Archive for November, 2012

Nicholas Nighswander: How are State Statutes reviewed under the Kentucky Constitution that Affect the Free Exercise of Religion?

Friday, November 30th, 2012

Nicholas Nighswander on behalf of
Nicholas M Nighswander PLLC Attorney at Law

How are State Statutes reviewed under the Kentucky Constitution that Affect the Free Exercise of Religion?

Prior to this year, KRS 189.820 required all slow moving vehicles to display the bright orange slow moving vehicle (SMV) triangle in a conspicuous place usually at the rear of the vehicle. The purpose of which was to alert overtaking vehicle drivers of the presence of the SMV and hopefully prevent a collision. (The Kentucky General Assembly amended this statute in 2012 to allow for the use of devices for the same purpose other than the bright orange triangle.)

In the case of Jacob Gingerich, et al. vs. Commonwealth of Kentucky, ___ S.W.3rd ____, rendered October 25, 2012 to be published and now final, the Kentucky Supreme Court affirmed a Kentucky Court of Appeals decision affirming lower court decisions interpreting KRS 189.820 as applied in requiring an Amish horse and buggy to use the bright orange SMV triangle.

The Amish were ticketed on numerous occasions in violation of the statute for not using the SMV triangle. In its place, the Amish were using other displayed reflective material and lanterns as allowed in states outside of Kentucky. The Amish defended the state charges at trial on the basis that the required use of the SMV triangle violated their free exercise of religion under the Kentucky Constitution instead of using an amendment of the United States Constitution, i.e., Amish that used bright colors violated the tenants of their religious sect which could result in them being shunned socially from others in the community among other things. The Amish argued that the Kentucky Constitution afforded greater protection to their religious rights from such statutes than the U.S. Constitution and KRS 189.820 was unconstitutional as it did not serve a compelling state interest. A compelling state interest review is the strictest of tests to determine the constitutionality of a statute.

The issue for the Kentucky Supreme Court was what standard of review was required under the Kentucky Constitution for laws of general applicability, enacted for the common good, which only incidentally affect the practice of one’s religion. Should the review be one of strict scrutiny that there must be a compelling interest where the law or statute is presumed to be unconstitutional if it affects a constitutional right? Or, should it be that the law or statute is constitutional if there is just a rational basis for it and it incidentally affects the free exercise of religion?

In a split decision, the Kentucky Supreme Court upheld the constitutionality of KRS 189.820 as applied to the Amish under Section 5 of the Kentucky Constitution. The Kentucky Supreme Court in the same split decision adopted the same analysis used by the United Supreme Court in reviewing a statute under the U.S. Constitution. In this case, a majority of the Kentucky Supreme Court determined that the state had met its burden that there was a compelling state interest for highway safety to require the Amish to us the SMV triangle under KRS 189.820. Just as interesting the Kentucky Supreme Court determined that Section 5 offered no greater state protections for the free exercise of religion than the U.S. Constitution. Thus, KRS 189.820 was found constitutional and the Amish would have to pay the fines and penalties imposed in the trial court.

In an informative dissent, Justice Scott, joined by Justice Abramson, found that the Kentucky Constitution offered more protection under Section 5 for the free exercise of religion than the U.S. Constitution and would have found KRS 189.820 unconstitutional. Justice Scott would have used a strict scrutiny review that there was not a compelling state interest for the use of just the bright orange SMV triangle. Other less restrictive means were available that was used by the Amish and proper. In fact, as stated above, the Kentucky General Assembly allowed less restrictive means when it amended the statute to allow other reflective devices other than the bright orange SMV triangle.

This opinion of the Kentucky Supreme Court offers an interesting review and opinions of the legal jurisprudence and analysis for reviewing the constitutionality of statutes. I found it to be a good read. The amendment of the statute this year, however, probably limited this opinion’s effect to some extent as a legal precedent.

Legal Tip: Be alert to the manner in which laws are enforced in your jurisdiction and others. The same law may be enforced completely different in neighboring cities or counties, subjecting the law to a constitutional challenge as to its legality. Or, you may want to contact your representatives to change the law as happened here.

A full text of the Kentucky Supreme Court’s Opinion can be found at:

This case is final and can be cited as authority.

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.

SCOKY Requires In Camera Review, Privilege Log, or Offer of Proof Before Entertaining Extraordinary Writ to Uphold a Claim of Privilege Where Such Is In Dispute

Tuesday, November 27th, 2012

By David Kramer |

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In Collins v. Braden, 2011-SC-000770, 2012 WL 5285717 (Ky. 2012),, the Kentucky Supreme Court reversed a writ of prohibition that had been issued by the Kentucky Court of Appeals, holding that the party that sought the writ should have been required to seek an in camera review of the documents in question by the trial court or to produce a privilege log or make an offer of proof in order to establish the privileged nature of the documents. The Court of Appeals had ruled the documents, which were generated as a result of the investigation into an adverse patient outcome by a hospital’s legal counsel, fell within the scope of the attorney-client privilege under the case of St. Luke Hospitals, Inc. v. Kopowski, 160 S.W.3d 771 (Ky. 2005). The hospital had sought the writ of prohibition to preclude the trial court from ordering production of the documents, relying on the “certain special cases” line of writ cases originating with Bender v. Eaton, 343 S.W.2d 749 (Ky. 1961), that had approved of the issuance of a writ to preclude a trial court from erroneously compelling production of nondiscoverable information that is privileged or confidential.

The Supreme Court, in an opinion by Justice Noble, noted that the documents at issue might very well be privileged, but stated that for purposes of the record in an extraordinary writ case in which the petitioner seeks to preclude compelled production based on a claim of privilege, the petitioner should take one of three steps to establish the privileged nature of the documents if such is in dispute: (1) submit the documents for in camera review by the trial court, with the trial court providing a description of the documents or factual bases for the privilege; (2) furnish the trial court and the opposing party a privilege log with information about the documents sufficient to establish their privileged nature; or (3) provide a description of the documents in an offer of proof in the manner provided for in KRE 105(b). Provided the documents relate to confidential communications made by the client or employees of the client in the course and scope of their employment in order to obtain or further the rendition of legal services, the trial court should not order them produced, and a writ will lie to preclude the trial court from erroneously compelling their production.

The Court noted that in some cases the existence of a privilege may be evident from the record without one of the three methods outlined in the opinion, as was the case in St. Luke Hospitals v. Kopowski.

Unlike the federal civil rules, which require preparation of a privilege log (see FRCP 26(b)(5)(A)(ii)), the Kentucky civil rules do expressly not mention the process. However, the following statement from 7 Philipps & Kramer, Kentucky Practice, “Rules of Civil Procedure Annotated,” CR 26.02, Comment 7 at p. 616 (5th ed. 2005), addresses privilege logs: “Some trial courts in Kentucky have begun to require production or exchange of privilege logs as a means to require parties to establish a basis for a claim of privilege and to narrow discovery disputes about potentially privileged documents. Where the nature of the discovery request itself appears on its face to seek privileged documents, however, production of a privilege log may be unnecessary.”

The Collins v. Braden decision was designated for publication and became final on November 15, 2012. It will be published soon in the South Western Reporter and may be cited as authority.

David Kramer is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.

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Tuesday, November 27th, 2012

Nov. 26, 2012
Once again the Kentucky Supreme Court has sent a message to the Bar Counsel’s Office that they are excessively prosecuting attorneys. In the Fred Green case handed down on Nov. 2012 and cited below, the Bar Counsel cited the attorney, Fred G. Green on nineteen counts and recommended a sanction of a five year suspension. The Board of Governors dismissed seventeen of the nineteen complaints, and the Supreme Court upheld the Board’s slap on the Bar Counsel.
That recommendation stands in stark contrast to Bar Counsel’s position that Respondent was guilty of all nineteen counts, and deserved a five year suspension. The Supreme Court upheld the dismissal of l7 counts and imposed only a 30 day suspension.
“Based upon our review of the record, the arguments of the parties, and the applicable ethical rules, for the reasons discussed below, we agree with the Board’s findings, adopt their recommendations in full, and reject Bar Counsel’s arguments in objection to the Board’s decision, with the exception of the recommended punishment for Respondent’s violations.”
Last year the Supreme Court likewise refused to adopt recommendations of the Bar Counsel’s office against Eric Deters, and his sanction was substantially reduced by the Supreme Court.
In Sept. the Supreme Court in a ruling sent a blunt message to the KBA and Bar Counsel’s office. The decision basically sent the warning that “We have the right to examine all of your files and records.”
The call for extensive reforms of the attorney discipline process have been called on by several sources, and these recent rulings of the Supreme Court are beginning to demonstrate that the Ky. Supreme Court is not going to give the Bar Counsel and the KBA a blank check anymore.

LawReader Synopsis of recent Green case:
Click to read full text 2012-SC-000148-KB.PDF
This consolidated proceeding involves nineteen counts of alleged misconduct by Respondent involving four KBA files.
Of the nineteen charges of misconduct, the Board found him not guilty of seventeen;
Respondent was guilty of violating SCR 3.130-1.5(a) 2 (charging an unreasonable fe) and SCR 3.130-1.15(a) (commingling of fees) in regards to a probate matter involving the Curtis Binkley estate, and recommended that he receive a forty-five-day suspension, probated for two years contingent upon completing additional CLE credits, for the first violation and a private admonition as punishment for the second violation.
That recommendation stands in stark contrast to Bar Counsel’s position that Respondent is guilty of all nineteen counts, and deserves a five year suspension.
Based upon our review of the record, the arguments of the parties, and the applicable ethical rules, for the reasons discussed below, we agree with the
Board’s findings, adopt their recommendations in full, and reject Bar Counsel’s arguments in objection to the Board’s decision, with the exception of the recommended punishment for Respondent’s violations.
In lieu of the punishment recommended by the Board, we instead impose a thirty-day suspension for Respondent’s violation of SCR 3.130-1.5(a), without probation, and instead of the Board’s recommendation of a private reprimand for his violation of SCR 3.130-1.15(a), we determine that a public reprimand is the appropriate disciplinary measure.
As further discussed below, upon review of each of the relevant Inquiry Commission files, we adopt the findings and disciplinary recommendations of the Board, and reject the Bar Counsel’s arguments in opposition to this disposition.
Minton, C.J., Abramson, Cunningham,
Noble, Scott and Venters, JJ.,
concur. Schroder, J., not sitting.

Appeals: Failure to include language in order for appeal re finality results in dismissal. Ohio Cas. Ins. Co. v. City of Providence,

Tuesday, November 27th, 2012

COA, NPO 11/16/2012

Posted: 26 Nov 2012 09:16 PM PST

Ohio Cas. Ins. Co. v. City of Providence, COA, NPO 11/16/2012

As a general matter, “this court is required to raise a jurisdictional issue on its own motion if the underlying order lacks finality.” Tax Ease Lien Investments 1, LLC v. Brown, 340 S.W.3d 99, 101 (Ky. App. 2011) (citing Huff v. Wood–Mosaic Corp., 454 S.W.2d 705, 706 (Ky.1970)). With that said, the circuit court had the authority to bifurcate Providence’s action against OCC into two separate claims (i.e., one claim for the interpretation of the contract and its
coverage provisions, another for an assessment of damages pursuant to the contract). The circuit court also had the authority to render its decision regarding coverage immediately appealable while reserving the separate issue of damages for a later date—provided that it did so by following the requirements of Kentucky Civil Rule (CR) 54.02. See Preferred Risk Mut. Ins. Co. v. Kentucky Farm Bureau Mut. Ins. Co., 872 S.W.2d 469, 470 (Ky. 1994).

However, CR 54.02 required the circuit court’s order to recite not only that it was final, but that there was “no just reason for delay.” Watson v. Best Financial Services, Inc., 245 S.W.3d 722 (Ky. 2008). “Absent those certifications,
the rule is not invoked.” Spencer v. Estate of Spencer, 313 S.W.3d 534, 540 (Ky. 2010). Here, the circuit court’s order simply recites that it is “a final and appealable order,” but omits that there was “no just reason for delay”; its
subsequent order overruling OCC’s CR 52.02 motion for additional findings did not cure this omission; and, as a consequence, the circuit court’s order, which is the
subject of this appeal, is merely interlocutory and unripe for review. Watson, 245 S.W.3d 722.

The hard fact is that it was appellant Ohio Casualty’s responsibility to ensure that the circuit court’s judgment was in the proper form to invoke CR 54.02. Spencer, 313 S.W.3d at 540. Having failed to do so, Ohio Casualty has left this Court with no option other than to DISMISS its appeal.


Monday, November 26th, 2012

Nov. 26, 2012 LawReader
Recently U.S. District Judge Danny Reeves held a brief hearing in the Fen Phen case before his court. The U.S. Attorney has been seeking a financial report and distribution list from attorney Angela Ford for some two years. In a recent brief the U.S. Attorney said they were seeking discovery of Angela Ford’s “personal banking account” as well as the distribution list which would reveal the attorneys with whom she shared legal fees.
The Ky. Ct. of Appeals set aside a summary judgment in the Boone Circuit Court, and ordered a new trial. Subsequently the Ky. Supreme Court granted discretionary review.
Angela Ford has supported her position with written claims that the reveal of the Circuit Courts summary judgment did not prevent her from seizing the Fen Phen attorneys assets, and distribution thereof, including some $12 million in attorney fees.
The recent hearing was believed by some as an opportunity for Judge Reeves to disclose information about the names of attorneys on the Ford distribution list. He chose not to do so. The following comments were forwarded to LawReader and we have expressed out comments on three of the issues.

‘Reeves will not order funds distributed unless sup ct. acts denies writ for certiorari.’
LawReader: Does this mean that he will not allow any further distribution until the Ky. Sup. Ct. rules? The way the answer is worded appears inconsistent to me…can your straighten me on the foregoing?
‘Jim Gary asked Reeves for information on Ford’s use of funds and was denied. Court was only dealing with the interests of the victims. ‘
LawReader: I understand the first sentence, but the second sentence is incorrect. If Ford violated the Solicitation rules and is therefore ordered to forfeit her entire fee, then the so-called “victims” are due $12 million more if Ford loses. The” interest of the victims” suggests the court inquire about the improper solicitation issues which are allegedly based on a letter Ford wrote to a client on March 16, 2005, in which she disclosed she had filed ethics complaints and had shared that information with the “media”.
‘Minute entry directs counsel to propose distribution plans on or before Jan 2, 2013.’
LawReader: I take this to mean that Reeves is just asking for suggestions, but will not rule on any additional distribution until the Ky. Supreme Court rules….

Note: The Sixth Circuit is expected to dismiss the Angela Ford appeal any day now. That may allow the U.S. attorney to reveal the names of the attorneys with whom Ford shared Fen Phen assets. This distribution list may clear, or may implicate, some attorneys by explaining their relationship with the KBA officials and prosecutors.


Saturday, November 24th, 2012

By Stan Billingsley Nov. 24, 2012

On Nov. 15th. my wife Gwen and I attended the sentencing of Gallatin County Personal Injury lawyer Meredith (Larry) Lawrence in Federal Court in Covington, Kentucky. I never practiced federal criminal law amd I wanted to learn about the sentencing process in Federal court, and I wanted to offer moral support to a lawyer I respect.

Larry was a distant acquaintance for a number of years, but about six years ago I sat as a Circuit Judge in a personal injury case in which Larry represented the surviving husband and two children of a woman who had been killed by a roll of stainless steel falling off a truck and crashing through the windshield of her vehicle.

Larry did an excellent job, and the jury awarded his client some $5,000,000. I allowed an instruction on a doctrine called by the appellate court as “pre-impact fright”. (The court threw out my instruction allowing damages for the one second that the decedent witnesth the 40,000 lb. roll of steel flying at her. An EMT worker lived in the house next to the incident. She ran out to attend the decedent, and testified that the woman was instantly killed, but her face still exhibited a frozen scream of horror. I left it to the jury to allow or deny damages for the 1 sec. the decedent had before her death. The jury awarded $100,000 under the “pre-impact fright” instruction. The appellate court set aside that instruction , but suggested that this doctrine might be approved in some future case, but was not allowed in this case. This trial in the Gallatin Circuit Court, demonstrated to me Larry’s competence as a trial lawyer. The rest of the $5 million dollar verdict was upheld.

This year “Larry” was convicted after a jury trial for “skimming” income from a restaurant and strip club known as “Racers” on Hwy. 127 near the Kentucky Speedway in Gallatin County in Northern Kentucky just off of Interstate 71.

Larry has been very forthcoming about his conviction for filing an incorrect tax return with the IRS, and he still maintains his innocence. An attorney close to the trial explained that under the law, criminal intent is not necessary for the federal conviction, and it doesn’t matter if your IRS tax return reports too much income or too little. If you reported income is incorrect, you can be convicted. The court imposed a restitution order of some $128,000. The testimony alleged that Larry had placed funds in different accounts and still had the money.

The fact that he maintained his innocence was a factor announced at the sentencing hearing of the l5th. Federal District Judge Danny Reeves explained that the sentencing guidelines, he was required to apply to the Lawrence sentence, worked to enhance the prison sentence.

There were three or four accountants who allegedly all came up with different amounts of income that should have been reported. Reportedly Larry had offered from day one to promptly pay the IRS whatever they claimed, and he told me that he never knew until the criminal trial just how much the IRS claimed was owed to them.

As I understand the case, he didn’t learn how much the IRS claimed he owed, until the trial. I don’t question the jury verdict, as I didn’t attend the trial and don’t claim to know all the facts. But I wanted to learn more about federal court sentencing procedures.

The Federal Sentencing Guidelines actually punish a defendant for simply asking for a jury trial. That just seems un-american to me. If the constitution guarantees every defendant a jury trial, how can Congress and the Courts punish you for merely asserting your constitutional right to a trial?

Further the guidelines enhanced the punishment of Lawrence for “perjury”. This was not a conviction on a perjury count, this was a provision of the Federal Sentencing Guidelines, which holds that if you are convicted, and your testimony differs from the testimony of a Government witness, then you are deemed to have committed perjury not by a jury, but by the Sentencing Guidelines.
One of the reasons I wanted to attend Larry’s sentencing, besides showing my support for a friend who clearly appreciated the support of the 60 or 70 family members and friends who drove to Covington, and sat for the three hour sentencing process, was to see District Judge Danny Reeves in action.

I have read many pleadings in which Judge Reeves was involved. Reeves was the trial judge in the second Fen Phen jury trial in which William Gallion and Shirley Cunningham were convicted. That second trial allowed the Bar Counsel of the KBA to testify before the jury that the KBA had disbarred the two defendants. The Bar Counsel Linda Gosnell, was subsequently discharged by the Board of Governors of the KBA in November of 2011. To this day the KBA refuses to say why they fired Gosnell. In a related case Judge Reeves has ordered attorney Angela Ford to disclose the names of the attorneys she shared her legal fee with. Ford has twice appealed Judge Reeves order which was sought by the U.S. Attorney. After seeing Judge Reeves in person, I concluded that I would not like to be in Angela Ford’s shoes. I would think it would be unwise to oppose any order issued by Judge Reeves, and I would not like to be a target of the U.S. Attorneys list.

Gallion and Cunningham recently filed pleadings seeking consideration of their convictions by the U.S. Supreme Court.

In any event, I found that Reeves was better looking than his official picture. He appeared younger than I had imagined, and conducted himself with professionalism during the three hour sentencing process.
Judge Reeves patiently allowed the defense to make arguments about the sentencing recommendations of the Government attorneys. During the hearing, Larry made a comment about the effect his absence would have on his two daughters, and stated that his ex-wife who had “run off with a truck driver to Canada” thus abandoning her husband and her two daughters. He discussed the psychological effects on his children, and commented that the children needed him to be present as a parent. He opined that his ex-wife just was incapable of properly caring for the parties two children.

Someone sitting two rows behind me interrupted the hearing with a shout in which she stated, “that’s a bunch of crap”. It was reported to me that the outburst was made by Larry’s ex-wife. The solemnity and seriousness of this procedure was disrupted. I believe everyone in the courtroom expected the bailiffs to open fire at any moment. More than a few of us flinched and prepared to hit the floor for our own protection. I told my wife that to me the outburst proved Lawrence’s allegation that the children’s mother was not capable of parenting the children.

Judge Reeves didn’t bat an eyelash at the outburst. He showed a great deal of restraint in ignoring the inappropriate disruption. I must admit that had that occurred in my courtroom I probably would have taken punitive action…but Judge Reeves showed restraint. His restraint earned my respect.

Judge Reeves heard the arguments on four issues that could have enhanced or reduced the sentence recommendation of 27 to 33 months. He granted the defendant’s motion that the “sophistication” of the “skimming” scheme was not great. He then complied with the sentencing guidelines and used his discretion to sentence Lawrence to the minimum of 27 months. He denied probation, but did recommend referral to a Federal Prison Camp near Manchester, Kentucky. He gave Lawrence to March to report to the Bureau of Prisons, to clear up his personal affairs.
My wife was reading a new novel by John Grisham titled “The Racketeer”, and it discusses the conviction of a lawyer who was placed in a fictional Federal Prison Camp in Cumberland, Maryland. The attorney in the novel discusses life in a Federal Prison Camp. It is not a place that I would like to visit.

I spoke to Larry before the hearing began and he was very nervous but most appreciative of the many friends and family who came to offer their moral support. After the sentencing Larry had dark circles around his eyes, and seemed visibly beaten down. He maintained his dignity nevertheless.

His allocution speech was effective and sincere, and demonstrated his talent as a trial lawyer, a talent that he is not likely to ever demonstrate in court again due to his permanent disbarment by the KBA. This conviction was for a non-violent crime.

The trouble for Lawrence begin with a DEA raid on the strip club in which they were apparently looking for drugs. The Government had to concede that no drugs of any type were discovered in their raid. The only offense against Lawrence was a claim regarding improper reporting of his taxes.

Judge Reeves was not convinced by the “hardship” argument raised by Lawrence. Lawrence had asked the judge to consider a stay in his sentence for two years until his daughters became adults. He offered to serve the full sentence after the girls were cared for. That request was denied.

It is not known by the author if Lawrence will appeal his conviction. If he does appeal I hope that this will not enhance his sentence.

The conclusion that I, and many of the people in the courtroom, made was that it is not a good thing to have the U.S. government after you.

After the hearing I had more respect for Larry Lawrence, and I also had more respect for Judge Reeves. A judge’s job is not always pleasant, and Reeve’s followed the sentencing guidelines. He did not lecture the defendant. There really was no need for a lecture by the judge. The sentence to 27 months in federal prison, and permanent disbarment from his profession said it all.

I have seen other acquaintances whose careers were destroyed by allegations of scandal. The government is entitled by law to impose their punishment. But people who commit acts found to be crimes, are still human beings, and in my opinion are still worthy of compassion and Christian forgiveness. I wish the best to the Lawrence family, and hope that after the completion of his 27 month sentence, he will be able to repair some of the damage done to his family.


Friday, November 23rd, 2012

November 21, 2012, 2:30 pm
Law School Admission Testing Plunges

Dollars to doughnuts.

The number of people taking the Law School Admission Test, known as the LSAT, offered in October fell sharply, down 16.4 percent from the year before, reaching its lowest level since 1999. October is usually the most popular time to take the test, too:

Source: Law School Admission Council

No wonder, then, that law schools are cutting the size of their entering classes. Perhaps this means itÂ’ll still be easier to get into the top schools, though, depending on how much the most elite schools decide to shrink their class sizes.

There was a huge surge in law school applications during the recession and its immediate aftermath as people displaced by the poor economy sought the “safety” of a legal career. But now potential students seem to have wised up to the huge debt burden and poor job placement prospects.

One recent paper actually suggests that lawÂ’s reputation for providing a risk-free career path has been a fiction for a long time. It notes that the legal market has become more crowded, with the ratio of the American population to American lawyers morphing to 252 to 1 in 2005 from 695 to 1 in 1951. The paper also estimated that, of the 1.4 million law graduates of the last 40 years, about 200,000 to 600,000 are not working as lawyers.

While whistleblower complaints are confidential, one high profile complaint in Kentucky was not.

Wednesday, November 21st, 2012

60 SEC Whistleblower Complaints filed out of Kentucky

Source: page 13, Appendix B

Most compliaints regarding financial misdealing of state funds are kept confidential, but we have been tipped to one complaint that is interesting.

Chris Tobe as a Trustee of the Kentucky Retirement Systems made several SEC complaints that were published in a public Independent Counsel Report that has been posted at

Strong Recusal Rules Are Crucial to Judicial Integrity

Tuesday, November 20th, 2012

Strong Recusal Rules Are Crucial to Judicial Integrity

SOURCE: AP/Bob Bird Center for American Progress

By Billy Corriher | November 20, 2012

This report is the fourth in a series on different policies that could help mitigate the influence of corporate campaign cash in judicial elections. The reports are intended for advocates or legislators who want to ensure our justice system works for everyone, not just those with enough money to donate.

Since the 2000 election season, state supreme court races have seen a surge in campaign cash. State supreme court candidates from 2000 to 2009 raised more than $200 million—two and a half times more than the amount raised in the previous decade. A report from Justice at Stake, an advocate for fair courts, found that judicial elections in 2012 set a spending record, with $27.8 million shelled out for television advertising alone. This flood of campaign cash has flowed from corporations, interest groups, and lawyers seeking to influence the composition of state high courts and the rulings issued by those courts.

This abundance of campaign donations has sometimes led to alarming conflicts of interest. Unlike legislators, judges make decisions that impact specific individuals or entities, which means the avoidance of any bias or partiality is critical. Under the ethical rules and guidelines in place in most states, judges must disclose any campaign donations from parties or attorneys before their courts, and they must refrain from hearing a case if it would give rise to “impropriety or the appearance of impropriety.” This standard, however, is vague and leaves much to interpretation.

Judges sometimes recuse themselves from cases involving litigants or lawyers who have given money to their campaigns, but all too often judges refuse to abstain in the face of glaring conflicts of interest. This has caused the public to doubt the impartiality of judges. According to several recent polls, more than three quarters of respondents believe that campaign cash influences rulings.

The North Carolina state legislature acknowledged these concerns in 2002, when it overhauled its judicial elections process and established public financing for qualified candidates for the state’s appellate courts. This system kept special interests from influencing the law and allowed North Carolina judicial candidates to avoid the ethical dilemmas that have plagued other states. The 2012 election, however, saw the state’s public financing system overwhelmed by “independent spending” as organizations supporting conservative Justice Paul Newby spent more than $2.5 million in his successful re-election bid. Funding these organizations were tobacco companies, education advocates, and health care interests—groups with a stake in cases before the North Carolina Supreme Court. The largest donation, by far, was $875,000 from the Republican State Leadership Committee, a national group dedicated to electing Republicans to state offices.

One of those cases before the North Carolina high court involves a lawsuit filed by the state chapter of the National Association for the Advancement of Colored People, or NAACP, among others, alleging that Republican legislators discriminated against African American voters in redrawing the state’s legislative districts. The plaintiffs allege that the drafters of the redistricting map purposely diluted the political power of “minority voters” by using race as a proxy for political party. A lower court granted the plaintiffs’ motion to access information about how the map was drawn. That decision, which is now being challenged in the high court, is seen as a precursor to the North Carolina Supreme Court eventually ruling on the legality of the redrawn legislative map. With the redistricting issue looming, the Republican Party and corporate interest groups used independent spending to influence the 2012 North Carolina Supreme Court election. Newby will have to decide whether all that independent campaign cash supporting his candidacy means that he should recuse himself from the case.

In a 2009 case the U.S. Supreme Court tackled the ethical dilemmas that arise from huge judicial campaign donations from parties before a court. The Court in Caperton v. Massey Coal Co. held that “extraordinary” campaign contributions from Don Blankenship, CEO of Massey Coal, violated the plaintiff’s due process rights. The plaintiff in Caperton was the owner of a small mining company who sued the much larger Massey corporation, alleging that it “destroyed” his business. The jury awarded the plaintiff $50 million, but while the case was pending before the West Virginia Supreme Court, the executive of the defendant corporation spent $3 million to help elect a Republican justice to that court. The newly elected justice refused to recuse himself from the lawsuit, even though two of his colleagues had done so. The justice cast the deciding vote to overturn the verdict on a technicality.

The U.S. Supreme Court held that the Constitution required the West Virginia justice to recuse himself. Justice Anthony Kennedy’s opinion said the coal executive’s “extraordinary contributions were made at a time when he had a vested stake in the outcome. Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when … a man chooses the judge in his own cause.” Kennedy noted that the Constitution “demarks only the outer boundaries of judicial disqualifications” and that states can implement stronger rules.

Judges refuse to police themselves

The most recent American Bar Association Model Code of Judicial Conduct instructs judges to disclose any potential conflicts of interest and requires recusal when campaign contributions exceed a certain amount. Leaving it to states to fill in the blanks, the rule says recusal is mandated when “a party, a party’s lawyer, or the law firm of a party’s lawyer has within the previous __ years made aggregate contributions to the judge’s campaign in an amount greater than ___ .” In the wake of the Caperton decision, a few states strengthened their recusal rules, but most states have not responded to the ethical dilemmas that have emerged as campaign cash has flooded judicial elections.

Some state supreme courts have even weakened their recusal standards in recent years. In a 2010 decision by the Wisconsin Supreme Court, a four-justice majority of conservative justices voted for an inadequate recusal rule. The court adopted the watered-down standards articulated by a number of conservative organizations, including the Wisconsin Realtors Association and Wisconsin’s Manufacturers and Commerce. These corporate-funded groups subsequently donated nearly a million dollars to support Justice David Prosser’s successful re-election in 2011, keeping in place the court’s four-justice conservative majority. The new rule states that campaign donations or independent expenditures by a litigant or an attorney can never be the sole basis for recusal.

The four conservative Wisconsin justices rejected an alternate proposal from the League of Women Voters to mandate recusal when a party contributes to a justice’s campaign. The League argued the court must have “rules for recusal which remove any perception that justices and judges are beholden to those who contribute to their campaigns.”

Wisconsin Justice Ann Walsh Bradley dissented from the order adopting the standard urged by the corporate interest groups, expressing alarm that judges’ campaigns can now ask parties before the court for campaign contributions. “Judges must be perceived as beyond price,” Bradley stated. She criticized the majority for adopting “word-for-word the script of special interests that may want to sway the results of future judicial campaigns.” The Wisconsin high court’s four-justice majority seems intent on making it easier for big money to influence the judiciary, at the expense of litigants without resources to contribute to political campaigns.

One substantial donor to judicial campaigns—insurance giant State Farm—saw several recusal requests directed toward a beneficiary of the company’s generosity, Illinois Supreme Court Justice Lloyd Karmeier, in a class action lawsuit in which a jury awarded a $1 billion verdict against the insurer. According to the plaintiffs in that case, the company spent millions of dollars to elect a justice to the Illinois Supreme Court in 2004. The class action lawsuit was brought by millions of policyholders who claimed State Farm had violated their insurance policies and consumer protection laws by offering inferior parts to repair their cars. Justice Lloyd Karmeier was elected to the court while the case was pending. The plaintiffs asked Justice Karmeier to recuse himself because State Farm’s employees and lawyers had donated around $350,000 to his campaign, but he declined. Justice Karmeier voted to overturn the verdict.

The plaintiffs, claiming they had discovered new connections between the judge’s campaign and State Farm, filed a new lawsuit in the fall of 2011 alleging that State Farm—through political groups such as the U.S. Chamber of Commerce and the Illinois Civil Justice League—“recruited Karmeier, directed his campaign, had developed a vast network of contributors, and funneled as much as $4 million to the campaign” in an effort to influence the outcome of the appeal. State Farm has sought to dismiss the lawsuit, arguing that it rehashes many of the claims asserted in the previous case.

Some judges oppose stricter recusal rules on the basis of their “duty to sit,” which requires them to hear cases and controversies before them. Because they belong to the courts of last resort for many cases, state supreme court justices who refuse to abstain often cite this notion.

Even when judges seek to recuse themselves it is sometimes impossible for them to do so. In a 2000 Nevada Supreme Court case, a trial court judge recused himself from hearing a lawsuit brought by two plaintiffs whose land was seized through eminent domain for a private redevelopment project. After the case was assigned to the judge, four casinos that would benefit from the redevelopment project gave contributions to the judge’s campaign. The landowners asked the judge to recuse himself because of the contributions and because two of the witnesses were casino executives who gave money to the judge’s campaign.

To his credit, the judge agreed and abstained. But after three other trial court judges similarly recused themselves, the redevelopment authority persuaded the Nevada Supreme Court to order the original judge to hear the case. In issuing its order, the high court noted “this recurring problem of campaign contributions” but said a rule requiring recusal due to campaign contributions would “severely and intolerably obstruct the conduct of judicial business.” In other words, campaign cash from litigants and attorneys is so pervasive that requiring recusal in these circumstances would make it impossible for judges to do their jobs.

The Nevada plaintiffs—their land taken to provide a parking deck for the same casinos that donated to the judge’s campaign—likely found little solace in the judge’s “duty to sit.” This legal axiom predates multimillion-dollar judicial campaigns and ignores the damage they have done to public confidence in the judiciary.

Several years after the Nevada high court’s decision, the Los Angeles Times described the Nevada judiciary as rife with conflicts of interest, displaying a “style of wide-open, frontier justice that veers out of control across ethical, if not legal, boundaries.” The Nevada high court in 2009 adopted a rule requiring recusal when a judge’s “impartiality might reasonably be questioned,” but the justices rejected two proposals to specify when campaign contributions require recusal. One rule would have kicked in when contributions exceed $50,000, and the other would have required recusal when a party or law firm provides 5 percent or more of a judge’s campaign funding.

When courts are left to police themselves, the strength of a court’s standards depends on the will of a majority of the justices. The Michigan Supreme Court has taken a step in the right direction, but not every justice is on board. The court recently adopted a rule that permits the entire court to review motions to recuse a justice. Under the rule, a justice must respond in writing to requests for recusal, and if he or she decides not to abstain, the party making the request can appeal that decision to the entire court.

Two of the Michigan court’s seven justices, however, have refused to participate in these appeals. Justice Maura Corrigan, dissenting in one such case, argued that Michigan’s recusal standard is too high:

The rule effectively gives a majority of justices carte blanche to disqualify their colleagues simply by articulating its impressions of why a challenged justice’s participation appeared improper, without regard to the existence of the traditional, more objective grounds for recusal such as personal bias, involvement in the case, or economic interest in the case.

Corrigan also argues that the rule “nullifies the electoral choice of the people of Michigan by permitting the Court to decide which justices may participate in a given case.”

Justice Corrigan’s objections are based on outdated notions of judicial impartiality. Ethics rules have been strengthened as campaign cash has flooded judicial elections. A personal financial stake in a case is no longer the only basis for demanding recusal. In Caperton, the U.S. Supreme Court quoted the then-existing version of the American Bar Association Model Code of Judicial Conduct, which instructed judges to avoid “the appearance of impropriety.” The Court noted that this rule has been adopted by “almost every state.” The Court explicitly did not find any actual bias or impartiality on the part of the judge in Caperton, but recusal was still required because of the risk of bias.

Justice Corrigan’s stance illustrates the folly of leaving it to judges to police themselves on ethical issues. If two more justices were elected to the Michigan bench who share Corrigan’s views, the justices could revoke the rule. Legislative action is necessary to ensure recusal rules are more consistent, legislative.

Legislatures should pass real recusal reform

Despite the steep rise in judicial campaign cash, courts have failed to implement the tough recusal rules needed to ensure public confidence in judicial impartiality. Caperton may provide some relief from the most extraordinary and blatant conflicts of interests, but it is not enough. State legislatures should pass laws that specify when recusal is required.

Only two states explicitly require recusal when campaign contributions reach a certain threshold. In California a judge cannot hear a case if he or she has received campaign contributions of more than $1,500 from a party or a lawyer in the case. Alabama similarly requires a trial court judge’s recusal when a litigant or attorney has given more than $2,000 to the judge’s campaign. For appellate judges, the threshold is $4,000. The Alabama law states: “Under no circumstances shall a justice or judge solicit a waiver of recusal or participate in any way when . . . the contributions of a party or its attorney exceed the applicable limit.” The statute instructs the high court to promulgate rules allowing motions to recuse under these standards to be heard by lower court judges.

The Alabama law was passed in 1995, but it remains stuck in legal limbo. The Alabama Attorney General’s office initially submitted the rule to the U.S. Department of Justice for “preclearance” under Section 5 of the Voting Rights Act, which requires certain jurisdictions with a history of racial discrimination in voting to “pre-clear” any changes in voting with the federal government. After the department asked for more information on the rule, the office sought to revoke its submission, claiming the rule was not subject to preclearance. The state and federal government have yet to resolve the issue. The Alabama high court, meanwhile, has refused to implement the rule until it is precleared. Rejecting a lawsuit seeking to break this stalemate, a federal court recently referred to the situation as a “game of political chicken, with both players staring (or perhaps winking) at each other.”

Alabama was on the leading edge of the trend of exploding campaign costs for high court races. The 2006 high court race saw candidates spend $13.5 million—nearly half of all the money spent on high court races nationwide that year. Candidates in the 2010 Alabama Supreme Court election accepted dozens of contributions higher than the $4,000 threshold, with some contributors forking over tens of thousands of dollars to the judges’ campaigns. Because the recusal rule is unenforced, however, the judges can hear cases involving these campaign contributors. Alabama citizens and their state legislators should demand that the court honor this law, which is now nearly 20 years old.

As the trend toward expensive judicial races spreads, states around the country should emulate California and Alabama by passing rules that mandate recusal when campaign contributions from a party or lawyer reach a certain point.

Alabama and California use a specific monetary threshold. One scholar recently suggested using a standard of “five to ten percent of the judge’s total campaign expenditures.” Caperton similarly relied on criteria such as “a contribution’s relative size in comparison to the total amount of money contributed to the campaign.” As long as recusal rules are based on vague standards of “impropriety,” judges will be able to avoid recusal in the face of large campaign contributions.

Additionally, recusal statutes should cover independent expenditures made on behalf of a judge’s campaign. Spending by groups that are independent of judicial campaigns has risen sharply in recent elections. According to the Justice at Stake report, in the 2012 election independent spending on television ads exceeded the amount spent by campaigns. In Caperton, the coal executive’s influence on the 2004 West Virginia Supreme Court election was mostly in the form of independent spending. Even though the coal executive’s direct contribution to the candidate was rather modest, the U.S. Supreme Court held that his indirect contributions—in the form of a $2.5 million donation to a group criticizing the judge’s criminal decisions and $500,000 spent on ads by the executive himself—resulted in an unconstitutional conflict of interest.

Independent spending allows interest groups to circumvent campaign contribution limits, and if allowed to remain unchecked, they will continue to play a crucial role in judicial races. The U.S. Supreme Court, in cases like Citizens United, has loosened restrictions on independent spending, and the federal agency regulating campaign finance is paralyzed by a partisan stalemate. Omitting independent expenditures from recusal rules would present a huge loophole for litigants and lawyers looking to influence judges.

If state legislatures do not implement mandatory recusal rules, they should at least follow the Michigan high court’s lead and allow review of a recusal decision by an entire court. The judge facing the alleged conflict of interest should not be the only person deciding the issue. After all, if a judge has a conflict of interest in a lawsuit, he or she also has a conflict of interest in deciding whether to hear the suit.

Some judges might express alarm at legislatures crafting ethics rules for the judicial branch, citing concerns about separation of powers. The courts, however, retain their role as interpreters of their respective state constitutions, meaning that any rules that violate the constitutional separation of powers can be stricken. These rules generally leave the ultimate decision on recusal in the hands of judges, so they do not give other branches control over who hears a specific case. More importantly, these concerns gloss over the damage that conflicts of interest inflict on the public’s perception of the judiciary. Unlike laws allowing legislatures to override court rules or giving politicians more control over judicial selection, recusal rules govern the ethics of judges, and they are only necessary in states in which the high courts have failed to respond adequately to the swelling tide of campaign cash.


The explosion of money in judicial politics has brought renewed attention to the issue of judicial ethics. Conflicts of interest like those in Avery v. State Farm and Caperton v. Massey Coal Co. shock the consciences of citizens and cause them to question the integrity of the judiciary. The Supreme Court’s Caperton ruling may provide relief in some of the most egregious cases, but states must go further.

State legislatures should pass rules mandating recusal when the campaign contributions of a party or its attorneys reach a certain point. The legislatures can base the threshold on a certain dollar amount, based on the historical cost of judicial elections, or on a percentage of a candidate’s total contributions. A bright-line rule would not allow judges any wiggle room to avoid recusal. It would also discourage special interests from donating too much money to judicial candidates they favor because doing so would mean that the judges, once on the bench, could not hear their cases.

Recusal statutes should also govern independent expenditures, which play an increasingly important role in judicial elections. The defendant in Caperton used independent expenditures to evade contribution limits, and the U.S. Supreme Court found that this gave rise to an unconstitutional conflict of interest. Omitting this money from recusal rules would leave a glaring loophole for those seeking to curry favor with judges.

Polls show that the vast majority of citizens are concerned that campaign cash affects judges’ rulings. This is a bipartisan concern, and the public must demand that state legislators take action. Citizens should also hold judicial candidates to account for these concerns about impartiality. Voters should reward high court candidates who run on a platform of recusal reform.

Coal executive Hugh Caperton saw his business destroyed by a much larger corporation and won a jury verdict for his losses, but then saw the larger corporation work to elect a judge who overturned the verdict. In 2010 Caperton said he had “experienced firsthand the devastation and destruction that big money campaign donations are causing in judicial elections and ultimately, in our courts.” He lamented, “It appears that justice is indeed for sale.” Mandatory recusal rules would go a long way toward disabusing citizens of the notion that judges and by extension, justice, can be bought.

Billy Corriher is the Associate Director of Research for Legal Progress at the Center for American Progress.

AOC Announces Creation of Jefferson County Veterans Treatment Court

Thursday, November 15th, 2012

Nov. 20, 2012 First Floor, Jefferson County Judicial Center, 700 W. Jefferson St., Louisville
Veterans in Jefferson County now have access to a specialized court that focuses on the unique needs of those who have issues with substance abuse and mental health. Local officials will come together in Louisville on Nov. 20 to announce the launch of the Jefferson County Veterans Treatment Court, the first of its kind in Kentucky.
The news conference will be Tuesday, Nov. 20, at 12:15 p.m. on the first floor of the Jefferson County Judicial Center. The event is open to the public and the media.
The AOC is collaborating on this project with the Office of the Jefferson County Attorney, the Robley Rex Veterans Administration Medical Center, Seven Counties Services, Jefferson County Drug Court and Morehead State University. The JCVTC is being funded by a three-year, $350,000 grant from the Bureau of Justice Assistance of the U.S. Department of Justice.
With its close proximity to Fort Knox and its large urban center, Jefferson County has the largest veteran population in the commonwealth. The project anticipates providing services to 25 to 30 veterans a year.
Those who will be speaking at the news conference include Chief Justice of Kentucky John D. Minton Jr., Jefferson County Attorney Mike O’Connell, Jefferson District Judge David L. Holton and a representative from the Veterans Administration.


Wednesday, November 14th, 2012

The New York Times November 12, 2012
A Texas Prosecutor Faces Justice
In just about a month from now, Texas will witness a rare event: a former prosecutor is going to be held to account for alleged prosecutorial misconduct.
He is Ken Anderson, who for nearly 17 years was the district attorney in Williamson County, a fast-growing suburb of Austin. (In 2002, Gov. Rick Perry made him a district judge.) As Pamela Colloff writes, in a brilliant two-part series in Texas Monthly, Anderson was the kind of prosecutor who “routinely asked for, and won, harsh sentences and fought to keep offenders in prison long after they became eligible for parole.”
One of AndersonÂ’s most high-profile prosecutions was of a man named Michael Morton. In 1987, Anderson prosecuted him for a heinous crime: His wife, Christine, was bludgeoned to death. Morton was then in his early 30s, with a 3-year-old son and a job at Safeway. He had never been in trouble. Yet the Williamson County sheriff, Jim Boutwell, from whom Anderson took his cues, was convinced that Morton had committed the crime.
Evidence that could be used against him — such as a plaintive note Morton wrote to his wife after she fell asleep when he was hoping to have sex — was highlighted. Evidence that suggested his innocence — most importantly, a blood-stained bandana discovered near Morton’s house — was ignored. Worst of all, Anderson’s office hid from the defense some crucial evidence that would undoubtedly have caused the jury to find Morton not guilty. By the time Morton was sentenced — to life — only his parents and a single co-worker believed he was innocent.
But he was. In October 2011, after 25 years in prison, Morton was set free. Nine years earlier, the Innocence Project, which works on behalf of people who have been wrongly prosecuted, got involved in MortonÂ’s case. After years of legal wrangling, they got hold of the hidden evidence, and a court agreed to allow DNA testing on the bloody bandana. The DNA test not only absolved Morton, but pointed to a man who had subsequently killed another woman.
ColloffÂ’s articles are gripping and powerful, but theyÂ’re not as unusual as they ought to be. Stories about innocent people wrongly imprisoned are a staple of journalism. (Colloff herself has written about two other such prisoners in Texas.) Barry Scheck, the co-founder of the Innocence Project, told me that the group has gotten 300 people exonerated, mostly by using sophisticated DNA testing.
Sam Millsap, a former Texas prosecutor, now crusades against the death penalty because a man he prosecuted — on the basis of a single eyewitness — was put to death. He later learned that the witness had been wrong. “I’d love to be able to tell you I am the only former elected prosecutor in the country who finds himself in the position of having to admit an error in judgment that may have led to the execution of an innocent man, but I know I am not,” he said in a talk he gave a few years ago.
Very few prosecutors, however, are willing to admit they’ve made errors. They fight efforts to reopen cases. “They want finality,” said Ellen Yaroshefsky, a professor at Cardozo School of Law. The standard for introducing evidence postconviction is that it has to be strong enough to have changed the result. It rarely is.
Some prosecutors have another incentive: hiding misconduct. Brandon Garrett, who teaches law at the University of Virginia and has written a book, “Convicting the Innocent,” about exonerations, told me that in almost every case, prosecutorial misconduct is involved.
What makes the Morton case unusual is that, thanks to the Innocence ProjectÂ’s re-investigation, Ken Anderson will soon go before a Texas Court of Inquiry. If the court believes that AndersonÂ’s alleged misconduct rises to the level of a crime, it could refer the matter to a grand jury. But the Court of Inquiry exists only in Texas, and is almost never used even there.
In truth, Anderson isnÂ’t the only Williamson County prosecutor who faced consequences as a result of the Morton case. His successor, John Bradley, was the one who had fought for years against the DNA testing of the bandana. Seven months after Morton was set free, Bradley, who had always been a shoo-in for re-election as district attorney, was resoundingly defeated.
When I spoke to him the other day, he told me that he now believes he had been wrong to fight so hard against the DNA testing. “We shouldn’t set up barriers to the introduction of new evidence,” he said. Although it would mean more work for prosecutors, Bradley now believes that examining important new evidence is “a legitimate and acceptable cost to doing business in the criminal justice system.”
Bradley will leave office soon. He told me he was going to start a law practice specializing in appellate work. HereÂ’s hoping he argues some appeals for the wrongly imprisoned.


Tuesday, November 13th, 2012

Nov. 13, 2012
(Reuters) – The U.S. Supreme Court on Tuesday refused to consider whether criminal defendants who are acquitted can recover fees from the Justice Department for conducting prosecutions in bad faith.
The high court rejected an appeal brought by Ali Shaygan, a Miami doctor cleared of charges of illegally prescribing pain-killers, who sought to hold federal prosecutors responsible for alleged misconduct in his case.
Shaygan, a pain-management specialist, was accused of trafficking in illegal prescriptions after a patient died of a drug overdose.
A jury acquitted Shaygan and a Miami federal judge later awarded the doctor $602,000 under a federal law called the Hyde Amendment, which allows judges to sanction prosecutors for taking positions that are “vexatious, frivolous or in bad faith.”
The judge found that prosecutors acted in bad faith by pursuing new charges and secretly recording Shaygan’s defense team. The steps were taken in retribution after Shaygan’s attorney tried to keep statements the doctor made to investigators out of evidence, the judge found.
The judge called the prosecution’s tactics “profoundly disturbing,” adding that they raised “troubling issues about the integrity of those who wield enormous power over the people they prosecute.”
But the 11th U.S. Circuit Court of Appeals in Atlanta overturned the award, ruling that prosecutors have broad discretion under the doctrines of sovereign immunity and separation of powers.
Regardless of prosecutors’ subjective ill will, they had an objectively reasonable basis for their acts, the appeals court found.
Shaygan appealed to the Supreme Court, with the support of close to 70 federal judges and prosecutors who filed an amicus brief in the case. They argued that prosecutors’ subjective ill-will should be sufficient to justify sanctions under the Hyde Amendment.
The Supreme Court declined to take the case without comment. Justice Elena Kagan, who previously served as U.S. Solicitor General, did not take part in the decision, the order said.
David Markus, a lawyer for Shaygan, said he was disappointed the court decided not to review the case despite the support from prosecutors, judges, defense lawyers and doctors.
“Despite the decision, no one can ever take away the fact that Dr. Shaygan was found not guilty of 141 counts that never should have been brought in the first place,” he said.
A Justice Department spokesman did not immediately respond to a request for comment.
The case is Shaygan v. United States, U.S. Supreme Court, No. 12-44.
(Reporting by Terry Baynes in New York; Editing by Xavier Briand and Dan Grebler

Scalia willing to tolerate execution of the innocent

Monday, November 12th, 2012

Case Asks When New Evidence Means a New Trial –
By ADAM LIPTAK Published: November 12, 2012 The New York Times
WASHINGTON — The Supreme Court has a complicated relationship with evidence of innocence that arrives late in the game.
held,” Justice Antonin Scalia wrote in 2009, chillingly but accurately, “that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”
Last month, the justices agreed to hear a case that demonstrates why the issue can be so difficult. It concerns Floyd Perkins, a Michigan man serving a life sentence for murder. The new evidence he has gathered is plausible but not overwhelming, and he waited a long time to present it. On the other hand, he may spend the rest of his life in prison for a crime he says he did not commit.
In 1993, Mr. Perkins left a house party in Flint, Mich., with two other men. One of them, Rodney Henderson, was later found dead on a wooded trail, stabbed in the head.
The third man, Damarr Jones, testified that Mr. Perkins had committed the murder. Mr. Perkins said he had parted from the other two men before the killing and later saw his accuser under a streetlight, bloody and agitated. The jury believed Mr. Jones.
Over the years, from behind bars, Mr. Perkins collected more evidence. In 1997, his sister Ronda Hudson, gave him a sworn statement saying she had heard secondhand that Mr. Jones had bragged about the killing and described taking his bloody clothes to a dry cleaner. The statement was hearsay once removed, and the fact that Ms. Hudson was a relative of the prisoner also undermined its force.
Two years later, Mr. Perkins did better. In a second sworn statement, Demond Louis, an acquaintance of Mr. Jones, said Mr. Jones had confessed the killing to him shortly after committing it. Mr. Louis added that he had gone with Mr. Jones the next day to a dry cleaner, where Mr. Jones dropped off a pair of bloody orange pants.
Then, in 2002, an employee of the dry cleaning store, Linda Fleming, came forward to say that a man who looked like Mr. Jones had indeed dropped off bloody orange pants for cleaning.
Six years passed. In 2008, Mr. Perkins asked a federal court to throw out his conviction based on those three statements.
Magistrate Judge Timothy P. Greeley of the Federal District Court in Marquette, Mich., recommended that the request be denied because it was filed too late. Judge Greeley did not seem to give the matter much thought or care, as he mistakenly asserted in his opinion that Mr. Perkins “was convicted pursuant to a guilty plea” rather than after a trial at which he had maintained his innocence and testified in his own defense.
Mr. Perkins appealed, and Judge Robert Holmes Bell of the Federal District Court in Grand Rapids accepted the magistrate judge’s recommendation. Judge Bell did also briefly consider the new evidence. He was unimpressed, saying it was a variation on a theme presented at trial — that Mr. Perkins “was being framed by the prosecution’s lead witness, who himself was responsible for the murder.”
The United States Court of Appeals for the Sixth Circuit, in Cincinnati, reversed that ruling. It ordered Judge Bell to consider whether the new evidence was credible enough to warrant full consideration despite the fact that Mr. Perkins had filed his petition after a deadline that would ordinarily have elapsed in 2003, a year after the last piece of evidence came to light.
Officials in Michigan appealed to the Supreme Court, saying that deadlines are deadlines. Alabama and nine other states filed a supporting brief cautioning that “unscrupulous prisoners falsely claim that they are innocent all the time.” The justices will probably hear arguments in the case, McQuiggin v. Perkins, No. 12-126, in February.
The lower courts in Mr. Perkins’s case, along with briefs in the Supreme Court, seem to take for granted that he should lose if there is a legal requirement that claims of innocence be pursued diligently.
But there is another way to look at it. Documents in the court file suggest that Mr. Perkins actually tried pretty hard given his circumstances. Just before one deadline, he told Judge Bell in a handwritten filing, “petitioner’s legal documents and much of his personal property was destroyed” by prison personnel “following petitioner’s involvement in inciting a riot.”
“After which,” Mr. Perkins continued, “petitioner was denied access to the law library and law materials while he was held in solitary confinement” for almost five years. He said he continued to seek legal help and to work on his case “as much as one could have done being confined to solitary.”
The sworn statements Mr. Perkins gathered do not categorically establish that he is innocent. Except for DNA, most evidence of guilt or innocence tends to be suggestive, incremental and circumstantial. Had Mr. Perkins’ new evidence been presented at trial, it might have changed the result. Or perhaps not. The question now, two decades later, is whether there is reason enough for a fresh look at his case.
Justice Scalia will almost certainly say no.
“Like other human institutions, courts and juries are not perfect,” he explained in 2006. “One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly. That is a truism, not a revelation.”


Monday, November 12th, 2012

A Covert Affair: Petraeus Caught in the Honeypot?
by Justin Raimondo, November 12, 2012 ANTI-WAR.COM
The outing of Gen. David Petraeus as an adulterer, and his subsequent resignation as CIA Director, was carried out by an unknown FBI “whistleblower” who leaked the facts of the FBI investigation into the General’s private life to Rep. Eric Cantor. The New York Times reports:
“Eric Cantor, the House majority leader, said Saturday an F.B.I. employee whom his staff described as a whistle-blower told him about Mr. Petraeus’s affair and a possible security breach in late October, which was after the investigation had begun.
“’I was contacted by an F.B.I. employee concerned that sensitive, classified information may have been compromised and made certain Director Mueller was aware of these serious allegations and the potential risk to our national security,’ Mr. Cantor said in a statement.
“Mr. Cantor talked to the person after being told by Representative Dave Reichert, Republican of Washington, that a whistle-blower wanted to speak to someone in the Congressional leadership about a national security concern. On Oct. 31, his chief of staff, Steve Stombres, called the F.B.I. to tell them about the call.”
The FBI probe apparently started in late spring, when several people associated with Petraeus — not just the one woman, as has been reported elsewhere — received harassing emails. The emails were traced to 40-year-old Paula Broadwell, national security analyst, military intelligence veteran, and author of a biography of Petraeus. Authorities believed his email account may have been hacked, and this led to a remarkable irony: the CIA chief’s emails were monitored, without his knowledge, whereupon it was discovered Broadwell may have either had access to his account or tried to obtain access. In any case, in the course of their spying, FBI monitors discovered a large volume of emails to and from Broadwell. Looking for evidence of a security breach, all they found was evidence of a “human drama,” as one anonymous FBI official put it: an illicit affair between Petraeus and Broadwell.
Petraeus was only informed of the investigation on October 25 or 26. So here we have the astonishing fact of the CIA’s head honcho being spied on for a period of months by our own law enforcement officials.
Or maybe it wasn’t a simple case of complaints about “harassing” or threatening emails. Fox News avers:
“The FBI had been investigating an unrelated and much broader case before stumbling on the affair. Fox News has learned that during the course of this investigation, the name of biographer Paula Broadwell came up. The FBI followed that lead and in doing so, uncovered his affair with her.”
What was this “much broader case”? Almost certainly it was a counterintelligence investigation, i.e. a pushback against efforts by some foreign entity to penetrate or otherwise compromise US secrets. We can only guess at the specifics, however we do know that in the course of that investigation Broadwell’s name “came up.”
On the surface, at least, Broadwell is not the sort of person whose name would come up in a counterintelligence investigation: a West Point graduate, where she earned degrees in political geography and systems engineering, she seems like the veritable embodiment of All-American
red-white-and-blue super-patriotism. This biographical account on her high school website says
“Paula pursued a military intelligence career abroad, serving in Asia, Europe, the Middle East, and Africa. During her service, especially after 9-11, Paula’s intensity was directed toward the war against terror; her contributions and efforts to thwart terrorism have been commended by the U.S. Army and by Europe’s Special Operations Forces Commanding General. In this arena, she has planned counter-terrorism initiatives presented to NATO and worked on transnational counter-terrorism issues with foreign and domestic agencies, U.S. Special Forces, and the FBI.”
Graduate studies at the University of Denver in Middle East studies enabled her to travel to “Jordan and Israel,” and make a swing through the Persian Gulf and Europe where she spoke at various conferences. This triumphal tour was capped by a Harvard fellowship “for study in Syria and Iran.”
While Broadwell’s current academic affiliation is with Harvard’s Kennedy School of Government, her previous post was deputy director of the Jebsen Center for Counter-Terrorism Studies at Tufts University’s Fletcher School. The Center, according to its self-description, “distinguishes itself by a philosophy that maintains counter-terrorism should be predictive, preventive and preemptive, with the latter being a last resort.” Founded in 2005, the Jebsen Center was made possible by the generous donation of one Jan Henrik Jebsen, heir to the Norwegian shipping fortune, who gave $1.3 million to set it up. Jebsen, a former investment banker with Lazard Freres, is the principal of Gamma Applied Visions Group, an international octopus with tentacles all over the place: part arms dealer and weapons developer, part “green” energy company. As one might expect from someone who has so much of his multi-billion dollar fortune invested in making and selling armaments, Jebsen is on the board of directors of the distinctly warlike Hudson Institute, where Scooter Libby, Douglas Feith, Michael Ledeen, and practically every neocon you’ve ever heard of have found refuge.
While, in true neocon fashion, Hudson scholars conjure a wide diversity of imminent “threats” to the US, including China and Russia, their main focus is the threat of Islamist radicalism, especially as it impacts Israel. Indeed, Hudson operates inside Israel, where it pushes the far-rightist views of the most extreme elements in Israeli society: the settler movement, and the faction of Likud angling for war with Iran. It has also focused its attention on purging universities of academics who don’t toe the right-wing ultra-nationalist Likudnik line.
More recently, former Hudson president and “trustee emeritus” Max Singer — who has since moved to Israel, where, as a “public policy consultant” at Bar Ilan University, he spends his time inciting violence against Palestinians — is on a mission to protect Israel from the alleged threat posed by the President of the United States.
The Jebsen Center has been equally useful to the neocons. Richard H. Schultz, head of Tufts’ International Studies program (of which the Center is a part) was a signatory to the Project for a New American Century’s “open letter” to President Bush urging war with Iraq and a number of other Middle Eastern actors in the wake of 9/11. Here he is recommending the importation of Israeli “anti-terrorist” techniques to pacify the restless natives of Iraq. Here is another Jebsen Center scholar describing alleged terrorist actions engaged in by Iran worldwide. And then there’s the testimony of this guy:
“The idea of overthrowing the Iranian government through covert but peaceful means is not original. The project was first brought to my attention in August 2006 when I worked as an intern research assistant at Tufts University’s Fletcher School of Diplomacy’s Jebsen Center for Counter-terrorism. I worked for the then director of the center Brigadier General Russell Howard (Ret.) on a project titled Bringing Down Iran Without Firing A Shot. I wasn’t very experienced in the world of covert operations in the field or in the academic realm but I was very interested in becoming involved in it. General Howard, on the other hand, was not only a counter-terrorism strategist but a veteran Special Forces officer, an academic, and a tutor. It was General Howard who introduced me to the idea of targeting factors specific to Iran in order to adapt to the country’s specific needs. He had six factors which he believed were important: The military use of ongoing insurgencies within Iran, political strife, economic strife, declining oil revenues, demographics, and deteriorating infrastructure.”
Interestingly, in November of 2006, during her tenure at the Jebsen Center, Broadwell led a group of Fletcher School students on a trip to New York City to meet with then Iranian UN representative Javad Zarif. Both are alumni of the Josef Korbel School of International Studies at the University of Denver.
All this establishes a context that goes far beyond the titillating details of the alleged affair between Petraeus and Broadwell — and this is no doubt what set alarm bells ringing in the intelligence community when it was revealed. Is there really any need to point out the uses of the “honeypot” in intelligence-gathering and other covert activities regularly engaged in by spooks of all nations? From Mata Hari to the Mossad agent who lured Israeli nuclear scientist Mordecahi Vanunu, sex is a time-honored weapon in the war of spy-vs-spy. A secret affair with the CIA Director is the equivalent of the Honeypot Olympics, and we have to ask: was the remarkably fit Ms. Broadwell a lure? If so, she’s won a Gold Medal.
Broadwell’s actions — sending emails that were bound to be traced back to her — appear to make little sense on the surface. But if the goal of luring a 60-year-old geezer into an affair with a much younger woman was to expose him, and get him fired, then surely her antics succeeded in accomplishing that goal.
So who would have an interest in getting rid of Petraeus? Here’s where the Cantor connection comes in. The tip by an anonymous “FBI employee” that wound up in Cantor’s office two weeks ago came through Rep. David Reichert, Republican of Washington state, who has a friend who knows the whistleblower. Cantor then spoke to the whistleblower directly, who put him in touch with FBI Director Mueller.
Cantor is a great friend of Israel, and Petraeus — not so much. The General was attacked, as you’ll recall, by partisans of the Lobby, including Abe Foxman, when he delivered testimony before Congress citing Israel as a strategic liability in the Middle East. As the executor of the new Obamaite policy of sidling up to Islamists, not only in Libya but also in Syria and Egypt, Petraeus was no doubt seen by the Israelis as an enemy to be neutralized.
Broadwell’s affiliation with the Jebsen Center, and the Center’s connection to the neoconservative network, sets the scene: a young, attractive woman with impeccable national security credentials throws herself at Petraeus, and he takes the bait. Whether she’s been recruited by a foreign intelligence agency at this point or not is irrelevant: he’s already put himself in a vulnerable position, and there are any number of actors on the international stage more than willing to press their advantage.
Will we ever know the full story? At this point, the story is so hot that it may burn the cover story — “it’s all about sex” — right off the wrapper. Because there’s more — a lot more — here than meets the eye. When Cantor pledged to Israeli Prime Minister Benjamin Netanyahu that he and his fellow Republicans “will serve as a check on the administration” in regard to the President’s policy toward Israel, he was clearly aligning himself with a foreign leader against American interests as perceived by the White House. But would he really go this far — deliberately taking down a key figure, one beloved by Republicans, in order to keep his promise to Netanyahu?
Stay tuned to this space, because this story is moving fast….
Update: This morning [11/12/12] the New York Times reports:
“F.B.I. agents interviewed Ms. Broadwell for the first time the week of Oct. 21, and she acknowledged the affair, a government official briefed on the matter said. She also voluntarily gave the agency her computer. In a search, the agents discovered several classified documents, which raised the additional question of whether Mr. Petraeus had given them to her. She said that he had not. Agents interviewed Mr. Petraeus the following week. He also admitted to the affair but said he had not given any classified documents to her. The agents then interviewed Ms. Broadwell again on Friday, Nov. 2, the official said.”
Our regular winter fundraising drive starts on Monday, and I am literally shaking in my boots. If we don’t make it , the future of will be very much in doubt. has been in crisis mode ever since the Great Recession set in. We’ve been hanging by our fingernails, financially, and had to let go of two of our valued employees in the past few months — just in order to survive. Have you ever had to proofread your own work? That’s what I have to do now, and let me tell you, it ain’t easy.
We have fewer people, less resources — and more work to do than ever before. With Obama reelected, many people think they can just sit back and relax. NOT TRUE! Indeed, we’ll see the real Obama soon enough, as we did in Libya — and Iran still looms large, with the threat of war hanging over our heads as never before.
He doesn’t need your votes or support anymore — so it’s deuces wild, folks.

COURT RULING COULD HAVE BROAD IMPACT ON FORECLOSURES – Banks Must First Prove Ownership At Filing Of Lawsuit

Sunday, November 11th, 2012

By Lou Grieco Staff Writer Dayton Daily News
A unanimous Ohio Supreme Court ruling that invalidated the foreclosure of a Xenia couple’s home could have broader implications, effecting hundreds, if not thousands of closed cases across the Dayton region, according to local real estate attorneys.
“I think it’s going to be monumental,” said Randall Smith, staff attorney for the Miami Valley Fair Housing Center. “It’s now going to require lenders to be responsible.”
For years, the standard practice across Ohio and other states has allowed lenders to file foreclosures even if they don’t have the proper paperwork in order — and can’t show that they own the property, according MVFHC Executive director Jim McCarthy. With mortgages being repackaged and resold repeatedly, the process has become sloppier and harder to track. But local courts have allowed the lawsuits to go forward, with the understanding that the proper paperwork will eventually catch up with those lawsuits.
“We, as consumer advocates, have been arguing that its improper, all along,” McCarthy said. “Just fundamentally, that sounds wrong.”
On Oct. 31, the Ohio Supreme Court agreed, ruling that a party’s standing to initiate a mortgage foreclosure lawsuit is determined at the time of the filing — meaning that if the lender did not have proper paperwork to show ownership at the time of filing, that lawsuit can be voided.
It’s unclear what the exact impact will be, and attorneys are trying to determine that. McCarthy called that “the multi-million dollar question.”
Montgomery County has seen 5,000 mortgages filed annually since 2003, and the MCFHC has handled about 600 per year. Smith and McCarthy estimated that, in one third of those, the proper paperwork was not filed with the original complaint.
“Up until now, lenders have had carte blanche,” Smith said.
The underlying case involves Duane and Julie Schwartzwald, who bought a house in Xenia in November 2006, receiving a $251,250 mortgage loan from Legacy mortgage. The promissory note was made payable to Wells Fargo Bank.
In Sepember 2008, Duane Schwartzwald lost his job and the couple moved to Indiana so that he could accept a new position. They continued to make mortgage payments as they tried to sell the Xenia house, but they went into default on Jan. 1, 2009, according to the Supreme Court’s decision.
Two months later, Wells Fargo agreed to list the property for a short sale, and on April 8, 2009, the Schwartzwalds entered into a contract to sell it for $259,900. Closing was set for June 8, 2009.
But on April 15, the Federal Home Loan Mortgage Corporation, known commonly as Freddie Mac, filed for foreclosure, stating that the Schwartzwalds had defaulted. Freddie Mac attorneys attached a copy of the mortgage, but not a promissory note, stating “a copy of (the note) is currently unavailable.”
Wells Fargo did assign the note to Freddie Mac on May 17 and Freddie Mac’s attorneys filed it with the court on June 17.
This process jeopardized and eventually destroyed the Schwartzwalds’ short sale agreement, as repeated delays caused the buyer to rescind the offer, according to the court’s decision.
Eventually, Greene County Common Pleas Judge Stephen Wolaver found in Freddie Mac’s favor, and the Ohio 2nd District Court of Appeals agreed. But, because those decisions conflicted with some in other appeals court districts, the Supreme Court agreed to hear the case.
“Here, it is undisputed that Federal Home Loan did not have standing at the time it commenced this foreclosure action,” Justice Terrence O’Donnell wrote in the Oct. 31 decision, which over-ruled the appeals court and caused dismissal of Freddie Mac’s case.
“This is kind of ‘first-year law school stuff,’” said attorney Andrew Engel, who represented the Schwartzwalds, who said the lenders took a “file first, clean up the paperwork later” approach unheard of in other civil actions.
But the result of this decision is that people who lost their homes in a foreclosure case the original complaint did not have the proper ownership documents could re-open those cases, Engel said. If the lenders still own the homes, those people might have a chance to get them back. It could be more complicated should the lenders have sold those properties.
“Potentially, it does open up some problems with land titles,” Engel said.
Engel said he is unsure of what will happen with the Schwartzwald case, but that he will be doing a lot of legal research to determine the next step. Freddie Mac purchased the house at sheriff’s sale, but then sold it.
“I’m going to be going into uncharted waters,” Engel said. “There are many unsettled questions.”
But Smith said that there may be some “bona fide purchaser protections” that would help innocent parties who purchased those properties in good faith.
“I’m don’t know how that is going to play out,” Smith said.
Jonathan Hung, an attorney with Green and Green who is vice chair of the Dayton Bar Association’s Real Property Committee Committee, called the high court’s ruling “a really important holding” with “a lot of wide-ranging ramifications.” But he said he doubted it would impact people who had already lost their homes, in part because, if the lawsuits were voided, the lenders could always re-file.
But the ruling would definitely improve the due process rights of home owners in future actions, Hung said.
“It does clarify the law,” Hung said. “It does more to protect people going forward.”

In Unusual Move, the Delaware Supreme Court Rebukes a Judge

Saturday, November 10th, 2012

November 9, 2012, 8:29 pm


As the chief judge of the Delaware Court of Chancery – the country’s most influential court overseeing business cases – Leo E. Strine Jr. has been called an activist. He has also been called an iconoclast, a genius and a humorist.

But this week, Delaware’s highest court called him out of bounds.

The Delaware Supreme Court issued a stinging rebuke of Judge Strine on Wednesday, criticizing him for what it said was an improper digression in an opinion. Judge Strine’s decision related to a contractual dispute but went off on an 11-page tangent about an obscure issue related to limited liability companies.

“The court’s excursus on this issue strayed beyond the proper purview and function of a judicial opinion,” the Supreme Court wrote, adding, “We remind Delaware judges that the obligation to write judicial opinions on the issues presented is not a license to use those opinions as a platform from which to propagate their individual world views on issues not presented.”

Famous among lawyers for his colorful opinions and courtroom meanderings – which are frequently laced with cultural references, both high and low – Judge Strine has supporters and detractors in the securities class-action bar. The Delaware Court of Chancery exerts a powerful influence on United States business because many large companies are incorporated in Delaware and litigate cases there.

Several lawyers, none of whom would be quoted by name because they all practice before him, said it was only a matter of time before someone sought to rein him in. “I’m only surprised it took this long,” said a corporate litigator from New York who has argued cases in Judge Strine’s courtroom.

The Supreme Court advised Judge Strine that if he wished to “ruminate on what the proper direction of Delaware law should be, there are appropriate platforms, such as law review articles, the classroom, continuing legal education presentations and keynote speeches.”

Stephen Gillers, a professor of legal and judicial ethics at New York University School of Law, said that the court’s admonition was highly unusual.

“You rarely see this type of ruling because judges understand that a judicial opinion has a distinct and narrow function and is not supposed to be a platform for your public agenda or your broader views on the law,” he said.

Reached by e-mail, Judge Strine, whose official title is chancellor of the Delaware Court of Chancery, declined to comment.

The ruling came during a week when Judge Strine’s unique judicial stylings were on prominent display. During a hearing in a lawsuit between the fashion designer Tory Burch and her former husband, Christopher Burch, he described the dispute as a “drunken WASP fest.” At the center of the case is whether Mr. Burch, in starting his own retail stores, C. Wonder, borrowed too heavily from Ms. Burch’s successful chain.

During the hearing, Judge Strine addressed scheduling issues in the case, and said, “I didn’t see any reason to burden anyone’s Hanukkah, New Year’s, Christmas, Kwanzaa, Festivus with this preppy clothing dispute.”

He went on to consider why he gets assigned all the preppy clothing cases, noting that he had recently heard a dispute involving J. Crew. That led to a critique of a certain line of rain boots.

“What’s a duck shoe?” he asked. “You see all these freaks wearing this really ugly – I like L. L. Bean, but those duck shoes are ugly. I mean, there’s no way around it.”

He then said he was puzzled by his son’s recent purchase of a pair of Topsiders. “I’m like, what is this?” Judge Strine asked. “I mean, you know, how do you actually want to wear these things?”

As the hearing continued, Judge Strine suggested that there might be nothing unique about the clothing lines of Mr. Burch and Ms. Burch, who divorced in 2007. He stumped one of the lawyers in the case by quizzing him on Ralph Lauren’s original surname, which is Lifschitz.

After his lengthy sidebar on preppy attire, Judge Strine said he was deep in “an autumnal Cheever phase,” referring to the novelist and short story writer. He then encouraged the lawyers to read Cheever’s works, go see the Broadway revival of “Who’s Afraid of Virginia Woolf?” and watch “Mad Men.”

“We’ll be all geared up and in the mood for this sort of drunken WASP fest,” Judge Strine said, and then proceeded to ask about the litigants’ religion. “Are the Burches WASPs?” he asked.

Robert Isen, the chief legal officer at Tory Burch, hesitated before responding, “Tory Burch is Jewish and Chris is not Jewish.”

The answer did not entirely satisfy Judge Strine. “But not Jewish doesn’t make you a WASP, because it could make you an equally excluded faith like Catholic, right?” he asked. “I mean, that’s not a WASP. You know, a WASP is a WASP.”

Mr. Gillers of N.Y.U. Law said that discussing religion in such a manner was conduct unbecoming of a judge. Even if it is done lightheartedly, he said, it could compromise the public’s confidence in the impartiality and integrity of the judiciary.

“Asking about religion, in my mind, is way off base,” Mr. Gillers said. “It’s certainly not legally relevant, and a judge certainly wouldn’t do that with race or sexual orientation.”

Judge Strine began his career in the early 1990s as a lawyer in the Wilmington, Del., office of the law firm Skadden, Arps, Slate, Meagher & Flom. He then joined the staff of the Delaware governor Thomas R. Carper, who is now a senator. Judge Strine, who is 48, was named to the Court of Chancery at 34. Many of his opinions are considered among the most influential rulings in corporate law.

A lawyer based in Wilmington, Del., who described himself as a supporter of Judge Strine, said that behind this week’s Supreme Court ruling was a simmering tension between Myron Steele, the chief justice of the Delaware Supreme Court, and Judge Strine. That conflict appears to have its roots in a disagreement over an arcane subject: the default fiduciary duties of a limited liability company.

This lawyer said that he found Judge Strine’s rapier wit and off-topic asides to be a breath of fresh air in a judiciary that too often can be painfully dull.

“He’s a brilliant dude,” he said. “It’s just Leo being Leo.”

Failure to List Lawsuit As Asset in Bankruptcy Results in Dismissal

Friday, November 9th, 2012

By Todd McMurtry |

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In Auday v. Wet Seal Retail, Inc., Auday, a 47-year-old employee of Wet Seal, claimed age discrimination after Wet Seal fired her for not being age appropriate for a store catering to young women. No. 12-5057 (6th Cir. Oct. 25, 2012). Shortly after her termination, she and her husband filed bankruptcy. They did not list the potential claim as a scheduled asset on their bankruptcy.

Nevertheless, Auday’s counsel petitioned the bankruptcy court to bring suit, but did not amend Auday’s schedule of assets to include the claim. Once given permission to pursue the claim, counsel pursued the claim in Auday’s, not the Trustee’s, name. Reading between the lines, the Court intimates that this may have been a planned strategy by Auday and her counsel to keep the claim out of the bankruptcy.

Wet Seal sought dismissal for failure to schedule the asset and lack of standing. The district court dismissed Auday’s claim solely on Auday’s failure to schedule the asset. The Sixth Circuit affirmed, but focused on standing as the threshold issue. The Court held that only the Trustee had standing to bring the suit.

In its discussion, the Court also held that the equitable tenet of judicial estoppel prevented Auday from pursuing the claim in her own name. Referring to the risk to creditors of Auday’s efforts, the Court insisted that the Trustee be the party to bring the claims. To help that effort along, the Court offered that the lower court might have grounds to substitute the Trustee for Auday upon remand. This would preserve the value of the claim for Auday’s creditors and undo the presumed nefarious efforts of Auday and her attorney.

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

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Friday, November 9th, 2012


Barack Obama, already the first president to appoint two female justices, may have a chance to name a third during his second term in office and deepen his imprint on the U.S. Supreme Court.

With four justices 74 or older, actuarial tables alone suggest Obama will have another vacancy or two to fill before he leaves the White House in January, 2017. The oldest of the court’s nine members, 79-year-old Ruth Bader Ginsburg, has indicated she might retire in the next few years.

Names of possible successors are already circulating in Democratic circles. California Attorney General Kamala Harris, U.S. Senator Amy Klobuchar of Minnesota, Assistant U.S. Attorney General Virginia Seitz and Illinois Attorney General Lisa Madigan are high on the lists. Obama would almost certainly choose a woman to succeed Ginsburg, ensuring the court continues to have three female justices, said Amy Howe, a lawyer at Goldstein & Russell PC.

“If Ginsburg retired, I think it’d be hard to replace her with a white guy,” said Howe, whose Washington firm runs Scotusblog, a website that tracks the court and is sponsored by Bloomberg Law. “I can’t imagine he’d want to let the court go back down to two women.”

A new justice would join a court now split almost evenly on questions of abortion, race, religion, gun rights and campaign finance. Obama’s first two appointees, Sonia Sotomayor and Elena Kagan, have joined Ginsburg in voting to uphold the president’s health-care law and calling for reconsideration of the 2010 ruling allowing unlimited corporate election spending.

Shaping Law

Another Obama appointment would solidify that wing of the court, even if the balance doesn’t tip. Because a new justice would potentially serve for decades, Obama’s appointees would be in position to shape American law long after the onetime constitutional law professor has left the White House. Harris is 48, Klobuchar 52, Seitz 56, and Madigan 46.

“You could see effectively a Ginsburg clone at least 30 years younger to really anchor the liberal wing of the court,” said Carrie Severino, chief counsel for the Judicial Crisis Network, a Washington-based group that opposed the Sotomayor and Kagan nominations.

The impact would be even greater should a Republican- appointed justice, such as Antonin Scalia or Anthony Kennedy, both 76, leave the court. That’s unlikely barring a major health problem, Howe said.

Another candidate to step down before the end of Obama’s new term is 74-year-old Justice Stephen Breyer, who, like Ginsburg, was appointed by Democratic President Bill Clinton. Neither Breyer, Scalia nor Kennedy has given any public indication of plans to retire.

Appellate Judges

The candidates to replace them also include a handful of federal appeals court judges, among them Obama appointees Mary Murguia and Jacqueline Nguyen and Clinton appointees Sidney Thomas and Merrick Garland. Thomas and Garland were on Obama’s short list when he selected Kagan in 2010, with Garland getting support from Republican senators.

The possibilities would expand if no vacancy occurred for two or three years. By then, Obama may have appointed a dozen or more additional federal appellate judges, giving them stronger credentials to be elevated to the nation’s highest court.

That field includes two people he has nominated to the federal appeals court in Washington, Deputy U.S. Solicitor General Sri Srinivasan and former New York Solicitor General Caitlin Halligan.

The Supreme Court at one point loomed as a significant campaign issue. That possibility diminished after the court upheld the president’s health-care law in June, with Republican- appointed Chief Justice John Roberts casting the pivotal vote.

Obama made the court a secondary issue in his re-election bid, using it primarily to help make his case to women. In a speech in August, he told a mostly female audience that Republican Mitt Romney “could tip the balance of the court in a way that turns back the clock for women and families.”

To contact the reporter on this story: Greg Stohr in Washington at

To contact the editor responsible for this story: Steven Komarow at

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Tuesday, November 6th, 2012

WASHINGTON — The Supreme Court appeared inclined Tuesday to rule that a criminal defendant cannot be tried again after a judge acquits him midway through a trial, even if the judge bases his decision on a legal error.
The justices seemed willing during argument at the high court to endorse the idea that a judge’s decision to acquit a defendant is no different than a jury verdict in that both are final.
The issue arises in the case of a Michigan man accused of setting fire to a vacant house. The judge stopped the jury trial and acquitted defendant Lamar Evans based on a mistaken reading of the law under which Evans was charged.
Michigan appellate courts said Evans could be retried.
The Fifth Amendment to the Constitution prohibits protects people from being tried twice for the same offense. The Michigan courts said the amendment’s Double Jeopardy Clause did not apply to Evans because the judge’s mistake means he was not truly acquitted.
But several justices said they were reluctant to adopt the Michigan courts’ reasoning that Evans should not benefit from a legal windfall because of the judge’s mistake. Justice Elena Kagan pointed out that when a judge makes mistakes in instructing jurors before they deliberate on a verdict, the government may not appeal if the defendant is found not guilty. “The same windfall is received by the defendant that gets an acquittal from an improperly instructed jury,” Kagan said.
Justice Antonin Scalia scoffed at the idea advanced by lawyers for Michigan and the Obama administration that courts should be willing to allow a new trial if the judge acquits a defendant at the urging of his lawyer. “Counsel often encourage judges to do the wrong thing. In fact, in every case, there is one of the two counsel urging the court to do the wrong thing, right?” Scalia said. “That’s what the adversary system consists of.”
What little apparent support Michigan had on the court came from Chief Justice John Roberts, who said the government is supposed to have a fair shot at convicting a defendant. “It does seem to me if they had been thrown out of court because of a legal error, that’s not a fair shot,” Roberts said.
A decision should come by June.
The case is Evans v. Michigan, 11-1327.


Thursday, November 1st, 2012

There may be three new faces on the KBA Board of Governors next year.
John David Meyer of Owensboro replaces a sitting Board Member. In Louisville Douglas Farnsley did not run for re-election. His seat drew two nominees. Ann Oldfather was nominated and is the better known than her opponent Amy Cubbage.
In Northern Ky. challenger Larry Hicks will face off against Board Member Stephan Smith. Smith is employed by a large Cincinnati Law Firm and is not well known outside of Kenton County. Hicks is a popular attorney from a small law firm in Edgewood, Ky.
Section 4 (c) of the Bylaws of the KBA provides all nominating petitions for candidates for the Board of Governors shall be received by the Executive Director at the Kentucky Bar Center prior to 5 p.m. on the last regular business day of the month of October. If only one candidate is nominated in a Supreme Court District, he or she shall be declared elected to that office and the Executive Director shall at once so certify to the Board and the candidate. The election of the following KBA members to the Board of Governors was certified November 1 for a two-year term beginning on July 1, 2013:
1st Supreme Court District Michael Pitman, Murray
2nd Supreme Court District John David Meyer, Owensboro
3rd Supreme Court District Howard O. Mann, Corbin
5th Supreme Court District William R. Garmer, Lexington
7th Supreme Court District Earl M. “Mickey” McGuire, Prestonsburg

Pursuant to Section 9 of the Bylaws, elections will be conducted in the following Supreme Court Districts with candidates for election listed alphabetically:
4th Supreme Court District Amy D. Cubbage, Louisville
Ann B. Oldfather, Louisville

6th Supreme Court District T. Lawrence Hicks, Edgewood
J. Stephen Smith, Fort Mitchell

Ballots will be mailed December 15 to each KBA member in good standing entitled to vote in that election and must be received by the Clerk of the Supreme Court of Kentucky no later than January 15.