Archive for October, 2012

DID REPUBLICANS JUST SAVE THE VOTING RIGHTS ACT? Will U.S. Supreme Ct. Find the Act is Still Needed?

Sunday, October 14th, 2012

By Andrew Cohen Quoted from The Atlantic Oct 13 2012,
Ironically, the furor over voter ID will make it hard for Supreme Court conservatives to justify striking down one of the Act’s key provisions.
One year ago, maybe even six months ago, conventional wisdom had it that a key provision of the Voting Rights Act was in jeopardy, susceptible to another aggressive ruling by a very conservative United States Supreme Court. The five Republican-appointed justices would rule, the theory went, that there was no longer a need for local lawmakers to “pre-clear” voting laws or gerrymanders with federal officials, because Section 5 of the Voting Rights Act had been so successful since its implementation that it was no longer necessary to protect minority rights.
Justice Clarence Thomas, a black man who grew up in Georgia, one of the states “covered” by the Voting Rights Act because of its long history of racial discrimination, said so himself just a few years ago. In Northwest Austin Municipal Utility District v. Holder. a 2009 decision in which the Court uneasily upheld the Voting Rights Act, Justice Thomas declared, as the lone dissenter, that:
The extensive pattern of discrimination that led the Court to previously uphold §5 as enforcing the Fifteenth Amendment no longer exists. Covered jurisdictions are not now engaged in a systematic campaign to deny black citizens access to the ballot through intimidation and violence. And the days of “grandfather clauses, property qualifications, ‘good character’ tests, and the requirement that registrants ‘understand’ or ‘interpret’ certain matter,” are gone. There is thus currently no concerted effort in these jurisdictions to engage in the “unremitting and ingenious defiance of the Constitution,” that served as the constitutional basis for upholding the “uncommon exercise of congressional power” embodied in §5 [citations omitted by me].
So when a live challenge to Section 5 was turned back this May by the D.C. Circuit Court of Appeals, when the judges there noted the provision’s viability in yet another decade of election strife, many people reckoned the Court would take the case styled Shelby County v. Holder, overturn the lower court, and narrow or strike down outright the contested statutory provision. These folks may yet be proven right. The Supreme Court still has not decided whether it will accept for review the Shelby County (Alabama) case. We should know in about a month.
But whether the Court does or does not seek to re-enter this battlefield, none of the justices, including Justice Thomas, will be able to say with a straight face that Section 5′s usefulness has come and gone. Over and over again in the past few months, in states covered (Texas, Florida, and South Carolina) and not covered (Ohio, Wisconsin, and Pennsylvania) by the Voting Rights Act, the statute has been cited, and relied upon, to successfully block partisan voting laws designed to make it harder for minorities to vote or to have their votes counted.
The image of the statute’s usefulness — its necessity, really — has been bolstered by zealous GOP lawmakers (and their ALEC sponsors) who have overreached with new voter ID, early voting, and registration laws. The purpose of the laws, the legislative history that preceded them, and the trial testimony that followed them, vitiate the argument that “patterns” of official racial discrimination no longer exist. Yes, the laws on their face are racially neutral. But, as one court after another has noted, the laws’ disparate impact upon minority voters is clear.
So Justice Thomas can no longer say, even in a lone dissent, that “covered jurisdictions” under Section 5 “are not now engaged in a systematic campaign to deny black citizens access to the ballot” or that there are “currently no concerted effort in these jurisdictions to engage in the ‘unremitting and ingenious defiance of the Constitution.’” For what are these new state voting laws but “unremitting and ingenious” efforts by Republican lawmakers to make it harder, or impossible, for some registered voters to vote?
What else do you call restrictive voting laws that do not prevent the problem (in-person voter fraud) that they purport to prevent? What else do you call restrictive laws that are enacted by legislators who believe that the ill and the elderly, the poor and the dispossessed, who do not have new state-issued photo identification cards, are “lazy” for failing to get them? What else do you call restrictive voting laws whose sponsors proclaim in public that they are designed to ensure election success for one candidate over another?
These laws are “ingenious” in the sense that they are based upon a lie — the lie that registered voters don’t already have an obligation to identify themselves when casting an in-person ballot. The vast majority of those registered voters who would have been disenfranchised by these measures without Section 5 haven’t been voting illegally or inaccurately over the decades. Instead, they’ve shown up at polling stations, proven who they are to the satisfaction of election officials, and then voted. They already do show ID.
These voter suppression laws also are “ingenious” because they are effectively a poll tax without saying so. A poll tax not only in the sense that they require registered voters to spend money to obtain a new state document they’ve never before needed, but also in the sense that they require these voters to undertake an effort to do so. The laws divide America into the car-driving faction (who already have a state photo ID) and the non-car-driving faction (who do not). Guess which voting group is more likely than the other to vote against Republicans?
Justice Thomas is right about one thing. In America’s voting wars this year there has been no violence, at least not yet. Gone are the marches and the dogs and the fire hoses. Let’s hope it stays that way through November 6th, and especially on that day, when some citizens try to stop other citizens from voting. It all depends, I suppose, upon what your definition of voter “intimidation” is. Want to bet Justice Thomas defines it differently than, say, Rep. John Lewis, the Georgia Democrat, battered and bruised icon of the civil rights movement?
In August, a panel of three federal judges relied upon Section 5 to force Florida to better protect the rights of early voters, many of whom are minority voters. That same month, in Texas v. Holder, a panel of three federal judges relied upon Section 5 of the Voting Rights Act to unanimously strike down Texas’ restrictive voter identification law. In doing so, the judges noted how poorly Texas lawmakers had acted to provide meaningfully access to state offices where they could procure the new photo identification cards:
Significantly, these burdens will fall most heavily on the poor. Like any fixed cost, the $22 (minimum) EIC applicants will have to pay to obtain prerequisite documentation weighs disproportionately on those living in poverty. Moreover, while a 200 to 250 mile trip to and from a DPS office would be a heavy burden for any prospective voter, such a journey would be especially daunting for the working poor. Poorer citizens, especially those working for hourly wages, will likely be less able to take time off work to travel to a DPS office — a problem exacerbated by the fact that wait times in DPS offices can be as long as three hours during busy months of the year. This concern is especially serious given that none of Texas’s DPS offices are open on weekends or past 6:00 PM, eliminating for many working people the option of obtaining an EIC on their own time.
A law that forces poorer citizens to choose between their wages and their franchise unquestionably denies or abridges their right to vote. The same is true when a law imposes an implicit fee for the privilege of casting a ballot, like the $22 many would-be voters who lack the required underlying documentation will have to pay to obtain an EIC. “[W]ealth or fee paying has . . . no relation to voting qualifications; the right to vote is too precious, too fundamental to be so burdened or conditioned.” Harper, 383 U.S. at 670. To be sure, a section 5 case cannot turn on wealth alone. In Texas, however, the poor are disproportionately racial minorities. According to undisputed U.S. Census data, the poverty rate in Texas is 25.8% for Hispanics and 23.3% for African Americans, compared to just 8.8% for whites [citations omitted by me].
Then, this week, in South Carolina v. Holder, another panel of federal judges blocked South Carolina’s restrictive new voter law from taking effect in this election cycle. The judges, including two Republican appointees, declared that the law could stand in future elections only if local election officials interpreted it in a way which permitted registered voters there to cast a ballot without the state photo identification cards required by the measure. Here is what U.S. District Judge John D. Bates, an appointee of George W. Bush, said about the vital role Section 5 played in ensuring a measure of fairness for South Carolina voters:
Which brings me to my second observation — one cannot doubt the vital function that Section 5 of the Voting Rights Act has played here. Without the review process under the Voting Rights Act, South Carolina’s voter photo ID law certainly would have been more restrictive.
Several legislators have commented that they were seeking to structure a law that could be precleared. See Trial Tr. 104:18-21 (Aug. 28, 2012) (Harrell) (“I was very aware at the time that we were doing this that whatever we would have to do would have to be subject to the Voting Rights Act because that would be the basis for the Department of Justice preclearing the bill for us.”); id. at 105:15-18 (“[I] ask[ed] the staff who drafted the bill for me to please make sure that we are passing a bill that will withstand constitutional muster and get through DOJ or through this court.”); Trial Tr. 108:23-25 (Aug. 27, 2012) (Campsen) (agreeing that he was “interested in what voter ID legislation had been precleared” in drafting R54); id. at 148:10-15 (discussing senators’ statement that “[t]he responsible thing to do was to fix [the bill] so that it would not fail in the courts or get tripped up by the Voting Rights Act”); Trial Tr. 141:9-12 (Aug. 28, 2012) (McConnell) (discussing his efforts on behalf of a bill that “had a better chance of getting preclearance”); id. at 182:18-20 (on the Senate floor “[t]here was discussion about” how “to craft a bill that would comply with the voting rights amendment”).
The key ameliorative provisions were added during that legislative process and were shaped by the need for pre-clearance. And the evolving interpretations of these key provisions of Act R54, particularly the reasonable impediment provision, subsequently presented to this Court were driven by South Carolina officials’ efforts to satisfy the requirements of the Voting Rights Act.
Congress has recognized the importance of such a deterrent effect. See H.R. Rep. No. 109-478, at 24 (2006) (finding that “Section 5 encourage[s] the legislature to ensure that any voting changes would not have a discriminatory effect on minority voters,” and “that the existence of Section 5 deterred covered jurisdictions from even attempting to enact discriminatory voting changes” [internal quotation marks omitted]); S. Rep. No. 109-295, at 11 (2006) (finding “some reason to believe that without the Voting Rights Act’s deterrent effect on potential misconduct” racial disparities in voting “might be considerably worse”).
The Section 5 process here did not force South Carolina to jump through unnecessary hoops. Rather, the history of Act R54 demonstrates the continuing utility of Section 5 of the Voting Rights Act in deterring problematic, and hence encouraging non-discriminatory, changes in state and local voting laws.
The legal argument for striking down Section 5 of the Voting Rights Act has always been a dubious one, especially for conservative jurists (like Clarence Thomas) who preach deference to legislative choices except when they disagree with those choices. But now the factual argument for striking down the Act, the argument Justice Thomas infamously made in 2009, has even less evidentiary support than it did when he spoke out. For that, Justice Thomas and his fellow conservatives have only themselves, and their radical new voting laws, to blame.

Until Justice Is Served- The MacDonald Murders –Was an innocent man convicted?

Sunday, October 14th, 2012

By ERROL MORRIS – The New York Times Review Published: October 13, 2012
Wilmington, N.C.
THE defendant, Jeffrey MacDonald, is 68 years old. He’s sitting on the left. He looks gaunt, and he’s shackled at the ankles. The prosecutor, Brian Murtagh, is sitting on the right. He has devoted a significant portion of his adult life to keeping Mr. MacDonald in prison, and at 66, he has come out of retirement to assist here. Judge James Fox, 83, is presiding. He slumps in his seat, interrupting only to ask a rare question. But he’s wired to the clock. Click. Twelve noon. Time for recess. He might interrupt a witness midsentence. Click. Three o’clock.
Mr. MacDonald is once again challenging his conviction for the 1970 murders of his wife and two young daughters. It is now almost 43 years since his family died. Guilty or innocent, his life has been destroyed.
I was in the courtroom because I had just published a book arguing that Mr. MacDonald’s 1979 conviction was a terrible miscarriage of justice. Why? Because crucial evidence was withheld by the prosecution: files, lab notes and particularly evidence concerning the one witness who could corroborate Mr. MacDonald’s version of what happened.
One of the first responders, Ken Mica, had seen a girl standing alone in a deserted area blocks from the crime scene in Fort Bragg, N.C. Mr. Mica was responding to Mr. MacDonald’s emergency call and didn’t stop to question her. But he soon made a connection between Mr. MacDonald’s description and the girl he had seen: the two closely matched.
Hours later, Prince Beasley, a narcotics cop, had heard Mr. MacDonald’s description broadcast on the radio and immediately suspected one of his drug informants, Helena Stoeckley, the 18-year-old daughter of a lieutenant colonel. It wasn’t long before Ms. Stoeckley began confessing that she had been in the house the night of the murders.
But at the trial in 1979, Helena Stoeckley said that she didn’t remember that night. Why had Ms. Stoeckley changed her story? In 2005 Jimmy Britt, a retired deputy United States marshal, came forward and provided an explanation. He said that he had heard Ms. Stoeckley confess to being in the MacDonald house during the murders and that he later heard prosecutors threaten to indict her if she repeated her story on the stand. After years of delays and appeals, the United States Court of Appeals for the Fourth Circuit had ordered this hearing so that Mr. Britt’s claim could be considered “in light of the evidence as a whole.”
That means everything. The totality of the evidence:
The confessions of Ms. Stoeckley and her then-boyfriend, Gregory Mitchell, about their part in the murders; physical evidence in the MacDonald house that supported their story; unexplained DNA evidence — all of it could finally be heard.
But in Wilmington, various federal marshals claimed that Mr. Britt was lying. They disparaged his character. He was a womanizer, an alcoholic, a cheat, an ingrate who even refused to accept a retirement party. It got pettier and pettier. But the prosecution couldn’t prove that Mr. Britt didn’t hear what he said he heard.
The government also called to testify two of the prosecutors from the 1979 trial: Jim Blackburn, who, Mr. Britt alleged, had threatened Ms. Stoeckley, and Jack Crawley, an assistant. Mr. Blackburn was later disbarred for embezzlement, among other things. Why should I believe the prosecution over Jimmy Britt?
I don’t, and here’s why. Helena Stoeckley was in Raleigh for Mr. MacDonald’s trial, from Aug. 14, 1979, through Aug. 23, 1979. During that time, she confessed to at least four people. This is on top of the prior statements she had made to many other people about her involvement in the murders. Why not confess to Mr. Britt, as well? There are photographs and film footage of them together at federal court. It would be more unusual if she had not confessed to him.
Now one more name can be added to the list: Jerry Leonard.
Mr. Leonard had been appointed Ms. Stoeckley’s attorney a few days after her testimony in 1979. Now he was waiting in a witness room day after day to testify. Ms. Stoeckley had repeatedly asked for immunity and was never given it. Her communications with Mr. Leonard were the only instances where she could speak freely without risking prosecution.
But attorney-client privilege extends even after death unless a judge decides otherwise. At the hearing, Judge Fox allowed Mr. Leonard to testify. On a Monday morning, a week after the start of the hearing, Mr. Leonard took the stand and recounted what Ms. Stoeckley had told him on Aug. 20, 1979. (Mr. Leonard’s affidavit and other case material are available online.)
He recalled that Ms. Stoeckley had eventually confessed that she was at the MacDonald house at the time of the murders. That she belonged to a cult. That Mr. MacDonald had been targeted because he discriminated against drug users in his medical practice, that Mr. MacDonald’s wife was pregnant and that the cult associated newborn babies with the devil. They broke into the house, things got out of hand and the men she was with committed the murders.
Four decades of accumulated evidence, including evidence once suppressed by prosecutors, has cast serious doubt on Mr. MacDonald’s guilt. Mr. MacDonald, who turned 69 on Friday, has always insisted on his innocence.
Now there is a mountain of evidence supporting Mr. MacDonald and debunking the case against him. This case may have gone on for four decades, but it should go on until justice is served.
A contributing opinion writer, a filmmaker and the author, most recently, of “A Wilderness of Error: The Trials of Jeffrey MacDonald.”

Do all patent-related malpractice suits belong in federal court?

Thursday, October 11th, 2012

10/8/2012COMMENTS (0) rueters

The relationship between the U.S. Supreme Court and the Federal Circuit Court of Appeals reminds me of a parent with a recalcitrant teenager. Faced with, say, confusion over patent eligibility — the legal equivalent of a messy room — the Supreme Court tells the Federal Circuit that it won’t tolerate such slovenliness. The appeals court mutters, “You’re not the boss of me,” and slams its door, leaving those empty yet still greasy pizza boxes exactly where they were.

In a case it agreed to hear on Friday, the high court will once again have the chance to discipline the Federal Circuit, this time on the question of federal-court jurisdiction over state-law legal malpractice claims involving patents. The case, Gunn v. Minton, gives the Supreme Court a chance to decide whether the Federal Circuit — in deciding that federal court is the appropriate forum for legal malpractice suits arising from patent cases — misinterpreted the test for federal jurisdiction that the Supreme Court established in its 2005 decision in Grable & Sons v. Darue Engineering.

The background of Gunn v. Minton is a bit twisty, but here’s a condensed version. Minton is a former broker and inventor who developed software that permits investors to trade over a public telecom system. In 1995, he licensed the software to a NASDAQ brokerage before receiving NASDAQ approval for it — and before patenting his technology. More than a year later, Minton applied for a patent, which he was awarded in 2000. He then filed a $100 million infringement suit against NASDAQ. Minton’s case was tossed under the Patent Act’s “on-sale bar,” which holds that a patent is invalid when the invention it covers was sold more than a year before the inventor filed a patent application. Minton subsequently sued the lawyers who represented him in the NASDAQ case, claiming that they committed malpractice when they failed to raise arguments that the on-sale bar doesn’t invalidate his claim because he sold the software for experimental use.

Minton brought the malpractice case in Texas state court. The trial judge dismissed it, finding no evidence that Minton licensed his software on an experimental basis. Minton appealed to the state appellate court in Fort Worth. While that appeal was under way, the Federal Circuit ruled in two cases — Air Measurement v. Akin Gump and Immunocept v. Fulbright — that when a state-law malpractice case arises from a substantive issue of patent law, federal courts have jurisdiction.

Based on that precedent, Minton asked the state appeals court to dismiss his case for lack of subject matter jurisdiction, which would allow him to refile his claims in federal court. The state appeals court refused and instead affirmed the lower court’s finding that Minton had no case. But when Minton appealed to the Texas Supreme Court, the majority of a divided court held that Minton was right: Under the U.S. Supreme Court’s Grable test, as interpreted by the Federal Circuit in Air Measurement and Immunocept, Minton’s malpractice case belonged in federal court.

“The federal patent issue presented here is necessary, disputed, and substantial within the context of the overlying state legal malpractice lawsuit,” the Texas Supreme Court majority said in a 5-to-3 decision in December 2011. “Additionally, the patent issue may be determined without creating a jurisdictional imbalance between state and federal courts. We conclude that exclusive federal jurisdiction exists in this case.” (After that ruling, Minton refiled his malpractice suit in federal court in Tyler, Texas.)

Minton’s former lawyers, represented by Jane Webre of Scott, Douglass & McConnico, filed a petition for Supreme Court review, arguing that the Federal Circuit had claimed jurisdiction over an improperly large swath of cases with embedded patent issues, without sufficient regard for state interests. “The Federal Circuit’s overbroad determination of federal court jurisdiction has far-reaching consequences for the balance between state and federal courts’ jurisdiction over legal malpractice cases, which are — and have always been — a creature of state law and involve important standards of attorney conduct,” Webre wrote, asserting that the appeals court’s interpretation of embedded federal questions could lead other federal courts to usurp state jurisdiction. She conceded that the Supreme Court has twice refused to address the disparity between its ruling in Grable and the Federal Circuit’s interpretation of that ruling in Air Measurement and Immunocept, but said those refusals only showed that this remains “an important and recurring problem.”

“The Federal Circuit’s construct of ‘arising under jurisdiction’ — which the Texas Supreme Court followed in our case — inappropriately sweeps all manner of state law cases into federal court,” Webre told me in an email comment. “Fundamentally, it upsets the balance between state and federal courts, which is something that the (Supreme Court) has carefully defended in its ‘arising under’ cases.”

Minton’s appellate counsel, Thomas Michel of Griffith, Jay & Michel, countered in his opposition to the petition for certiorari that the Texas Supreme Court had properly weighed the Grable factors when it determined federal-court jurisdiction. He also argued that the cert petition posited a “sky is falling” impact from the Federal Circuit’s jurisdictional holding when no such hysteria is warranted. “(Minton’s former) attorneys have no support for such an argument,” Michel wrote. “There is no empirical data to support their argument that the decisions in Air Measurement and Immunocept have opened the floodgates to allow all sorts of embedded federal question cases into federal courts.”

“The Federal Circuit applied the correct analysis in interpreting Grable,” Michel told me Monday. “The Texas Supreme Court did as well.”

Nevertheless, with its cert grant, the Supreme Court has once again elected to play parent to the Federal Circuit, deciding whether the appeals court is busting curfew.

(Reporting by Alison Frankel)

U,S. Supreme Court Considers Indefinite Stays of Execution

Thursday, October 11th, 2012

Published: October 9, 2012
WASHINGTON — In a pair of cases argued Tuesday, the Supreme Court considered what to do when people convicted of capital crimes are mentally incompetent and so unable to help their lawyers with challenges to their convictions and sentences.
The lower courts in the two cases had imposed indefinite stays, saying the proceedings should wait until the prisoners regained their mental competency. There appeared to be little support among the justices for that approach. Some of them appeared to sense gamesmanship from defense lawyers effectively seeking to make sure that death sentences are never carried out.
Justice Samuel A. Alito Jr. said he was skeptical of “a mechanism that will permit stays in virtually every capital case.” The mechanism was particularly problematic, he said, because “a lot of district judges and a lot of court of appeals judges don’t like the death penalty and will go to some length to prevent the imposition of that sentence.”
Justice Stephen G. Breyer appeared to think that critique too harsh, though he seemed to agree that indefinite stays are improper. “Trial judges run their trials,” he said. “You know, that’s what they’re hired for. And once we make it clear” that stays “shouldn’t go on forever, why can’t we trust them to do their job?”
The Supreme Court has allowed the execution of death-row inmates so long as they are, in Justice Antonin Scalia’s words on Tuesday, “aware of what is being done and why it’s being done.”
The standard for being able to assist a lawyer is much tougher, he said, meaning that the stays imposed by the lower courts effectively overrode the execution standard.
Ohio’s solicitor general, Alexandra T. Schimmer, began her argument in the first case, Tibbals v. Carter, No. 11-218, with three points supporting a complete ban on all stays.
She said there was no basis for such stays in post-conviction capital challenges in federal court in the Constitution or federal statutes. She added that indefinite stays are at odds with the spirit of a 1996 federal law that had sought to quicken the pace of capital litigation.
And she said that the courts were required to decide the challenge at issue in her case based on the court record, meaning that the inmate had nothing to add even if he were able to work with his lawyers. But then Ms. Schimmer, to the apparent frustration of some of the justices, stopped short of proposing an absolute rule. Limited stays, she said, might be appropriate in some cases.
“The state of Ohio certainly agrees that having a competent prisoner is a desirable thing” in post-conviction challenges, she said, “and that courts do have some discretion to try to vindicate that goal.”
But she said the justices should limit the length of such stays in most cases, adding that “it’s going to be difficult to put forward a hard and fast rule.”
That did not appear to satisfy Chief Justice John G. Roberts Jr. “Well, give me a loose and soft rule,” he said. Ms. Schimmer proposed a limit of a year.
Ann O’Connell, representing the federal government, said four months plus “an additional reasonable extension” might suffice.
The various proposed deadlines struck some justices as arbitrary. Justice Elena Kagan, perhaps trying to avoid a broad ruling that would set a deadline on any stays in post-conviction challenges, suggested that the court need not say more than that indefinite stays are never proper. Justice Ruth Bader Ginsburg added that the number of prisoners who can show they are mentally incompetent is not large.
Justice Alito, on the other hand, repeatedly asked what the starting point for a deadline would be, suggesting that efforts should be made to return inmates to mental competency as soon as possible.
In the second case, Ryan v. Gonzales, No. 10-930, he questioned Leticia Marquez, a lawyer for the inmate, about the efforts that had been made to address his mental troubles. Ms. Marquez said his lawyers had done nothing in a six-year period beyond trying to communicate with him.
“We just thought he was a difficult client,” Ms. Marquez said. Only


Thursday, October 4th, 2012

Fen Phen Defendants to File Appeal to U.S. Supreme Court

William Gallion and Shirley Cunningham will both appeal their convictions in the Fen Phen criminal case to the U.S. Supreme Court. Both defendants were convicted in their second trial and sentenced by U.S. District Judge Danny Reeves.

Their first trial ended in a mistrial with the jury dividing 10 for acquittal and 2 for conviction. The second trial resulted in a conviction.
Apparently their main argument will be the instructions given by Judge Reeves and rulings he made on the admission of evidence.

They will argue that the law re: aggregate settlements and class action settlements were misstated by Judge Reeves. They claim that Judge Reeves denied them the right to have an expert witness challenge the opinion of the expert witness called by the Government.

The first trial was conducted by Judge Bertlesman. His instructions gave the jury the option to acquit if they believed failure to follow class action law was not done with the intent to defraud. On retrial Judge Reeves is argued to have denied this instruction.

They argue that Judge Reeve’s instructions “compelled a guilty verdict.”

The appeal is expected to argue that Judge Reeves aggregate settlement instruction adopted the opinion expressed by the government expert that the settlement was for only 440 claimants. This was disputed by the defense. 60,000 potential claims were eliminated by the Drug Co. in getting the defendants to agree to decertify the medical malpractice claims against Dr. Duff for prescribing the drugs. Under the agreement Public Notice was never given to the 60,000. The Drug Co. had the defendants agree to Indemnify the Drug Co. for such claims if they materialized within a one year period.

Under the Cheek case in the US Supreme Court this was a jury question that Reeves took upon himself to answer and direct the jury to accept the opinion of the government expert.

“The defendants were denied the right to confront the findings and charges in the Disbarment Orders. The Disbarment orders were not relevant to the merits of the government’s case and were prejudicial as a matter of law. It disparaged the character of the defendants which is patently improper in a criminal prosecution. Moreover the Judge instructed the jury how to consider the redacted disbarment orders. The fact that they were disbarred should never have gone to the jury. It irreparably damaged the credibility of the defendants.”

The same fact witnesses testified in both trials on the issue of who the settlement was for , i.e., 440 or were there other contingencies. This was the core dispute in both trials and was a jury issue in the first trial but not in the trial that convicted the defendants that culminated in 20 year and 25 year sentences.

The Gallion appeal is due by Oct. 8, and the Cunningham appeal is due Nov. 24th.

Another issue involved the Government calling then KBA Counsel Jane Graham to testify that the KBA has disbarred them. It is alleged that Jane Graham had an ex parte contact with Judge Reeves the night before she presented the KBA Motion precluding the defense from cross examining government witnesses on pending bar charges against them arising out of the same facts that led to the Indictments against the defendants. When asked about the alleged ex parte meeting with KBA lawyer Jane Graham, Judge Reeves reportedly replied, “You can ask, but I don’t have to answer” questions about the alleged ex parte meeting.

The burden of proof in disbarment proceedings is “beyond a reasonable doubt” and the burden in criminal cases is “beyond a reasonable doubt”. It may be argued that the jury was improperly influenced by the testimony of Gosnell. The jury was instructed that they could consider “redacted” KBA orders. It is argued that Gallion and Cunningham had both voluntarily withdrawn from the KBA and therefore evidence presented to the jury was improper. They maintained their innocence of any ethic violations in the settlement with the KBA. So there was never a finding of any specific ethics violation.

A source close to the appeal said, “The Cheek US sup ct case cited in the En Banc brief says Reeves instruction violated their right to a jury trial. Reeves instruction compelled a guilty verdict.”

THE $1000 THRESHOLD RULE FOR MEDICAL EXPENSES IN MVRA CLAIMS – Medical Expenses Must Be Related To Trauma of Auto Accident

Wednesday, October 3rd, 2012

In motor vehicle accident claims the plaintiff must be able to prove that he incurred in excess of $1000 in medical expenses which were reasonable related to the trauma of the accident. If the plaintiff fails to prove at least $1000 in medical expenses related to the accident then the claim may be dismissed by the court. Many times a plaintiff incurs medical expenses but fails proven causation to the trauma of the accident. If the plaintiff has a medical history of other injuries or conditions, then the threshold rule may justify a close examination of this issue.
We have found examples of numerous cases, many in Jefferson County, which have resulted in dismissal of MVRA act claims being dismissed. Every attorney should be aware of the “threshold rule” found in the following statute:
KRS 304.39.060(2)(b)

(b) In any action of tort brought against the owner, registrant, operator or occupant of a motor vehicle with respect to which security has been provided as required in this subtitle, or against any person or organization legally responsible for his or her acts or omissions, a plaintiff may recover damages in tort for pain, suffering, mental anguish and inconvenience because of bodily injury, sickness or disease arising out of the ownership, maintenance, operation or use of such motor vehicle only in the event that the benefits which are payable for such injury as “medical expense” or which would be payable but for any exclusion or deductible authorized by this subtitle exceed one thousand dollars ($1,000), or the injury or disease consists in whole or in part of permanent disfigurement, a fracture to a bone, a compound, comminuted, displaced or compressed fracture, loss of a body member, permanent injury within reasonable medical probability, permanent loss of bodily function or death.

Any person who is entitled to receive free medical and surgical benefits shall be deemed in compliance with the requirements of this subsection upon a showing that the medical treatment received has an equivalent value of at least one thousand dollars ($1,000).

(c) Tort liability is not so limited for injury to a person who is not an owner, operator, maintainer or user of a motor vehicle within subsection (1) of this section, nor for injury to the passenger of a motorcycle arising out of the maintenance or use of such motorcycle.

Buckler v. Mathis, 353 S.W.3d 625 (Ky. App., 2011)
The Supreme Court of Kentucky addressed the definition of “medical expense” in Bolin v. Grider, 580 S.W.2d 490 (Ky.1979), stating that KRS 304.39–020(5)(a) reflects a legislative policy that a medical expense must be reasonable in amount and “reasonably needed as a result of the collision in issue.” Bolin, 580 S.W.2d at 491. Furthermore, once a medical bill has been introduced, the burden is on the defendant to go forward with proof to impeach the bill. Id. In Bolin, the defendant attacked whether the medical expense was reasonably needed due to the collision, not whether the amount of the charge was reasonable.
The Court stated that a proper question on this issue would read:
Are you satisfied from the evidence that Grider incurred charges in excess of $1,000.00 for reasonably needed products, services, and accommodations, including those for medical care and physical rehabilitation, as a result of the collision of July 7, 1975?
Id. See also Thompson v. Piasta, 662 S.W.2d 223, 226 (Ky.App.1983) (jury instructions using the phrase “reasonable expenses” were improper when issue posed by the proof in that case was whether the expenses were “reasonably needed.”).
In this case, the trial court included the following interrogatory as Question No. 1:
Are you satisfied from the evidence that Plaintiff, Donald Buckler, sustained injuries and charges in excess of $1,000 for reasonably needed products and services for medical care as a direct result of the motor vehicle accident of September 1, 2005?
Buckler contends that because the medical expenses he submitted totaled $2901.90, far in excess of the $1,000 threshold, and Mathis failed to call any witnesses to question the relationship between the bills and the collision, the trial court should not have included this interrogatory in the instructions.
Mathis, in turn, contends that Buckler was unable to establish a causal connection between all of the submitted medical bills and the motor vehicle accident. And while she did not call separate witnesses on this issue, Mathis states that she was able to establish this lack through the testimony of both Buckler and Dr. Jacob. Mathis points out that the medical records showed that
Buckler had a prior injury to his right index finger, one that he did not report to his treating physicians, and that he was referred to Dr. Jacob for treatment related to Raynaud’s disease in his left hand, which was unrelated to the motor vehicle accident. We agree with Mathis that,
[353 S.W.3d 631]
based upon Buckler’s testimony as well as the medical records and proof related to prior or unrelated injuries or conditions, the trial court did not commit any error in including the threshold question in the jury instructions regarding whether the medical expenses were reasonably needed as a result of the motor vehicle accident.
Second, Buckler contends that the trial court erred in the language it used in the threshold question interrogatory and in the damages instruction. In Instruction No. 3, the trial court stated that Buckler’s damages may include: “(A) Reasonable expenses for medical services you believe from the evidence Plaintiff has incurred as a direct result of his injuries, not to exceed $2901.90, the amount claimed.” Buckler contends that the instructions improperly required the jury to find that he, himself, incurred the charges for medical expenses, not another entity such as an automobile insurance or workers’ compensation carrier. He argues that the trial court should have more closely parroted the statutory definition of medical expenses (“reasonable charges incurred …”), rather than instructing that the jury had to find that he “incurred charges” or in defining an item of damages as “[r]easonable expenses for medical services … Plaintiff has incurred[.]”
Because the instructions provided by the trial court are in line with binding precedent as set forth in Bolin v. Grider, supra, we uphold those instructions as proper.
Third, Buckler contends that the trial court improperly commented on the instructions as they were read to the jury. In doing so, he states that the trial court placed a negative inference by way of voice inflection on what the jury should ultimately find. In support of this argument, Buckler cites to Young v. J.B. Hunt Transp., Inc., 781 S.W.2d 503 (Ky.1989), in which the Supreme Court addressed Kentucky’s approach to instructing juries:
[I]n Kentucky we observe a “bare bones” approach to jury instructions. To provide the detail which would otherwise be missing, we have held that “[t]his skeleton may then be fleshed out by counsel on closing argument.” Rogers v. Kasdan, Ky., 612 S.W.2d 133, 136 (1981). See also Cox v. Cooper, Ky., 510 S.W.2d 530 (1974), and Wemyss v. Coleman, Ky., 729 S.W.2d 174 (1987). Descriptive of the approach we take to instructions and argument is a passage from Collins v. Galbraith, Ky., 494 S.W.2d 527 (1973), as follows:

We have carefully reviewed both the unofficial transcription of the trial court’s comments as set forth in Buckler’s brief in conjunction with the videotaped record of the trial. We also have considered the trial court’s statements in its April 23, 2010, order explaining that its comments “were meant to instruct the jury as to how to ‘get through’ the jury instructions” in order to prevent problems in past trials where juries had returned incomplete or inconsistent verdicts. In this case, the trial court took great pains to explain to the jury what it was to do once it answered Question No. 1, the threshold interrogatory, and that the jury was not to continue to the damages instruction if it had found that Buckler failed to meet the $1,000 threshold. Based on our review of this issue, we agree with Mathis that the trial court did not do or say anything to influence the jury to find one way or the other. The trial court did not provide any legal explanation of the instructions, but merely attempted to educate the jury as to what it should do in relation to completing the instructions and verdict forms depending on what findings it made.
Accordingly, we hold that the trial court did not commit any error in instructing the jury in this matter.


Tuesday, October 2nd, 2012

Judicial centers will be closed statewide and all court services will be unavailable Monday, October 15, as the Kentucky Judicial Branch shuts down for the third of three furlough days in 2012. The furloughs will affect only non-elected court personnel, who will be off work without pay as part of the Judicial Branch’s Fiscal Year 2013 Budget Reduction Plan. This includes the Supreme Court, Court of Appeals, Circuit Court, District Court, Offices of Circuit Court Clerk, the Administrative Office of the Courts and all court services, including Pretrial Services, Drug Court, the Court Designated Worker Program, Court Interpreting Services, the State Law Library and driver license branches. Below is a summary of what the public and the law enforcement and legal communities should expect on furlough days:
 Trials and other court proceedings will not be scheduled on furlough days as there will be no staff available. Items already on the docket for those days will be rescheduled.
 Driver licenses will not be issued.
 The Supreme Court will suspend its rule requiring pretrial officers to interview a defendant within 12 hours after incarceration. No Pretrial Services staff will be working on furlough days.
 Deputy clerks will not be available to process bonds and no release orders will be issued.
 Existing after-hours protocol will be followed for processing domestic violence orders (DVOs) and emergency protective orders (EPOs).
 Local court designated workers will not be available. The Court Designated Worker Program will have a supervisor available to ensure that law enforcement adheres to its statutory requirements in cases involving the arrest and custody of juveniles.
 Technology Services staff will not be available to recover the CourtNet database in the event the system experiences an interruption in service.
 County offices that share space with the state court system in judicial centers and courthouses will not be affected.
Furloughs are one of several measures included in the Judicial Branch’s FY 2013 Budget Reduction Plan. The 2012 Kentucky General Assembly reduced the total funds available to the Judicial Branch by $25.2 million for FY 2013. This included a permanent reduction to the annual base operating budget of $16.2 million and a one-time transfer of $9 million in payroll to the state’s general fund on June 30, 2012. Since the economic crisis began in 2008, the Judicial Branch has sustained repeated reductions to its budget and has cut 282 employees statewide, eliminated court programs and trimmed operating costs at all four levels of the court system to stay within its budget. The Supreme Court and leadership from the Administrative Office of the Courts will meet in January 2013 to determine if additional furloughs and reductions are necessary for the remainder of FY 2013, which runs July 1, 2012, to June 30, 2013. They will also begin drafting a budget reduction plan for FY 2014, which presents an even greater shortfall than in FY 2013.


Tuesday, October 2nd, 2012

The popular 2012 Kentucky Law Update (KLU) program series is now underway. Listed below are locations and dates for October:
Dates and Locations
The dates and locations for the 2012 Kentucky Law Update are listed below. Click on the location for map and driving directions. The menu items on the left will direct you to other information including the program agenda, registration, program materials and more. We look forward to seeing you at the program this fall!
Bowling Green – September 6-7 (Thursday-Friday)
Holiday Inn & Sloan Convention Center
Covington – September 19-20 (Wednesday-Thursday)
Northern Kentucky Convention Center
Russell (Ashland) – September 25-26 (Tuesday-Wednesday)
Bellefonte Pavilion
Prestonsburg – October 2-3 (Tuesday-Wednesday)
Jenny Wiley State Resort Park
Owensboro – October 9-10 (Tuesday-Wednesday)
RiverPark Center
Gilbertsville – October 23-24 (Tuesday-Wednesday)
Kentucky Dam Village State Resort Park
Lexington – October 30-31 (Tuesday-Wednesday)
Lexington Convention Center
London – November 8-9 (Thursday-Friday)
London Community Center
Louisville – November 28-29 (Wednesday-Thursday)
Kentucky International Convention Center

KLU is an exceptional benefit of KBA membership. Note: Kentucky is the only mandatory CLE state that provides its members a way of meeting the annual CLE requirement at no additional cost. For more information on KLU, contact Ben Swartz at or call (502) 564-3795, ext. 270.

Benjamin Cowgill comments on Courier-Journal posting of story reporting l8 year old article authored by KBA’s new Bar counsel Tommy Glover

Tuesday, October 2nd, 2012

Benjamin Cowgill comments on Courier-Journal posting of story reporting l8 year old article authored by KBA’s new Bar counsel Tommy Glover:
Message sent to LawReader:
“See my comment to the article on the Courier-Journal’s website.”

“I think it is laughable that Linda Gosnell would presume to tell Tommy Glover how to treat people in his capacity as Bar Counsel, irrespective of gender issues, especially until she reveals why she was fired.
I was surprised that Andy Wolfson even sought or used a quote from her under those circumstances.”

Billionaire Koch Brothers Try To Influence Supreme Court Elections in Flordia

Tuesday, October 2nd, 2012

October 2nd, 2012 Carl Hiaasen
The new stealth campaign against three Florida Supreme Court justices is being backed by those meddling right-wing billionaires from Wichita, Charles and David Koch.
They couldn’t care less about Florida, but they love to throw their money around.
Last week they uncorked the first of a series of commercials from their political action committee, Americans for Prosperity. The targets are Justices R. Fred Lewis, Barbara Pariente and Peggy Quince.
They were three of the five-vote majority that in 2010 knocked down a half-baked amendment slapped together by Florida lawmakers seeking to nullify the federal Affordable Health Care Act.
The Florida Supreme Court upheld lower court decisions in finding that the proposed amendment contained “misleading and ambiguous language,” the hallmark of practically everything produced by this Legislature. Stoned chimpanzees have a keener grasp of constitutional law.
Conservative groups have gone after local justices before. In Iowa, a place which has nothing but vowels in common with Florida, three state justices were fired by voters after being vilified for ruling against a ban on gay marriage.
On the November ballot, Lewis, Pariente and Quince are up for merit retention, meaning voters can choose to retain them or not. This simple system was put in place to keep the state’s high court above the sleaze of political races.
The mission of the Kochs, hiding as always behind their super PAC, is to get the three justices dumped at the polls so that Gov. Rick Scott can appoint replacements.
This is worth repeating: If the Kochs have their way, Rick Scott — yes, that Rick Scott — gets to pack the Supreme Court with his own handpicked crew.
Yikes is right.
The head of the Florida chapter of Americans for Prosperity is a person called Slade O’Brien, whose job is to keep a straight face while saying things like: “We’re not advocating for the election or defeat of any of the justices. What we’re attempting to do is call more attention to them advocating from the bench.”
Meanwhile the state GOP’s executive board is less coy. It voted to oppose the retention of Quince, Lewis and Pariente, branding them “too extreme.”
Well, let’s have a peek at these dangerous radicals.
Justice Pariente, 63, has been on the court for 15 years. She was graduated from George Washington University Law School and clerked in Fort Lauderdale under U.S. District Judge Norm Roettger, who was no softie.
Justice Lewis, 64, who was graduated cum laude from the University of Miami Law School, has been on the court almost 14 years. Both he and Pariente were appointed by Gov. Lawton Chiles, not exactly a wild-eyed liberal.
Justice Quince, also 64, is the first African-American woman on the Supreme Court. A graduate of the Columbus School of Law at Catholic University, she worked for years prosecuting death-penalty cases in the state attorney general’s office.
In 1999, she was jointly selected for the high court by Chiles and that wacky left-winger, Jeb Bush.
Twice before, Floridians have voted to keep these justices, but now the Kochs from Wichita say they know better. You won’t see David or Charlie in any of the campaign commercials because they don’t like people to know they’re prying.
Their multinational fortune comes from oil refineries, fertilizers, cattle, commodities, chemicals and paper mills. Next time you reach for Angel Soft toilet paper, think of the Koch brothers.
Both are MIT grads, philanthropists, unabashedly ultraconservative and anti-Obama. They’re spending hundreds of millions of dollars trying to defeat the president and lesser officeholders all over the country who won’t bend to their will. Some Florida Republicans — respected judges and lawyers — are disturbed by the sneak attack on the Supreme Court, which they view as a bald attempt to politicize the judiciary.
The two other justices who voted against the inept Obamacare amendment were similarly singled out two years ago, when they were up for merit retention. Tea Party groups bought TV time blasting justices Jorge Labarga and James Perry, and urging voters to remove them from the court. It didn’t work.
Labarga was retained with about 59 percent of the vote, Perry with 61 percent. Those aren’t bad margins, considering that the justices can’t campaign in their own defense.
This time is different because Americans for Prosperity has a bottomless war chest to use against Lewis, Pariente and Quince. Be assured that Gov. Scott is rooting for the Kochs. He’d love to have three openings to fill on the Supreme Court.
The last thing these guys want is fair judges who know the law; they want partisan judges who’ll obediently support their political agenda
It’s worse than just trying to buy an election. It’s trying to hijack Florida’s justice system at the highest levels.
And all the Angel Soft in the world won’t wipe away the stink.
(Carl Hiaasen is a columnist for the Miami Herald. Readers may write to him at: 1 Herald Plaza, Miami, Fla., 33132.)
(c) 2012, The Miami Herald Distributed by Tribune Media Services Inc


Monday, October 1st, 2012

By Bill Mears, CNN Supreme Court producer

There are 39 appeals on the high court’s schedule. As many as three dozen more are expected to be added in coming months. Other controversial appeals that may yet be added to the high court’s docket cover issues relate to voting rights enforcement, voter identification laws, same-sex marriage rights, and “personhood” laws for the unborn.
• Affirmative action
• National security
• Human rights
• Same-sex marriage
• Voting rights
• Abortion rights
Fisher v. University of Texas at Austin
This case is already on the docket.
At issue
A challenge to the school’s race-conscious admissions policies.
The case
Abigail Fisher individually sued the flagship state university after her college application was rejected in 2008 when she was a high school senior in Sugar Land, Texas.
The arguments
Fisher claims being turned away in part because she is white. The school defends its policy of considering race as one of many factors — such as test scores, community service, leadership and work experience — designed to ensure a diverse campus.
The impact
The court’s most closely watched pre-election case this term, it raises anew thorny, unresolved questions over race and remedies. Justice Kagan will not hear this case because she had dealt with the issue while serving as President Barack Obama’s solicitor general. That would leave the possibility of a 4-4 tie, meaning the university would prevail, but no important precedent would be established.
Clapper v. Amnesty International USA
This case is already on the docket.
At issue
Standing question over the constitutionality of the federal government’s electronic monitoring of targeted foreigners suspected of terrorism or spying. Can domestic plaintiffs who deal with overseas clients and co-workers file suit if they reasonably fear the government was reading and hearing their sensitive communications?
The case
Congress revised the Foreign Intelligence Surveillance Act (FISA) in 2008 to give the attorney general and the director of national intelligence greater authority to order “mass acquisition” of electronic traffic from suspected foreign terrorists or spies. The law previously required the government to justify a national security interest before any monitoring of phone calls and emails originating in another country. A federal judge had to sign any search warrant.
The arguments
The larger issue involves the constitutionality of the federal government’s electronic monitoring of targeted foreigners. A federal appeals court ruled against the Obama administration. The specific question now to be addressed is whether certain Americans have “standing” to challenge the federal law without a specific showing they have been monitored. Plaintiffs say the National Security Agency has in turn refused to disclose specifics. The ACLU calls that “Catch-22″ logic.
The impact
Privacy groups worry that such electronic dragnets could easily and unknowingly intrude on the privacy rights of U.S. citizens. The government calls that “speculation” but cites national security in refusing to provide specifics.
Kiobel v. Royal Dutch Petroleum Co., Inc.
This case is already on the docket.
At issue
When federal courts can hear claims by foreign nationals of international law violations.
The case
More than a dozen individuals seek to hold major oil companies liable for human rights violations in Nigeria in the 1990s. The 223-year-old Alien Tort Statute that has been increasingly used in recent years to sue corporations and political groups for alleged abuses abroad. The plaintiffs allege the oil giants conspired with the government to stop protests over petroleum exploration, using killings, rape, arrests, and property destruction. Shell has denied giving soldiers any money, supplies, or logistical help.
The arguments
The high court in 2004 endorsed use of the ATS, but only in limited circumstances. The Kiobel case had originally been argued at the high court in February, revealing an ideological split on the bench. The case was ordered re-heard with a different focus on the law’s limits: whether it can be applied extraterritorially for violations occurring overseas.
The impact
A Supreme Court decision against the plaintiffs could effectively end ATS litigation. Similar lawsuits involve Chevron and Exxon energy operations in Indonesia; Chiquita Brand fruit farms in Colombia; and businesses that operated years ago in the now-outlawed apartheid system in South Africa.
Defense of Marriage Act: Bipartisan Legal Advisory Group of the U.S. House of Representatives v. Gill; Dept. of Health and Human Services v. Massachusetts; Office of Personnel Management v. Golinski; Windsor v. U.S.
These cases may be added to the Supreme Court docket in coming months.
At issue
Whether the federal Defense of Marriage Act violates equal protection guarantees in the Fifth Amendment’s Due Process Clause, as applied to same-sex couples legally married under the laws of their own state.
The cases
Appeals from Massachusetts, New York, California, and elsewhere are pending. The law known as DOMA defines marriage for federal purposes as unions exclusively between a man and woman. The legal issue is whether the federal government can deny tax, health, and pension benefits to same-sex couples in states where they can legally marry. A federal appeals court in Boston struck down the benefits provision, saying, “If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress’ will, this statute fails that test.”
The arguments
The First Circuit court did not rule on the federal law’s other key provision: states that do not allow same-sex marriages cannot be forced to recognize such unions performed in other states. Traditionally, marriages in one jurisdiction are considered valid across the country.
The impact
The Obama administration in a rare move has refused to defend a federal law in court. That left the GOP-controlled House of Representatives to file the legal appeals to the high court.
California ballot measure: Hollingsworth v. Perry
This case may be added to the Supreme Court docket in coming months.
At issue
Whether the Constitution’s 14th Amendment guarantee of “equal protection” prevents states from defining marriage as only between one man and one woman.
The case
The “Prop 8″ case, as it has become known, has been down a complicated legal road. California’s Supreme Court ruled same-sex marriages were legal in 2008. After the statewide ballot measure banning them passed with 52% of the vote later that year, gay and lesbian marriages were put on hold. Then a federal appeals court in San Francisco in February ruled the measure unconstitutional. In its split decision, the panel found Proposition 8 “works a meaningful harm to gays and lesbians” by denying their right to civil marriage.
The arguments
California is the only state that accepted, then revoked, same-sex marriage as a legal right. The measure’s supporters asked the justices to preserve the will of the voters in this politically-charged social issue. Opponents of Prop 8 seek a court-ordered expansion of the “traditional” views of marriage.
The impact
Currently, same-sex marriage is legal in six states: Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and New York, along with the District of Columbia. Washington, Maryland, and New Jersey voted earlier this year to allow same-sex marriages, but the laws have not yet taken effect.
Another nine states recognize civil unions or broad domestic partnership, providing state-level spousal rights to same-sex couples. President Barack Obama, who previously opposed same-sex marriage, said in June he now supports it.

Shelby County, AL v. Holder; Nix v. Holder
These cases may be added to the Supreme Court docket in coming months.
At issue
Continued use by the federal government of the key enforcement provision of the landmark Voting Rights Act of 1965.
The case
Section 5 gives federal authorities open-ended oversight of states and localities with a history of voter discrimination. Any changes in voting laws and procedures in the covered states must be “pre-cleared” with Washington.
The arguments
The provision was reauthorized in 2006 for another quarter-century, and counties in Alabama and North Carolina subsequently filed suit, saying the monitoring was overly burdensome and unwarranted. All or parts of 16 states are currently covered under the provision. Other states are not covered by the provision even if they, too, might discriminate against minority voters.
In a separate high court case from three years ago, the conservative majority suggested — but never fully affirmed — that continued use of Section 5 may soon be nullified. “Things have changed in the South. Voter turnout and registration rates now approach parity,” Chief Justice John Roberts wrote in 2009. “Past success alone, however is not adequate justification to retain the pre-clearance requirements. The Act imposes current burdens and must be justified by current needs.”
The impact
A high court decision whether to accept these appeals for a full review will likely come in a presidential election year that incorporates newly redrawn voting boundaries, based on the updated census.
Oklahoma v. Barber
This case may be added to the Supreme Court docket in coming months.
At issue
Constitutionality of state “personhood” laws saying life begins at conception, and giving human embryos the rights and privileges of citizens.
The case
Initiative Petition 395 is a proposed ballot measure to amend the state constitution, but was unanimously struck down by the Oklahoma Supreme Court. The state justices said the measure, if approved, would unconstitutionally ban access to abortions, and concluded that defining a fertilized human egg as a person “is clearly unconstitutional.”
The arguments
Supporters of the measure say voters should be given the right to decide a critical issue like defining life, and said it was unfair for the courts to block the law before it was enacted. Opponents counter it would essentially block abortions even in case of rape, incest, or when the mother’s life was in danger. They also say it would severely restrict use of contraception and in vitro fertilization.
The impact
A bill similar to Oklahoma’s is pending in Virginia’s state legislature. Voters in Colorado and Mississippi have rejected “personhood” ballot initiatives in recent years. Many of its backers hope to use “personhood” measures to force another Supreme Court showdown over the landmark 1973 Roe v. Wade ruling legalizing abortions.

THE ELECTION FOR THE PRESIDENT OF THE KBA FOR 2014-2015 HAPPENS THIS YEAR…This Is Your Best Chance To Influence The Election Of Important KBA Offices.

Monday, October 1st, 2012


Under the arcane rules of the KBA, you cannot directly elect the President of the KBA in the same year he/she takes office. In order to elect a President, you must first elect your candidate as President-Elect, and then he/she will automatically take office a year later.

Example: next year’s President will take office in July of 2013. Tom Rouse is the current President-elect, and he will become KBA President on July 1, 2013.
So the election for the KBA president who will serve from 2014-2015 must be elected this year as President-elect.

To nominate a candidate for Vice-president or President Elect, you have to submit a petition with 100 names, with a minimum of 10 signatures from each of the states seven Supreme Court Districts.
Anyone wishing to run for the office of Vice-President or President-Elect must submit a petition with 100 names (10 from each Supreme Court District) only between October 15 and November 15.2012.
For sample form access Kentucky Legal News. This provides a form for the Board of Governors nominees…the form for nomination of KBA officers is just longer and specifies the supreme court districts.

The nomination petitions for officers may be submitted after Oct. 15, 2012. The nominatin petition for Board of Governors must be submitted no later than Oct. 31, 2012.

The petition should be filed with the Executive Director:
Hon. John D. Meyers,
Executive Director Kentucky Bar Association
514 W. Main Street
Frankfort KY 40601-1812

THE ONION gets it right about large Insurance Companies

Monday, October 1st, 2012

For full story and graphics Go to:,29709/

“CANTON, OH—Overjoyed Cigna executives celebrated the health insurer’s 50 billionth fucking over of a customer Thursday, personally surprising 56-year-old spinal trauma victim Clyde Gershon with champagne, confetti, and hundreds of multicolored balloons as they denied his most recent disability claim.
The wheelchair-bound Gershon, who has required an expensive regimen of pills and physical therapy since a 2010 car crash, was greeted at his front door by cheering, party-hat-wearing members of Cigna’s senior management, who posed for pictures while presenting him with an oversized cardboard “Claim Denied!” letter explaining that he was judged fit to return to work and would lose all coverage at the end of the month.
“We did it! We’ve completely and utterly fucked over a customer for the 50 billionth time,” exclaimed CEO David Cordani, drawing a vibrant round of applause as Gershon, gaunt and dejected, stared blankly off into the distance. “Ruining this many lives is an accomplishment no one ever could have dreamed of back in 1982 when Cigna was founded. And today, I can proudly say we have not only achieved it, but inflicted an incalculable amount of mental anguish along the way.”
“So congratulations, Mr. Gershon, you poor son of a bitch,” he continued, raising a flute of Dom Perigno. “On behalf of myself and the rest of our 30,600 employees, I hope you find some other way to pay for your medical care, because you are now royally fucked!”