Archive for January, 2013

2013 State of the Judiciary Address By Ky. Chief Justice John D. Minton, Jr.

Thursday, January 31st, 2013

Testimony before the Interim Joint Committee on Judiciary
Thursday, January 31, 2013, 1 p.m. EST
Capitol Annex, Room 171
Frankfort, Kentucky
Chairman Westerfield, Chairman Tilley, Members of the Judiciary Committee and Guests,
Thank you for inviting me to join you today. I always appreciate your time and the
opportunity to provide you with an update on the state of the Kentucky judiciary.
Allowing me to meet with your committee on a regular basis is beneficial to both branches of
government. The court system benefits when legislators understand and support our role in
administering justice. The legislature benefits when the court system operates smoothly and
has adequate resources to efficiently administer justice.
We respect the constitutional role of the General Assembly to set policies and enact laws that
govern the lives of Kentuckians. And we hope you respect the role of the judiciary as your
partner in state government. We exist to apply and interpret statutes and case law and
precedent, but more importantly to serve as the institution of state government whose central
purpose is to preserve the sacred principle of equal justice for all.
I appreciate the judges, circuit court clerks and court staff who are with me today. I may be
calling on some of them to assist me in responding to any questions you may have.
Before I begin my comments today, I would like to take a moment to recognize Justice Wil
Schroder, my dear friend and longtime colleague who served with me on the Supreme Court
and the Court of Appeals. After nearly 30 years of judicial service, Justice Schroder
announced his retirement earlier this month to address health issues.
Wil is a man of integrity who brought to the bench an unwavering commitment to the law and
to the people of his district. The other justices and I will certainly miss his presence on the
Supreme Court.
Supreme Court of Kentucky
Chambers, State Capitol
Frankfort, Kentucky 40601
John D. Minton, Jr.
Chief Justice of Kentucky
I would like to begin today with an update on the Judicial Branch budget before focusing on
our recent successes and the challenges we face in the coming year.
The 4.3 million people in Kentucky generate nearly 1 million court cases each year. To meet
that demand, the Judicial Branch needs only about 3 percent of the state budget. Yet since
2008, our court system has experienced a cumulative budget reduction of 48 percent.
We are now more than halfway through Fiscal Year 13, which began on a grim note as we
faced an additional budget cut of $25.2 million.
As aggressive as we have been in addressing prior reductions, this latest cut hit us especially
hard. For one thing, 86 percent of our budget is tied to personnel, which leaves us little room
to trim costs outside of our workforce.
Instead, we decided to make deeper cuts to programs and operating expenses where we could,
impose even tighter restrictions on filling personnel vacancies and place a cap on the number
of participants accepted into Drug Court.
But that still wasn’t enough to balance this year’s budget. After a great deal of deliberation,
we decided to take the drastic measure of closing courthouse doors. This was the first time in
the court system’s modern history that we had to shut down because of a funding shortfall.
For three days in August, September and October 2012, the Judicial Branch furloughed all
non-elected employees for a total savings of nearly $1.2 million.
This meant that services at all four levels of the court system were unavailable to the citizens
who needed them. I can tell you with all candor that this was one of the most disheartening
actions I have had to take while serving as chief justice.
My concern over closing courthouse doors goes far beyond three days of inconvenience to our
customers. Growing caseloads and declining budgets hinder the ability of the courts to swiftly
and efficiently render justice. Whether it is the state attempting to bring a criminal to justice,
or a private citizen renewing a driver’s license or seeking the judgment of a court in a child
custody case or a business dispute, the courts are there to protect a person’s fundamental
rights under the law.
You will continue to hear me raise the issue of the need for adequate court funding as we head
into Fiscal Year 2014, which presents an additional shortfall of $28.7 million. While we have
realized sufficient savings to avoid other furloughs through June 30, 2013, we are looking at
measures to fill the funding gap for the next fiscal year.
New Court Case Management System
I also want to update you on the status of our technology program. The last time we were
together, I explained that one of my primary concerns was the status of the court system’s
obsolete case management system, which is at risk for failure.
Our current case management system is based on technology that is nearly 25 years old and is
running on programming that is more than 10 years old. The tools used to maintain the system
became unsupported in 2008.
I mentioned during my last address to you in December 2011 that our system still works and
we still maintain it, but no one knows how much longer this Band-Aid approach will work.
Now, 13 months later, we are still in a dire situation. We continue to operate with an
inefficient system that requires us to maintain a separate database in each county. That means
we maintain 120 databases for our current case management system at the trial court level.
We also maintain separate systems and databases for the appellate courts. None of these
systems are able to communicate with one another, meaning that we cannot share case
information among counties or levels of the court system.
I said it in December 2011 and I will say it even more emphatically today: We must replace
our old system as quickly as possible before there is a catastrophic failure.
With nearly 1 million new case filings each year, a system failure is simply not an option.
That is why I included language in my last budget recommendation for authority to bond the
first phase of a project to create a sophisticated new case management system that will be the
foundation for Kentucky to adopt e-filing.
I remain hopeful that our bonding authority can be revived this session so that the Judicial
Branch can begin to meet this critical need. We believe with your support and approval, this
project can be authorized this session without any additional general fund appropriation to pay
the costs of the bond.
Despite our financial challenges, we have not stopped short in our tracks. I find it heartening
that our judges, circuit court clerks and court employees can still find new ways to do
business and improve the experience of our customers.
Jefferson County Veterans Treatment Court
As this committee learned during the November meeting at Fort Campbell, we recently
announced the opening of the Jefferson County Veterans Treatment Court, the first court of its
kind in Kentucky.
This is a unique resource for veterans in Jefferson County, who now have access to a court
that provides treatment and support services to help veterans stabilize their mental health and
recover from addiction. The team includes judges, prosecutors, defense attorneys, treatment
providers, veterans’ justice outreach specialists and others dedicated to providing important
services to veterans.
The project is funded by a three-year, $350,000 grant from the Bureau of Justice Assistance of
the U.S. Department of Justice. We anticipate serving 25 to 30 veterans a year.
I am happy to report that we have received grant funding for a Hardin County Veterans
Treatment Court team to attend Veterans Treatment Court training. This is the first step
toward applying for an implementation grant. We are also applying for training grants for
Veterans Treatment Courts in Fayette and Christian counties.
These four counties are home to the majority of Kentucky veterans and the addition of a
Veterans Treatment Court will provide much-needed assistance to those veterans who are
impacted by the justice system.
Drug Court Cap Lifted
I mentioned earlier that we had imposed a cap on the number of Drug Court participants as
part of recent budget reductions. The caps, which took effect in May 2012, set the number of
participants at 2,200. The current number of participants has dropped to 2,015, which is well
below the cap.
The lower numbers are partly the result of the caps and House Bill 463, which created
additional alternatives, such as deferred prosecution and presumptive probation, for low-risk
defendants who have had limited contact with the court system. These new sentencing
alternatives have significantly reduced the number of participants entering Drug Court.
In response to Drug Court judges who expressed concern about the negative effect of
declining numbers on the Drug Court program, I lifted the Drug Court cap in November 2012.
Drug Court waiting lists have been suspended and judges are admitting eligible Drug Court
participants through the normal admission procedures. We hope this can be more than a
temporary measure. However, Drug Court must still generate a savings of 16 percent, which
was the reason for implementing the cap.
We have also had discussions with Drug Court judges about what type of participant benefits
most from Drug Court’s intensive supervision. While Drug Court has traditionally served a
lower-risk population, research has shown that the program is more effective in meeting the
needs of high-risk/high-need defendants, who may be referred from probation violation
hearings or shock probation motions.
Based on research and on Kentucky Drug Court’s proven track record for saving costs and
saving lives, I am encouraging Drug Court judges to give special consideration to accepting
high-risk/high-need individuals into the program. This will help ensure that Drug Court
resources are targeted to those most likely to benefit from the program.
Pretrial 24-Hour Rule
In October 2012, the Supreme Court took steps to stem high employee turnover in Pretrial
Services by suspending the 12-hour presentation rule required in RCr 4.20 and amending it to
reflect a 24-hour presentation rule.
The Supreme Court took this action to ease the effects of crippling caseloads and other
pressures on Pretrial Services staff statewide. This is a significant change for Kentucky
pretrial officers, who have operated under a 12-hour rule since 1976.
Kentucky has the only statewide pretrial release program in the country with a rule requiring a
specific time frame after arrest in which to complete an investigation and make recommenddations
to the court. Other states do not require specific time frames. Federal pretrial
programs comply with the 48-hour probable cause requirement of County of Riverside v.
By way of background, the role of a pretrial officer is to interview a defendant and make a
recommendation regarding release within 24 hours after incarceration. The recommendation
to the judge is based on an assessment of the defendant’s flight risk and anticipated criminal
If the judge determines that a defendant can be released pending trial, the judge can apply a
broad range of release alternatives. These include release on a defendant’s own recognizance,
an unsecured bond, a cash bond combined with home incarceration, supervision through
Pretrial Services’ Monitored Conditional Release Program or drug testing.
Since House Bill 463 was enacted in 2011 to reduce incarceration costs, Pretrial Services has
seen a significant jump in its supervisory caseload. From June 2011 to October 2012, pretrial
officers supervised an additional 1,100 defendants and had an additional 36,733 defendant
contacts as part of the Monitored Conditional Release and diversion programs. Other
legislative mandates and local rules have also contributed to the complexity of their work.
As a result, the turnover rate for pretrial officers was very high. For a time Pretrial Services
was operating with only 63 percent of the necessary workforce.
We’re reversing those statistics after only three months of using a 24-hour rule. Pretrial
Services currently has only 17 vacancies, the lowest rate in years. Pretrial officers have more
time to conduct interviews and supervise high- and moderate-risk defendants. They also have
more consistent work schedules. In 29 rural counties, we have reduced the number of trips to
the jail and eliminated split shifts, which required staff to work half of their hours in the
morning and the other half in the evening.
It’s also important to note that although the 24-hour rule is in effect statewide, most counties
continue to provide pretrial services in less than 24 hours in order to handle the caseload. This
is particularly true in urban areas, which have the highest volume of arrests. The 24-hour rule
has been more widely implemented in rural areas, especially those with an average of less
than five arrests in a 24-hour period.
The other good news is that the 24-hour rule has had minimal impact on the jails. Ninety-two
percent of defendants are still presented within 12 hours.
In closing, I can say that the state of the judiciary is strong but showing strain. I am
enormously proud of the people who work in the court system in Kentucky – the non-elected
employees as well as the elected justices, judges and circuit court clerks who work in every
county across the state. I thank each and every one of them for their dedication. Many of them
have assumed extra duties when the jobs of co-workers have been eliminated by layoffs or
attrition. Their efforts are critical to ensure that the courts fulfill our constitutional obligation
in the face of undeniable and unprecedented fiscal challenges.
That concludes my prepared remarks and now I will be happy to take your questions.


Thursday, January 31st, 2013



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Massive layoffs’ predicted in law schools due to big drop in applicants

Thursday, January 31st, 2013

‘Massive layoffs’ predicted in law schools due to big drop in applicants
Posted Jan 31, 2013 ABA Journal
By Debra Cassens Weiss
A plunge in the number of applicants to law schools will likely lead to closures and faculty layoffs, according to law professors following the statistics.
Based on current trends, the number of law school applicants for the 2013 school year is expected to number between 53,000 and 54,000, a 30-year low. In 2004, for example, 100,000 people applied to law schools, the New York Times reports. “Responding to the new environment,” the Times says, “schools are planning cutbacks and accepting students they would not have admitted before.”
Experts attribute the drop in interest to higher tuition costs and a decline in high-paying law firm jobs. University of Southern California law and economics professor Gillian Hadfield told the Times there is “a significant mismatch between demand and supply.” According to Hadfield, the problem is not an overproduction of lawyers. “Actually, we have an exploding demand for both ordinary folk lawyers and big corporate ones,” she said. But general practitioners dealing with matters like mortgages and divorce have a hard time making a living, she said. Big companies, on the other hand, aren’t satisfied with law schools’ emphasis on academics at the expense of practical training, she said.
Change is afoot, according to other law professors interviewed by the newspaper. University of Chicago law professor Brian Leiter expects up to 10 law schools will close in the next 10 years, and half to three-quarters will cut faculty, staff and class sizes.
Indiana University law professor William Henderson said the changes could occur as early as this fall. “In the ’80s and ’90s, a liberal arts graduate who didn’t know what to do went to law school,” Henderson told the Times. “Now you get $120,000 in debt and a default plan of last resort whose value is just too speculative. Students are voting with their feet. There are going to be massive layoffs in law schools this fall. We won’t have the bodies we need to meet the payroll.”
Related coverage: “Law school grapples with student surplus after switch to 3L practical skills training


Wednesday, January 30th, 2013

By David Kramer |

In Bridgefield Cas. Ins. Co. v. Yamaha Motor Mfg. Corp. of America, 385 S.W.3d 430 (Ky. App. 2012), the Kentucky Court of Appeals held that a workers’ compensation insurance carrier having a subrogation interest for benefits paid for injuries to an injured claimant allegedly caused by a defective product is bound by the same statute of limitations as the injured claimant. The Court held the limitations period was not extended under the discovery rule because the injury and its relationship to use of the product (an all-terrain vehicle) were immediately apparent to the insurer. The Court also upheld the trial court’s dismissal of a Uniform Commercial Code (UCC) breach of warranty claim by the subrogee against the manufacturer since the UCC warranty claim required that privity exist between the claimant and the defendant, which was not present here.
David Kramer is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.


Wednesday, January 30th, 2013

LawReader Senior Editor Stan Billingsley Jan. 30, 2013

With Ashley Judd rumored to be running for U.S. Senate against Mitch McConnell and some Tea Party unknowns….we are hearing rumors (mostly started in the LawReader Office)… that Jennifer Lawrence the beautiful young actress from Louisville should consider running for Governor in Kentucky.
LawReader has never met Ms. Lawrence and we don’t know her political views on anything, but from what we do know, she would make a great candidate for Governor of the Commonwealth of Kentucky.
Can you imagine the benefit that having two beauties represent us in the U.S. Senate would be for the Commonwealth!!
If we can arrange a fund raiser for Ms. Lawrence, at LawReader Hqs. We will invite our members to come and bring their check books!!!
LawReader is based in Carrollton, Ky. and one of Ms. Lawrence’s relatives lives here. She has asked us not to use her real name. We will refer to her as Aunt Daisy. Aunt Daisy gave us some family history and one of her relatives played basketball at UK and another played at Western Ky. University.
Beautiful actress, UK and WKU basketball connections, home in our states largest city….this has to be the candidate both parties will fight over.
Jennifer Lawrence was born in Louisville, Kentucky. She has 2 older brothers, Ben and Blaine, sister-in-law Meredith, and her parents are Gary and Karen Lawrence. Jennifer, known to her friends and family as “Jen”, was discovered in New York City at the age of 14. Before Jennifer became an actor, she was involved in cheer-leading
Birth Name
Jennifer Shrader Lawrence
5′ 9″ (1.75 m)
Mini Biography
Actress Jennifer Lawrence, best-known for playing Katniss Everdeen in The Hunger Games (2012), was born in Louisville, Kentucky on August 15, 1990. Her career began when she spent a Summer in Manhattan at the age of 14. During that time, she scored some small commercial and film roles, and shortly thereafter her family moved to Los Angeles so she could further pursue her dream. She was cast in the TBS sitcom “The Bill Engvall Show” (2007), and in smaller movies like The Poker House (2008) and The Burning Plain (2008).

Her big break came when she played Ree in Winter’s Bone (2010), which landed her an Academy Award and Golden Globe nomination. Shortly thereafter, she secured the role of Mystique in franchise reboot X-Men: First Class (2011), which went on to be a hit in Summer 2011. Around this time, Lawrence scored the role of a lifetime when she was cast as Katniss Everdeen in the big-screen adaptation of literary sensation The Hunger Games (2012). That went on to become one of the highest-grossing movies ever with over $407 million at the domestic box office, and instantly propelled Lawrence to the A-list among young actors/actresses. Three Hunger Games sequels are currently scheduled for release in November 2013, 2014, and 2015, with Lawrence reprising her role at least for the first one (The Hunger Games: Catching Fire (2013)).

Lawrence can also be seen in The Beaver (2011), Like Crazy (2011), House at the End of the Street (2012) and Silver Linings Playbook (2012).
Mini Biography
Jennifer Lawrence was born in Louisville, Kentucky. She has 2 older brothers, Ben and Blaine, sister-in-law Meredith, and her parents are Gary and Karen Lawrence.

Jennifer, known to her friends and family as “Jen”, was discovered in New York City at the age of 14. Before Jennifer became an actor, she was involved in cheer-leading, field hockey, softball, and modeling, none of which she held a passion for.

In the spring of 2004, she traveled to New York City and set up a few auditions with talent and modeling agencies. After conducting her first cold read, the agents told her mother that “it was the best cold read by a 14- year-old they had ever heard”, and tried to convince her mother that she needed to spend the summer in Manhattan. After leaving the agency, Jen was spotted by an agent in the midst of shooting an H&M ad and asked to take her picture. The next day, that agent followed up with her and invited her to the studio for a cold read audition. Again, the agents were highly impressed and strongly urged her mother to allow her to spend the summer in New York City.

As fate would have it, she did spend that summer in New York City and appeared in commercials such as MTV’s “My Super Sweet 16″ and played a role in the movie, Devil You Know (2012). Shortly thereafter, her career forced her and her family to move to Los Angeles where she was cast in the TBS sitcom “The Bill Engvall Show” (2007) and movies such as The Poker House (2008) and The Burning Plain (2008).

Perhaps her most well-known work to date is her role as “Katniss Everdeen” in The Hunger Games (2012).
IMDb Mini Biography By: Ben Lawrence
For her role in Winter’s Bone (2010), Lawrence learned to skin squirrels, chop wood, and fight.
Plays guitar.
Lawrence graduated from high school two years early in order to begin acting.
Lawrence was discovered by a photographer while visiting New York with her mom in 2005, which led to her landing an agent.
Is the third youngest Oscar nominee for best actress in a leading role. Only ‘Quvenzhane Wallis’ in Beasts of the Southern Wild (2012) and Keisha Castle-Hughes for Whale Rider (2002) are younger.
Fan of Jeff Bridges.
Appeared in two Sundance Grand Jury Prize winners in a row: Winter’s Bone (2010) and Like Crazy (2011).
One of People magazine’s Most Beautiful People in the World 2011.
One of Variety magazine’s Top Ten Actors to Watch 2010.
Voted No. 10 on the 2011 Maxim list “Hot 100″ women.
Some of her favorite actresses/acting inspirations are Meryl Streep, Laura Linney and Cate Blanchett.
Voted #47 on Ask men’s top 99 ‘most desirable’ women of 2012.
Voted by her class as “Most Talkative”.
Good friends with her co-star, from The Hunger Games (2012), Josh Hutcherson.
Named as having the “Sexiest eyes” by Victoria’s Secret What Is Sexy list (2012).
Her father had a concrete construction firm, Lawrence & Associates, and her mother runs a children’s camp.
For her role as Katniss Everdeen in The Hunger Games (2012), Lawrence worked out twice a day and practiced archery.
She has portrayed the daughter of Paula Malcomson twice – in a 2007 episode of the television series “Cold Case: A Dollar, a Dream (#4.18)” (2007) and in The Hunger Games (2012).
Named “Entertainer of the Year”, along with Ben Affleck, by Entertainment Weekly [November 30, 2012].
Is a natural blonde. She dyed her hair brown for her role in The Hunger Games (2012).
Named #1 on Askmen’s list of the ‘Top 99 Most Desirable’ famous women for 2013.
Brought her parents as her date to the 70th Golden Globe Awards after breaking up with her boyfriend Nicholas Hoult.

Personal Quotes
[on auditions and meetings] – The miserable ones are the ones where all the girls auditioning are in the same room. There’s no talking in those rooms. I’ve tried. Yesterday I had to do an interview. I was in a horrible mood. I couldn’t think of basic words. I could see my publicist in the background, mouthing things to say. They want you to be likable all the time, and I’m just not.
I’m excited to be seen as sexy. But not slutty.
Where are the Robert Redfords and Paul Newmans of my age group? I love James Franco, but where’s the next James Franco? Where are the hunks who can act?
There are actresses who build themselves, and then there are actresses who are built by others. I want to build myself.
… I have this feeling of protectiveness over characters I want to play. I worry about them-if someone else gets the part, I’m afraid they won’t do it right; they’ll make the character a victim or they’ll make her a villain or they’ll just get it wrong somehow. … When I get like that, anything’s possible.
[on her role in Winter's Bone (2010)] – I’d have walked on hot coals to get the part. I thought it was the best female role I’d read – ever. I was so impressed by Ree’s tenacity and that she didn’t take no for an answer. For the audition, I had to fly on the redeye to New York and be as ugly as possible. I didn’t wash my hair for a week, I had no makeup on. I looked beat up in there. I think I had icicles hanging from my eyebrows.
When I first got to New York, my feet hit the sidewalk and you’d have thought I was born and raised there. I took over that town. None of my friends took me seriously. I came home and announced, ‘I’m going to move to New York,’ and they were like ‘OK.’ Then when I did, they kept waiting for me to fail and come back. But I knew I wouldn’t. I was like, ‘I’ll show you.’
I never felt like I completely, 100% understood something so well as acting.
I’d like to direct at some point. But I don’t know because 10 years ago I would have never imagined that I’d be here. So in 10 years from now, I might be running a rodeo.
[on being a sudden sex symbol]: It feels weird. But [it's] not bad at all.
I don’t really diet or anything. I’m miserable when I’m dieting and I like the way I look. I’m really sick of all these actresses looking like birds… I’d rather look a little chubby on camera and look like a person in real life, than look great on screen and look like a scarecrow in real life.
Winter’s Bone (2010) wasn’t a fun, easy movie to make by any means. But I didn’t do it to have fun.
I like when things are hard; I’m very competitive. If something seems difficult or impossible, it interests me.
[on not wanting to be famous] I look at Kristen Stewart now and I think, “I’d never want to be that famous”. I can’t imagine how I’d feel if all of a sudden my life was pandemonium.
I’m doing what I love, and then I get months and months of rest. I have a lot of money for a 21-year-old. I can’t stand it when actors complain.
I hate saying, ‘I like exercising.’ I want to punch people who say that in the face. But it’s nice being in shape for a movie, because they basically do it all for you. It’s like, ‘Here’s your trainer. This is what you can eat. … I don’t diet. I do exercise! But I don’t diet. You can’t work when you’re hungry, you know?
[on being asked if The Hunger Games (2012) transitioned her too quickly into stardom] – I think about this all the time. But when you get a promotion at your job, you don’t go “That was too fast. Can I stay in the mailroom a while longer?” You take it.
[on posing in an Esquire magazine photo shoot to try and help shake up her public image] A lot of people said, “Oh, now we have a great actress come along and she’s showing her boobs”. But that’s exactly what I had to do so I could keep working. Honestly, that photo shoot is what helped me get “X-Men” [X-Men: First Class (2011)].
There’s just no imagination in Hollywood. I wanted to show people Winter’s Bone (2010) for the performance, but it ended up having the opposite effect. People were like, no, she’s not feminine, she’s not sexual.
[on referring to the characters she's played in Winter's Bone (2010) and The Hunger Games (2012)] I don’t know what it is with me and maternal wilderness girls, I just love ‘em. Even before “Winter’s Bone”, the first movie I ever did, The Poker House (2008), I was caring for my younger siblings in a tough, dark situation.
[on suffering through school] I always felt dumber than everybody else. I hated it. I hated being inside. I hated being behind a desk. School just kind of killed me.
I think it gets so much easier to let things roll off your back. It’s such a business of hurry up and wait, and if you let it get to you it will drive you absolutely insane. Like, ‘Why was I called in at four in the morning and I haven’t been used until one in the afternoon?’ And ‘Why are we shooting this a million times when we have five other scenes to shoot?’ But you get to the point where you just say ‘This is filmmaking. This is what you get paid for. Everybody is doing the best they can. It’s what you have to live with.’
It’s always been about the script and the director, for me. There are directors that I want to work with and that I admire. You can love a script, but if it doesn’t have a good director, it won’t be that. I like to adapt to a director’s way of working. I love doing that. Each director is so different, and you have to adapt to this new way of doing something. That’s what’s amazing to me. That’s why I love directors. I don’t want the director to have to work around me. I think it’s more fun for me to come in on their thing.
[on her acting method] To you it looks emotionally straining, but I don’t get emotionally drained, because I don’t invest any of my real emotions. I don’t take any of my characters’ pain home with me, I don’t even take it to craft services. I’ve never been through anything that my characters have been through. And I can’t go around looking for roles that are exactly like my life. So I just use my imagination. If it ever came down to the point where, to make a part better, I had to lose a little bit of my sanity, I wouldn’t do it. I would just do comedies.
[on owning her own bow and arrows] One time I actually used it for defense. I pulled into my garage and I heard men in my house. And I was like, ‘I’m not letting them take my stuff. I had just gotten back from training, so I had the bow and arrows in the back of my car. I went to my car and I put this quiver on me and I had my bow and I loaded it and I’m walking up the stairs. And I look, and my patio doors were open, and there were guys working right there, and I was like, ‘Heyyy, how you doin’?’ They [her friends] were like, ‘We’ve got to stage someone to break into your house and you can kill them!’ That would be the funniest news ever. Katniss Everdeen actually kills someone with a bow and arrow!’
Not to sound rude, but [acting] is stupid. Everybody’s like, ‘How can you remain with a level head?’ And I’m like, ‘Why would I ever get cocky? I’m not saving anybody’s life. There are doctors who save lives and firemen who run into burning buildings. I’m making movies. It’s stupid.’
[on meeting/being wowed by acting idols] Once I’m obsessed with somebody, I’m terrified of them instantly. I’m not scared of them-I’m scared of me and how I will react. Like, for instance, one time someone was introducing me to Bill Maher, and I saw Meryl Streep walk into the room, and I literally put my hand right in Bill Maher’s face and said, ‘Not now, Bill!,’ and I just stared at Meryl Streep. [when asked if she met Meryl Streep] Of course not. I just creepily stared at her.
[on the moral of The Poker House] Things can happen to you, but they don’t have to happen to your soul.


Wednesday, January 30th, 2013

This case may apply to waiver signed by an attorney.

sEE: Staso v. U.S., 538 F.Supp.2d 1335 (D. Kan., 2008)

C. The Internal Revenue Service Restructuring and Reform Act of 1998
In 1998, Congress passed the Internal Revenue Service Restructuring and Reform Act of 1998 (“the 1998 Reform Act”), which took effect on January 1, 2000.64 Two sections of the 1998 Reform Act are particularly relevant to this appeal: § 3461 and § 3462.
Section 3461 of the 1998 Reform Act amended I.R.C. § 6502 and was entitled “Procedures Relating to Extension of Statute of Limitations by Agreement.”65 Section 3461 eliminated the ability of the taxpayer and the IRS to enter into an agreement to extend the collection statute of limitations in conjunction with an offer in compromise.66 Pursuant to § 3461(c)(1), the amendments made by § 3461 were to apply to any requests to extend the period of limitations that were made after December 31, 1999.67 Thus, after December 31, 1999, the taxpayer and IRS could not enter into any new agreements to extend the CSED such as those that were contained in the Form 656 and the first two of Plaintiffs OICs.
Section 3461(c)(2) of the 1998 Reform Act also contained a provision that applied to any “prior requests,” i.e., requests to extend the period of limitations that were made on or before December 31, 1999. Section 3461(c)(2), provided:
PRIOR REQUEST — If, in any request to extend the period of limitations made on or before December 31, 1999, a taxpayer agreed to extend such period beyond the 10-year period referred to in section 6502(a) of the Internal Revenue Code of 1986, such extension shall expire on the latest of —
(A) the last day of such 10-year period;
(B) December 31, 2002; or
(C) in the case of an extension in connection with an installment agreement,68 the 90th day after the end of the period of such extension.69
Page 1346
This amendment contained in § 3461(c)(2) of the 1998 Reform Act is known as a “Sunset Provision,”70 and, by its express terms, applied only to requests to extend the period of limitations that were made on or before December 31, 1999.71 Thus, as to a request to extend the ten-year limitations period that was made on or before December 31, 1999 and which did not involve an installment agreement, the Sunset Provision of the 1998 Reform Act provided that the extension would expire on the last day of the ten-year collection period or on December 31, 2002, whichever was later.
Another section of the 1998 Reform Act that is relevant to this appeal is § 3462, which was entitled “Offers-in-Compromise.”72 72 Section 3462(b) of the Reform Act amended I.R.C. § 633173 to suspend the limitations period while an OIC was pending (and for an additional thirty days after the IRS rejected an OIC and during the pendency of any appeal filed after the rejection).74 More specifically, § 3462(b) added § 6331(k)(1) to the I.R.C. Code and prohibited the IRS from making any levy during the time an OIC was pending and for thirty days after the rejection of the OIC, and during the period that any appeal was pending (assuming the taxpayer filed an appeal within thirty days of the rejection of the OIC).75 Section 3462(b) stated that for purposes of new § 6331(k)(1), an offer in compromise would be deemed to be pending “beginning on the date the Secretary accepts such offer for processing.”76
In addition, § 3462(b) stated that for purposes of new § 6331(k)(3), a rule similar to I.R.C. § 6331(i)(5) would apply.77 I.R.C. § 6331(i)(5) — which was not changed by the 1998 Reform Act — provided that the period of limitations was suspended while the IRS was prohibited from making a levy.78 The Court will refer to this portion of the amendment as the “Suspension Provision” of the 1998 Reform Act.
Thus, under these 1998 Reform Act amendments, during the pendency of an OIC and thirty days after the rejection of the OIC (and any subsequent appeal period), the IRS was, pursuant to I.R.C. § 6331(k), prohibited from levying on the assessment and, pursuant to I.R.C. § 6331(i)(5) (i.e., the Suspension Provision) the statute of limitations was suspended during that period.
Section 3462(e) of the 1998 Reform Act set out the effective dates of the amendments contained within § 3462. Section 3462(e) stated as follows:
Page 1347
(1) IN GENERAL. — The amendments made by this section shall apply to proposed offers-in-compromise and installment agreements submitted after the date of the enactment of this Act.
(2) SUSPENSION OF COLLECTION BY LEVY. — The amendment made by subsection (b) shall apply to offers-in-compromise pending on or made after December 31, 1999.79
As noted above, the 1998 Reform Act was enacted, i.e., became effective, on January 1, 2000.
D. The Community Renewal Tax Relief Act of 2000
In 2000, Congress passed the Community Renewal Tax Relief Act of 2000 (“2000 Renewal Act”).80 Effective December 21, 2000, the 2000 Renewal Act eliminated the provision allowing suspension of the limitations period during the pendency of an OIC. More specifically, the 2000 Renewal Act amended I.R.C. § 6331(k)(3) to delete the reference to I.R.C. § 6331(i)(5).81 In other words, the 2000 Renewal Act deleted the Suspension Provision so that the limitations period was no longer suspended for the period during which the IRS was prohibited from making a levy (which had included the period during which an OIC was pending). The 200 Renewal Act stated that this particular amendment took effect the date of enactment, i.e., December 21, 2000.82


Wednesday, January 30th, 2013

The following ruling was issued by the 6th. Circuit court of Appeal in Nov. of 2012.

File Name: 12a1132n.06
No. 11-6187
Plaintiff – Appellee,
Before: MERRITT, MCKEAGUE, and STRANCH, Circuit Judges.
JANE B. STRANCH, Circuit Judge. Attorney Angela Ford served as the court-appointed
crime victims’ representative in a federal criminal prosecution against defendants William J.Gallion,
ShirleyA. Cunningham, Jr., and Melbourne Mills, Jr. She also represents many of the crime victims
in a Kentucky state court civil action that she filed against the same and additional defendants. Ford
now appeals from the district court’s order requiring her to provide an accounting of funds that she
collected by executing on the civil judgment she obtained in state court on behalf of her private
1clients. Because we conclude that the district court t possessed jurisdiction to require the accounting,
Kentucky attorneys Gallion, Cunningham, and Mills represented more than 420 Kentucky
residents who achieved a settlement of more than $200 million from a drug manufacturer to resolve
legal claims for heart valve injuries that were allegedly caused by the diet drug, fen-phen. Not
satisfied with the millions of dollars in attorney’s fees allowed by the retainer agreements, the
attorneys allegedly perpetrated a fraud on their clients to divert more of the settlement proceeds to
themselves and entities within their control.
In late 2004, more than four hundred members of the fen-phen plaintiff class hired Ford to
file a civil action in state court against Gallion, Cunningham, and Mills to recoup the settlement
funds that they alleged were fraudulently taken from them (“theAbbott lawsuit”). The plaintiffs also
named as a defendant the KentuckyFund for HealthyLiving, Inc., a corporation created and operated
by the individual defendants to divert $20 million of the settlement funds to themselves. The
plaintiffs claimed that the attorneys breached their contractual, fiduciary, and ethical duties by
converting the settlement funds to their own use without the plaintiffs’ knowledge or consent.
The trial court entered judgment in favor of the Abbott plaintiffs for $42 million. Because
the defendants did not post a supersedeas bond, Kentucky law permitted Ford to execute on the
judgment pending appeal. Ford collected approximately y $40.2 million. She distributed most, if not
all, of the funds to her clients and paid herself the attorney’s fees to which she was entitled under her
retainer agreements with her clients.
While the civil action was pending, the Government indicted Gallion, Cunningham, and
Mills for violations of federal criminal laws. Under the Crime Victims’ Rights Act, 18 U.S.C.
§ 3771 (CVRA), the district court appointed Ford to serve as the legal representative for all of the
crime victims, including those who were not her private clients in the civil action. Ford actively
participated in the federal prosecution on behalf of crime victims by filing pleadings and appearing
in court.
The first criminal trial resulted in the acquittal of Mills and a mistrial as to Gallion and
Cunningham. At the second trial, the jury convicted Gallion and Cunningham. The district court
imposed lengthy prison sentences on the two defendants and required them to pay joint and several
restitution to their victims in the amount of $127,671,314.63 under the Mandatory Victims
Restitution Act of 1996 (MVRA), 18 U.S.C. §§ 3663A–3664. The amount of restitution the court
imposed represented the additional sum the victims were entitled to receive from the fen-phen
settlement without reduction for the attorney’s fees Gallion and Cunningham would have earned
under their retainer agreements. This court affirmed the convictions and sentences, including the
restitution amount. United States v. Cunningham, 679 F.3d 355, 384–85 (6th Cir. 2012).
Ford filed a motion asking the district court to appoint her as trustee to manage and disburse
restitution funds to the victims. The court denied the motion, ruling that it was the court’s duty,
assisted by the Government and the probation office, to allocate and disburse restitution funds to
victims. Allowing Ford to handle such responsibilities, the court reasoned, would amount to an
improper delegation of the court’s authority under the MVRA and would raise ethical concerns. As
court trustee, Ford would be required to consider the financial condition of the defendants when
allocating restitution, while her role as private attorney would demand her allegiance only to her
clients. In addition, Ford did not represent all of the crime victims in the civil action.
In February 2011, the Kentucky Court of Appeals reversed the civil judgment Ford had
obtained on behalf of her clients. Cunningham v. Abbott, Nos. 2007-CA-001971-MR, 2007-CA-
001981-MR, 2007-CA-002173-MR, 2007-CA-2174-MR, 2011 WL 336459 (Ky. Ct. App. Feb. 4,
2011). The Kentucky Supreme Court granted discretionary review in December 2011, and the case
remains pending in that court.
Upon reversal of the Abbott judgment, the Government filed a motion in the criminal case
asking the district court to order Ford to provide an accounting of all funds she had collected in the
civil action but had not distributed to her clients. The Government argued that, if a Kentucky state
court ordered Ford to return the funds she collected to the civil defendants, the Government needed
to know the amount and location of the funds collected so that it could formulate a plan to protect
the funds as federal restitution owed to the crime victims.
Even before the Government asked for the accounting, Ford provided the Government with
detailed spreadsheets showing, for each Abbott plaintiff, the gross amount of funds distributed to the
client, the amount of attorney’s fees the plaintiff paid to Ford pursuant to a retainer agreement, the
plaintiff’s pro-rata share of litigation and administrative expenses, the amount of any secondary
payer claim, and the net distribution. The only information Ford did not provide in response to the
Government’s request was her personal financial account information showing the location of her
attorney’s fees.
The district court promptly granted the Government’s motion and ordered Ford to disclose
the location of any undistributed funds, including her attorney’s fees. Represented by counsel, Ford
filed an objection to the Government’s motion and moved to alter, amend, or vacate the district
court’s order requiring the accounting. She also asked for a stay of the order pending resolution of
her motion to alter or amend.
The district court denied the motion for a stay, but amended its prior order to allow Ford to
provide the accounting to the court under seal pending a hearing and final decision on whether the
accounting should be provided to the Government. Ford complied with the court’s order and filed
the accounting under seal in camera.
After the hearing, the district court denied Ford’s motion to alter or amend. United States
v. Gallion, No. 2:07-39-DCR, 2011 WL 4015586 (E.D. Ky. Sept. 9, 2011). The court provided a
copy of the accounting to the Government. Otherwise, the accounting remains under seal and is not
available for general review.
Ford contends on appeal that the district court lacked subject matter jurisdiction to order her
to provide the accounting. We review this issue de novo. See United States v. Brown, 639 F.3d
735,737 (6th Cir. 2011); Baze v. Parker, 632 F.3d 338, 340–41 (6th Cir. 2011).
As a court of limited jurisdiction, the district court possesses the powers that Congress grants
to it. Baze, 632 F.3d at 341. The MVRA required the district court to order the criminal defendants
Although Ford complied with the district court’s order, this appeal nonetheless concerns a
live case or controversy. See Church of Scientology v. United States, 506 U.S. 9, 15 (1992). If we
were to rule in Ford’s favor, we have “power to effectuate a partial remedy by ordering the
Government to destroy or return any and all copies [of the accounting that] it may have in its
possession. The availability of this possible remedy is sufficient to prevent this case from being
moot.” Id. at 13.
to pay restitution to their victims in the full amount of the victims’ losses. 18 U.S.C. §§ 3663A(a)(1)
& 3664(f)(1)(A); United States v. Elson, 577 F.3d 713, 733 (6th Cir. 2009). The MVRA also
requires the district court to reduce restitution by any amount the victim recovers as compensatory
damages for the same loss in a state civil proceeding. 18 U.S.C. § 3664(j)(2)(B); Elson, 577 F.3d
at 734. Congress intended that crime victims would not obtain multiple recoveries for the same loss.
United States v. Williams, 612 F.3d 500, 510 (6th Cir. 2010).
The district court conformed its restitution order to these statutory principles. Applying
United States v. Hoglund, 178 F.3d 410 (6th Cir. 1999), the court mandated restitution to the victims
in the amount the victims had expected to receive from the fen-phen settlement, without deduction
for the attorney’s fees the criminal defendants expected to earn under their retainer agreements. See
Cunningham, 679 F.3d at 385. The district court also observed that the total amount of restitution
imposed included the attorney’s fees the victims incurred by hiring Ford to pursue the civil action
to recover the diverted settlement funds. Finally, the district court acknowledged that the restitution
order must be reduced by any amounts the victims receive as damages as the result of their execution
on the Abbott civil judgment.
When the state court reversed the Abbott judgment, the Government stepped forward to
enforce the federal restitution order. Concerned that the civil defendants might obtain a state order
requiring Ford to return the collected funds to them, the Government sought information necessary
to assert federal control over the collected funds for the benefit of all affected crime victims.
Congress has specifically provided that “[a]n order of restitution may be enforced by the
United States in the manner provided in [18 U.S.C. §§ 3571–3574] and [18 U.S.C. §§ 3611–3615].”
18 U.S.C. § 3664(m)(1)(A). Section 3612(c) repeats that the Government “shall be responsible for
collection of” unpaid restitution. See also United States v. Comer, 93 F.3d 1271, 1281 (6th Cir.
1996). The MVRA does not grant any authority to a crime victims’ representative appointed under
the CVRA to collect court-imposed restitution. The statute vests the power to collect restitution in
the Government, not Ford. See United States v. Witham, 648 F.3d 40, 45 (1st Cir. 2011).
The Government may enforce a restitution order “in accordance with the practices and
procedures for the enforcement of a civil judgment under Federal law or State law,” 18 U.S.C.
§§ 3613(a)& 3664(m)(1)(A)(i), which includes utilization oftheFederal Debt Collection Procedures
Act (FDCPA). United States v. Kollintzas, 501 F.3d 796, 801 (7th Cir. 2007). The Government may
enforce the restitution order against all of the defendants’ property or property rights, with certain
limited exceptions. 18 U.S.C. § 3613(a). Importantly, the statute transforms the restitution order
into a lien in favor of the Government on all of the defendants’ property and property rights. 18
U.S.C. § 3613(c). Under the MVRA, the Government may enforce a restitution order “by all other
available and reasonable means.” 18 U.S.C. § 3664(m)(1)(A)(ii).
These collection mechanisms, including civil procedures, may be utilized by the Government
in federal court in the same criminal case in which the district court ordered the payment of
restitution. See Kollintzas, 501 F.3d at 801. “[T]here is no concern about the district court’s
jurisdiction” over such collection procedures, id., because “[t]he United States always gets to litigate
in its own courts.” United States v. Vitek Supply Corp., 151 F.3d 580, 586 (7th Cir. 1998). Title 18
U.S.C. § 3231 and 28 U.S.C. § 1345 grant the district court jurisdiction over restitution enforcement
proceedings. Kollintzas, 501 F.3d at 801. Therefore, we conclude that the district court had
jurisdiction to order Ford to provide an accounting, which is an “available and reasonable means”
to enforce the federal restitution order. 18 U.S.C. § 3664(m)(1)(A)(ii).
Ford contends that the Federal Rules of Civil Procedure generally do not permit a judgment
creditor to discover the personal assets of a non-party, citing Burak v. Scott, 29 F. Supp. 775, 776
(D.D.C. 1939). She also alleges that the Government did not employ a civil judgment collection
mechanism, such as a subpoena, to bring her before the court to obtain discovery.
We are not persuaded by these arguments because Ford stood in a unique relationship to the
criminal and civil litigation in her dual role as the appointed crime victims’ representative and as a
private civil lawyer. Her desire to protect her personal financial information and to retain the
attorney’s fees she earned is certainly understandable. Any issues concerning the Government’s
ongoing efforts to obtain and/or use Ford’s private financial information to collect restitution are not
yet ripe for our consideration.
We think it was reasonable, however, for the Government to ask Ford as an officer of the
court to provide the requested information. When Ford declined to provide all of the requested
information, the Government reasonably resorted to the court’s authority to obtain an accounting.
See 18 U.S.C. § 3664(m)(1)(A)(ii); Kollintzas, 501 F.3d at 801. Service of a subpoena on Ford
Because the district court’s jurisdiction is grounded in §§ 3231 and 1345, we need not
consider the Government’s argument, raised for the first time on appeal, that the All Writs Act, 28
U.S.C. § 1651, provided the district court with jurisdiction to act. Even if we considered the
argument, the All Writs Act does not provide an independent source of jurisdiction, but rather
enables courts to issue such commands as may be necessary to effectuate jurisdiction otherwise
obtained. Baze, 632 F.3d at 345. Further, “[w]here a statute specifically addresses the particular
issue at hand, it is that authority, and not the All Writs Act, that is controlling.” Pa. Bureau of Corr.
v. U.S. Marshals Serv., 474 U.S. 34, 43 (1985).
likelywould have produced the same information, but under the circumstances, the district court had
jurisdiction to order Ford to produce an accounting.
Ford also argues that the funds collected in state court could not revert to Gallion and
Cunningham because the Abbott judgment still remains in force pending the Kentucky Supreme
Court’s decision on discretionary review. She further contends that equitable principles preclude
the state court from returning the collected money to convicted defendants and that the Supremacy
Clause insures the state court could not order the return of money that is part of a federal restitution
obligation. These arguments are tangential to the definitive question before us and need not be
considered at this time.
The district court possessed jurisdiction to order Ford to provide the Government with an
accounting of funds collected in the Abbott lawsuit. 18 U.S.C. § 3231; 28 U.S.C. § 1345; Kollintzas,
501 F.3d at 801. Accordingly, we affirm

The Lexington Herald Reports that Ashley Judd and Husband Dario Franchitti Are Divorcing

Wednesday, January 30th, 2013

Jan. 30, reported Tuesday night that actress Ashley Judd and her husband, race-car driver Dario Franchitti, are splitting after more than a decade of marriage.
“We have mutually decided to end our marriage. We’ll always be family and continue to cherish our relationship based on the special love, integrity, and respect we have always enjoyed,” Judd, 44, and Franchitti, 39, told People exclusively in a statement on Tuesday. Tuesday evening on Twitter, both Judd and Franchitti sent out tweets that read, “family forever.”
After being engaged for about two years, the Missing star and the racecar driver tied the knot in a private ceremony in Scotland in 2001.

Read more here:

Chief Justice Minton to give State of the Judiciary address before Interim Joint Committe on Judiciary Jan. 31, 2013

Tuesday, January 29th, 2013

Chief Justice Minton to give State of the Judiciary address before

Interim Joint Committee on Judiciary on Thursday, Jan. 31, 2013

FRANKFORT, Ky., Jan. 29, 2013 – Chief Justice of Kentucky John D. Minton Jr. is scheduled to present the 2013 State of the Judiciary address before the General Assembly’s Interim Joint Committee on Judiciary on Thursday, Jan. 31. The meeting will take place at 1 p.m. EST in Room 171 of the Capitol Annex in Frankfort. The meeting is open to the public and media.

Chief Justice Minton will discuss the Judicial Branch budget, recent accomplishments and challenges facing the state court system.

The chief justice is the administrative head of the state court system and is responsible for overseeing its operation. Chief Justice Minton was elected to the Supreme Court in 2006. His fellow justices elected him to serve a four-year term as chief justice in 2008 and re-elected him for a second term in 2012.


Sunday, January 27th, 2013

Sarah Palin has parted ways with Fox News, multiple outlets wrote on Friday.

Real Clear Politics was the first to report that Palin — who reportedly signed a $1 million-a-year contract with the network in 2010 — will not be renewing it. The New York Times’ Brian Stelter later confirmed the news with Fox News.

A “source close to Palin” told RCP that she had turned down a new offer. Fox News merely told the New York Times in a statement that it wished her the best.

The news is not very surprising, but it does highlight, as much as anything, Palin’s diminished relevance. Reports about the increasingly icy relationship between Palin and Fox News CEO Roger Ailes have been circulating for years. He has mocked her in public, and is said to have privately labeled her “stupid.” Meanwhile, her public profile has waned as the years since her bid for the vice presidency grind on.

In August, New York magazine’s Gabriel Sherman wrote that a new contract for Palin was a very iffy thing indeed. That report came the day after Palin publicly complained that the network had canceled some of her appearances.

By the time her contract ended, it had been since mid-December that Palin had appeared on Fox News at all.


Saturday, January 26th, 2013

By LawReader Senoor Editor Judge Stan Billingsley (Ret.) Jan. 26, 2013

LawReader Senior Editor Judge Stan Billingsley (Ret.) sat down recently with attorney Marc Carey, one of the persons being talked about a possible replacement for retired Supreme Court Justice Wil Schroder, to discuss the Supreme Court, and his recent run of successes in winning plaintiff’s verdicts in tough cases, and in tough venues.

Justice Schroder was a strong advocate for lawyers and had lead the fight to limit the overreaching demands of the Ky. Bar Association. The KBA is funded entirely by lawyer’s dues, and last year they sought a big increase in the $5 million dollar KBA budget. Justice Schroder successfully limited their demand for even more funding. LawReader will attempt to interview a number of potential candidates for the vacant Supreme Court position created by Justice Schroder’s retirement. The first potential candidate we tracked down was Mark Carey who just won a big civil case in Carroll County.
LawReader: Well Marc, congratulations on your recent victory in the medical malpractice case in Carrollton last week. According to people in the court system yours may have been the first personal injury case to be tried there in a decade or more.

MC: Thanks judge. I asked and was told that a contract case with one of the big industries along the river was tried about three years ago, but nobody could remember a civil case being tried there in a long, long time. I don’t think any lawyers or insurance companies considered Carroll County a venue friendly to plaintiffs before we won our verdict. Maybe that will change.
LawReader: Maybe it will. But one thing that makes this case so interesting is that you tried it against the local ER doctor at the community hospital located just a block or two from the courthouse. That had to add a layer of difficulty your case.

MC: As if it needed any more layers of difficulty. Yeah, that was a concern, but we ended up with a jury of pretty fair minded people who vowed not to let any of that influence their deliberations, and they upheld that oath.

LawReader: Tell us a little about that case. I’m not sure that many lawyers would have even taken a case like that.

MC: Haha ha. I will admit that when discussing the case with other lawyers they thought I had no chance of winning. Well, the case was this simple. A lady with a long history of having suffered from a condition which produces chronic pain went into the ER with a particularly severe bout of pain. She was worried about her condition having gotten suddenly worse. The doctor on duty came into the examining room and almost immediately concluded that she was faking her pain to get drugs. So he ran a toxicology screen on her and he concluded from her results that she was on a number of different narcotic pain relievers and says that his suspicions were then confirmed. What he didn’t do was confirm her history or the need for the medicines which she had been taking as prescribed by her physicians. In fact her condition had gotten so bad that three weeks after this ER visit she had major surgery. The doctor then did a vaginal exam on her which she immediately thought was weird, and during that exam she felt that it wasn’t medically proper. In fact she said he “violated” her. When she confronted him about that he went out, called the police, told them she was faking pain to get drugs illegally and based upon his statements she was arrested and charged with a felony.
Of course the criminal case and all the charges were dismissed for lack of probable cause at the preliminary hearing because there was no evidence at all that she had requested any medicine, or drugs, at all.
When I got the case I was curious why a doctor would do something like call the police and jump to the conclusion of “drug seeking behavior” so quickly, particularly with a woman who had a long history of multiple surgeries and a long history going back to her puberty years, of chronic pain who was being treated by reputable doctors for it. Then we found out.
The doctor was an admitted alcoholic and drug abuser. He had been stealing narcotics from another hospital and abusing them for two years until he was caught. He was never charged or even threatened with criminal action but rather allowed to continue practicing under close observation.
It turned out that even after his restrictions were lifted he got in trouble with alcohol again and was arrested for a DUI and then lost his license and forced into rehab. The day we took his deposition he’d only had his license back a few days.
And while this kind of evidence might not have been admissible in most cases, the doctor made it admissible by testifying in his deposition that his medical decision making was influenced by his own experience with alcohol and drugs. He opened a door into that history.

LawReader: I agree. That’s a very difficult case. But you took it; you tried it and got a pretty good verdict. What were your client’s injuries?

MC: It was purely a general damages case. We offered no proof of physical injury except the infliction of increased pain while she was in jail without medical treatment, we offered no proof of economic loss such as lost earnings or impaired earning capacity and instead offered the jury proof by her own testimony to the anxiety, emotional distress and fear she was in being arrested, jailed, facing a possible prison sentence and being rendered helpless to defend herself against the allegations of a doctor. We also offered proof on how outrageous it was for him to have threatened her with arrest while he was in the process of performing the vaginal exam, and of course there was the harmful and offensive touching during the exam itself.
LawReader: He actually threatened her with criminal charges during the exam?

MC: Yeah, he did. He even admitted on the stand that he confronted her while he was between her legs. I think the jury understood how gruesome that would be for a woman, and tended to confirm her testimony that something he was doing wasn’t right.

LawReader: Okay, well congratulations on that one, but then you also got a $400,000 verdict in Owen County recently too. Also not a venue many plaintiffs would want to venture in to.

MC: You know, they too had not had a plaintiff’s case in many years and I was very concerned about the reputation Owen County had for being a defendant’s best friend. But we had a woman who was the victim of a rear end collision who had settled with the other driver but couldn’t get her own insurance company to pay her the underinsured coverage she had purchased. They defended that her injuries didn’t develop for more than a year after the collision and felt pretty safe making no offer at all. But what we proved was that she had a condition which resulted in the slow death of bone tissue over a long period of time and that it wasn’t until her doctors took her off of her pain medicine that she started to recognize the symptoms and seek treatment. Her future may include an amputation of her lower leg as a result. The UIM coverage was only $100,000. I only asked the jury for $200,000, so the $400,000 verdict was very rewarding.

LawReader: Did she collect?

MC: Yes, we then sued the company for bad faith and we settled at mediation.

LawReader: Did they pay you the full $400,000 or did you get more?

MC: The settlement was and remains confidential. But it was a good outcome, a very good outcome.

LawReader: I know you use the services of trial consultant Mark Modlin frequently; did he assist you in these cases?

MC: I don’t think lawyers realize how valuable Modlin is. Whereas most plaintiff’s lawyers try one kind of case and then another, and not all that often, Modlin sees 100 times as many cases as the ordinary lawyer and works with some of the top attorneys in the nation. He has insights that you can’t get anywhere else. And his partner, Becky Jones runs an amazing focus group for cases. I don’t care how smart a lawyer thinks he/she is, there are things a jury is going to pick up on, and wonder about, that we lawyers never can predict. Becky knows how to explore those things with a focus group and I will never try another case without her help. Those experiences help me see my case the way a jury might and informs my decision making about the order of proof, the degree of proof required and so many other little things that I can say without hesitation, any lawyer who tries a case without that kind of help is doing himself and his client a great disservice.
LawReader: Did you use them in that other case you recently had where you got a summary jury in Federal Court to give you what I have heard was a half million dollars with a sizeable punitive damages award?
MC: Damned right I did. We had a case against a big police department who broke a woman’s arm during an arrest. Odd thing is they arrested her inside her own home, after she had called them to help her with a domestic argument with her boyfriend. They arrested her insider her hallway, in the winter, with the doors and windows closed, and charged her with disorderly conduct. Her broken arm required a nasty surgery and left her with some never damage. Once again, we were up against the local police and an incredibly skillful lawyer. Nobody gave me a chance.
LawReader: Did you settle or go to trial?

MC: I tried the case to a summary jury after there was only a nuisance offer at mediation. Two summary jury panels came back with substantial verdicts and the defendant’s settled quickly.

LawReader: Punitive damage awards are rare. Have you ever gotten one before?

MC: Yeah, actually I got a pretty good one in a contract case. And I know punitive aren’t supposed to be awarded in a contract case, but we alleged and proved fraud and the jury loaded up on punitives. Of course that makes collection a bit more difficult because most people aren’t insured for that so we are sitting on the judgment, letting the interest build and plan to collect all of it in due time.
LawReader: One lawyer recently said that you are fearless and seem to take the toughest cases, why?

MC: Haha haha haha, ha. They just seem to find me. I guess that’s my lot in life. But I’m okay with that. You know, there are a lot of doctors making lots of money and maybe what they do looks easy. But then there are also a few doctors who don’t stop pounding on your chest until they save your life, or who take the really hard reconstruction cases, or the complicated surgeries that other doctors won’t touch. I didn’t set out to make a career out of hard cases, but I think it’s good that when somebody has a really hard case, they’ve got somewhere to go. If that’s what God’s plan is for me, so be it.
LawReader: Okay, so what about the rumors that you are going to run for the Supreme Court. Are they true?

MC: Never say never I guess. Yes, I am thinking seriously about it. You know that when Justice Wintersheimer retired Wil and I both competed for that seat. Wil came in first and I came in second and he has served with distinction ever since.
Wil and I have known each other for many years which make his current situation that much harder for those of us who know and respect him. I think our race was conducted on a pretty high level of behavior and professional conduct. We were both very much aware that the press and others were waiting for us to go negative so they would have something sensational to write about. Neither of us did and after the race we remained friends and I have been very complimentary of the service he rendered.
Yes, people have mentioned my name and have asked me to consider running. I am giving that very serious consideration.

LawReader: Well you did give them something to write about when you ran last time. You filed a lawsuit challenging the rules of judicial campaigns, and you won.

MC: Yeah, well you know judge, we all took an oath to uphold the Constitution. Kentucky had refused to acknowledge that the U.S. Supreme Court had ruled that judicial conduct regulations like we had in Kentucky were unconstitutional. I really had no choice. None of the judges running knew if they were free to do as the US Supreme Court had said they were or if they were going to be punished by Kentucky under un-constitutional rules. I sued to clear it up. Fortunately I was right, and we won, and made law, but unfortunately the ruling didn’t come down in time to apply in our race.
LawReader: It’s not many lawyers who get to make such important law in their careers, you must be very happy.

MC: I know you’ve been kind and said that before, but I just did what I thought was right at the time.
LawReader: Well, there’s another rumor out there. Judge Bates in Grant, Owen and Carroll counties has also announced he is going to retire. Some are saying that you might go for that seat.

MC: You know, in many ways that is a very interesting opportunity. It would give me the chance to be of service more locally and to have an impact on the lives of the people of my own community. It’s not about the politics of the thing, it’s about balancing my professional calling with time with my wife, our first grandchild due in June, the farm I love so much and at the same time trying to find a place in the law where I can improve the image of our profession and the grand traditions we represent.
I know that the Supreme Court would give me a wonderful chance to cap off my career with something meaningful for the future, to participate in settling the law on many topics, but my view of the job of the Supreme Court is different than most people.
When we created the Supreme Court back in the late seventies, it was required to hear only two types of appeals, death penalty cases and those where the sentence could be 20 years or more. The rest of the reason for the creation of the Court was to oversee the bar association, oversee the delivery of justice, oversee court administration and serve as sort of a board of overseers of an entire branch of government. It was never intended to become another layer of appeal, to delay the delivery of justice or to create a huge new body of appellate decisions. Hearing appeals is what the Court of Appeals was supposed to do.
But the justices have exercised their discretion quite frequently and I think strayed from the original intent. Along the way the system has missed so many opportunities that it could have taken as a result.
Yes, the Supreme Court could provide me with a chance to help get the entire system back on track, and to bring some of those improvements on line.
But the Circuit Court would allow me to have a much closer contact with the lives of ordinary people, to enhance respect for lawyers, and the court system and for judges on a local level. Admittedly there would be far bigger opportunities in Frankfort, but I feel very comfortable saying that if the people of my community would like for me to serve as their next Circuit judge, I could easily say yes to that honor.

LawReader: We understand that there is talk that Bill Adkins of Grant County may run for the Circuit Court vacancy that will be created when Judge Steve Bates retires in 2014.
Judge Bates recently confirmed to us that he will be retiring. We would suspect that other potential candidates for the Supreme Court position will be Court of Appeals Judge Michele Keller and Court of Appeals Judge Joy Moore.
But as far as the practice of law, what’s next for you? Any new big cases coming up?

MC: I just got out of trial. I spent a week without sleep, a month doing nothing else and what’s next is returning phone calls, cleaning up the mess I’m sure is waiting back at the office and then it’s back to the grindstone where it seems I’m a silk purse manufacturer with an inventory of sows ears.
LawReader: Well thanks for talking with us and good luck on whatever you decide about your future. When do you think you will make a decision and let us know?

MC: I’m not sure, the jury’s still out on that one.

Attorney General Conway Files Suit Against “MERS” In Foreclosure Investigation -Mortgage Banks have messed up property recording laws

Thursday, January 24th, 2013

Attorney General Conway Files Suit Against “MERS” In Foreclosure Investigation

Press Release Date:

Wednesday, January 23, 2013

Contact Information:

Allison Gardner Martin
Communications Director
502-696-5651 (office)

Attorney General Jack Conway announced that his office filed a lawsuit today in Franklin Circuit Court against MERSCORP Holdings, Inc., and its wholly owned subsidiary Mortgage Electronic Registration Systems, Inc. (MERS) for violations of Kentucky law. The lawsuit is a result of General Conway’s investigation of mortgage foreclosure issues in Kentucky.

The lawsuit alleges that MERS violated Kentucky law by not recording mortgage assignments with County Clerks when mortgages were sold or transferred from one bank to another. By law, mortgage assignments must be recorded in the appropriate County Clerk’s office and a $12 fee is collected by the clerks on behalf of the Commonwealth of Kentucky.

“Kentucky’s statute is clear. It requires assignments be recorded with County Clerks, and MERS directly violated that law by creating this system that provides no public record of sales or transactions and deliberately circumvents paying recording fees to states,” General Conway said. “The process makes it difficult for consumers to access data to find out who owns their loans, and the Commonwealth is ripped off when it comes to recording fees.”

MERS was created in 1995 to enable the mortgage industry to avoid state recording fees, allow for the rapid sale and securitization of mortgages, and shorten the time it takes to pursue foreclosure actions. Its corporate shareholders include, among others, Bank of America, Wells Fargo, Fannie Mae, Freddie Mac, and the Mortgage Bankers Association.

Currently more than 6,500 MERS members pay for access to the private system. More than 70 million mortgages have been registered on the system. The lawsuit alleges that since MERS’ creation in 1995, members have avoided paying more than $2 billion in recording fees nationwide.

Hundreds of thousands of Kentucky loans are registered in the MERS system. As a result of not publicly recording the mortgage assignments and paying the required fees, the lawsuit alleges that MERS violated Kentucky’s Consumer Protection Act by committing unfair, false, misleading or deceptive conduct. Under Kentucky law, MERS could be fined up to $2,000 for every violation.

“This process undermines the integrity of Kentucky’s public land records,” General Conway said. “Before the bottom fell out of the housing market, banks were bundling and selling loans on the securities market as fast as the ink could dry on the paperwork. When homeowners had trouble paying their mortgages during the economic downturn, they struggled to find out who owned their loans. It made it difficult to find out who to call to request a loan modification or to defend the foreclosure. There is and was no public record of the transfers.”

In addition, the lawsuit makes civil claims that MERS created this system to unjustly enrich and pad its bottom line at the expense of consumers and the Commonwealth of Kentucky. To view a copy of the complaint visit

Other states have filed similar lawsuits against MERS, including Massachusetts, Delaware and New York.

“I commend Attorney General Conway for taking action against MERS,” New York Attorney General Eric T. Schneiderman said. “The banks created this system as an end-run around the public property system and state recording fees. In Kentucky, New York, and across the country, these actions have left financially troubled homeowners in the dark about who owns their mortgages, making the difficult process of negotiating a modification or fighting a foreclosure action even harder. Attorney General Conway’s lawsuit is an important step towards accountability for these abusive practices.”

Attorney General Schneiderman and Housing and Urban Development Secretary Shaun Donovan chair the President’s mortgage fraud task force, which President Obama convened a year ago to build on the work of the mortgage foreclosure settlement.

Mortgage Foreclosure Settlement

In addition to the MERS lawsuit, General Conway joined 48 other state Attorneys General in negotiating the historic $25 billion national mortgage foreclosure settlement. The Attorneys General uncovered that the nation’s five largest banks had been committing fraud during some foreclosures by filing “robo-signed” documents with the courts.

Kentucky’s share of the settlement totals almost $58 million. Thirty-eight million dollars is being allocated by the settlement administrator to consumers who qualify for refinancing, loan write downs, debt restructuring and/or cash payments of up to $2,000. To date, the banks report providing more than $33 million in relief to 944 Kentucky homeowners. The average borrower received more than $35,000 in assistance.

Kentucky also received $19.2 million in hard dollars from the banks. The money went to agencies that create affordable housing, provide relief or legal assistance to homeowners facing foreclosure, redevelop foreclosed properties and reduce blight created by vacant properties.

To learn more about the settlement, visit

Attorney’s Job Opening: C­­AIR-Cincinnati Seeks Staff Attorney – and Bankruptcy Court Vacancy

Tuesday, January 22nd, 2013

Job Opening: C­­AIR-Cincinnati Seeks Staff Attorney

CAIR-Cincinnati seeks a qualified, part-time Staff Attorney to work in its Civil Rights Department


The Staff Attorney will engage in civil rights litigation and advocacy for CAIR-Cincinnati clients who have experienced religious discrimination, including, but not limited to: filing complaints with the Equal Employment Opportunity Commission and/or Ohio Civil Rights Commission; negotiating settlements with opposing parties; filing various types of complaints in federal and/or state court; discovery, motions practice, court appearances, and trial if necessary; and identifying, recruiting, and collaborating with private attorneys on religious discrimination cases.

The Staff Attorney will be expected to identify, strategize and use creative legal solutions

to address systematic issues affecting those who suffer discrimination in the full range of

potential forums (not just litigation). The Staff Attorney may also directly supervise the

work of externs/interns in the department.

The part-time Staff Attorney will initially work approximately 20 hours per week. There is future potential for increased hours and pay.


· Two-plus (2+) years legal experience;

· Familiarity with civil rights, employment law, immigration law, family law, and constitutional law ;

· Excellent oral and written communication and advocacy skills;

· Strong ability to identify, recruit, and work with a number of private attorneys on cases;

· Demonstrate commitment to protecting civil liberties in the United States;

· Exhibit a high degree of initiative and willingness to collaborate with others;

· Showcase creativity, passion, determination, and a positive attitude;

· Demonstrate organizational skills and ability to follow through on various on-going and newly assigned case work;

· Must be a member in good standing of the Ohio State Bar, admitted or willingness to seek admission to the Kentucky State Bar;

· Admission to federal courts in Ohio and Kentucky preferred but not required.

Salary range for part-time position is $20K-$22.5K, based on education, skills and experience.

Benefits include health insurance, paid holiday, vacation and sick leave.

Application deadline is February 1, 2013. Start date to be mutually determined.

Please submit a résumé, cover letter, two formal legal writing samples, and a list of at

least three references to:

CAIR – Ohio, Cincinnati Chapter

10999 Reed Hartman Hwy., Suite 222

Cincinnati, OH 45242


If applying via e-mail, please be sure to include the position title in the subject line.

Incomplete applications will not be processed.

About CAIR-Cincinnati: CAIR-Cincinnati is the Greater Cincinnati & Tri-State chapter of CAIR, the nation’s largest Muslim civil rights and advocacy organization, committed to building a stronger civic society and a more vibrant democracy. CAIR’s mission is to enhance understanding of Islam, encourage dialogue, protect civil liberties, empower American Muslims, and build coalitions that promote justice and mutual understanding. Learn more at . Our office is in Blue Ash, Ohio, in the northern suburbs of Cincinnati, and is conveniently located off I-275, between I-71 and I-75.

View our photos:

Watch our videos:

Also The United States Bankruptcy Court for the Eastern District of Kentucky, is accepting resumes and applications for the position of Temporary Judicial Law Clerk. Duties include researching a variety of legal issues, drafting memoranda and opinions, reviewing orders, and handling day-to-day law clerk assignments. Resumes are being accepted through January 25, 2013. For the full announcement see the link


Julie L. Jones

NKBA Executive Director

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

F: (859) 781-1277

Are Kentucky Lawyers Being Defamed by BBB?

Tuesday, January 22nd, 2013

The BBB in Kentucky and other states are alleged to be defaming lawyers and law firms who represent debtors in foreclosure and debt adjustment actions. These actions may result in civil claims being fled against the BBB and their officers for defamation.

This debate has been a hot issue in California, as the BBB seeks to interfere with law firms seeking to help homeowners with foreclosure or debt adjustment problems with their creditors.
In Kentucky the BBB is rating lawyers negatively if the lawyer helps clients deal with their creditors. This policy of the BBB appears to defame any lawyer who would participate in a legal foreclosure action. Is the BBB in Kentucky risking retaliatory civil action for “defamation” ?
This type of published criticism of lawyers may subject the BBB to tort claims:
“ [2] Corporate Plaintiffs Corporations and other business entities may be defamation plaintiffs where the communication tends to cast aspersions on their business character, such as trustworthiness, or deters third parties from dealing with them.”
Defamation From Wikipedia, the free encyclopedia
Jump to: navigation, search
This article is about the malicious statement. For the 2009 film, see Defamation (film).
“Libel” and “Slander” redirect here. For other uses, see Libel (disambiguation) and Slander (disambiguation).
“Vilification” and “Calumny” redirect here. For the hate crime, see racial vilification. For the Catholic sin, see detraction.
Defamation—also called calumny, vilification, traducement, slander (for transitory statements), and libel (for written, broadcast, or otherwise published words)—is the communication of a statement that makes a claim, expressly stated or implied to be factual, that may give an individual, business, product, group, government, religion, or nation a negative or inferior image. This can be also any disparaging statement made by one person about another, which is communicated or published, whether true or false, depending on legal state. In common law it is usually a requirement that this claim be false and that the publication is communicated to someone other than the person defamed (the claimant).[1]
In common law jurisdictions, slander refers to a malicious, false,[2][not specific enough to verify] and defamatory spoken statement or report, while libel refers to any other form of communication such as written words or images.[3] Most jurisdictions allow legal actions, civil and/or criminal, to deter various kinds of defamation and retaliate against groundless criticism. Related to defamation is public disclosure of private facts, which arises where one person reveals information that is not of public concern, and the release of which would offend a reasonable person. “Unlike [with] libel, truth is not a defense for invasion of privacy.”[4][not verified in body]
False light laws are “intended primarily to protect the plaintiff’s mental or emotional well-being.”[5] If a publication of information is false, then a tort of defamation might have occurred. If that communication is not technically false but is still misleading, then a tort of false light might have occurred.[5]
In some civil law jurisdictions, defamation is dealt with as a crime rather than a civil wrong (termed a public-law delict in civil-law systems).[6] The United Nations Commission on Human Rights ruled in 2012 that the criminalization of libel violates Freedom of expression and is inconsistent with Article 19 of the International Covenant on Civil and Political Rights.[7]
A person who harms another’s reputation may be referred to as a “famacide”, “defamer”, or “slanderer”. The Latin phrase famosus libellus means a libelous writing
The BBB is a business and they charge a fee to businesses in order to prevent the business from receiving a negative rating. In other words if you don’t pay their fee and dance to their tune, then you may be subjected to published defamation for representing a client in a debt adjustment matter.
It is unclear why the BBB disfavors lawyers and law firms who help consumers. Perhaps they will explain why they oppose legal representation of clients who have issues with their creditors.
See San Diego Article:

BBB Accreditation
BBB has determined that San Diego County Bar Association meets BBB accreditation standards, which include a commitment to make a good faith effort to resolve any consumer complaints. BBB Accredited Businesses pay a fee for accreditation review/monitoring and for support of BBB services to the public.
BBB accreditation does not mean that the business’ products or services have been evaluated or endorsed by BBB, or that BBB has made a determination as to the business’ product quality or competency in performing services.
Apply for BBB Accreditation
Join Us!
Thank you for your interest in becoming a BBB Accredited Business. Accreditation in BBB is by invitation to companies that, at a minimum, have been in business for at least one year, have demonstrated sound business practices, and meet our accreditation standards.

Benefits For Your Company
Increase trust – Consumers wonder who to trust, help them establish trust in your business by showing your BBB Accreditation. This helps your business by increasing conversion of leads to customers. Can consumers trust you? If so, then show them using the BBB certificate, decal, and the BBB Accredited Business Seal.
Recognition for your great reputation – When your business follows the eight requirements of BBB Accreditation, you should be recognized for doing so. By displaying your BBB Seal you show your customers that you have been recognized for your integrity, honesty and trustworthiness. Your business is added to directories and programs which are reserved only for those that are BBB accredited. Do you operate your business honestly and with integrity? If so, then get recognized for it.
Benefits For Your Community
Reduce Scams – Consumers in your marketplace have a limited amount of income to spend and ethical companies know that if they can help keep “bad apples” out, there will be more money left to spend with them. Your support of BBB helps to keep these companies out of our marketplace allowing that money to come to trustworthy businesses. Is keeping your marketplace trustworthy important to you? If so, apply to join us to help keep “bad apples” out of your marketplace.
Educate Consumers – As consumers become more educated about ethical practices and the marketplace through BBB programs, they are better armed to bypass “bad apples” and spend their money with honest, ethical businesses. Would educating consumers in your area help your marketplace? If so, apply to join us to help teach consumers how to spend their money wisely.

BBB Accredited Businesses are trustworthy businesses that agree to these BBB Standards for Trust:

1. Build Trust
2. Advertise Honestly
3. Tell the Truth
4. Be Transparent
5. Honor Promises
6. Be Responsive
7. Safeguard Privacy
8. Embody Integrity
• Apply for Accreditation Consideration

See California:
The Better Business Bureau, the State Bar, Loan Mods & Lawyers in California
For going on three years now I’ve watched the State of California more so than any other engage in a debate over loan modifications and lawyers, the key questions being: do you need one, should you have one, are lawyers scamming homeowners, and most notably, since California’s Senate Bill 94 (“SB 94”) became law in October of 2009, when can a lawyer be paid whenproviding loan modification services.
Throughout this “debate,” the Better Business Bureau has played a role by rating law firms offering loan modification services. If the BBB says that someone is ‘A’ rated then presumably consumers are more likely to turn to that firm for assistance, and obviously, being rated ‘F’ tends to have the opposite effect.
Well, recently a law firm with which I’ve become very familiar over the last three years, CDA Law in Orange County, California, was rated ‘F’ by the BBB, and predictably, within a couple of weeks the firm started losing clients because of the rating.
Before I explain the background for what’s going on here, I want to be clear about a few things:
1. I have no financial interest in CDA Law, nor am I being paid to write this.
2. I’m sure that I’ve referred at least 200 homeowners to CDA Law over the last few years, I don’t keep track of the number, but it’s in that range without question, and all I have to show for it are thank you notes.
3. CDA Law does not deserve to be rated ‘F’ by the BBB. The BBB’s ‘F’ rating is based on a politically motivated intentional misstatement of the law by certain individuals.
4. This past year I personally audited 400 randomly selected 2011 client files at CDA Law, so I know how they perform first hand. Over almost four years, firm records show it obtained permanent loan modifications for more than 3,000 California homeowners.
I also want to be clear that I am not writing this to tell homeowners that in all cases they should retain CDA Law. Every homeowner’s situation, facts and goals are different, and the decision as to which law firm one should or shouldn’t engage depends on the specifics involved.
What I am here to do is state unequivocally to homeowners that it is my considered opinion that the decision not to retain CDA Law should not be based on the firm’s BBB’s rating, because that rating is baseless and entirely inappropriate.

The fact is that upon learning of the BBB’s ‘F’ rating of CDA Law, I offered to write this because I’m all but certain that some number of homeowners who decide to avoid CDA Law because of its BBB rating will end up getting scammed and homes will be lost to foreclosure as a result.
And, at this point in the foreclosure crisis, the fact that I can say that about the chances of a homeowner getting ripped off by a scammer, or wrongfully made homeless by a servicer, is both an unthinkable tragedy and a shameful testament to the failure of our state and federal regulators to protect homeowners from predatory servicers and unscrupulous operators of various foreclosure avoidance schemes.
Okay, so why is CDA Law rated ‘F’ by the BBB?
To understand where we stand today in California as related to lawyers and loan modifications, you have to understand a few things about how it all started back in 2009, when we went through a phase where we were told by banks, government agencies and the mainstream media that everyone involved in loan modifications was a “scammer.”
According to a knowledgeable insider who worked at the California State Bar Association at the time, the State Bar had no history of lawyers committing acts of misconduct related to loan modifications until the very end of 2008 when complaints started to trickle in, and then in 2009, inundate the Bar with 800-900 a month. No one knew what was going on back then. I’m sure just seeing the raw numbers of complaints was shocking, never mind what was being said.
California is the only state with a State Bar that is both a trade association and regulatory agency. Technically, the Bar reports to the state’s Supreme Court, but at the same time the Governor can prevent the Bar from collecting its dues, and as a result the state legislature is known to put pressure on the Bar as well.
Most often, over the last 25 years, that pressure has come in the form of criticism that the Bar is not vigilant enough when it comes to prosecuting lawyers for misconduct.
By Spring of 2009, a joint task force was being set up to go after these “scammers” who were taking advantage of distressed homeowners. Included would be the Office of the Attorney General, the state’s Department of Real Estate, the FTC… and of course, the State Bar.
Then State Bar president Howard Miller saw the task force as an opportunity to show politicians in Sacramento that the Bar was ready to get tough on crime, on behalf of the defenseless victims of the foreclosure crisis.
So, during summer of that year, Howard Miller, made the following statement to the press…
“At least hundreds and perhaps thousands of California lawyers who have been victimizing those who are already victims at the most vulnerable point in their lives… every one of those lawyers will be subject to discipline and some will go to jail.”
How many of the scammers were lawyers? No one had any idea, in fact the State Bar hadn’t even had time to read the vast majority of the complaints, but there was no question that there were many charging up-front fees and claiming to be able to get loans modified, and with increasing and alarming frequency, they were definitely ripping off homeowners.
Back then, I think every major bank played messages to those waiting on hold that said: “You don’t need a lawyer, call (insert bank name) for assistance with a loan modification.” And both the state and federal government’s positions were almost identical: “You don’t need a lawyer, call your bank or a HUD counselor for assistance with a loan modification.”
To anyone watching, one thing was very clear: Neither the banks nor our government wanted homeowners to retain lawyers to help them save their homes from foreclosure.
That the banks took this position wasn’t surprising. Obviously, it would be easier to deal with a homeowner than a homeowner’s attorney. And attorneys in the mix would mean the threat of litigation, which would be both costly and time consuming for banks to defend. And as to why, in 2009, those in our government also assumed an anti-lawyer stance related to lawyers and loan modifications, to me the answer was the obvious one… they went along with the banks.
Miller’s statement always seemed to be a preposterous one to me, and I wrote about it at the time, saying that I found it impossible to accept that there were “hundreds if not thousands” of lawyers scamming homeowners in California or anywhere else for that matter.
Were there some? Of course there were some.
California is a state of enormous size; over 37 million residents, roughly 7 million homeowners and more than 235,000 licensed attorneys, according to the California State Bar Association. There are “some” of just about anything you can think of here. I’d bet money that in California today there are “some” wearing tin foil so that the space ships can’t see them. But were there ever “hundreds if not thousands” of lawyers scamming homeowners having to do with loan modifications? Not a chance.
By 2010 it was becoming increasingly obvious that that what the Bar’s president had told the press about “hundreds if not thousands of lawyers” scamming homeowners was in fact false.
Just consider that as of May 12, 2012, and this is according to the State Bar Press Office, since February of 2009, more than three years after Mr. Miller voiced those inflammatory allegations:
• Since 2009, only 18 attorneys in California have been disbarred related to providing loan modification services.
• The State Bar has “pursued disciplinary charges related to loan modification services involving about 153 attorneys.”
• Of those, only 69 have been disciplined in some way, which includes anything from being required to attend an ethics class to a temporary suspension.
• None have gone to jail.
In California, a state with over 235,000 licensed attorneys, the disbarment of 18 lawyers is hardly to be considered pandemic. And it’s a far cry from Miller’s “hundreds if not thousands,” to be sure.
There simply never were hundreds much less thousands of lawyers scamming homeowners in California.
The Banking Committees Get in On the Act…
Other politicians were fast to get in on the consumer protection act as well.
Senator Ron Calderon and Assembly Representative Pedro Nava, each the chairs of their respective banking committees, were both quick to sponsor bills claiming to protect homeowners from the proliferation of loan modification scammers.
Senator Calderon’s bill, known as SB 94, was the one signed into law on October 12, 2009, with the Mortgage Bankers Association, the California State Bar Association and the California Department of Real Estate all listed among the supporters of the bill.
SB 94 was written to apply to both lawyers and Department of Real Estate (“DRE”) licensees. The language pertaining to lawyers is found in the California Civil Code, and the language pertaining to DRE licensees is in the California Business & Professions Code.
The scams, in all cases, involved homeowners being required to pay an up-front or advance fee, so SB 94 focused on making it illegal to charge an advance fee related to providing loan modification services. So, whether we’re talking about a licensed attorney or DRE licensee, the operative language is identical. Neither is permitted to…
“…claim, demand, charge, collect, or receive any compensation until after the person has fully performed each and every service the person contracted to perform or represented that he or she would perform.”
But, as it pertained to DRE licensees, however, SB 94 went a step further by modifying language contained in Business & Professions (“B&P”) Code Section 10026 to prevent DRE licensees from breaking up loan modification services or fees into component parts as shown below in bold:
CHAPTER 1. GENERAL PROVISIONS …………………………. 10000-10035
10026. (a) The term “advance fee,” as used in this part, is a fee, regardless of the form, that is claimed, demanded, charged, received, or collected by a licensee for services requiring a license, or for a listing, as that term is defined in Section 10027, before fully completing the service the licensee contracted to perform or represented would be performed. Neither an advance fee nor the services to be performed shall be separated or divided into components for the purpose of avoiding the application of this division.
As a result, a DRE licensee can only view a loan modification as a single service, and therefore only be paid after that one service has been provided, which would be when the homeowner is either approved or denied for a loan modification… the very end of the process.
However, there is no language in SB 94 that prohibits lawyers from breaking up loan modification services and/or fees into parts, as there is for DRE licensees.
Therefore, while SB 94 precludes lawyers from charging advance fees, the law does allow lawyers providing loan modification services to be paid for a specific set of contracted services upon their completion, regardless of whether at the beginning, middle or end of the loan modification process.
The legal profession refers to this as the “unbundling” of services.
Even though literally hundreds of lawyers from all over California contacted the State Bar to ask about the unbundling of services into separate contractual agreements under SB 94, with compensation being received at the end of each contract, for more than two years, the State Bar remained quiet on the subject.
Of course, it didn’t much matter what the banks or government entities had said in early 2009, many homeowners discovered very quickly that calling their bank directly, or a HUD counselor, did not result in their loans being modified… and on top of that, it was a maddening and even torturous experience. It was becoming clearer every day that having a lawyer to help get your loan modified wasn’t such a bad idea.
It seemed that the storm had passed.
Enter: The Better Business Bureau
In 2010, the BBB reacted to the rhetoric by giving an ‘F’ rating to just about everyone providing loan modification services in California.
Frankly, I always found that policy to be disadvantageous to homeowners because it forced consumers to choose a firm from a basket of ‘Fs,’ and since clearly some deserved the low rating and others didn’t, I reasoned that such a policy actually increased the potential for consumers to make a bad choice.
Having successfully completed more than 3,000 loan modifications for California homeowners over the last four years, not only is CDA Law not a scammer, but they’d certainly appear at or near the top of anyone’s list of most effective firms modifying loans.
Eventually, the BBB apparently agreed, awarding CDA Law an ‘A-‘ rating for a period of time.
And, yes… I am the authority on this issue.
I want the reader to know that what I’m saying is not based on a cursory review of the subject matter. My qualifications to make the statements I’m making about loan modifications and the foreclosure crisis in California at the very least equal anyone else’s. Although it was never my intention that this be the case, on the subject of the foreclosure crisis, I’ve become a leading expert, and I can’t imagine anyone contesting that claim.
In point of fact, this past year I was accepted as an “expert witness” by the California State Bar Court and I provided expert testimony on loan modifications and the foreclosure crisis in an administrative hearing on behalf of an attorney in that court.
I started writing about the foreclosure crisis in 2008. Since then I’ve written close to 700 articles on the political, economic, social and legal aspects of the financial and foreclosure crises. To do that, as you might imagine, I’ve read essentially all of the most widely known articles, reports, or studies that have been published nationwide.
Last year, when I stopped counting, I’d received more than 30,000 emails from homeowners all over the country. I’ve personally interviewed close to 4,000 homeowners at risk of foreclosure along with hundreds of attorneys involved in representing such homeowners.
In 2010, I also conducted a qualitative study of homeowner complaints, which included reading 1200 letters written by homeowners who had either hired a lawyer, a mortgage broker, or no one at all to help them with their loan modification.
I was an invited speaker on the subject of loan modifications at the American Bar Association’s Conference on Consumer Financial Services, appearing on a panel with Thomas Pahl, an Assistant Director in the FTC’s Division of Financial Practices, and I was invited to speak on the crisis again, from the homeowner’s perspective, at the 9th Circuit Judicial Conference in front of a few hundred federal court judges.
Additionally, I’ve been invited to speak at numerous homeowner meetings, and at a luncheon held by the Orange County Bar Association, for whom I also taught a CLE class for attorneys on loan modifications, alongside a compliance and mortgage banking attorney, and an ethics and bar defense attorney.

And I have not let up for what is now going on four years. I continue to write my blog, Mandelman Matters, which is among the most widely read on the subject, and I continue to make my email and phone number available online, which means I get hundreds of calls and emails each month from homeowners at risk of foreclosure, and attorneys involved in foreclosure defense in almost all 50 states.
Lastly, I have no dog in this race, as they say. I’ve never been in the mortgage or real estate industries, never been paid a nickel by a homeowner, nor for referring anyone anywhere. I’m not personally at risk of foreclosure… today, anyway… and I have no direct financial incentive to say anything specific about the crisis or about CDA Law.
Now back to the BBB…
This past fall, members of the state legislature told the State Bar that they needed to clean up the back log of disciplinary cases, and once again, politics appears to have played a role in the Bar’s use of inflammatory rhetoric and behavior.
Suzan Anderson, Supervisor of the State Bar’s Special Team on Loan Modification Fraud, while speaking at the State Bar’s Annual Meeting last September, announced that the Bar would now be taking the position that lawyers helping clients with loan modifications would not be permitted to unbundle services related to loan modifications.
Ms. Anderson said that it was now the position of the California State Bar that lawyers working on obtaining loan modifications on behalf of their clients could not be paid until the end of the loan modification process, even though no such language is found in the statute. Not only that, but a disclaimer at the bottom of her presentation’s front page stated that this was not the official position of the State Bar, so once again the Bar wasn’t willing to make it a policy.
Following the State Bar’s annual meeting, prosecutors at the Bar began using the threat of SB 94 to get attorneys who were offering loan modification services to accept some sort of disciplinary action for unbundling their services. These attorneys were only accepting payment for services upon the completion of contracted services, and they therefore were complying with both the language contained in SB 94 and the bill’s legislative intent, according to its drafter. None that I knew personally ever charged advance fees.
The State Bar has provided no basis for their new opinion, nor have they allowed the issue to be argued in front of a judge. Maybe the basis is their misreading of the statute. Maybe it’s because the banking lobby has pressured the state legislature to do everything possible to stop homeowners from hiring lawyers to help them get their loans modified.
Or, maybe it’s just a feeling they have… I really don’t care. The Bar’s made up of lawyers and they’ve had almost three years to figure it out, so unless they’re remedial readers, I’m done giving them a free pass.
Never mind for a moment what the law says, the fact is that lawyers could not offer to help homeowners with loan modifications if they couldn’t be paid until the end of the process, and the reason should be very easy to understand.
Homeowners applying for a loan modification… by definition… are experiencing a significant financial hardship and as a result, many end up filing bankruptcy at some point in the process.
That means if a lawyer were not paid along the way as services were completed, then he or she would often work for six months or a year to get a loan modified… and then, upon advising the client to file bankruptcy… have his or her bill for services placed into the bankruptcy as unsecured debt to be discharged. The lawyer would never be able to receive payment for what could easily be months of time spent working on getting the loan modified.
It’s an unresolvable conflict. Work all year. Advise your client to file bankruptcy. And then tear up your bill for your year’s work on the loan modification. Do you know anyone that could or would work under such a condition?
The State Bar, if asked, says that they’re not trying to prevent homeowners at risk of foreclosure from being able to hire lawyers to help them get their loans modified. But, that statement strains credulity when their so-called interpretation sets up the type of conflict as is found with SB 94.
What the State Bar started doing last fall is clearly politically motivated and very wrong. And at this point, the issue is going to have to be settled by the courts as there is already one lawsuit filed by an attorney against the State Bar over their interpretation of SB 94, and most assuredly others are going to be filed very soon.
By the way, it’s interesting because as I mentioned, outside of threatening lawyers with charges of unbundling services under SB 94, the Bar has never actually brought such charges into court. Instead, the State Bar only threatens attorneys with violations of SB 94, but then offers the lawyers some sort of deal to avoid have charges filed, and in all cases to-date the lawyers have taken the deal rather than take on the risk and expense of fighting the State Bar in court.
Once the lawyer accepts the discipline deal offered by the Bar, his name goes onto the Bar’s regulatory scorecard that they can then show to whichever members of the state legislature are interested, as proof that they are cleaning up their backlog of cases and being tough on the lawyers they regulate.
But, let’s be honest about this… we know which members of the state legislature we’re talking about here, right? Why, the members of the senate and/or assembly banking committees, of course. Do I know that to be a fact? No. But, if anyone is feeling lucky, let me know and I’d be happy to see if we can’t arrange a little wager. Who else do you think it could be… telecommunications? Agriculture? Please…
It’s really quite scandalous.
The California State Bar has been getting away with using attorneys that offer to help homeowners obtain loan modifications as their political piñata for far too long. It’s an example of a state agency abusing its power for political purposes and it must be stopped before its behavior causes any further harm to California homeowners.
Three years after SB 94 was signed into law, and its become abundantly clear that Miller’s statements were made for political purposes, without any regard for the truth or consideration of the harm such statements could cause.
Miller was all too aware that the State Bar was under attack by some in the state legislature for not aggressively disciplining lawyers, and he saw what was going on related to loan modifications and the foreclosure crisis as a way to look like a tough regulator of the legal profession.
The BBB Strikes Again…
One of the ways the Bar has endeavored to made life difficult for lawyers offering to help homeowners obtain loan modifications is by telling the BBB about what I would call their incorrect and baseless interpretation of SB 94.
And if you’re a lawyer helping homeowners with loan modifications, it’s not at all unusual to wake up one morning to find your firm has been rated ‘F’ by the BBB.
Why? Because you’re unbundling loan modification services, of course. Contracting to perform services A, B, C & D… and not being paid until those services have been completed to your client’s satisfaction. Just like the language in SB 94 says you can do.
And just so everyone knows… I’m far from alone in this view. Most or all State Bar Defense and Ethics attorneys in California share my view, as do numerous legal scholars and literally hundreds of other licensed practicing California attorneys.
We’ve learned a lot since 2009, or at least we should have…
In 2009, when President Obama announced his Making Home Affordable plan, most people in this country believed it would work. Obama was the smart president… the man of the people.
It hasn’t worked though, at least nowhere near as he said it would, and we’ve also learned that he is as Wall Street friendly as they come… at least that’s how he behaved during his first term.

BBB of Southern Florida and the Caribbean
In 2001 Florida Congresswoman Corrine Brown alerted Congress and the General Public about the BBB’s wrong doing.
Click here for the Original Congressional Record E1550
E1550 CONGRESSIONAL RECORD – Extensions of Remarks August 3, 2001
Thursday, August 2, 2001
Ms. BROWN of Florida. Mr. Speaker and fellow Members of Congress, I want to alert you to a matter of concern that I have regarding business owners and their employees, particularly small business owners, within our country.
This problem has been told to me by some of my constituents and is a problem about which business owners throughout the country have written to you.
We are a nation that is built upon the rule of law.
This has assured a system of accountability for our conduct as individuals, businesses and institutions.
Congress, as elected representatives, meets and acts to improve and refine the system in order to protect the people and their property.
The foundation as framed by our nation’s founders in the Constitution is the concept of due process and the right thereof. We each have the assurance that the law protects our person and property from libelous, slanderous, and otherwise tortuous interference with our reputation or business.
Unfortunately, I have learned that we have within our country a private organization that with the appearance of being quasi-governmental and without any legal or regulatory oversight and control can libel and slander and tortuously interfere with a small business.
They can do so with virtual immunity.
This organization is the National Better Business Bureau and their franchise local Better Business Bureaus.
At times, some of these bureaus classify small business owners as unsatisfactory, libel and slander them with opinion and innuendo, and provide them no due process to correct the problem.
If sued in court, they argue qualified immunity under the guise of the public good.
No one disputes the right of a Better Business Bureau to print facts. It is when they print falsehoods, opinion, or negative innuendo that a mechanism for redress or correction must be assured.
When closely examined, however, one finds that there are Better Business Bureaus that arbitrarily and capriciously exclude and negatively classify those they don’t like.
They also frequently rate companies with terrible records as being satisfactory.
No written guidelines or rules are available that require the Better Business Bureau to adhere to any legal standard in their dealings with business. (With the internet, the conduct of one local Better Business Bureau is then taken as true and disseminated everywhere.)
The Better Business Bureaus also charge money for these reports.
They make money without responsibility for how they make it.
Why are they above the law and other businesses?
On a first-hand basis, I recently inquired of the National Better Business Bureau regarding the process and I was met with hostility and rebuke.
Prominent members of my community who tried to ascertain information about how to redress a concern with a local Better Business Bureau were hung up on by senior ranking National Better Business Bureau employees.
The process I have described is not in the public’s best interest.
It is not appropriate for us to allow our business owners and their employees, the men and women who make our country strong, to be exposed to this arbitrary and capricious process.
A right to redress the actions of the Better Business Bureau when libelous, slanderous, arbitrary, or capricious action is apparent is a fundamental right we must insure.
Thank you.
 The truth about the BBB
 BBB Criminal Actions
 Better Business Bureau – A useless institution
 How well do you know the Better Business Bureau?
 It’s not what you think!
 Los Angeles Times
 The Truth about the BBB
 Too Cozy With the Firms It Monitors?
 Recent Posts
 The Truth about The BBB Rating System
 Florida BBB
 The Truth about the BBB
The Truth about The BBB Rating System
Posted on February 24, 2010 by bbb
The heart of the BBB is their rating system applied to compare businesses
Consumers go to the BBB franchises’ web sites to determine which business to use and which one to avoid.
Consumers’ decision is influenced by the business rating as advertised on the BBB franchises’ web sites.
The advertised rating has financial consequences, especially in competitive industries.
When the BBB advertises one business rating as C+ and another as B and both businesses offer the same services, customers with “vivid memories from elementary school”, will prefer the business graded B.
The BBB rating scale consists of 14 levels.
The BBB represents itself as if they have an accurate, reliable, non biased and uniform mechanism to compare the quality of one business to another and to properly grade businesses over the 14 level spectrum.
This is a very serious undertaking.
Unfortunately this is not the case.
The truth is shocking!
The CBBB, the central body of more than 100 privately owned BBB franchises, advertises various information how a rating should be done, but it is not being followed.
Here is what really happens:
The main factor affecting a business rating is the number of valid complaints against the business; they call this process of passing a judgment and making the decision “validation”
Each privately owned BBB franchise is judging complaints submitted against businesses under its jurisdiction. The validation is done in-house by employees with no legal qualification, no thorough understanding of the industry of the business they are judging, no court of law experience, no time or resources to properly investigate each complaint, none of the requirements one would expect in order to carry on such a task properly.
Judgments are passed in haste according to the employee “flavor of the day”.
Many times judgments are passed by these individuals without any regard to the advertised description what makes a complaint valid and what does not.
It is well known and documented that businesses protesting against wrong validation manage to reverse the wrong judgment, but in most cases they are ignored; no matter how substantial the evidence is that they present. The BBB privately owned corporations act as if they are beyond reproach, without any accountability to the financial damages their malpractice is causing.
Complaints from businesses about a franchisee wrong doings are ignored. Erroneously, the BBB franchises are not members of there own organization. They are the only business for which one can not find a rating. They are enjoying amnesty from being graded on the BBB web sites, allowing themselves to not follow descent and proper business etiquette or ethics.
This entry was posted in BBB, BBB of Southeast Florida and the Caribbean, Better Business Bureau, CBBB, Florida BBB, The truth about the BBB, and tagged BBB of Southeast Florida and the Caribbean, Better Business Bureau, CBBB, Bookmark the permalink.
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5 Responses to The Truth about The BBB Rating System
 L GYURO says:
October 25, 2011 at 2:52 pm
 Anon says:
July 23, 2011 at 10:49 pm
I have one complaint and they gave me an F rating. One complaint. I don’t pay the BBB ransom either but what is really awful and is hurting my business if if anyone searches my business or even my name, they come up top with this F rating because of one complaint in all the years they’ve been tracking me. I’ve never even signed up to be in their database.
I’m going to need to sue them for damages.
 david goodson says:
May 26, 2011 at 1:34 pm
having the same problem when i paid i had a A rating now i dont pay F rating they call me up once a year and tell me i have a complaint that it will cost 350.00 dollars to join back to take care of the complaint after i join back they tell me that my complaint was somebody enquiring about my bussinessssssss. thre yrs in a row now im not joined im a f rated company biggist scam think its run by the moffia its strong arm robbery how can we get rid of this company forgood they must pay off people to run this type bussines
 Jace says:
April 22, 2011 at 12:31 am
I found this article because I was wondering what the BBB’s rating of the BBB was. Of course, as of now I have been unable to find such a rating. Any ideas? Also, is there any info available on the statistics of the ratings given by BBB. Like the average rating? Median rating? etc, etc.
 Jack Welch says:
February 15, 2011 at 1:37 pm
I’ve been having problems for years with the BBB after I quit paying their yearly “ransom”. My business has 4 complaints in 25 years and I have an F rating. Other companies may have dozens (and in some cases with large companies, thousands) of complaints, yet they have an A+ rating. Does anyone see someething wrong with this situation. I’d like to sue my local BBB. Can anyone offer me any advice? I’m sick and tired of being run down by a bunch of “know it alls” who don’t really know anything. All these fools do is register complaints, wether they are legitimate or not. Any help offered will be appreciated. Jack Welch Greensboro, NC
A form of publication which tends to cause one to lose the esteem of the community is defamation. This is injury to reputation. A person is liable for the defamation of another. In order to prove defamation, the plaintiff must prove:
• that a statement was made about the plaintiff’s reputation, honesty or integrity that is not true;
• publication to a third party (i.e., another person hears or reads the statement); and
• the plaintiff suffers damages as a result of the statement.
Slander is a form of defamation that consists of making false oral statements about a person which would damage that person’s reputation. If I spread a rumor that my neighbor has been in jail and this is not true, I could be held liable for slander. Defamation which occurs by written statements is known as libel. Libel may also result from a picture or visual representa¬tion. Truth is an absolute defense to slander or libel.
Some statements, while libelous or slanderous, are absolutely privileged in the sense that the statements can be made without fear of a lawsuit for slander. The best example is a statement made in a court of law. An untrue statement made by a witness about a person in court which damages that person’s reputation will generally not cause liability to the witness as far as slander is concerned. However, if the statement is untrue, and the person knows the statement is untrue, the crime of perjury may have been committed.
If a communication is made in good faith on a subject that the communicating party has a legitimate right or interest in making the communication, such a communication could be exempt from slander liability due to a qualified privileged.
Smith, a district manager of Acme Recording Company, was investigating complaints of mismanagement of the a city office of the company. As part of his investigation he called at the home of Ann, the secretary of that office. She expressed the opinion that part of the trouble was caused by stealing of parts and equipment by Jones, another employee. Jones was later discharged and sued Ann for slander. Was she liable? No. The circumstances of the investigation, the relevance of the matter to the employer’s business, and the fact that the statement was privately told to a superior, led to the conclusion that Ann did not make the statement with malice. Because the statement was not made maliciously and was made to a representative of the employer regarding a matter within the range of corporate business, Ann was protected by a qualified privilege from liability for slander.
The media also enjoys a qualified privilege for stories that turn out to be false as long as the information was released without malice (i.e., without intent to harm) and a retraction or correction is made when the matter is brought to the attention of the publishing party.

Patricia Deanna Skees, Northern Ky. Leader, and Wife of Attorney Hugh Skees Passes on.

Tuesday, January 22nd, 2013

We sadly share with you the passing of Patricia Deanna Skees, wife of attorney Hugh O. Skees (Skees, Wilson & Dillon, PLLC)

Patricia Deanna Skees, age 68 of Florence, KY passed away Saturday, January 19, 2013 at St. Elizabeth Hospital Florence. She is survived by her husband Hugh O. Skees of Florence, KY.

Visitation Wednesday, January 23, 2013, 2:00 – 5:00 p.m. at the Florence Christian Church 300 Main Street Florence, KY 41042

Funeral Service immediately following at 5:00 p.m. in the church

Memorial Contributions are requested to the American Diabetes Association 644 Linn Street, Suite 304 Cincinnati, OH 45203

Online Condolences to


Friday, January 18th, 2013

By LawReader Senior Editor Stan Billingsley Jan. 18, 2013

Andy Wolfson of the Louisville Courier Journal reported today that Justice Wil Schroder has brain cancer and has decided to retire. Many in the legal community have known of Justice Schroder’s illness for several months, but his family did not want to publicize his illness. LawReader honored that request.

All Kentucky citizens will miss his presence on the high bench. Kentucky lawyers will particularly miss his wisdom and influence in trying to regulate the abuses of the Kentucky Bar Association.
We foresee a major review of the rules under which the Bar Association operates, and the Code under which they sanction attorneys for such “ethical abuses” as making TRUE STATEMENTS about the legislature and some public officials.

The excessive prosecution and excessive punishment, the piling on of charges, the focus on issuing sanctions for minor procedural mistakes all have brought the KBA under scrutiny, the high cost of defense, and the waste of dues fees for the KBA Board to hire outside counsel when they already have nine full time lawyers on staff will be considered in the coming year. We noted the displeasure of Justice Schroder last year in the budget request of the KBA. Justice Schroder stood tall and limited the KBA’s request for funding increases.

Yes we will miss Justice Schroder. We hope that his medical treatment works out for him, and that he is allowed to enjoy his retirement with his family and friends for many years to come.
The Judicial Nominating Commission will make recommendations to Gov. Steve Beshear and the Governor will select the replacement.

Judicial Nominating Commission
The Judicial Nominating Commission helps fill judicial vacancies by appointment when a vacancy occurs outside of the election cycle. The Kentucky Constitution established the Judicial Nominating Commission (KY. CONST. § 118; SCR 6.000, et seq.).

Composition of the Judicial Nominating Commissions
There are currently 61 nominating commissions in Kentucky, one for the Supreme Court and Court of Appeals, one for each judicial circuit and one for each judicial district. If the circuit and district have the same boundaries, then one commission serves both.

Each commission has seven members and is comprised of the chief justice of Kentucky (who also serves as chair), two attorneys elected by all attorneys in the vacancy’s jurisdiction and four non-attorney Kentucky citizens who are appointed by the governor. The four citizens must equally represent the two major political parties.

A JNC member must be a resident of the circuit or district he or she represents and may not hold any other public office or hold an office in a political party or organization.
JNC members serve four-year terms. Members are not compensated for their services, but are reimbursed for expenses for the days they perform their duties. The executive secretary of the JNC provides administrative support for, and maintains the records of, the nominating commissions.

Application Process
When a judicial vacancy occurs, the executive secretary of the JNC notifies all attorneys and the public in the affected judicial circuit or district. Attorneys can recommend someone or nominate themselves. Interested attorneys must complete an application and return it to the executive secretary of the JNC.

The chief justice meets with the JNC to select three nominees and then forwards those names to the governor. The names of the three nominees are listed in alphabetical order without indicating the commission’s preference. The governor must appoint a judge from this list of three. If the governor does not appoint a judge within 60 days of receiving the list of nominees, the appointment is made by the chief justice from the list of nominees.

Bracken County Board of Education Seeks Bid for Legal Services

Thursday, January 17th, 2013


The Bracken County Board of Education will receive sealed bids for board attorney:

Bid Package # 1 Board attorney representing the interest of the Bracken County Board of Education. Please include the following in your bid package

1.) Hourly rate

2.) Cost to attend meetings

3.) Miscellaneous fees such as emails, phone calls etc.

4.) Mileage rate

5.) Retainer cost if applicable

The Bracken County Board of Education requires a professional resume describing experience and any other relevant material. Interested parties may bid on this request and The Bracken County Board of Education reserves the right to reject any and/or all bids.

Sealed bids will be received until bid opening time: 1:30 p.m. on February 13, 2013 at the Administration Building of the Bracken County Board of Education.

Specifications may be obtained at the Administration Building of the Bracken County Board of Education, 348 West Miami St. Brooksville, Ky. 41004. Office hours are from 8:00 a.m. until 4:00 p.m. daily. Contact Person: Mr. Jeff Aulick


Three Nominees for Vacant Judgeship in l9th. Judicial District of Bracken, Fleming and Mason Counties.

Thursday, January 17th, 2013

FRANKFORT, Ky. — The Judicial Nominating Commission, led by Chief Justice of Kentucky John D. Minton Jr., today announced nominees to fill the vacant District Court judgeship in the 19th Judicial District, which is composed of Bracken, Fleming and Mason counties.

The three attorneys named as nominees to fill the vacancy are Kathryn B. Hendrickson, Frank Howard McCartney and Jeffrey Louis Schumacher.

Hendrickson, of Maysville, served as the commonwealth’s attorney for Bracken, Fleming and Mason counties from 2007 to Jan. 6, 2013. She received her juris doctor from Northern Kentucky University Salmon P. Chase College of Law.

McCartney, of Flemingsburg, serves as assistant Fleming County attorney and is a partner in the law firm of Suit, McCartney, Price, Price & Ruark in Flemingsburg. He received his juris doctor from the University of Kentucky School of Law.

Schumacher, of Maysville, serves as a District Court trial commissioner and the Mason County master commissioner and as counsel for several Mason County government boards, including the local planning commission. He received his juris doctor from Northern Kentucky University Salmon P. Chase College of Law.

The judicial vacancy was created when Judge W. Todd Walton II resigned effective Sept. 10, 2012.

District Court
District Court judges handle juvenile matters, city and county ordinances, misdemeanors, violations, traffic offenses, probate of wills, arraignments, felony probable cause hearings, small claims involving $2,500 or less, civil cases involving $5,000 or less, voluntary and involuntary mental commitments and cases relating to domestic violence and abuse.

Judicial Nominating Process
When a judicial vacancy occurs, the executive secretary of the Judicial Nominating Commission publishes a notice of vacancy in the judicial circuit or the judicial district affected. Attorneys may recommend someone or nominate themselves. The names of the applicants are not released. Once nominations occur, the individuals interested in the position return a questionnaire to the Office of the Chief Justice. Chief Justice Minton then meets with the Judicial Nominating Commission to choose three nominees. Because the Kentucky Constitution requires that three names be submitted to the governor, in some cases the commission submits an attorney’s name even though the attorney did not apply. A letter naming the three nominees is sent to Gov. Steve Beshear for review. The governor has 60 days to appoint a replacement, and his office makes the announcement.

Makeup of the Judicial Nominating Commission
The Judicial Nominating Commission is established in the Kentucky Constitution. Ky. Const. § 118; SCR 6.000, et seq. The commission has seven members. The membership is comprised of the chief justice of Kentucky (who also serves as chair), two lawyers elected by all the lawyers in their circuit/district and four Kentucky citizens who are appointed by the governor. The four citizens appointed by the governor must equally represent the two major political parties, so two must be Democrats and two must be Republicans. It is the responsibility of the commission to submit a list of three names to the governor and the governor must appoint a judge from this list of three.

Administrative Office of the Courts
The Administrative Office of the Courts in Frankfort is the operations arm for the state court system. The AOC supports the activities of nearly 3,300 court system employees and 403 elected justices, judges and circuit court clerks. As the fiscal agent for the state court system, the AOC executes the Judicial Branch budget.


Tuesday, January 15th, 2013

By LawReader Senior Editor Stan Billingsley.

You can’t always believe the BA test of blood. The process of taking a blood sample can corrupt the actual blood alcohol level. Injured patients who have wounds cleaned before a blood sample is made for alcohol content may have false positive results due to the cleaing of the wound.

Can Blood Tests Be Inaccurate?

“Obviously, lab testing errors can occur, which can render any test result inaccurate. However, the most significant concern for blood testing is whether the test is of the “whole blood” or of the “blood serum”. Police crime labs will test the “whole blood,” and will produce a “blood alcohol content” figure on that basis. However, many hospitals and clinics test only the “blood serum,” resulting in a blood alcohol content figure that can be 25% – 33% higher than a “whole blood” test result. A hospital may also use an alcohol swab before drawing the blood sample, which may contaminate the sample.


A blood alcohol test measures the amount of alcohol (ethanol) in your body. Alcohol is quickly absorbed into the blood and can be measured within minutes of having an alcoholic drink. The amount of alcohol in the blood reaches its highest level about an hour after drinking. But food in the stomach may increase the amount of time it takes for the blood alcohol to reach its highest level. About 90% of alcohol is broken down in the liver . The rest of it is passed out of the body in urine and your exhaled breath.

Alcohol has a noticeable effect on the body, even when consumed in small amounts. In large amounts, alcohol acts as a sedative and depresses the central nervous system.

A blood alcohol test is often used to find out whether you are legally drunk or intoxicated. If this test is being done for legal reasons, a consent form may be required, but refusing to take the test may have legal consequences.

Why It Is Done

A test for blood alcohol level is done to:

· Check the amount of alcohol in the blood when a person is suspected of being legally drunk (intoxicated). Symptoms of alcohol intoxication include confusion, lack of coordination, unsteadiness that makes it hard to stand or walk, or erratic or unsafe driving.

· Find the cause of altered mental status, such as unclear thinking, confusion, or coma.

· Check to see whether alcohol is present in the blood at times when the consumption of alcohol is prohibited-for example, in underage people suspected of drinking or in people enrolled in an alcohol treatment program.

How To Prepare

No special preparation is needed before having a blood alcohol test.

Many medicines may change the results of this test. Be sure to tell your doctor about all the nonprescription and prescription medicines you take.

How It Is Done

The health professional drawing blood will:

· Wrap an elastic band around your upper arm to stop the flow of blood. This makes the veins below the band larger so it is easier to put a needle into the vein.

· Clean the needle site with a non-alcohol solution such as povidone-iodine or antiseptic soap.

· Put the needle into the vein. More than one needle stick may be needed.

· Attach a tube to the needle to fill it with blood.

· Remove the band from your arm when enough blood is collected.

· Put a gauze pad or cotton ball over the needle site as the needle is removed.

· Put pressure on the site and then put on a bandage.

How It Feels

The blood sample is taken from a vein in your arm. An elastic band is wrapped around your upper arm. It may feel tight. You may feel nothing at all from the needle, or you may feel a quick sting or pinch.


There is very little chance of a problem from having blood sample taken from a vein.

· You may get a small bruise at the site. You can lower the chance of bruising by keeping pressure on the site for several minutes.

· In rare cases, the vein may become swollen after the blood sample is taken. This problem is called phlebitis. A warm compress can be used several times a day to treat this.

· Ongoing bleeding can be a problem for people with bleeding disorders. Aspirin, warfarin (Coumadin), and other blood-thinning medicines can make bleeding more likely. If you have bleeding or clotting problems, or if you take blood-thinning medicine, tell your doctor before your blood sample is taken.


A blood alcohol test measures the amount of alcohol (ethanol) in your body. Some states have no set limit for legal intoxication. But the National Highway Traffic Safety Administration (NHTSA) recommends that all states set the legal definition of intoxication as the point when the blood alcohol concentration (BAC) exceeds 0.08 (which is equivalent to 80 mg/dL or 17 mmol/L).

Blood alcohol


No alcohol is found in the blood.


Any alcohol is found in the blood.

Legal intoxication is defined as having a blood alcohol concentration (BAC) of 0.08 or greater. But the legal blood alcohol concentration (BAC) limit for people under age 18 may be lower, such as 0.02.

Effects of drinking alcohol

Having any amount of alcohol in the blood can cause poor judgment and slowed reflexes. BAC and the effects of drinking alcohol vary from person to person and depend upon body weight, the amount of food eaten while drinking, and each person’s ability to tolerate alcohol.

Effects of drinking alcohol

Estimated blood alcohol concentration (BAC)

Observable effects


Relaxation, slight body warmth


Sedation, slowed reaction time


Slurred speech, poor coordination, slowed thinking


Trouble walking, double vision, nausea, vomiting


May pass out, tremors, memory loss, cool body temperature


Trouble breathing, coma, possible death

0.50 and greater


What Affects the Test

Reasons you may not be able to have the test or why the results may not be helpful include:

· Using rubbing alcohol to clean the skin before inserting a needle to draw blood.

· You have high blood ketones, as in diabetic ketoacidosis.

· Taking cough medicines that contain alcohol or herbal supplements, such as kava or ginseng.

· Drinking other alcohols, such as isopropyl alcohol or methanol.

Many medicines may change the results of this test. Be sure to tell your doctor about all the nonprescription and prescription medicines you take.

What To Think About

· The blood alcohol test measures only the amount of alcohol in the blood at the time the sample is taken. It does not show how long you have been drinking or whether you have an alcohol use problem.

· Highway patrol officers in most states now have devices (toximeters) that measure the breath alcohol levels of drivers they think are drunk. A person charged with drunken driving who does not think the breath analysis is accurate may ask for a blood alcohol test.

· A breath alcohol self-test can estimate your blood alcohol concentration. The handheld device to measure breath alcohol is similar to, though not as precise as, the type of test used by

Sixth Circuit Rules that the U.S. District court had jurisdiction to order Angela Ford to produce an accounting of the distribution of her Fen Phen assets handled by her

Tuesday, January 15th, 2013

The Sixth Circuit has upheld the power of the U. S. Attorney to obtain an accounting from Angela Ford, but says review of her personal finances is “not yet ripe”.

11-6187: USA v. William Gallion, et al :: Sixth Circuit :: US Court of …
See full text of Sixth Circuit Order at: FCO 20121102103.xml&docbase=CSLWAR3-2007-CURR&SizeDisp=7

ANGELA M. FORD, Appellant.
No. 11-6187.
United States Court of Appeals, Sixth Circuit.
Filed November 2, 2012.

Before: MERRITT, MCKEAGUE, and STRANCH, Circuit Judges
The Government may enforce a restitution order “in accordance with the practices and procedures for the enforcement of a civil judgment under Federal law or State law,” 18 U.S.C. §§ 3613(a) & 3664(m)(1)(A)(i), which includes utilization of the Federal Debt Collection Procedures Act (FDCPA). United States v. Kollintzas, 501 F.3d 796, 801 (7th Cir. 2007). The Government may enforce the restitution order against all of the defendants’ property or property rights, with certain limited exceptions. 18 U.S.C. § 3613(a). Importantly, the statute transforms the restitution order into a lien in favor of the Government on all of the defendants’ property and property rights. 18 U.S.C. § 3613(c). Under the MVRA, the Government may enforce a restitution order “by all other available and reasonable means.” 18 U.S.C. § 3664(m)(1)(A)(ii).
These collection mechanisms, including civil procedures, may be utilized by the Government in federal court in the same criminal case in which the district court ordered the payment of restitution. See Kollintzas, 501 F.3d at 801. “[T]here is no concern about the district court’s jurisdiction” over such collection procedures, id., because “[t]he United States always gets to litigate in its own courts.” United States v. Vitek Supply Corp., 151 F.3d 580, 586 (7th Cir. 1998). Title 18 U.S.C. § 3231 and 28 U.S.C. § 1345 grant the district court jurisdiction over restitution enforcement proceedings. Kollintzas, 501 F.3d at 801. Therefore, we conclude that the district court had jurisdiction to order Ford to provide an accounting, which is an “available and reasonable means” to enforce the federal restitution order.2 18 U.S.C. § 3664(m)(1)(A)(ii).
Ford contends that the Federal Rules of Civil Procedure generally do not permit a judgment creditor to discover the personal assets of a non-party, citing Burak v. Scott, 29 F.Supp. 775, 776 (D.D.C. 1939). She also alleges that the Government did not employ a civil judgment collection mechanism, such as a subpoena, to bring her before the court to obtain discovery.
We are not persuaded by these arguments because Ford stood in a unique relationship to the criminal and civil litigation in her dual role as the appointed crime victims’ representative and as a private civil lawyer. Her desire to protect her personal financial information and to retain the attorney’s fees she earned is certainly understandable.
Any issues concerning the Government’s ongoing efforts to obtain and/or use Ford’s private financial information to collect restitution are not yet ripe for our consideration.
We think it was reasonable, however, for the Government to ask Ford as an officer of the court to provide the requested information. When Ford declined to provide all of the requested information, the Government reasonably resorted to the court’s authority to obtain an accounting. See 18 U.S.C. § 3664(m)(1)(A)(ii); Kollintzas, 501 F.3d at 801. Service of a subpoena on Ford likely would have produced the same information, but under the circumstances, the district court had jurisdiction to order Ford to produce an accounting.



On August 28, 2012 the Sixth Circuit Court of Appeals issued an order giving Angela Ford and the U.S. Attorney’s Office a short time to show cause why Ford’s appeal efforts to avoid disclosure of the names of the attorneys with whom she shared legal fees shouldn’t be dismissed.
For close to two years the U.S. Attorney’s Office has been seeking disclosure of information about Angela Ford’s handling of some $42 million dollars in assets seized from William Gallion, Shirley Cunningham et al. In a story written by Courier Journal Andy Wolfson, Ford admitted that she had shared her attorney fees “with other attorneys”. She continues to refuse to disclose information about her distribution of funds she seized from Gallion et al, in a court ruling which has been set aside by the Court of Appeals, and which is now on discretionary review by the Kentucky Supreme Court.

Ford has filed two appeals to the Sixth Circuit seeking to avoid having provided this information to the U.S. Attorney’s Office. U.S. District Judge Danny Reeves has previously ordered her to provide this information to the U.S. Attorney.
It is almost a certainty that the show cause letter by the Sixth Circuit means that Ford will have to release that information to the U.S. Attorney. The briefs reveal that the U.S. Attorney is seeking disclosure of Angela Ford’s personal finances and banking accounts.
The question must be asked. Why is Angela Ford resisting the efforts of the U.S. Attorney. She was appointed “victim’s advocate” by the Federal Judge in the Fen Phen criminal trial. The federal court had jurisdiction to award her a fee, but she jumped the gun and seized assets and made distributions without consulting with the Federal court.
The very Circuit Court judgment she relied on to seize $42 million in assets was set aside by the Court of Appeals, and is now on appeal to the Ky. Supreme Court.
The granting of discretionary review of the Court of Appeals ruling shocked many. The delay in ruling on this appeal may suggest that there is an internal argument among the Justices and they may be having trouble in coming to agreement on a ruling.
The Supreme Court could well benefit from waiting for final disclosure in the Federal Court of Ford’s assets and distribution. The U.S. Attorney has been dedicated to obtain discovery and documentation of Ford’s financial dealings.
The briefs reveal that the U.S. Attorney is seeking far more information than just a disclosure of which attorneys she shared fees with. We would suspect that the U.S. Attorney is not playing games here….we wish we knew what they know, but they are tight-lipped. LawReader called the U.S. Attorney today, and they would only confirm that the final ruling of the Sixth Circuit had not yet been released.
Ford has already distributed $42 million dollars. If the Supreme Court upholds the Court of Appeals it will be almost impossible for Ford to recover the expended funds and place them in escrow pending the new trial which was ordered by the Court of Appeals. How many of Ford’s 400 clients received a check from her and still have all the money in their bank?
The potential violations of the Supreme Court rules regarding handling client’s money, communicating with clients, etc. are mind boggling. One must wonder why the KBA Bar Counsel has apparently chosen to sit quietly sat on the sidelines. The KBA could be of great assistance to the U.S. Attorney in convincing Angela Ford that she must be transparent regarding the handling of client’s funds. This whole episode appears like the movie “Groundhog Day” redux. Didn’t this all start out with a claim of mishandling of the Fen Phen clients money?
Ford has argued that the Ct. of Appeals reversal had no effect on her right to collect the $42 million and to disburse the money to herself, her clients, and “other attorneys”. That legal theory is highly contested by legal scholars. The ruling of the Court of Appeals set aside the Circuit Court summary judgment of Judge Weir…and Ford is appealing to get the Circuit Court judgment reinstated.
The pending efforts of the U.S. attorney to obtain discovery of Ford’s handling of the $42 million would have inspired quick action and support by the KBA in most cases, but strangely in this case, the KBA has stood by and allowed Ford to hide her financial dealings with her client’s money.
The action of the Sixth Circuit basically says, “the Federal District Judge has ruled that Ford must provide a disclosure of her handling of the $42 million, we have previously upheld that ruling, and the U.S. Attorney is entitled to full disclosure. And the second appeal to the Sixth Circuit will be dismissed due to a lack of jurisdiction of the Sixth Circuit to interfere in the rulings of the Federal District Court.”
LawReader goes out on a limb and guesses the Sixth Circuit’s ruling on the show cause briefs (described below) will be handed down before the end of the year, if not sooner.
There are three pleadings discussed in this article. The Sixth Circuit’s show cause order, Ford’s supplemental brief and the U.S. governments brief.
“It is not apparent to the Court that there is a continuing case or controversy to support appellate jurisdiction in this appeal. Appellant Angela ford is aggrieved by the district court’s order for disclosure or a sealed accounting to the government. Both the district court and the Sixth Circuit have denied her request to stay the disclosure.
Hence, the panel assumes the information has either been disclosed to the government or is available for its review. The relief sought by appellant (i.e., that the court vacate the order of disclosure), would not undo the disclosure and would appear to be moot. Insofar as the appellant may be concerned about potential misuse or further disclosure of the information, such an appellate claim would appear not to be ripe.
Accordingly, the appellant shall show cause not later than Sept. 5, 3012, why this appeal should not be dismissed for lack of a justiciable controversy. The government shall file its response not later than Sept. 12, 2012. Each supplemental brief shall be limited to five pages in length.
Entered By Order of the Court – Leonard Green, Clerk
Issued August 28, 2012.”
1. “…A continuing case or controversy exists between her and the United States concerning the orders on appeal, which require Ford to provide an accounting including information about her personal finances.”
2. “Although the sealed accounting has been made available to the Unites States, the United states has taken the position that the district court’s June 29, 2011 and September 9, 2011 orders require Ford to produce more information than what was contained in the sealed accounting and to provide updated information about her personal funds on an ongoing basis. “
3. “On November 19, 2011, Ford provided the United States with additional information regarding funds collected by her and not distributed to the victims, including information about funds collected in 2011. …Four days later, the United States wrote to Ford’s counsel, requesting additional information regarding those funds, including recent bank statements, year-to-date ledgers for each account, and current financial statements.”
4. “In early December of 2011, Ford produced additional documents in response these (sic) continued requests. Four days later, the United States indicated in an email that it believes that the district court’s orders entitle the government to obtain even more additional information from Ford including personal bank statements.”
5. “Thus, even though the initial accounting filed under seal has been made available to the United States, the orders on appeal continue to subject Ford to ongoing efforts by the United states to obtain records from her. Ford has a “personal stake” in whether she can be compelled to provide information on her personal finances, and this Court can no doubt grant Ford “meaningful relief” by vacating the orders providing the orders that are providing the basis for the government’s ongoing efforts to obtain such information.”
6. “The United States possesses numerous records that have been produced by Ford to comply with the orders on appeal. These records contain information about Ford’s personal finances. If this Court vacates the orders, this Court or the district court could order the government to return to Ford or destroy records that Ford has produced to the United States. …This Court is capable of providing Ford with “meaningful relief” by vacating the orders on appeal, so Ford’s appeal should not be dismissed as moot. See American Atheists, 567 F.3d at 287.”
Issues raised included:
1. SUMMARY OF ARGUMENT: This appeal should be dismissed for lack of jurisdiction. In her initial brief, Ford sought the vacatur of the district court’s orders requiring her to disclose an accounting that she had prepared. Ford’s appeal is moot because an accounting has been produced to the United States. Thus there is no case or controversy for this Court to review.
(LawReader footnote: Vacatur is defined by a legal dictionary as: vacatur noun abolishment, abrogation, annulment, canceling, cancellation, cessation, defeasance, deprivation, dissolution, invalidation, neutralization, nullification, rescission, revocation, undoing, vacation, vitiation
Associated concepts: vacating a judgment.)
2. In her supplemental brief, Ford expands her claim and asks this Court to intervene in a dispute over the scope of discovery that has not been resolved by the district court. This Court lacks jurisdiction over Ford’s supplemental claim because the claim is not ripe. Regardless, Ford waived the right to bring he supplemental claim by failing to raise the issue in her initial brief.
3. (Argument:) “Article III of the Constitution limits federal courts to the adjudication of actual, ongoing controversies between litigants…It is not enough that a controversy existed at the time the complaint was filed…” “An actual controversy must exist at all stages of review…”
4. “Ford represented victims in a civil action in Kentucky against several attorneys for breach of their fiduciary duty and fraudulent misrepresentations, and the district court appointed Ford to represent the victims in criminal proceedings against the attorneys (Note: Gallion, Cunningham, Mills)
During the course of the criminal proceedings, the district court ordered Ford to provide a “full and complete accounting” of all the funds, including the location of the funds, that she had collected in the state court action case that had not been distributed to the victims….The court also denied Ford’s subsequent motion to alter, amend or vacate the order. …Ford provided an accounting to the district court under seal, but she asked the court to stay the orders requiring an accounting and disclosure to the United States pending an appeal. Ford claimed that the disclosure of her accounting to the United States would “effectively” deny her the rights afforded by an appeal. The court granted Ford a sixty-day stay to seek relief in this Court, but the court denied Ford’s request to stay the disclosure of the accounting to the United States.
In her initial brief, Ford sought the vacatur of the district court’s orders requiring her to disclose her accounting to the United States.
In her supplemental brief, Ford expands her claim and asks this Court to intervene in a discovery dispute that has not been resolved by the district court.
This appeal should be dismissed for lack of a justiciable controversy. Ford’s appeal is moot because her accounting has been produced to the United States. Thus there is no case or controversy for this Court to review.
This Court lacks jurisdiction over Ford’s supplemental claim because the claim is not ripe. In her supplemental brief, Ford claims that the discovery dispute between the parties constitutes a “continuing controversy between (her) and the United States concerning the accounting.
She notes that “the United States has taken the position that the district court’s…orders require (her) to produce more information than what was contained in the sealed accounting and to provide updated information about her personal funds on an ongoing basis. And that “the orders on appeal continue to subject (her) to ongoing efforts by the Unites States to obtain records from her.”
Thus, Ford asks this Court not only to vacate the district court’s orders, but to order the United States to return or destroy the records that she has produced. Ford’s request attempts to bring life to matters that are not ripe for appellate review.”
5. (Discovery motions before district court) “The district court, which is the proper forum for adjudicating the parties’ discovery dispute, has not ruled on the issue.”
“The parties’ dispute over the scope of a discovery issue that the district court has not decided does not meet the fitness test.”
6. “Regardless, Ford waived the right to bring her supplemental claim by failing to raise the issue in her initial brief. See United States v. Johnson , 440 F.3d 832, (6th. Cirt. 2006) (appellant waives all issues not raised and argued in initial brief on appeal.
7. Regardless, Ford’s appeal should be dismissed for lack of jurisdiction.”