Archive for April, 2013

RELATIVE OF FEN PHEN DEFENDANT WILLIAM GALLION EXPLAINS THE DEFENSE THEORY

Monday, April 8th, 2013

MAY IT PLEASE THE COURT

By Michael Dowling an attorney and friend of William Gallion * April 6, 2013

The Kentucky Bar Association has seriously misinterpreted the Phen-Fen Settlement in Boone County made in May 2001 presided over by Judge Joseph Bamberger.

In the beginning it is necessary to put one in the shoes of the attorneys representing some 4500 clients who had been solicited by television commercials to file claims against American Home Products.

Contemporaneous with the actions of the Kentucky lawyers there were legal actions occurring throughout the nation. As a consequence a Multi District Class Action was created in the US District Court in Philadelphia., Pa. This culminated in a National Class Action Settlement and produced an Order of some 150 pages that was disseminated throughout the country. In September 1999 a copy of this Order was sent to Joseph Bamberger due to his involvement in the State Court Action that had been certified as a Class Action. Inter alia a class action had been certified for Medical Malpractice against Bariatrics Inc of Ky. and Dr. Rex Duff.

The attorneys had for a period of approximately one year copied medical records of some 12,000 individuals Dr. Duff had prescribed the diet drug medication. These records were evaluated by medical experts engaged by the attorneys and correlated with the medical conditions evaluated and valued for compensation in the National Settlement.

In the National Settlement the parties took evidence and negotiated the compensation that would be paid to individuals who participated in the National Settlement. The US District Judge presided over the Negotiations and approved the compensation values reached by the parties.

As a consequence of their knowledge of the medical conditions of their clients the attorneys wrote some 500 clients advising them to opt out of the National Settlement in favor of a settlement in State Court. The attorneys represented their belief that the clients would receive more compensation in Boone Co. than in the National Settlement.

Some 4000 clients were referred to the National Settlement.

Judge Bamberger referred the certified class action to Mediation on April 30, 2001. The parties met and concluded a $200 million dollar settlement. One of the conditions of the settlement was decertification of the class action.

At the time of Mediation a trial date had been scheduled and Notice of the Certified Class Action would have been necessary to notify the Duff Class of the existence of the Medical Malpractice claim against Dr. Duff.

Prior to Mediation AHP had made an offer of settlement of $20 million dollars. As a result of Mediation they SETTLED 440 known claims and scattered to the wind some 60,000 potential claims of individuals Dr. Duff had prescribed the diet drug medication. Mr. Vardaman testified he told the FBI that AHP wanted decertification to keep clients from coming out of the word work suing AHP over the claims it had agreed to indemnify Dr.Duff. This testimony came during the criminal trial of William Gallion in Frankfort, Kentucky.

Mr. Vardaman also testified that Stan Chesley argued at Mediation that the indemnification of the Duff Class created a substantial risk of loss for AHP.

Kenneth Feinberg in the civil litigation gave an Affidavit that the theory of the civil litigation against the attorneys was based on a naïve interpretation of the LANGUAGE OF THE SETTLEMENT AGREEMENT.

The Settlement Letter itself was a form letter used by AHP in reaching settlements that were not certified class actions. The form had to be modified to provide for decertification and several provisions in the form were not followed in the implementation of the settlement agreement. This was corroborated and not disputed by testimony in both criminal trials.

The unforgivable error made by the Bar concerns its interpretation of Ex 3 of the Settlement Agreement and the failure to acknowledge the existence of Potential Claims other than the known claims of 440 clients.

The Kentucky Bar Association made its legal opinion that this was an Aggregate Settlement the sine qua non of a charge of ethical misconduct. William Johnson told the Kentucky Supreme Court that this was a class action settlement at the hearing on the temporary suspension of Mr. Gallion and others from the practice of law. As the court knows Mr. Johnson has an ethical duty as an officer of the court to make this representation in good faith.

Mr. Johnson is not alone. Judge Bertelsman in the first trial ruled this was a class action settlement and Judge Bamberger had the authority to approve attorney fees. Accord Arthur Miller re Bamberger’s authority. Stan Chesley testified this was a Class Action Settlement. The Affidavit of Kenneth Feinberg says the Settlement was not just for 440 known claimants. Richard Robbins, a defense expert witness in the first trial.

The language of the aggregate settlement rule says counsel cannot go to a Mediation settlement without the informed consent of his or her client. In the Boone Co. litigation the parties went to Mediation in litigation that had been certified as a Class Action. The express language of the rule shows that it had no application to the Boone Co. litigation.

The language of the Settlement Letter does not support an interpretation that Ex 3 was money negotiated for only 440 clients. The protocol necessary to implement the terms of the Agreement says otherwise.

First in the national settlement compensation was based on age, length of use and severity of injury. 263 clients on Ex 3 were not classified as injuries in the National Settlement. They would have been entitled to reimbursement of up to $500.00 for monies spent on prescriptions. A major witness in the criminal trial who testified some 8 or more years she had taken the diet drug saw a doctor One time after taking the drug with no follow up. She and the Bar Association say she was entitled to $181,000 + dollars correlated to her name as shown on Ex 3. She received $26,326.49 clear in settlement, not including attorney fees and expenses.

A number of clients received more compensation than shown on Ex. 3 showing the attorneys did not follow the exhibit.

Ex 3 was prepared by David Helmers in about a one hour period of time. Mr. Gallion at the direction of Stan Chesley told Mr. Helmers to change the allocation to make it more top heavy. Kenneth Feinberg said the allocation of the settlement funds among the claimants in the context of the settlement agreement letter was not a declaration of how much money any particular claimant was to receive from the settlement. The allocation was intended solely as part of the mechanism for determining how much the settlement amount would be reduced or how much would have to be repaid to the settling defendants in the event that either Settling Attorneys and Claimant failed to produce required proof of use of the diet drugs or if the settling attorneys failed to secure sufficient releases from claimants. Citing paragraphs 7, 10 and 14 of the settlement letter4 agreement.

The Settlement Letter gives the attorneys sole responsibility for giving “appropriate amounts” not “allocated amounts” to the claimants. AHP did not ask for verification of the amounts distributed to the claimants. AHP did not want to write individual checks to the claimants. AHP did not want settlement amounts on the Releases signed by the claimants. In short AHP wanted no accounting to show how the $200 million dollars was in fact distributed.

Ex 3 had to be prepared and in place ON OR BEFORE the attorneys FIRST SUBMIT A BATCH OF EXECUTED RELEASES. NOT ALL THE RELEASES. JUST A BATCH OF RELEASES. This correlates with Feinberg’s interpretation of Ex 3. How would the attorneys know what the client would agree to in return for their Release? Or if the client would agree to give a Release.

In the first criminal trial in Covington Judge Bertelsman disagreed with the government’s interpretation of Ex 3. In this trial Judge Bertelsman gave an instruction on Excess funds and left it to the Jury to decide whether the failure of the attorneys to give Notice on the disposition of Excess Funds was done with criminal intent.

At the hearing on Excess funds which the clients did not attend Judge Bamberger gave the clients half as much again as they had previously given Releases.

In the first trial the 150 page Order in the National Class Action was admitted. Also a Comparison Chart was admitted comparing values the clients would have received in the National Settlement with settlements in Boone Co.

Mr. Gallion explained why the clients were not given Notice of the Hearing on Excess funds. Under class action law the clients have no interest in excess funds. This was a Mass Tort. The possibility of Excess Funds was discussed at Mediation. The Potential was real for the failure of the National Settlement to be approved on Appeal. It was the attorneys’ belief that some 4000 clients would have had an interest in the $200 million dollar settlement under the terms of the Settlement letter which made the attorneys responsible for Settling Claimants with Potential Claims.

Stan Chesley who vast experience in Mass Torts has told Judge Bamberger and the other attorneys that funds remaining were excess and the court had several options at his disposal for dealing with these funds.

In the first trial notwithstanding going into trial, in custody due to a $52 million dollar bond and in the face of horrific pretrial publicity, 10 ordinary citizens voted to acquit them of acting with criminal intent.

The Kentucky Bar Association’s belief is totally wrong that Bill Gallion , Shirley Cunningham , Stan Chesley, David Helmers and Joseph Bamberger knew that the $200 million dollar settlement was only for 440 clients.

Mr. Gallion explained in both trials the reasons he did not to tell the 440 clients the total amount of the settlement. He feared a breach of confidentiality that would expose him to financial penalties. He feared infighting among the clients that would have torpedoed the settlement. The latter fear was later echoed by one of the jurors after the first trial.

In the second trial Judge Reeves told the jury that this was an aggregate settlement and that the attorneys had negotiated a settlement for only 440 clients. Judge Reeves and the Bar Association are like minded and both are believed seriously wrong concerning the Settlement for the reasons stated.

Bill Gallion outlined the Settlement as stated in an Affidavit he gave the Bar Association and in a face to face meeting with Linda Gosnell on 2/28/02. At that time Ms Gosnell had not seen the Settlement letter or Ex 3. It was her misinterpretation subsequently that led the Bar to extreme interpretations that if true would have justified findings of fraud.

David Helmers is a highly skilled attorney. He testified under oath he did nothing unethical much less fraudulent. Had the Bar Association’s belief been true that this was truly a negotiated settlement for 440 clients then David Helmers would have known that. Giving false testimony would have subjected him to criminal prosecution.

CR 23 in the Kentucky Civil Rules and case law in Kentucky gives no practical guidance for handling Mass Torts. Fair minded people would acknowledge that the customary professional attorney client relationship is not possible in the context of a Mass Tort. Was Bill Gallion’s belief that the clients got a great settlement true ? This can be answered in a proceeding where the medical records of the clients are examined in light of what they accepted in settlement for their claims. The Mediation Notebook of AHP and their counsel who testified under oath stated that the claims of the 440 clients were very weak.

In offering settlements to the clients Judge Bamberger knew the attorneys would follow the matrices established in the National Settlement. He believed the clients were generously compensated. The Comparison Chart used as an exhibit in the first trial shows Judge Bamberger’s belief to be demonstrably reasonable. Accepting the argument stated above shows the Kentucky Bar Association belief that the settlement was only for 440 clients to be demonstrably unreasonable.

*********************

*LAWREADER NOTE: Mr. Dowling has 14 dvd’s containing the entire transcription of the criminal trial, and has attended the entire trial.

MISSOURI IMPOSES ATTN. DISCIPLINE SUNSHINE

Sunday, April 7th, 2013

Missouri Imposes Disciplinary Sunshine
Saturday, April 6, 2013
Resolving an issue of first impression, the Missouri Supreme Court has held that a disciplinary panel issued an overbroad order directing that a disciplinary proceeding against an attorney be treated as confidential.
Documents that have been treated as non-public by a Missouri court will not be part of the public record in the disciplinary proceeding, unless the sealing court rules otherwise. All other proceedings are public unless good cause is shown for confidentiality.
From the court’s summary:
Pursuant to Rule 5.31, the disciplinary hearing panel is prohibited from enforcing its prior blanket protective order making all proceedings confidential. It is directed to follow the requirements of the rule, which require the remainder of this or any disciplinary hearing to be open to the public, except as provided in Rule 5.31. The standards set forth in that rule and this opinion shall be applied to future days of hearing in this matter and should be applied promptly in reviewing portions of the hearing already undertaken to determine what should be made public under the rule.
The rule, which was revised in January 2013, is linked here.

ANGLEA FORD CO-COUNSEL JAILED IN DRUG CASE

Saturday, April 6th, 2013

April 05, 2013 EXCERPTS FROM The Associated Press

LOUISVILLE, Ky. — Seth J. Johnston got hired for a small piece of a big case — to help collect $42 million from four now-disbarred attorneys accused of bilking their clients out of a massive settlement stemming from the diet drug fen-phen.

The money hasn’t been collected and now Johnston sits in a jail cell. Johnston, his fiancée and his brother have been caught in a tangled web involving a synthetic marijuana ring and accusations of witness tampering and attempted evidence destruction.

Federal agents arrested Johnston, 32, on Feb. 8, after a federal grand jury charged him with conspiring with eight co-defendants to distribute synthetic cannabis and with lying to FBI and Drug Enforcement Administration agents by denying involvement when he had invested $100,000.

Johnston also is charged with attempting to corrupt a potential witness by encouraging him not to cooperate with law enforcement.

The allegations against the Lexington attorney and taped jailhouse phone calls were enough for U.S. Magistrate Judge Robert Wier to order Johnston held pending trial on the drug charges, finding he “would go to any length to save himself.”

“He, a licensed attorney and court officer, does this through a deceptive blend of cajoling, misrepresenting legal principles, offering improper inducements (such as help with defense costs), and personal appeals,” Wier wrote in February.

Prosecutors charged his fiancée, Stacey Birden of Lexington, and his brother, Benjamin Johnston, on Tuesday with conspiracy to destroy documents subpoenaed by a federal grand jury.

Along with the drug case, court records show that the FBI has been investigating allegations that Johnston misused money from a client, Lexington lawyer Angela Ford, and whether he improperly took money from the estate of another client.

Ford hired Johnston hired to help collect the multi-million dollar judgment from attorneys Shirley Cunningham Jr., William Gallion and Melbourne Mills Jr. The three were ordered to pay former clients who had sued over injuries from the diet drug fen-phen. Ford, who won the judgment, has sued Johnston over his handling of that case, too.

Ford alleges he stole money from her and two companies she owns. The suit doesn’t specify how much was taken or how Johnston got his hands on the money. Johnston has filed a counterclaim, which has been sealed.

The Johnson answer to Ford’s original lawsuit against him is available on www.lawreader.com.

See AT LAWREADER.COM:
CLICK THIS LINK: SETH JOHNSTON ANSWER IN ANGELA FORD LAW SUIT This so-called secret pleading was delivered to LawReader. Johnston alleges Ford was seeking business formats to hide money from potential creditors due to her expenditure of millions in the Fen Phen case which might have to be returned. The whole legal community awaits the ruling of the Ky. Supreme Court.

The court records do not specify if there is a connection between Johnston’s alleged $100,000 investment and the fen-phen judgment. U.S. Attorney’s spokesman Kyle Edelen declined to comment on anything not in the court records.

FBI Special Agent Joseph Moutz said in two criminal complaints that Johnston spoke multiple times with his fiancée, Birden, by phone when he was in the Fayette County Detention Center. The criminal complaint includes partial transcripts of the calls on March 28 and March 30. In those calls, Birden discussed being subpoenaed by a federal grand jury to produce checkbooks from one of Ford’s companies as well as checkbooks from Johnston’s former law firm, Miller Wells, as well as any documents “in your possession.”

Johnston, who has pleaded not guilty to the drug charges, told Birden not to dump the checkbooks in the household trash, but get rid of them “in a public disposal.”
“We have to draw a very careful distinction between documents that are ‘in your possession’,” Johnston told Birden on March 28.

Moutz wrote that the checkbooks and other subpoenaed financial documents were found in a trash bin at a self-storage facility where Birden and Benjamin Johnston had a unit.

“Written on top of one of the boxes, in black magic marker, are the words ‘do not produce’,” Moutz wrote. “I then collected the files.”
Birden and Benjamin Johnston have yet to make initial appearances in federal court in Lexington.

The lawsuit and indictment are the twists in a saga that started a dozen years ago, when famed Cincinnati lawyer Stan Chesley helped Gallion, Cunningham and Mills negotiate a $200 million settlement from what is now Wyeth, maker of the diet drug that was withdrawn from the market when it was shown to cause heart-valve damage.

A judge in 2006 found that the Lexington lawyers improperly kept the settlement amount secret from their clients and passed out “money to themselves and others like it was theirs to do as they wished.”

The Kentucky Court of Appeals later reversed the judgment and the case is now at the state Supreme Court, Cunningham and Gallion were convicted of fraud in a federal criminal trial and are serving sentences of 20 and 25 years, respectively. Mills was acquitted.

Poor unfairly jailed for failing to pay fines, Ohio report says

Friday, April 5th, 2013

Poor unfairly jailed for failing to pay fines, Ohio report says
Ohio’s chief justice says the issue merits ‘further attention.’
By Laura A. Bischoff
COLUMBUS —
Springfield News-
Courts in at least seven counties routinely jail Ohioans for owing court fines and fees, in violation of the state constitution and laws and against a 1983 U.S. Supreme Court ruling, according to a new study released by the American Civil Liberties Union of Ohio.
Ohio Supreme Court Chief Justice Maureen O’Connor says the report raises issues that “can and must receive further attention.”
While many defendants can pay their fines and walk away, for Ohio’s poor a fine “is just the beginning of a process that may involve contempt charges, mounting fees, arrest warrants, and even jail time,” the report says.
The ACLU documented debtors prison practices in Springboro mayor’s court and municipal courts in Hamilton County, Sandusky, Norwalk, Parma, Mansfield and Bryan. Messages left with the courts in Springboro and Hamilton County were not immediately returned.
Other courts, including Moraine mayor’s court, employ policies such as arresting defendants for not showing up for hearings where they’re supposed to explain why they haven’t paid their fines, said Mike Brickner, ACLU of Ohio communications director.
The hearings are sometimes scheduled weekly, increasing the chances that the defendant will eventually miss one and face a bench warrant, he said.
Moraine City Manager David Hicks said he hasn’t seem the report or received any feedback from the ACLU. He added that the court is typically accommodating to defendants who call and ask for a continuance due to schedule conflicts.
The ACLU calls on the Ohio Supreme Court to issue administrative rules to require courts to hold hearings to determine whether a defendant is unable to pay fines owed or if they’re just unwilling. Even if a defendant is just refusing to pay, he or she is supposed to be credited $50 per day spent in jail against the debt.
Jailing people costs between $58 and $65 per night, plus the time spent by officers and clerks to track the person down, arrest them, book them into the jail and file paperwork. Often the costs exceed the debts owed.
“It is not a good deal for the taxpayers. (The defendants) aren’t not paying because they don’t feel like it. They’re not paying because the literally have no money,” Brickner said.
Brickner said it creates a two-tier justice system for those who are able to pay fines and those who can’t.
In March 2011, police stopped Tim Furlong in Warren County for not having a front license plate and cited him for the plate, failing to have a child in a booster seat, driving without a license and having a small amount of marijuana and rolling papers in the car. Furlong, too poor to hire his own lawyer, asked for a court appointed attorney, pleaded guilty and was fined $300 and ordered to pay $75 in court costs.
Two years later, he has been forced to show up in court more than 10 times to explain why he hasn’t paid the fees, jailed three times for a combined total of about three weeks, and charged with more fines, he said. He currently owes $550 and there is a bench warrant out for his arrest, according to Warren County Clerk of Court records.
Furlong, 30, is homeless, jobless and suffers from recurrent mental health issues that have landed him in the hospital. He said he cycles between jail, the hospital and homelessness.
“I’ve just been basically told to pay every time I’ve gone to court. I can barely find enough to eat everyday. I have a hard time doing that,” Furlong said. “To pay $500 — I just can’t do that.”
Chief Justice O’Connor is promising to meet with ACLU of Ohio Executive Director Christine Link as soon as possible to discuss the findings in the report.
________________________________________

Interesting case –Judges taking of judicial notice was improper–there are limits

Thursday, April 4th, 2013

Commonwealth v. Howlett (Ky., 2010)

The Commonwealth, pursuant to Section 115 of the Constitution of Kentucky and CR 76.37(10), petitions this Court for certification of the law regarding the limitations of judicial notice. Specifically, the Commonwealth seeks certification of the law on the following question:

In light of KRE 201′s pre-Rules case law and its current Federal equivalent, what if any special prohibitions exist in a bench trial against the use of a judge’s taking judicial notice of a fact that comes from the judge’s personal knowledge given KRE 201′s silence on the matter?

The relevant facts are as follows. On November 26, 2006, Bertrand Howlett was stopped by Sgt. Steve Williams of the St. Matthews Police Department for speeding. Upon approaching the vehicle, Sgt. Williams noticed that Howiett’s eyes were bloodshot and that his breath smelled of alcohol. Sgt. Williams administered three field sobriety tests, each of which Hewlett failed. Howlett was subsequently arrested and a breath test administered, where he blew a.150. Howlett was charged with speeding, reckless driving, and DUI.

The trial judge, in this case, proclaimed judicial notice without request of either lawyer, and then proceeded to dismiss the case in the same motion. There was no opportunity to make a “timely request” for “an opportunity to be heard.” The judge did refer to “Smith and Wesson” as an apparent attempt to cite a source “whose accuracy cannot reasonably be questioned.”1 This was not sufficient.

Having to incur the expense of litigation is not grounds for a writ.

Thursday, April 4th, 2013

What a great decision!!

[U] Qutiefan v. Garber (Ky., 2012) September 13, 2012

Mr. Qutiefan appealed to this Court as a matter of right. See CR 76.36(7)(a) …… He has not asked this Court for intermediate relief under Civil Rule 76.36(4).

Ultimately, Mr. Qutiefan’s theory for why an ordinary appeal is an inadequate remedy is that it is not fast enough. Thus, he will be subjected to the state of matrimony into which he voluntarily entered more than twenty years ago for some time longer than he would like. He admits that this Court has repeatedly noted, as did the Court of Appeals in this case, that having to incur the expense of litigation is not grounds for a writ.

LRC LISTS NEW 2013 LAWS THAT ARE OF INTEREST TO LAWYERS -JUDGES

Wednesday, April 3rd, 2013

TO: KCOJ Legislative Committee
FROM: Kelly Stephens
DATE: April 3, 2013
RE: 2013 Regular Session
Passed Legislation/New Laws
HB3 – Human Trafficking
Sponsor(s): S. Overly
Status: Law
Importance: Moderate
Summary omitted due to length.
HB8 – Synthetic Drugs – Meth Block List
Sponsor(s): J. Tilley
Status: Law
Importance: Moderate
Amend KRS 218A.010 to include additional substances within the definition of synthetic drugs; amend KRS 218A.050 to include additional substances within the definition of Schedule I controlled substances; EMERGENCY.HCS/LM/CI – Amend to include synthetic drug activity within the offense of unlawful transaction with a minor in the second degree.
Administrative Office of the Courts
100 Millcreek Park
Frankfort, Kentucky 40601
502-573-2350 or 800-928-2350
www.courts.ky.gov
Laurie K. Dudgeon
Director
John D. Minton, Jr.
Chief Justice of Kentucky
SCS/LM/CI – Amend to include provisions modifying the time periods during which certain methamphetamine offenders are prohibited from purchasing ephedrine-based products and to preserve the prescriptive authority of various practitioners in the event of a rescheduling of hydrocodone-based drugs.
SCA (1/Title, W. Westerfield) – Make title amendment.
SFA (1, S. Gregory) – Amend certain implementation dates for penalties.
SFA (2, R. Palmer II) – Amend KRS 218A.172 relating to controlled substance prescribing protocols to facilitate refill prescriptions made by practitioners in the same practice group or in vacation coverage arrangements.
SFA (3, R. Palmer II) – Amend KRS 218A.172 relating to controlled substance prescribing protocols to facilitate refill prescriptions made by practitioners in the same practice group or in vacation coverage arrangements.
HB39 – Intentional Viewing of Child Pornography
Sponsor(s): Representative Johnny Bell
Status: Law
Importance: Low
Amend KRS 531.355 to criminalize the intentional viewing of child pornography where the viewing is deliberate, purposeful, and voluntary and not accidental or inadvertent.
HB41 – Post-Conviction DNA Testing
Sponsor(s): Representative Johnny Bell
Status: Law
Importance: Moderate
Amend KRS 422.285 and 17.176 to expand the availability of post-conviction DNA testing; amend KRS 524.140 to conform.
HFA (1, J. Bell) – Amend to exclude testing for touch DNA and for persons pleading guilty and to include within the class of eligible petitioners all persons under some form of correctional supervision or registration.
SCS – Amend to expressly recognize the availability of post-conviction testing to persons having entered Alford pleas.
HB54- Money Transmitters/Juvenile Proceedings – Who May Publicly Discuss
Sponsor(s): Representative T. Thompson
Status: Delivered to Governor
Importance: Moderate
Create a new section of Subtitle 11 of KRS Chapter 286, relating to money transmitters, to authorize the commissioner of the Department of Financial Institutions to require, by rule or order, submission of an application, report, or approval request to the State Regulatory Registry, LLC, or its successor, parent, affiliate or operating subsidiary, or to other agencies or authorities as part of a nationwide licensing system; authorize the commissioner, as he or she deems necessary, to establish relationships or contracts with and to report violations, enforcement actions, and other relevant information to other governmental agencies, the Registry, or affiliated agencies of the Registry; authorize the commissioner to use other governmental agencies, the Registry, or entities affiliated with the Registry as agents for requesting information from and distributing information to the United States Department of Justice or other governmental agencies.
HB 54 – AMENDMENTS
SCA (1/Title, B. Leeper) – Make title amendment. SCA (2, B. Leeper) – Delete original provisions of the bill; create a new section of KRS Chapter 36 to provide that a person designated on the Department of Defense DD Form 93 by a member in active military service shall have authority and responsibility for the disposition of the military decedent’s remains; amend KRS 117.085 to prevent disclosure of information in an application for an absentee ballot until after election day, except to the Secretary of State or the State Board of Elections; amend KRS 117.086 to prevent disclosure of lists of person who return their absentee ballots by mail or cast their ballots in the clerk’s office until after election day; create a new section of KRS Chapter 164 to establish a board of Student Body Presidents to include the student body president of each 4 year public university, the two student regents to be designated by the Board of Regents of the Kentucky Community and Technical College System, and one student body president representing the Association of Independent Kentucky Colleges and Universities; the board shall be advisory to the legislative and executive branches regarding postsecondary education issues and concerns of students; the board shall meet with the Council on Postsecondary Education and the Advisory Conference of Presidents at least once a year; the board shall submit the names of three nominees to the Governor for consideration in the appointment of a student member to the Council on Postsecondary Education pursuant to KRS 164.011; amend KRS 164.011 to conform; amend KRS 610.340 to provide that a crime victim may publicly discuss information related to his or her case and within his or her own knowledge or disclosed to the victim during a juvenile court proceeding; create a new section of KRS Chapters 600 to 645 to provide the juvenile justice system with limited access to a juvenile’s educational records for specified purposes as permitted by federal law; amend the provisions of 2013 HB 1/EN to exclude fuel cost adjustments from the definition of “fees” and to provide that Section 85 of the bill will apply on and after January 1, 2014. SCA (3, B. Leeper) – Delete original provisions; create a new section of KRS Chapter 2 naming and designating Clark County, Kentucky as the birthplace of beer cheese.
SCA (4, B. Leeper) – Delete original provisions and amend KRS 61.820 and 61.840 to clarify the requirements for public meeting locations.
HB60 – Hunting Coyotes
Sponsor(s): F. Steele
Status: Law
Importance: Low
Create a new section of KRS Chapter 150 to allow hunters to take coyotes without bag limitation year round; allow hunters to hunt coyotes at night using shotguns that are 10-guage or smaller and bait or electronic calls to attract the coyotes.
HB63 – Judicial Retirement
Sponsor(s): H. Collins
Status: Law
Importance: Moderate
Amend KRS 21.540 to clarify the prohibitions established for trustees and employees of the board of the legislative and judicial retirement system and to define “de minimus”.
HB69 – Temporary Visitation Orders During Military Deployment
Sponsor(s): Representative John Tilley
Status: Law
Importance: Moderate
Amend KRS 403.320, relating to child visitation, to include language relating to the temporary nature of visitation orders in cases of the military deployment of an affected party, similar to that presently allowed for modifications of child custody decrees under KRS 403.340.
SCS – Retain original provisions; amend to create a new section of KRS Chapter 403 defining “safe child drop-off areas” and allowing courts to require exchanges of child custody to take place in these areas.
SFA (1, R. Jones II) – Amend to provide that relatives who have had temporary custody of a child pursuant to a court order may petition the court for visitation rights with the child once the temporary custody has been terminated.
SFA (2, R. Jones II) – Amend to authorize relatives who have had temporary custody of a child pursuant to a court order to petition the court for visitation rights with the child once the temporary custody has been terminated; and declare an EMERGENCY.
SFA (3/Title, R. Jones II) – Make title amendment.
SFA (4, R. Jones II) – Amend to authorize relatives who have had temporary custody of a child pursuant to a court order to petition the court for visitation rights with the child once the temporary custody has been terminated; declare an EMERGENCY.
SFA (5, A. Kerr) – Retain original provisions, except amend KRS 610.125 to establish the right of a child’s parents, foster parents, preadoptive parents, or relatives providing care to the child to be heard in court; amend KRS 610.127 to establish that reasonable efforts to keep a child in a home will not be made when the court determines a parent has sexually abused the child or is required to register on a sex offender registry; repeal and reenact KRS 615.030 to replace the existing interstate compact relating to the placement of children with the new interstate compact for the placement of children; amend KRS 615.040 to conform; amend KRS 621.100 to require the court appointed counsel for a child to document training on the role of counsel that includes training in early childhood, child, and adolescent development and establish the right of a child’s parents, foster parents, preadoptive parents, or relatives providing care to the child to he heard in court; amend KRS 202B.210 to conform; require that sections 5 and 6, related to the new interstate compact for the placement of children, be effective when the 35th state ratifies the compact or upon July 1, 2013, whichever is later; require that, until this time, KRS 615.030 remain in effect.
HB145 – Land Surveyors – Statute of Limitations
Sponsor(s): B. Yonts
Status: Law
Importance: Low
Amend KRS 413.140 to provide for a one-year statute of limitations for actions brought against professional land surveyors.
HFA (1, T. Moore) – Amend KRS 413.140 and create a new section of KRS Chapter 413 to create a special 20-year statute of limitations for actions against abortion providers.
HB161 – Increase Penaly Threshholds – Theft
Sponsor(s): De. Butler, S. Overly, S. Santoro
Status: Law
Importance: Moderate
Amend KRS 514.030 to increase the penalties for theft by unlawful taking or disposition of property valued at more than $500; repeal KRS 218A.1418.
HB164 – Electronic Proof of Motor Vehicle Insurance
Sponsor(s): R. Damron
Status: Law
Importance: Low
Amend KRS 304.39-117 to authorize the use of proof of motor vehicle insurance in an electronic format by download or transmission in real time to a portable electronic device, in addition to the requirement that the owner keep the paper insurance card in the motor vehicle; amend KRS 186A-042 for the purpose of licensing a personal motor vehicle to authorize the county clerk to accept an insurance card in paper or electronic format if AVIS does not list the vehicle identification number as an insured vehicle and the clerk may require the applicant to e-mail the electronic copy to the clerk and the clerk may print a copy for the clerk’s records.
SCS – Retain original provisions; permit an insurer to provide an insurance card in either a paper or an electronic format; remove provisions that require immediate download or transmission of an insurance card in an electronic forma;t in real time; provide that an insurance card in an electronic format means the display of an image on any portable device depicting a current valid representation of the card.
HB192 – Judgment Liens
Sponsor(s): T. Kerr
Status: Law
Importance: Low
Amend KRS 426.720 to allow a judgment lien to be served on the debtor’s or creditor’s attorney of record.
HB219 – Rebuilt Title Applications
Sponsor(s): J. Stewart III, B. Waide, J. Carney
Status: Law
Importance: Low
Amend KRS 186.115 to require the Transportation Cabinet to accept rebuilt title applications in Frankfort
HB222 – Crime Victim Address Protection Program
Sponsor(s): J. Jenkins
Status: Law
Importance: Low
Create new sections in KRS Chapter 14 to establish a crime victim address protection program for victims of domestic violence and abuse, stalking, and felony sexual offenses; to allow crime victims to use an address provided by the Secretary of State in lieu of the person’s actual physical address; and to allow program participants to vote by mail-in absentee ballot; amend KRS 117.085 to conform.
HB238 – Name Change in Family Court/KCOJ Technology Bill
Sponsor(s): T. Pullin
Status: Law
Importance: Moderate
Amend KRS 401.020 and 401.030 relating to change of name for a child under 18, to permit the action for change of name to be filed in the Family Court of a county with a Family Court or the Circuit Court of a county without a Family Court if the Family Court or Circuit Court has a case involving the family pending before it, as well as in the District Court; amend KRS 401.010 and 401.040 to conform.
SCS – Amend KRS 401.020 and 401.030 relating to change of name for a child under 18, to permit the action for change of name to be filed in the Family Court of a county with a Family Court or the Circuit Court of a county without a Family Court if the Family Court or Circuit Court has a case involving the family pending before it, as well as in the District Court; amend KRS 401.010 and 401.040 to conform; amend to insert a noncodified provision requiring the State Property and Buildings Commission or the Kentucky Asset/Liability Commission to issue any authorized agency bonds on behalf of the judicial branch of the Commonwealth.
SCA (1/Title, W. Westerfield) – Make title amendment.
HB279 – Construction of the Law/Religious Freedom
Sponsor(s): R. Damron, J. Fischer, R. Heath, R. Henderson, D. Meade, W. Stone, G. Watkins, A. Wuchner
Status: Law
Importance: Low
Create a new section of KRS Chapter 446 to specify that government shall not burden a person’s or religious organization’s freedom of religion; protect the right to act or refuse to act on religious grounds; specify that government shall prove by clear and convincing evidence prove a compelling governmental interest in establishing a burden on the freedom of religion; specify what constitutes a burden.
HB290 – External child fatality and near fatality review panel
Sponsor(s):
Status: Law
Importance: Moderate
Create a new section of KRS 620 to establish an external child fatality and near fatality review panel; establish its membership, duties, and responsibilities; and amend KRS 620.050 to allow records to be provided to the panel.
HCS – Retain original provisions, except amend to establish language that specifies the Cabinet for Health and Family Services shall provide the copies of files to the Justice and Public Safety Cabinet requested by the panel with 30 days of the request; amend to establish language to specify what court records the panel may request; amend to establish language to make it clear that the panel only has possession of copies of records and that all original records are maintained by the appropriate state or federal agency and so that any public information request for those files should be made to those appropriate agencies; and amend to establish language to clarify what information the panel members shall not release as a condition of their sworn statement of confidentiality.
HFA (1, T. Burch) – Require a member of the external child fatality and near fatality review panel to recuse themselves from a case review if there is a personal or private conflict of interest; delete open records act exemption for information and record copies that are provided to the panel; clarify that any open record requests for case files will not be made to the panel; clarify that the closed session provisions of KRS 61.815 apply to the panel; authorize a panel member to make a good faith report may the proper authorities.
HFA (2, T. Burch) – Require a member of the external child fatality and near fatality review panel to recuse themselves from a case review if there is a personal or private conflict of interest; clarify that original information and records used to makes copies for the panel are subject to the Kentucky Open Records Act; clarify that any open record requests for case files will not be made to the panel; clarify that the closed session provisions of KRS 61.815 apply to the panel; and authorize a panel member to make a good faith report to the proper authorities.
HFA (3, T. Burch) – Require the Justice and Public Safety Cabinet to submit a written statement regarding each panel member to the panel chairperson; require a member of the external child fatality and near fatality review panel to recuse themselves from a case review if there is a personal or private conflict of interest; clarify that original information and records used to makes copies for the panel are subject to the Kentucky Open Records Act; clarify that any open record requests for case files will not be made to the panel; clarify that the closed session provisions of KRS 61.815 apply to the panel; and authorize a panel member to make a good faith report to the proper authorities.
HFA (4, T. Burch) – Require members of the external child fatality and near fatality review panel to recuse themselves from a case review if there is a personal or private conflict of interest;
clarify that original information and records used to makes copies for the panel are subject to the Kentucky Open Records Act; clarify that any open record requests for case files will not be made to the panel; clarify that the closed session provisions of KRS 61.815 apply to the panel; authorize a panel member to make a good faith report to the proper authorities.
HB 385- Informal Periodic Settlements
Sponsor(s): Rep. Kerr
Status: Delivered to Governor
Importance: Moderate
Amend KRS 395.605 to provide that with respect to informal settlements, the fiduciary’s oath regarding payment of estate and inheritance taxes relates to final settlements and not periodic settlements. HCS – Retain original provisions; amend KRS 311.625 to add that an employee, owner, director, or officer of a health care facility where a grantor is a resident or patient may be designated or act as surrogate if the person is a member of the same fraternal order. HCA (1/Title, J. Tilley) – Make title amendment.
HB427 – Senior Status Judge Prohibited from Becoming a Candidate
Sponsor(s): R. Damron, J. Fischer, R. Heath, R. Henderson, D. Meade, W. Stone, G. Watkins, A. Wuchner
Status: Law
Importance: Moderate
Amend KRS 118.105, 118.115, 118.125, 118.165, 118.305, 118.315, 118.325, 118.375, 118A.100, and 118A.080 to prohibit a judge acting as a Senior Status Special Judge from becoming a candidate for any elected office during the 5-year term prescribed in KRS 21.580 regardless of the number of days served by the judge acting as a Senior Status Special Judge.
SB15 – Violent Offenders
Sponsor(s): Sen. Alice Forgy Kerr
Status: Law
Importance: Moderate
Amend KRS 439.3401 to provide that persons convicted of criminal homicide under KRS Chapter 507 shall be classified as a violent offender and subject to mandatory service of time and all applicable restrictions on parole and service credits.
SFA (1, A. Kerr) – Amend to apply only to peace officers killed in the line of duty.
SFA (2, A. Kerr) – Amend to apply only to peace officers and firefighters killed in the line of duty.
HCA (1, B. Yonts) – Amend to set new parole eligibility thresholds at 85% and 50% levels.
SB27 – Judgments – Right of Redemption
Sponsor(s): T. Buford
Status: Law
Importance: Moderate
Amend KRS 426.220 to decrease the right of redemption period from one year to six months for land sold under execution for less than two-thirds of its value; amend KRS 426.230 and KRS 426.240 to conform.
HCS – Retain original provisions, except amend KRS 134.452 to describe conditions under which litigation attorneys’ fees of $2,000 are reasonable, and to describe sitations in which litigation attorneys’ fees in a greater amount may be allowed.
HCA (1/Title, J. Tilley) – Make title amendment.
SB67 – Persons Incompetent to Stand Trial – Motor Vehicle Licenses
Sponsor(s): S. Gregory
Status: Law
Importance: Moderate
Amend KRS 186.560 to prohibit a person found incompetent to stand trial from operating a motor vehicle in Kentucky during the period of the person’s incompetency.
SFA (1, S. Gregory) – Amend to allow license prohibition to be removed if the underlying criminal case is dismissed.
SB69 – Nonprofits, Trusts, LLC’s
Sponsor(s): S. Gregory
Status: Law
Importance: Low
Amend KRS 11A.010 and 11A.201 to include nonprofits, trusts, and limited liability companies within the definition of “person’ in the executive branch code of ethics; amend KRS 14A.3-010 to clarify that a business type identifier must appear at the end of the business name; amend KRS 14A.9-050 to clarify that a company must actually be transacting business in Kentucky before
being subject to the statute; amend KRS 271B.1-410 to conform notice provisions to those found in KRS Chapter 14A; amend KRS 275.175 to clarify means of amending an LLC management structure; amend KRS 275.185 to clarify that records inspection requests be addressed to the LLC itself; amend KRS 281.6251 to include limited partnerships and to require that manager names be listed in certificate applications; amend KRS 386A.3-050 to provide for the effect of various contingencies on the continued existence of the trust; amend KRS 386A.6-030 and 386A.6-040 to relocate between the two statutes language relating to trust distributions; amend KRS 433.900 and 433.902 to bring partnerships within the scope of Kentucky’s sale of metals law
HCS – Insert provision to create a new section of Subtitle 11 of KRS Chapter 286, relating to money transmitters, to authorize the commissioner of the Department of Financial Institutions to require, by rule or order, submission of an application, report, or approval request to the State Regulatory Registry, LLC, or its successor, parent, affiliate or operating subsidiary, or to other agencies or authorities as part of a nationwide licensing system; authorize the commissioner, as he or she deems necessary, to establish relationships or contracts with and to report violations, enforcement actions, and other relevant information to other governmental agencies, the Registry, or affiliated agencies of the Registry; authorize the commissioner to use other governmental agencies, the Registry, or entities affiliated with the Registry as agents for requesting information from and distributing information to the United States Department of Justice or other governmental agencies.
SB84 – Transporation of Prisioners by Jailer
Sponsor(s): John Schickel
Status: Law
Importance: Low
Amend KRS 71.065 to authorize a county in which there in no jail and the jailer has been appointed as a transportation officer to employ additional persons with peace officer authority to assist the jailer.
HFA (1, D. Butler) – Amend to clarify that jail transportation officers have peace officer authority only while transporting prisoners and during the maintenance of custody of prisoners.
SB93 – Uniform Commercial Code – Electronic Funds Transfers
Sponsor(s): J. Carpenter
Status: Law
Importance: Low
Amend KRS 355.4A-108, which prohibits application of Article 4A of the Uniform Commercial Code to a funds transfer governed by the federal Electronic Fund Transfer Act of 1978, to authorize application of the provisions of Article 4A of KRS Chapter 355, relating to a funds transfer, if the remittance transfer is an Electronic Fund Transfer as defined in the federal Electronic Fund Transfer Act; provide that if there is an inconsistency concerning a funds transfer between an applicable provision of Article 4A of KRS Chapter 355 and an applicable provision of the Electronic Fund Transfer Act, the provision of the Electronic Fund Transfer Act shall govern to the extent of the inconsistency; repeal, reenact, and amend 2012 Ky. Acts ch. 132, sec. 102 to correct the sections of 2012 SB 97 which take effect on July 1, 2013; repeal, reenact, and amend KRS 355.9-801 and 355.9-809 to conform; EMERGENCY.
SB97 – Compulsory School Attendance Age
Sponsor(s): D. Givens, M. Wilson
Status: Law
Importance: Moderate
Amend KRS 159.010 to permit, beginning with the 2014-2015 school year, each local board of education, on the recommendation of the superintendent and approval of the Kentucky Department of Education, to require children residing in the school district’s attendance area to attend school until the child has reached his or her eighteenth birthday except as provided in KRS 159.030; amend KRS 159.020 to conform; make technical corrections.
SB98 – County Law Libraries
Sponsor(s): J. Turner
Status: Law
Importance: Moderate
Amend KRS 172.200 to allow the trustees of county law libraries using the alternative financing plan set out in KRS 172.180 to purchase equipment for county law libraries and to allow library materials and equipment to be housed in Court of Justice Facilities.
SB120- Police Officers of Post-Secondary Education Institutions
Sponsor(s): P. Clark
Status: Law
Importance: Low
Amend KRS 61.315 to include police officers at public institutions of postsecondary education; amend KRS 164.950; KRS 164.955; KRS 164.960; KRS 164.965; KRS 164.970; KRS 164.975; and KRS 164.980 to conform.
SB122 – Reorganization of Dept. of Corrections
Sponsor(s): R. Palmer II
Status: Law
Importance: Low
Amend KRS 196.026 to create the Division of Parole and Victim Services and the Division of Substance Abuse Programming within the Department of Corrections and abolish the Division of Frankfort Career Development Center; amend KRS 439.320 to abolish the position of executive director of the Parole Board; amend KRS 196.701 and 196.702 to conform; repeal and reenact KRS 439.562 to establish the Kentucky Council for Interstate Adult Offender Supervision and define its membership and duties; amend KRS 317.420 and 317A.020, relating to the practice of barbering and cosmetology, to exclude the Department of Juvenile Justice and the Department of Corrections from those provisions; amend KRS 15.315 to add three members, ex officio, to the Kentucky Law Enforcement Council; amend KRS 15A.020 to abolish the Office of Investigations within the Justice and Public Safety Cabinet and transfer those functions to the Office of Legal Services; amend KRS 12.020 to conform; confirm Executive Order 2012-560.
SB128 – Veteran Status: DL/ID Card
Sponsor(s): W. Westerfield
Status: Law
Importance: Moderate
Amend KRS 186.412, regarding operators’ licenses, to allow a DD-2 form to be used as acceptable proof of veteran status for placing a veteran designation on a license or ID card.
SB202 – Self Insured Workers’ Compensation Groups
Sponsor(s): J. Carpenter
Status: Law
Importance: Low
Amend KRS 304.50-010 to authorize workers’ compensation self-insured groups to contract and sue and be sued in the name adopted by the group.
SCS – Add and amend KRS 304.50-010, 304.50-085, and 342.350 to authorize a workers’ compensation self-insured group to contract and to sue and be sued in the name adopted by the group. .
SFA (1, J. Carpenter) – Keep original provisions, and amend KRS 304.50-010, 304.50-085, and 342.350 to authorize a workers’ compensation heterogeneous self-insured group to contract and to sue and be sued in the name adopted by the group. .
SFA (2, J. Carpenter) – Keep original provisions, and amend KRS 304.50-010, 304.50-085, and 342.350 to grant Franklin Circuit Court exclusive jurisdiction over any actions filed against the Group or any of its Trustees or by the Group against any of its members. .
HCS – Amend KRS 304.50-010, 304.50-085, and 342.350 to authorize a workers’ compensation heterogeneous self-insured group to contract and to sue and be sued in the name adopted by the group; amend KRS 304.48-250 and 304.50-055 to allow certain governmental entities flexibility in financing any assessment by the self-insured group to cover an accrued deficit and to require the intercept of payments due to that governmental entity if it fails to make a scheduled payment.
HCA (1/Title, R. Rand) – Make title amendment.
HFA (1, R. Rand) – Amend KRS 342.122 to provide that the special fund assessment rate imposed during the calendar years of 2013 and 2014 not apply to the amount collected under an assessment plan from certain workers’ compensation self-insured groups; EMERGENCY.
HFA (2/Title, R. Rand) – Make title amendment.
SCR35 – Unified Juvenile Code Task Force
Sponsor(s): W. Westerfield
Status: Law
Importance: Moderate
Establish a task force to study the Unified Juvenile Code; establish membership of task force; provide that the task force is to study issues related to status offenders, the use of community resources, alternatives to detention, reinvestment of savings to create community based treatment programs, feasibility of establishing an age of criminal responsibility, issues related to domestic violence and its impact on children exposed to domestic violence, issues related to special needs children, and use of validated risk and needs assessments; provide that the task force may submit proposals for statutory changes to the Legislative Research Commission by January 6, 2014.

CT. OF APPEALS JUDGE MICHELE KELLER NAMED TO KY. SUPREME COURT BY GOVERNOR

Wednesday, April 3rd, 2013

Wed. April 4, 2013
LawReader has confirmed that Gov. Steve Beshear has named Court of Appeals Judge Michele Keller as a Justice on the Kentucky Supreme Court. Keller will replace retired Justice Schroder who left the bench recently due to illness.
Justice Keller told LawReader, “Justice Schroder is one of the finest men and finest jurists I have ever known. My appointment is bittersweet in that he is no longer on the bench.” Schroder “has set a high bar for any successor to follow”.
Justice Keller said she spoke to the Governor last night and was informed of his decision to sign the Executive Order on Wednesday morning. She promised him she “would work hard to justify his faith in her.”

Beshear must now appoint a replacement for Keller on the state Court of Appeals. Another judicial nominating commission must meet to pick three potential replacements for her. Beshear will choose from those three nominees.

Read more here: http://www.kentucky.com/2013/04/03/2584933/judge-michelle-keller-to-become.html#emlnl=PM_update#storylink=cpy

Response by respected lawyer to Courier-Journal article about the end of Fen Phen case being near…

Wednesday, April 3rd, 2013

-The real scandal is the KBA. They have governmental power, but no transparency. This upsets me because for years I worked so closely with the KBA. There seems to be no accountability….-

The Boone County civil case styled Abbott v. Chesley, et al is on appeal to the Supreme Court. The Ct. of Appeals found the summary judgment was improper. Stan Chesley has demanded discovery but the acting judge has stayed his discovery efforts. The discovery efforts are directed at the conduct of the KBA. If the courts conclude the original civil case and suppress the pendng discovery request, then a black cloud will forever darken the sky over the KBA.