrong. When Haney called to ask if he were being investigated, the investigators, in keeping with their no-comment policy, refused to say or explain the policy.
In the aftermath of the refinery fire, no one involved with the legal system came out looking good. Not the Chevron lawyers, who helped create its shortcut claims process. Not the plaintiffs’ lawyers whose runners handed out flyers on the street, nor those who gathered thousands of clients or filed quickie lawsuits. And not the State Bar, which itself crossed the line between prosecution and persecution.
© 2012, Richard Zitrin
Richard Zitrin is a trial lawyer and professor of legal ethics at UC Hastings College of the Law. Similar commentary first appeared in the San Francisco Recorder

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UK Law Grad Suggests New Concept For Law School Education – Not New Buildings

Wednesday, August 29th, 2012

By UK Law School Grad, Stan Billingsley – Class of ‘71

I like the idea of renovating the current UK Law School. But we need other changes in future planning for the UK law school.

The new law palace previously planned assumes that the number of law graduates will increase each year. In the real world I see a saturation of attorneys looking for jobs.

When we had two law schools we were doing fine, but Chase Law School was opened and the number of lawyers has grown dangerously. Today law school graduates can’t find jobs. We don’t need more graduates we need better trained graduates.

When I graduated in 1971 there were about 3,700 lawyers in Kentucky and now there are 17,200 as of 2012. When I got out anyone could hang out a shingle and make a living…not so today.

I understand that a law degree has more uses than the practice of law….but I don’t see any curriculum at law schools training anyone for anything but the practice of law.

In the book The “Godfather”….the Irish kid they took in was sent to law school by the Godfather…but when he graduated he was not allowed to represent the Carleone “Family” until he had worked for a law firm for three years.

Today I see a great need for courses at Law Schools on topics such as:

How to write a deed. How to search a title. How to form a corporation. How to file a bankruptcy. How to write pleadings. and most importantly, How to manage a law office…file worker’s comp. claims, filng tax forms, setting up trust accounts, and how to meet KBA rules for dealing with client’s funds etc. I don’t recall any of those classes back in l971.

These classes are needed today by current lawyers to retrain them for the needs in the marketplace. We need better focused legal education and not just a new building to keep on doing the same old, same old..!

Unless the curriculum has changed, I believe we are still teaching the subject of legal theory…and this is very important…but we would do well if the law schools would provide the “How To” training that even the KBA is not providing. (The KBA CLE program does good work, but their topics are limited to one or two hour lectures and don’t provide comprehensive “How To” training on specific subjects.)

Why couldn’t UK and the other law schools have one week or two week “summer camps” for lawyers at the law schools. The lawyers would be taught the actual skills needed in a law practice. I would suspect that the tuition earned from these “summer camps” for lawyers would easily fund the classes.

I have heard one professor express the opinion that training in the actual practice needs of a lawyer were frowned upon by many law professors. This training is not beneath the dignity of the legal education profession, it is the very essence of the profession.

The idea of building a brand new law palace for UK may have passed it’s moment. The need for a more comprehensive legal education is desperately needed.

I see the current need is a new way to train lawyers to be able to leave the law school and know how to help a client the next day. This should be supplemented with continuing legal education in practical “How To” practice law issues.

The plans for a new building are bold, but in reality, the needs of the legal community has changed.


Tuesday, August 28th, 2012

Damon W. Root |Aug. 28, 2012
In a recent article at SCOTUSblog, New York University law professor Richard Epstein wondered if Mitt Romney’s selection of Paul Ryan as his running mate signals a broader return to limited government principles by the GOP, including when it comes to the selection of future Supreme Court justices.
Epstein writes:
What will the future bring? My hope is that the Republicans will run a principled campaign that stresses the need for sustainable social institutions, so that the task of national repair can take place not only on the executive and legislative fronts, but on the judicial front as well. There are many domestic issues that command attention but none is more important than the simple question of how big a government? And for what ends? Much of the blame for the current economic impasse comes from the Supreme Court’s penchant to defer to the political branches when they hatch their multiple schemes of special taxation and special subsidy. Change that attitude and over time a profound reorientation of our constitutional culture might help the United States get out of its current economic and social malaise. Do business as usual and there will be economic stagnation – the new normal – stretching into the indefinite future.
The Supreme Court’s repeated failure to act as any sort of meaningful check against regulatory overreach is indeed a very serious problem. But I’m not so sure Romney and Ryan are prepared to offer a viable solution. As Epstein noted in his article, judicial abdication on economic matters is a bipartisan affair. Both liberal and conservative justices now routinely “give both the federal and state government carte blanche on general economic regulation.”
That approach was evident most recently in National Federation of Independent Business v. Sebelius, where Chief Justice John Roberts joined the Court’s liberal bloc and cast the deciding vote to uphold Obamacare, a decision he justified as a matter of judicial deference. “It is not our job,” Roberts wrote, “to protect the people from the consequences of their political choices.” So much for checking the misdeeds of the other branches.
Yet if you visit Mitt Romney’s official campaign website,you’ll learn that if elected president, “Mitt will nominate judges in the mold of Chief Justice Roberts.” That’s not exactly reassuring.
It’s also notable that the Romney campaign selected former federal appeals court Judge Robert Bork to head up its Justice Advisory Committee, which advises the campaign “on the Constitution, judicial matters, law enforcement, homeland security, and regulatory issues.” Bork is of course a revered figure among legal conservatives, but he’s also a strong advocate of the very same judicial philosophy practiced by Roberts in the Obamacare case. Indeed, Bork has long endorsed a majoritarian version of judicial restraint that grants lawmakers vast leeway to regulate both social and economic matters. As Bork once put it, “In wide areas of life, majorities are entitled to rule, if they wish, simply because they are majorities.”
So when it comes to the pressing issue of judicial pacifism at the Supreme Court, Romney and Ryan still appear to be on the side of business as usual.

Respected Attorney Harry D. Rankin Passed Away Sunday – He will be missed.

Tuesday, August 28th, 2012

By Judge Stan Billingsley (Ret.)
Harry was always prepared when he came in the courtroom, and was considered to be highly credible on any argument he made before my bench. He was a pleasure to see and talk with. He will be missed.
The Northern Ky. Bar Association announced:
Harry D. Rankin, 58, of Ft. Mitchell, died Sunday, August 26, 2012. He was an attorney with Sutton Rankin Law in Edgewood. He is survived by numerous immediate family members including his wife, Jimmie Hurt Rankin and his son, attorney Otwell S. Rankin (B. Dahlenburg Bonar Law Firm)
A memorial service will be held at 11 a.m. Saturday, September 1, 2012 at Immanuel United Methodist Church, 2551 Dixie Highway, Lakeside Park, KY 41017. Private burial Forest Lawn Memorial Park, Erlanger.
A reception will immediately follow the service at the Church fellowship hall.
Online condolences can be made at

Rest In Peace Harry Rankin

Until I have a radio voice again next week, you will have to read much which I would have spoken.

Who was Harry Rankin? Many of you either know he was an attorney or maybe heard of the name. Others have never heard of him. I could never be called a member of his inner circle or a close personal friend. I would characterize myself as a professional friend.

Those who know the Rankin family from Fort Mitchell know three Rankin boys-Tom, Dick and Harry became a doctor, accountant and lawyer. Can’t make that stuff up.

Harry practiced in various law firms during his career. In all my dealings with him, he was always and I mean always, a gentleman. In candor, sometimes I couldn’t believe how congenial he was. I even thought he must be phony he was so nice. I thought this can’t be real. One case he was involved in on the other side of me was the Funnybone case.

Over the years I learned Harry was not phony, but genuine. Here’s this lawyer who dresses like “country clubber,” has perfect hair, grew up in Fort Mitchell, hangs out with many “country clubbers,” is like a grown up boy scout, but he’s not only not a snob, he’s a genuinely good guy. He kinda reminded me of Mitt Romney. Harry may resent that comparison since he was a Democrat, but that helps me paint the picture for those who didn’t know Harry. He even did some Plaintiff’s work for God’s sake. I knew he had to have a heart.

Last week a mutual friend contacted me to see if I was interested in having Harry join my firm. I loved the idea.

Having a lawyer who had practiced even longer than me; did so in Ohio and Kentucky; had handled all kinds of cases; had experience; who everyone liked; with the last name of Rankin; and had relationships with a group I didn’t have relationships, was very appealing to me.

The next day Harry and I spoke by phone. I told him that I only took on partners. No associates. I offered him a position as my partner and he seemed excited for the opportunity. I was excited for the opportunity. We planned breakfast the next day, a Friday, to seal the deal. The early morning of Friday, I received a text from Harry that he had to cancel.

When I heard Harry died a few days later, I couldn’t believe it. I became distraught. Distraught over the death of someone I hardly knew, but knew deserved better.

My new favorite word after my bar battle is humanity. My favorite people are those who show humanity to others who need it and deserve it. Harry Rankin always revealed a humanity to others. God bless you and your family Harry. You were a good man and a good lawyer. I wish we could have been partners and fought the battles together

Issues Re: Eligibility of George Romney and John McCain to Run for U.S. President Appears to Answer Birther Issue Against President Obama

Monday, August 27th, 2012

August 27, 2012

The birther faction attacks the right of President Obama to be President due to his alleged birth in Kenya. Obama was born to an American citizen, and therefore even if he had not been born in the U.S., under the issues raised in l967, President Obama would be eligible to serve as President no matter where he was born according to substantive law.

But of course President Obama has proven he was born in Hawaii, and the issue is double-moot.

Nevertheless we find it interesting that two Candidates for the U.S. Presidency (George Romney and John McCain) were not born in the U.S. and no serious challenge to their eligibility to be declared “natural born” citizens was applied to them. Senator McCain never revealed his birth certificate to the public.


George Romney born in Mexico:

Questions were occasionally asked about Romney’s eligibility to run for President due to his birth in Mexico, given the ambiguity in the United States Constitution over the phrase “natural-born citizen”.[2][3] His Mormon paternal grandfather and his three wives had fled to Mexico in 1886, but none of them ever relinquished U.S. citizenship. Romney’s parents chose U.S. citizenship for their children, including George.[4] The family fled Mexico and came to the United States in 1912 during the Mexican Revolution.

By February 1967, some newspapers were questioning Romney’s eligibility given his Mexican birth.[5] In May 1967, the Democratic chair of the House Judiciary Committee, Emanuel Celler, said he had “serious doubts” about whether Romney was eligible, but had no plans to formally challenge the matter.[2] Another member of Congress made a case against Romney the following month.[5] In response, the New York Law Journal published an article by a senior attorney at Sullivan & Cromwell arguing that Romney was, in fact, eligible.[5] The Congressional Research Service also came down on Romney’s side,[5] as did most other constitutional experts at the time.[2]

During the campaign, Romney was generally considered a viable and legal candidate for United States president. He departed the race before the matter could be more definitively resolved,[3] although the preponderance of opinion since then has been that he was eligible.[6]

Status as a natural-born citizen of the United States is one of the eligibility requirements established in the United States Constitution for election to the office of President or Vice President. This requirement was intended to protect the nation from foreign influence.

The Constitution does not define the phrase natural-born citizen, and various opinions have been offered over time regarding its precise meaning. A 2011 Congressional Research Service report stated.

The weight of legal and historical authority indicates that the term “natural born” citizen would mean a person who is entitled to U.S. citizenship “by birth” or “at birth”, either by being born “in” the United States and under its jurisdiction, even those born to alien parents; by being born abroad to U.S. citizen-parents; or by being born in other situations meeting legal requirements for U.S. citizenship “at birth”. Such term, however, would not include a person who was not a U.S. citizen by birth or at birth, and who was thus born an “alien” required to go through the legal process of “naturalization” to become a U.S. citizen.[1]

According to an April 2000 report by the CRS, most constitutional scholars interpret the natural born citizen clause as to include citizens born outside the United States to parents who are U.S. citizens. This same CRS report also asserts that citizens born in the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands are legally defined as “natural born” citizens and are, therefore, also eligible to be elected President.

Senator John McCain ran against Barack Obama in 2008. He was born in Panama.

John McCain (born 1936), who ran for the Republican party nomination in 2000 and was the Republican nominee in 2008, was born at Coco Solo Naval Air Station[59][77][78][79][80][81][82] in the Panama Canal Zone.

McCain never released his birth certificate to the press or independent fact-checking organizations, but did show it to Washington Post reporter Michael Dobbs, who wrote “a senior official of the McCain campaign showed me a copy of [McCain's] birth certificate issued by the ‘family hospital’ in the Coco Solo submarine base”.[79] A lawsuit filed by Fred Hollander in 2008 alleged that McCain was actually born in a civilian hospital in Colon City, Panama.[83][84] Dobbs wrote that in his autobiography, Faith of My Fathers, McCain wrote that he was born “in the Canal Zone” at the U.S. Naval Air Station in Coco Solo, which was under the command of his grandfather, John S. McCain Sr. “The senator’s father, John S. McCain Jr., was an executive officer on a submarine, also based in Coco Solo. His mother, Roberta McCain, has said that she has vivid memories of lying in bed listening to raucous celebrations of her son’s birth from the nearby officers’ club. The birth was announced days later in the English-language Panamanian American newspaper.”[85][86][87][88]

The former unincorporated territory of the Panama Canal Zone and its related military facilities were not regarded as United States territory at the time,[89] but 8 U.S.C. § 1403, which became law in 1937, retroactively conferred citizenship on individuals born within the Canal Zone on or after February 26, 1904, and on individuals born in the Republic of Panama on or after that date who had at least one U.S. citizen parent employed by the U.S. government or the Panama Railway Company; 8 U.S.C. § 1403 was cited in Judge William Alsup’s 2008 ruling, described below.

A March 2008 paper by former Solicitor General Ted Olson and Harvard Law Professor Laurence H. Tribe opined that McCain was eligible for the Presidency.[90] In April 2008, the U.S. Senate approved a non-binding resolution recognizing McCain’s status as a natural-born citizen.[91] In September 2008, U.S. District Judge William Alsup stated obiter in his ruling that it is “highly probable” that McCain is a natural-born citizen from birth by virtue of 8 U.S.C. § 1401, although he acknowledged the alternative possibility that McCain became a natural-born citizen retroactively, by way of 8 U.S.C. § 1403.[92]

These views have been criticized by Professor Chin, who argues that McCain was at birth a citizen of Panama and was only retroactively declared a born citizen under 8 U.S.C. § 1403, because at the time of his birth and with regard to the Canal Zone the Supreme Court’s Insular Cases overruled the Naturalization Act of 1795, which would otherwise have declared McCain a U.S. citizen immediately at birth.[93] The U.S. State Department’s Foreign Affairs Manual states that children born in the Panama Canal Zone at certain times became U.S. nationals without citizenship.[94]

Reuters News Service:

In a paper in November(1967) aimed at clarifying presidential eligibility, the Congressional Research Service declared that the practical, legal meaning of “natural born citizen” would “most likely include” not only anyone born on U.S. soil but anyone born overseas of at least one parent who was a U.S. citizen.

Ankeny v. Governor of State of Indiana, 916 N.E.2d 678 (Ind. App., 2009)

Section 1 of the Fourteenth Amendment to the U.S. Constitution governs who is a citizen of the United States. It provides that “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States . . . .” U.S. CONST. amend XIV, § 1. Article II has a special requirement to assume the Presidency: that the person be a “natural born Citizen.” U.S. CONST. art. II, § 1, cl. 4. The United States Supreme Court has read these two provisions in tandem and held that “[t]hus new citizens may be born or they may be created by naturalization.” Minor v. Happersett, 88 U.S. (21 Wall.) 162, 167, 22 L.Ed. 627 (1874). In Minor, written only six years after the Fourteenth Amendment was ratified, the Court observed that:

The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts

Wong Kim Ark, 169 U.S. at 662, 18 S.Ct. at 462 (quoting Dred Scott, 60 U.S. (19 How.) at 576 (Curtis, J., dissenting)).

The Court in Wong Kim Ark also cited authority which notes that:

All persons born in the allegiance of the king are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.

Judicial Nominating Commission announces nominees for vacant judgeship in Adair and Casey counties

Sunday, August 26th, 2012

Judicial Nominating Commission announces nominees for vacant judgeship in Adair and Casey counties

FRANKFORT, Ky., Aug. 24, 2012 – The Judicial Nominating Commission, led by Chief Justice of Kentucky John D. Minton Jr., today announced nominees to fill the vacant Circuit Court judgeship in the 29th Judicial Circuit, which consists of Adair and Casey counties.

The three attorneys named as nominees to fill the vacancy are Jerry L. Foster, Judy Denise Vance and Ronald Brian Wright.

Foster is in private practice and is based in Liberty. He received his juris doctor from the University of Kentucky College of Law. Vance is in private practice and is based in Columbia. She received her juris doctor from Thomas M. Cooley Law School. Wright is the commonwealth’s attorney for Adair and Casey counties and received his juris doctor from the University of Kentucky College of Law.

The judicial vacancy was created by the passing of Judge James G. Weddle on April 11, 2012.

Neil Armstrong was my “shirt-tail” cousin! – Gwen Billingsley

Sunday, August 26th, 2012

Neil Armstrong was my “shirt-tail” cousin! – Gwen Billingsley

By LawReader Senior Editor Gwen Billingsley

My husband and I were saddened to learn of the passing of Astronaut Neil Armstrong on Aug. 25, 2012.

I am originally from Lebanon, Ohio, Neil and Jan Armstrong bought a farm a few miles outside Lebanon in 1974. They had 2 sons, Rick and Mark, who were close to my son’s age. Because of school activities that our children were involved in, I got to know Neil and Jan. They were lovely, gracious people.

There was an unspoken understanding that everyone was to respect the Armstrong’s privacy and NEVER speak of the “Moon Walk”.

During my son’s high school years, the Lebanon Warriors Football team was virtually undefeated and went to “state” every year. My son was on the team and Neil’s son Mark was the starting quarterback, both his junior and senior years. Because the team was so good; it became necessary to sell season tickets, for specific seats in the grandstand. Our seats were directly in front of Neil and Jan’s during the 1979 season and we became well acquainted.

One night the weather turned cold, the wind kicked up and it began to snow. My coat did not meet the challenge. Without saying a word, Neil leaned forward and wrapped me in his blanket.

Coincidentally, I was researching my genealogy. I discovered that my great, great grandmother was Catherine Armstrong; the daughter of Captain (later Col.) John Armstrong, “Famous Indian Fighter”; (Beard’s History of Butler County, Ohio) and the builder of “Armstrong’s Station” in Clark County Indiana.

The next time I saw Neil I asked him if he was descended from, Captain John Armstrong, “Famous Indian Fighter”? He grinned and said, “Yes, but I don’t know the details. My mother keeps track of all that stuff.”

As I have continued to research our ancestor, I have learned that John Armstrong had attempted the journey, later completed by Lewis and Clark to find the passage to the Pacific Ocean. He got no farther than the Missouri River. He kept great notes, which were studied by Lewis and Clark before they organized their adventure.

Neil must have been genetically predisposed to be an adventurer!

To read more about Captain (Colonel) John Armstrong:


Sunday, August 26th, 2012


LawReader has numerous search engines including FASTCASE. All of these search engines use the same format for searches.

Open the search engine and type in your search phrase or citation. Phrases or legal terms is the easiest way to find something.

How to Search

This advanced search engine supports two types of search requests. A natural language search is any sequence of text, like a sentence or a question. After a natural language search, retrieved documents are sorted by their relevance to your search request.

A boolean search request consists of a group of words or phrases linked by connectors such as and and or that indicate the relationship between them. Examples:

apple and pear

Both words must be present

apple or pear

Either word can be present

apple w/5 pear

Apple must occur within 5 words of pear

apple not w/5 pear

Apple must not occur within 5 words of pear

apple and not pear

Only apple must be present

name contains smith

The field name must contain smith

If you use more than one connector, you should use parentheses to indicate precisely what you want to search for. For example, apple and pear or orange juice could mean (apple and pear) or orange, or it could mean apple and (pear or orange).

Noise words, such as if and the, are ignored in searches.

Search terms may include the following special characters:


Matches any single character. Example: appl? matches apply or apple.


Matches any number of characters. Example: appl* matches application


Stemming. Example: apply~ matches apply, applies, applied.


Fuzzy search. Example: ba%nana matches banana, bananna.


Phonic search. Example: #smith matches smith, smythe.


Synonym search. Example: fast& matches quick.


Numeric range. Example: 12~~24 matches 18.


Variable term weighting. Example: apple:4 w/5 pear:1

Words and Phrases

You do not need to use any special punctuation or commands to search for a phrase. Simply enter the phrase the way it ordinarily appears. You can use a phrase anywhere in a search request. Example:

apple w/5 fruit salad

If a phrase contains a noise word, the search tool will skip over the noise word when searching for it. For example, a search for statue of liberty would retrieve any document containing the word statue, any intervening word, and the word liberty.

Punctuation inside of a search word is treated as a space. Thus, can’t would be treated as a phrase consisting of two words: can and t. 1843(c)(8)(ii) would become 1843 c 8 ii (four words).

Wildcards (* and ?)

A search word can contain the wildcard characters * and ?. A ? in a word matches any single character, and a * matches any number of characters. The wildcard characters can be in any position in a word. For example:

appl* would match apple, application, etc.

*cipl* would match principle, participle, etc.

appl? would match apply and apple but not apples.

ap*ed would match applied, approved, etc.

Use of the * wildcard character near the beginning of a word will slow searches somewhat.

Natural Language Searching

A natural language search request is any combination of words, phrases, or sentences. After a natural language search, the search tool sorts retrieved documents by their relevance to your search request. Weighting of retrieved documents takes into account: the number of documents each word in your search request appears in (the more documents a word appears in, the less useful it is in distinguishing relevant from irrelevant documents); the number of times each word in the request appears in the documents; and the density of hits in each document. Noise words and search connectors like NOT and OR are ignored.

Synonym Searching

Synonym searching finds synonyms of a word in a search request. For example, a search for fast would also find quick. You can enable synonym searching for all words in a request or you can enable synonym searching selectively by adding the & character after certain words in a request. Example: fast& w/5 search.

The effect of a synonym search depends on the type of synonym expansion requested on the search form. The search tool can expand synonyms using only user-defined synonym sets, using synonyms from the built-in thesaurus, or using synonyms and related words (such as antonyms, related categories, etc.) from the built-in thesaurus.

Fuzzy Searching

Fuzzy searching will find a word even if it is misspelled. For example, a fuzzy search for apple will find appple. Fuzzy searching can be useful when you are searching text that may contain typographical errors, or for text that has been scanned using optical character recognition (OCR). There are two ways to add fuzziness to searches:
1.Enable fuzziness for all of the words in your search request. You can adjust the level of fuzziness from 1 to 10.
2.You can also add fuzziness selectively using the % character. The number of % characters you add determines the number of differences the search tool will ignore when searching for a word. The position of the % characters determines how many letters at the start of the word have to match exactly. Examples:
â—¦ba%nana Word must begin with ba and have at most one difference between it and banana.
â—¦b%%anana Word must begin with b and have at most two differences between it and banana.

Phonic Searching

Phonic searching looks for a word that sounds like the word you are searching for and begins with the same letter. For example, a phonic search for Smith will also find Smithe and Smythe.

To search for a word phonically, put a # in front of the word in your search request. Examples: #smith, #johnson

You can also check the Phonic searching box in the search form to enable phonic searching for all words in your search request. Phonic searching is somewhat slower than other types of searching and tends to make searches over-inclusive, so it is usually better to use the # symbol to do phonic searches selectively.


Stemming extends a search to cover grammatical variations on a word. For example, a search for fish would also find fishing. A search for applied would also find applying, applies, and apply. There are two ways to add stemming to your searches:
1.Check the Stemming box in the search form to enable stemming for all of the words in your search request. Stemming does not slow searches noticeably and is almost always helpful in making sure you find what you want.
2.If you want to add stemming selectively, add a ~ at the end of words that you want stemmed in a search. Example: apply~

Variable Term Weighting

When sorting search results after a search, by default all words in a request count equally in counting hits. However, you can change this by specifying the relative weights for each term in your search request, like this:

apple:5 and pear:1

This request would retrieve the same documents as apple and pear but, the search tool would weight apple five times as heavily as pear when sorting the results.

In a natural language search, the search tool automatically weights terms based on an analysis of their distribution in your documents. If you provide specific term weights in a natural language search, these weights will override the weights otherwise assigned.

AND Connector

Use the AND connector in a search request to connect two expressions, both of which must be found in any document retrieved. For example:

apple pie and poached pear would retrieve any document that contained both phrases.

(apple or banana) and (pear w/5 grape) would retrieve any document that (1) contained either apple OR banana, AND (2) contained pear within 5 words of grape.

OR Connector

Use the OR connector in a search request to connect two expressions, at least one of which must be found in any document retrieved. For example, apple pie or poached pear would retrieve any document that contained apple pie, poached pear, or both.

W/N Connector

Use the W/N connector in a search request to specify that one word or phrase must occur within N words of the other. For example, apple w/5 pear would retrieve any document that contained apple within 5 words of pear. The following are examples of search requests using W/N:

(apple or pear) w/5 banana

(apple w/5 banana) w/10 pear

(apple and banana) w/10 pear

Some types of complex expressions using the W/N connector will produce ambiguous results and should not be used. The following are examples of ambiguous search requests:

(apple and banana) w/10 (pear and grape)

(apple w/10 banana) w/10 (pear and grape)

In general, at least one of the two expressions connected by W/N must be a single word or phrase or a group of words and phrases connected by OR. Example:

(apple and banana) w/10 (pear or grape)

(apple and banana) w/10 orange tree

The search tool uses two built in search words to mark the beginning and end of a file: xfirstword and xlastword. The terms are useful if you want to limit a search to the beginning or end of a file. For example, apple w/10 xlastword would search for apple within 10 words of the end of a document.


Use NOT in front of any search expression to reverse its meaning. This allows you to exclude documents from a search. Example:

apple sauce and not pear

NOT standing alone can be the start of a search request. For example, not pear would retrieve all documents that did not contain pear.

If NOT is not the first connector in a request, you need to use either AND or OR with NOT:

apple or not pear

not (apple w/5 pear)

The NOT W/ (“not within”) operator allows you to search for a word or phrase not in association with another word or phrase. Example:

apple not w/20 pear

Unlike the W/ operator, NOT W/ is not symmetrical. That is, apple not w/20 pear is not the same as pear not w/20 apple. In the apple not w/20 pear request, the search tool searches for apple and excludes cases where apple is too close to pear. In the pear not w/20 apple request, the search tool searches for pear and excludes cases where pear is too close to apple.

Numeric Range Searching

A numeric range search is a search for any numbers that fall within a range. To add a numeric range component to a search request, enter the upper and lower bounds of the search separated by ~~ like this:

apple w/5 12~~17

This request would find any document containing apple within 5 words of a number between 12 and 17.

Numeric range searches only work with positive integers. A numeric range search includes the upper and lower bounds (so 12 and 17 would be retrieved in the above example).

For purposes of numeric range searching, decimal points and commas are treated as spaces and minus signs are ignored. For example, -123,456.78 would be interpreted as: 123 456 78 (three numbers). Using alphabet customization, the interpretation of punctuation characters can be changed. For example, if you change the comma and period from space to ignore, then 123,456.78 would be interpreted as 12345678.

Opinion specific examples

For Rendered Date: put in specific date in this format: Month Date, Year i.e. June 17, 1999
For KB opinions: -KB
For subject matter: type in specific keywords i.e. death penalty, sex offender
For lower court case number: type in specific case number

You may type in any words that appear in any opinion. Be as specific as possible for fewer opinions, or more general to find a wider range of opinions. Whatever you type in must appear exactly that way in the opinion in order to be found (meaning that 6/17/99 will not return instances of June 17, 1999).

Marcus Carey Comments on Federal Award for $191,000 in fees and costs against the KBA

Sunday, August 26th, 2012

August 23, 2012

Kentucky Attorneys Eyebrows Raised

Stan Billingsley over at has a story up today regarding the efforts of the KBA to sanction a Kentucky attorney for criticism of a legislative committee. Not only did they end up losing the case, but now they have been ordered to pay $191,000 in attorney’s fees and costs. Where will that come from?

The prosecution of an attorney for making a truthful statement critical of a legislative body has raised the eyebrows of many Kentucky Attorneys. Now the attorneys who disapproved of the prosecution of Berry will have to consider the high cost of the attempt by the Kentucky Bar Association to enforce this law which was found unconstitutional as applied in the Berry case.
The Sixth Circuit ruling remanded the case to U.S. District Judge Danny Reeves to consider an award of attorney fees and costs to the successful party. Judge Reeves’s order awarded $191,588.64 in attorney fees and court costs to be paid by the Kentucky Bar Association.

In accordance with the Federal Civil Rights Act, the KBA was required to pay the attorney fees and court costs of the winning party. This large legal bill will have to come out of the pockets of Kentucky’s 17,200 lawyers, as the KBA is totally funded by the dues of Kentucky lawyers. It is possible that the KBA legal bill will be covered by some insurance policy. We would expect that if there is such insurance coverage for the KBA, that the insurance company may be reviewing the premium paid by the KBA in the light of the substantial financial consequences for violating constitutional rights of lawyers. Any premium paid for such coverage will come from the KBA dues paid by Kentucky lawyers.

Attorneys are telling LawReader that they can’t understand why the Board of Governors failed to exercise control over the Bar Counsel, Linda Gosnell, and allowed this wasteful expenditure of KBA resources to defend a rule that denies the constitutional rights of lawyers. One expert in federal litigation cases suggests that the total cost of this prosecution may have cost the KBA close to a million dollars when all the direct and indirect costs, travel expenses and costs of the KBA, and lost man hours are considered. Kentucky lawyers will now have to pay for the privilege of having their free speech rights attacked.

I’m surprised that lawyers are still wondering about such things. The third branch of government, run with an iron fist by the Kentucky Supreme Court, is the most concentrated power in the Commonwealth. Only seven people run the Judicial branch of government. It only takes four of them to bring their power to bear and, in reality, the power of the Chief Justice is immense.

Where else are the lives and livelihoods of so many lawyers, judges and court personnel not to mention the lives and liberty of all Kentuckians vested in so few?

They are determined to have their way and the cost of defending their exercise of power is easily spread among the bar so there is really no risk to them at all.

LEGAL QUESTION: DOES ESCAPE BY A CRIMINAL DEFENDANT WAIVE HIS APPEAL RIGHTS? If the escape is prior to the jury verdict is this a mistrial?

Saturday, August 25th, 2012

LawReader has been asked to answer the question about whether or not a criminal defendant waives his right to appeal if he escapes:
1. During the trial and before final verdict is issued.
2. After the verdict is entered.

We see a problem in the attorney signing appellate pleadings without verification by the defendant, but we find no clear authority for this situation.
We would suspect that if a defendant escapes that he waives his right to appeal. If he escapes before the jury enters a verdict, we Would believe there is a mistrial and there is no verdict to appeal.
Is it possible that when the defendant escapes while the jury is considering the verdict, that they may continue to deliberate and is it necessary for the defendant to be present when the verdict is read? It would appear that such an escape would waive his right to be present….
We would appreciate any opinions on this unusual question.

Thank you,
Stan Billingsley, Senior Editor