Archive for August, 2013


Saturday, August 31st, 2013

August 29, 2013
The Courier Journal reported the Supreme Court verdict in the Fen Phen civil trial. They upheld the summary judgment of Special Judge Weir and remanded on some issues. They upheld the venue of the civil case being in Boone Circuit court.
The Courier-Journal reported:
“The Kentucky Supreme Court Thursday reinstated a $42 million fen-phen judgment won by 440 plaintiffs defrauded by Lexington attorneys Shirley Cunningham Jr., William Gallion and Melbourne Mills Jr.
The Court of Appeals in 2011 had thrown out the judgment in the high-profile diet-drug case, saying that a judge should have held a trial before ruling that the attorneys, who have since been disbarred, breached their duties by plundering the $200 million settlement with the manufacturer of fen-phen, which was found to cause heart valve damage and withdrawn from the market.
The appeals court held that a trial was required because an affidavit defending the lawyers from Kenneth Feinberg, an expert on mass torts litigation, created enough of a factual dispute over whether the attorneys took an excessive fee and committed other violations. But ruling 6-0, the state Supreme Court said the affidavit concerned a matter of law, not fact, and thus didn’t require a trial.”
“Angela Ford, who represented most of the clients in a suit against the former lawyers, said the opinion offers “finality” on most of the claims pending for nine years against Gallion, Cunningham and Mills. She said it also clears the way for a trial against ex-Cincinnati lawyer Stan Chesley, who negotiated the settlement and was disbarred earlier this year for taking $7.6 million more in fees than he was owed.”
“The Supreme Court upheld lower court decisions that a judgment could not be issued against Chesley without a trial.” “Sheryl Snyder, one of Chesley’s lawyers, said he was pleased the court recognized that Chesley’s role was far different than the Lexington lawyers. He said he is confident that the disposition of the suit against Chesley him will reflect that.”

Gov. Steve Beshear has made the following appointments to Kentucky boards and commissions:

Saturday, August 31st, 2013

FRANKFORT, Ky. – Gov. Steve Beshear has made the following appointments to Kentucky boards and commissions:

Gov. Beshear has appointed the following members to the State Board of Medical Licensure to serve for terms expiring Aug. 31, 2017. This order is effective Sept. 1, 2013.

Heidi M. Koenig, of Louisville, is an anesthesiologist at the University of Louisville. She represents licensed medical physicians. The appointment replaces Mickey D. Anderson, whose term has expired.

Patrick R. Hughes, of Edgewood, is an attorney at Dressman Benzinger LaVelle PSC. He represents citizens at large. The appointment replaces J. William Graves, whose term has expired.
Gov. Beshear has appointed Marcus L. Vanover as circuit judge for the Family Court for the 28th Judicial Circuit, Division 3 to serve according to the provisions of Section 152 of the Constitution of Kentucky.

Marcus L. Vanover, of Somerset, is an attorney.
Gov. Beshear has appointed Michael Forbes to the Kentucky Motor Carrier Advisory Committee to serve for a term expiring March 25, 2016.

Michael Forbes, of Morgantown, is a general manager at TS Trucking LLC. The appointment replaces Michael K. Taylor, whose term has expired.
Gov. Beshear has reappointed the following members to the committee to serve for terms expiring March 25, 2016:

Michael L. Whitaker, of Somerset, is president at Coretrans LLC.

Todd Case, of Louisa, is owner and operator of Todd Case Trucking Inc.
Gov. Beshear has appointed Janet W. Wilson to the Somerset Community College Nominating Commission to serve for a term expiring April 15, 2017.

Janet W. Wilson, of Nancy, works for the Alcoholic Beverage Control of the City of Somerset. The appointment replaces Wanda S. Johnson, whose term has expired.
Gov. Beshear has appointed the following members to the Kentucky Horse Park Commission to serve for the remainder of the unexpired terms expiring Jan. 14, 2015:

John R. Long, of Lexington, is CEO of the United States Equestrian Federation. The appointment replaces Lisa Ball Sharp, who has resigned.

Jane Kay Winegardner, of Lexington, is a retired real estate agent. The appointment replaces Jonathan Miller, who has resigned.
Gov. Beshear has reappointed the following members to the commission to serve for a term expiring Jan. 14, 2017:

Porter G. Peeples, of Lexington, is president and CEO of the Urban League of Lexington-Fayette County.

Kathy K. Meyer, of Lexington, is a self-employed farm manager.

Michelle K. Primm, of Lexington, is a horse breeder and appraiser at Fox Garden Stable.
Gov. Beshear has appointed Byron M. Owens to the Kentucky Board of Dentistry to serve for a term expiring June 30, 2017.

Byron M. Owens, of Somerset, is a dentist. He represents licensed dentists. The appointment replaces Mark Fort, whose term has expired.
Gov. Beshear has reappointed Katherine L. King to the board to serve for a term expiring June 30, 2017.

Katherine L. King, of Somerset, is a dentist. She represents licensed dentists.
Gov. Beshear has appointed Harland C. Hatter to the Waste Tire Working Group to serve for a term expiring Aug. 1, 2016.

Harland C. Hatter, of Cynthiana, is deputy director of the Kentucky Department of Agriculture. He represents the Kentucky Department of Agriculture. The appointment replaces John C. Roberts, whose term has expired.
Gov. Beshear has appointed the following members to the Kentucky Early Childhood Advisory Council:

Kevin L. Nix, of Louisville, is director of early childhood education at Jefferson County Public Schools. He represents Local Head Start. The appointment replaces Aubrey Nehring, whose term has expired. Nix shall serve for a term expiring June 30, 2017.

Julie Ashmun, of Lexington, is a physician at Lexington OBGYN Associates. She represents citizens at large. The appointment replaces Lacey McNary, who has resigned. Ashmun shall serve for the remainder of the unexpired term ending June 30, 2015.
Gov. Beshear has reappointed the following members to the council to serve for terms expiring June 30, 2017:

Paula Goff, of Lexington, is a program administrator for the Cabinet for Health and Family Services. She represents a state agency responsible for Part C of IDEA.

Terry Holliday, of Frankfort, is commissioner of the Kentucky Department of Education.

Amy Hood Hooten, of Morgantown, is an instructor at Western Kentucky University. She represents higher education.

Nicki Patton Rowe, of Louisville, is a self-employed early childhood consultant. She represents Private Sector-Congressional District 3.
Gov. Beshear has appointed the following members to the Commission on the Deaf and Hard of Hearing to serve for terms expiring July 1, 2016:

Holly L. Evans, of Louisville, is a rehabilitation counselor at Eastern Kentucky University. She represents the Kentucky Association for the Deaf. The appointment replaces Nina S. Coyer, whose term has expired.

Kelly L. Daniel, of Bowling Green, is an audiologist for the Commission for Children with Special Health Care Needs. She represents the Kentucky Speech-Language-Hearing Association. The appointment replaces Susan E. Brown, whose term has expired.

Jeannie Marie Taylor, of Scottsville, is a special education teacher with the Allen County Board of Education. She represents the Kentucky Chapters of the Hearing Loss Association of America. The appointment replaces Rose M. Fenwick, whose term has expired.
Gov. Beshear has appointed Troy T. Corrigan to the Electrical Advisory Committee to serve for the remainder of the unexpired term ending July 15, 2015.

Troy T. Corrigan, of Louisville, is an electrical contractor at Corrigan Electric Co. He represents electrical contractors. The appointment replaces Michael Shannon, who has resigned.
Gov. Beshear has appointed the following members to the Kentucky Heritage Council to serve for terms expiring Aug. 6, 2017:

Linda A. Carroll, of Lexington, is vice president at Morgan Worldwide. The appointment replaces Linda K. Breathitt, whose term has expired.

Judi Patton, of Pikeville, is the former First Lady of Kentucky. The appointment replaces Robert W. Griffith, whose term has expired.
Gov. Beshear has reappointed the following members to the council to serve for terms expiring Aug. 6, 2017:

Teresa T. Bailey, of Bowling Green, is a retired flight attendant.

Julie R. Wagner, of Danville, is executive director at Heart of Danville Main Street Program.
Gov. Beshear has designated the following members of the council:

Stephen L. Collins, of Shelbyville, shall serve as chair of the council. He is an attorney and funeral director at Hall-Taylor Funeral Home.

Helen W. Dedman, of Harrodsburg, shall serve as vice chair of the council. She is an innkeeper at Beaumont Inn.
Gov. Beshear has appointed the following members to the Kentucky Community Crisis Response Board to serve for terms expiring June 30, 2015:

Christian Roy Ulrich, of Wilmore, is a fire officer for Lexington-Fayette Urban County Government Division of Fire. He represents emergency services disciplines. The appointment replaces Natalie S. Taylor, whose term has expired.

Jodi L. Carroll, of Pineville, is director of counseling at Union College. She represents mental health disciplines. The appointment replaces Kathryn B. Travis, whose term has expired.

Hank Cecil, of Mayfield, is a social worker at Four Rivers Behavioral Health. He represents mental health disciplines. The appointment replaces Merry Elizabeth Miller, whose term has expired.

Michael E. Freville, of Louisville, is a mental health counselor at Magellan Healthcare. He represents mental health disciplines. The appointment replaces Constance E. Adams, whose term has expired.
Gov. Beshear has reappointed Paul Whitman to the board to serve for a term expiring June 20, 2015.

Paul Whitman, of Shelbyville, is director of emergency management for the Shelby County Fiscal Court. He represents emergency services disciplines.
Gov. Beshear has reappointed the following members to the Motor Vehicle Commission to serve for terms expiring July 1, 2016:

William T. Kuster, of Brandenburg, is retired from the U.S. Army. He represents consumers.

Sven N. Ekman, of Louisville, is retired. He represents automobile manufacturers.

Larry J. Craig, of Louisville, is an automobile dealer at Craig & Landreth Inc. He represents used motor dealers.

Debbie L. Robke, of Edgewood, is a retired car dealer. She represents new motor vehicle dealers.
Gov. Beshear has appointed the following members to the Statewide Advisory Council for Vocational Rehabilitation:

Jeffrey L. Merrill, of Nortonville, is a customer service associate at Lowe’s Home Improvement. The appointment replaces Matthew B. Davis, whose term has expired. Merrill shall serve for a term expiring May 20, 2016.

Marty Boman, of Bowling Green, is an associate professor at Western Kentucky University. He represents business, industry and labor. The appointment replaces Mike L. Fogle, whose term has expired. Boman shall serve for a term expiring May 20, 2016.

Joe L. Cowan, of Monticello, is an instructional specialist and Americans with Disabilities Act Coordinator at Somerset Community and Technical College. The appointment replaces Donald Lee Gordon, whose term has expired. Cowan shall serve for a term expiring May 20, 2016.

Barbara L. Davis, of Louisville, is a self-employed writer and business consultant. The appointment replaces Lois Taurman, whose term has expired. Davis shall serve for a term expiring May 20, 2016.

Katherine Eversole, of London, is an education consultant at the Kentucky Education Development Corp. She represents state education agencies. The appointment replaces Margaretta Hylton, whose term has expired. Eversole shall serve for a term expiring May 20, 2016.

Kelly Colvin, of Paintsville, is a vocational rehabilitation counselor at the Office of Vocational Rehabilitation. She represents vocational rehabilitation counselors. The appointment replaces Martha Smith, who has resigned. Colvin shall serve for the remainder of the unexpired term ending May 20, 2014.
Gov. Beshear has reappointed the following members to the council to serve for terms expiring May 20, 2016:

Mark A. Jackson, of Louisa, is president at Jackson Peg Tube Stands LLC. He represents individuals with disabilities.

Lisa Carrico, of Mayfield, is program manager at Easter Seals. She represents community rehabilitation programs.

Karen Rossi, of Richmond, represents individuals with disabilities.
Gov. Beshear has appointed the following members to the Judicial Nominating Commission for the 22nd Judicial Circuit and District of Kentucky:

Billy A. Forbess II, of Nicholasville, is a dentist. The appointment replaces Louis E. Hillenmeyer, whose term has expired. Dr. Forbess shall serve for a term expiring Jan. 1, 2014.

Kevin Hardesty, of Lexington, is a real estate assessor for the Fayette County property valuation administrator. The appointment replaces Garland H. Barr III, whose term has expired. Hardesty shall serve for a term expiring Jan. 1, 2014.

Tony L. Dehner, of Lexington, is the distilled spirits administrator in the Department of Alcoholic Beverage Control. He replaces Gretchen M. Brown, whose term has expired. Dehner shall serve for a term expiring Jan. 1, 2016.
Gov. Beshear has reappointed Margaret T. Scanlon as a member of the commission, to serve for a term expiring Jan. 1, 2016.

Margaret T. Scanlon, of Lexington, is a community volunteer.

David Hale and Greg Stivers will be nominated to fill two federal district court judicial vacancies in Kentucky

Friday, August 30th, 2013

Posted: 29 Aug 2013 08:13 PM PDT

U.S. Attorney David J. Hale and Bowling Green lawyer Greg Stivers, a close friend and supporter of U.S. Sen. Rand Paul, will be nominated to fill vacant federal judgeships in Kentucky, according to attorneys and officials familiar with the selection process. Per story from Courier-Journal.

U.S. Attorney David Hale
U.S. Attorney David Hale

Following his nomination by President Obama and confirmation by the United States Senate, David J. Hale was sworn in as United States Attorney for the Western District of Kentucky on May 7, 2010. As the District’s chief federal law enforcement officer, Mr. Hale supervises the prosecution of all federal crimes and the litigation of civil matters in which the federal government is a party, in a district encompassing 53 counties and over two million residents. He oversees the work of more than 80 attorneys and support staff in Kentucky’s largest city, Louisville, as well as office locations in Bowling Green, Owensboro and Paducah.

Before being appointed U.S. Attorney, Mr. Hale was a member of the Louisville law firm Reed Weitkamp Schell & Vice PLLC, where he concentrated his practice in commercial litigation, representing businesses and individuals from disparate industries in federal and state courts across Kentucky. Mr. Hale’s private practice received listings in Chambers USA, Super Lawyers, and Benchmark Litigation. While in private practice, Mr. Hale was active in the community, serving on non-profit boards such as the Louisville Urban League and Kentucky Educational Television (KET). He is a graduate of Leadership Kentucky.

From 1995 to 1999, Mr. Hale served as an Assistant U.S. Attorney (AUSA) in the Western District of Kentucky. During his tenure as an AUSA, he prosecuted a broad array of criminal cases, including narcotics, gun crimes, homicide and other violent crime, child exploitation, and white collar crime. Mr. Hale also represented the government in civil matters, including affirmative civil enforcement cases, health care fraud, and financial litigation.

Mr. Hale is a graduate of Vanderbilt University (B.A., 1989) and the University of Kentucky College of Law (J.D., 1992). Prior to his appointment as U.S. Attorney, he also served on the University of Kentucky College of Law Visiting Committee. Mr. Hale is married and has two teenage children. He was born in the Army hospital at Ft. Campbell, Kentucky.


Gregory Stivers
Gregory Stivers

Greg’s practice involves various aspects of business and employment law. Greg works with clients in employment-related disputes, primarily representing employers in matters such as wrongful discharge and claims of religious, sexual, race, and disability discrimination. His practice also includes representing municipalities in a wide range of litigation, including zoning, taxation, and code enforcement, as well as employment issues. Greg also has extensive experience in the area of workers compensation claims, primarily from the employer’s perspective.

In the business area, he has represented both lenders and borrowers in a wide range of commercial transactions. He has worked with buyers and sellers of business enterprises and counseled clients in the selection of corporate form and formation of partnerships, corporations and limited liability entities, including buy/sell agreements. Greg also has experience in real estate matters, including sales, leases and tax-free exchanges. In addition to working on transactions, Greg has also represented clients involved in litigating business disputes, from breach of contract actions to shareholder disputes seeking judicial dissolution.

Greg has served as a board member and past President of Big Brothers Big Sisters of South Central Kentucky; is a founding board member of the Western Kentucky University Research Foundation; serves on the Hilltopper Athletic Foundation Board; and has served as counsel to the St. Joseph’s Cemetery Foundation. He is also a member of the National Association of College and University Attorneys and the Association of University Technology Managers.

Bar Admissions
â—¾1985, Kentucky
â—¾1986, U.S. District Court, Western District of Kentucky
â—¾1989, U.S. District Court, Eastern District of Kentucky

â—¾Eastern Kentucky University (B.A., with distinction, 1982)
â—¾University of Kentucky (J.D., 1985)


Thursday, August 29th, 2013

Aug. 29, 2013

Excerpts from Sup. Ct. Decision in case No. 2013-SC-000335-KB

Barbara. D. Bonar issued a public reprimand for her admitted violation of Supreme Court Rule (“SCR”) 3.130-1.7(b), 1 SCR 3.130- 1.9(a), and SCR 3.130(8.3)(c). 2 The Kentucky Bar Association (“KBA”) states no objection to the proposed discipline, which was negotiated pursuant to SCR 3.480(2).

Finding a public reprimand to be the appropriate discipline for her misconduct, we grant Bonar’s motion.

The initial class representatives, Greg Harvey and Maria Caddell, ultimately opted-out of the class action, electing instead to have Bonar proceed with their individual claims against the Diocese. Eventually, Bonar successfully negotiated settlements on behalf of Harvey and Caddell. All of this occurred while Bonar was still co-counsel in the class action suit.
Over time, Bonar expressed dissatisfaction with her role in the class
action litigation and the fee arrangement. In early 2004, Bonar moved to
withdraw as counsel from the class action citing a conflict of interest arising
from a change in the composition of the class.
The Special Judge appointed for the class action and fee dispute held that Bonar
was not entitled to any fee, finding that she committed numerous ethical
violations during the course of her involvement in the Diocese litigation. 4 The
decision to deny Bonar an attorney fee was upheld by the Court of Appeals,
and recently affirmed by this Court.
On January 28, 2010, the Inquiry Commission issued a four-count
charge against Bonar alleging that she violated SCR 3.130-1.7(b), which
provided that “a lawyer shall not represent a client if the representation of that
client may be materially limited by the lawyer’s responsibilities to another
client, a third party, or by the lawyer’s own interest”; SCR 3.130-1.9(a), which
prohibits a lawyer who has formerly represented a client in a matter from
representing another person in the same or substantially similar matter; SCR
3.130-1.16(a)(1), which provides that a lawyer shall withdraw from
representing a client if the representation will result in a violation of the Rules
of Professional Conduct; and SCR 3.130-1.3, which requires a lawyer to act
with reasonable promptness and diligence. Bonar admits that her conduct
violated SCR 3.130-1.7(b) and SCR 3.130-1.9(a), but moves this Court to
dismiss Counts III (SCR 3.130-1.16(a)(1)) and IV (SCR 3.130-1.3) as redundant.
Bonar served as the President of the Kentucky Bar Association from July,
2008 to July, 2009. On July 24, 2008, Bonar sent letters to four members of
the Ethics Committee of the KBA notifying them that their terms had ended on
June 30, 2008, when in fact, those members’ terms were not set to expire until
2009 and 2010. The four affected members shared, either individually or
through their law firms, personal and professional connections with Chesley
and/or the class action suit against the Diocese. When faced with the
allegations of misconduct, Bonar asserted that the dismissals were based on
her mistaken belief that the members’ terms expired in June of 2008.
Given Bonar’s continuing fee dispute with Chesley at the time of the
members’ removals, the KBA Board of Governors authorized an independent
investigation into the propriety of the dismissals. The investigation revealed
that Bonar made a series of false and misleading representations concerning
her knowledge and actions relating to the controversial dismissals.
She further misrepresented the content of conversations with KBA
officers and staff members regarding the removals and other related matters.
In letters and emails written in August of 2008, Bonar claimed that she was
unaware of any “problem” with the dismissals until she received a letter from
one of the “former” members on August 7, 2008
Bonar informed various KBA officers and staff that her decision to remove one of the members
was based on a recommendation of a Bar Governor who claimed that the
dismissed member was untrustworthy.. Additionally, Bonar provided
misleading information to the KBA investigator as to the character of an alleged
request for information concerning the dismissed members’ terms, and how
and whether that request was communicated.
The KBA states no objection to Bonar’s motion for a public reprimand, which was negotiated pursuant to SCR 3.480(2). The parties have filed a joint motion to impose costs in the amount of

Bonar’s motion for public reprimand was reviewed and approved by
the Chair of the Inquiry Commission and a Past President of the Kentucky Bar
Association before submission to this Court.

(LAWREADER NOTE: This suggests that the Board of Governors did not approve this public reprimand….)

While Bonar’s conflict of interest is arguably the most serious violation in
her consolidated file, her admitted violation of former SCR 3.130-8.3(c) arising
out of her conduct as KBA President is deeply troubling. When the allegations
of ethical misconduct were levied against Bonar, KBA policy prohibited her
from sitting on disciplinary cases. Following the KBA investigation, the Board
mandated that Bonar seek consent and approval from the KBA Board of
Governors or Executive Committee for any further committee appointments or

Previous disciplinary actions against Kentucky bar association officers are
distinguishable from Bonar’s case, 7 and there is an absence of legal authority
in other jurisdictions concerning a bar president’s misconduct while acting in
his or her official capacity. There is no doubt that Bonar’s actions and
subsequent brazen misrepresentations harmed the integrity of her office and
adversely affected KBA operations. A public reprimand is certainly warranted.

For the reasons stated herein, the Court finds the proposed consensual
discipline to be appropriate and declines further review. SCR 3.480(2).


Wednesday, August 28th, 2013



Wednesday, August 28th, 2013

Three people whose convictions were overturned in a federal vote-buying case in Clay County plan to plead guilty. Attorneys for Bart and Debra Morris and Stanley Bowling have filed motions saying the three will plead guilty to a charge that they took part in a conspiracy to control local politics through vote fraud. Bowling is a former magistrate in Clay County.
Defense attorneys said Wednesday they couldn’t comment on the length of the recommended sentences in the new plea arrangements for Bowling and the Morrises.
However, Bowling’s new sentence would be a “significant reduction” from the nearly 16 years he received after the first trial, said one of his attorneys, Jason R. Barclay.
The others charged in the case are former Circuit Judge R. Cletus Maricle; former school Superintendent Douglas Adams; former county Clerk Freddy W. Thompson; Charles Wayne Jones, who was an election commissioner; and William Stivers, who had been an election officer. They are scheduled for trial later this year. Bill Estep: (606) 678-4655. Twitter: @billestep1.

Read more here:

Attorney Karen Baker of Fort Mitchell Passes Away….

Wednesday, August 28th, 2013

We sadly share with you the passing of attorney Karen Baker (Ziegler & Schneider). Wife of attorney Joseph Baker (Ziegler & Schneider) and mother of attorney Michael B. Baker (The Baker Firm).

Karen Baker, 62, of Fort Mitchell, KY passed away on August 28, 2013. She is survived by numerous immediate family members including her husband Joseph L. Baker, and son Michael B. Baker.

A Visitation will be held on Friday, August 30, 2013 from 4pm until 8pm at Middendorf Funeral Home in Fort Wright, KY.

Mass of Christian Burial will take place on Saturday, August 31, 2013 at 10am at St. John Church in Covington, KY.

The family has requested that memorial contributions be made to St. John Church at 627 Pike Street, Covington, KY 41011, to St. Ann Church at 1274 Parkway Avenue, Covington, KY 41011, or to Northkey Community Care at 722 Scott Street, Covington, KY 41011.

For the full obituary notice please visit

Online condolences can be made at

KBA to provide military legal assistance to returning veterans.

Wednesday, August 28th, 2013

Over the next two years, large numbers of servicemembers will return home from deployment. Coming home from combat can present a difficult reintegration with family, friends and community. Many will face legal issues, increasing the overall demand for military legal assistance

Help make military legal assistance available for returning servicemembers.

Waves of returning servicemembers will strain existing military legal assistance programs. Civilian attorneys can help meet the growing need by becoming a part of the Kentucky Bar Association’s statewide effort to increase access to military legal assistance.

Help Servicemembers, Veterans and their Families resolve their legal issues.

More attorneys are needed to assist with:

· Family Law

· Finance/Banking

· Employment

· Health Care

· Immigration

· Elder Law

Learn more about how you can provide critical legal services to our returning servicemembers. To sign up please go to –

To access free online education courses for attorneys provided by Army OneSource, visit


The course, “Family Law and Military” in the Military Legal Assistance category has been approved for 1.5 CLE credits in Kentucky. The other courses – “Serving Those Who Have Served” and “Military Cultural Competence” – are for informational purposes only and will not qualify for Kentucky CLE.


Friday, August 23rd, 2013

The U.S. Justice Department announced Thursday that it will challenge Texas’s Voter ID law, saying it violates the Voting Rights Act, as well as the Constitution’s 14th and 15th Amendments.
In a separate case, the Justice Department will also join in a challenge to the state’s GOP-drawn redistricting plans.
The decisions come just weeks after the Supreme Court struck down part of the act that determines which jurisdictions require the Justice Department to approve any electoral changes before they become law. Texas had previously been subject to the so-called “preclearance.”
Justice Department officials have made clear that, despite the court’s decision, it will use other legal avenues to ensure that Voter ID laws and other legislation don’t infringe on the voting rights of minorities.
“Today’s action marks another step forward in the Justice Department’s continuing effort to protect the voting rights of all eligible Americans,” Attorney General Eric Holder said in a statement. “We will not allow the Supreme Court’s recent decision to be interpreted as open season for states to pursue measures that suppress voting rights.”
Texas Gov. Rick Perry (R) said the lawsuit is the latest example of the Obama Administration’s overreach.
“The filing of endless litigation in an effort to obstruct the will of the people of Texas is what we have come to expect from Attorney General Eric Holder and President Obama,” Perry said. “We will continue to defend the integrity of our elections against this administration’s blatant disregard for the 10th Amendment.”
The department’s complaint alleges that the Texas Voter ID law “was adopted with the purpose, and will have the result, of denying or abridging the right to vote on account of race, color, or membership in a language minority group.” It asks that the law be halted altogether.
Texas Attorney General Greg Abbott (R) decided to move forward with implementing the new law following the Supreme Court’s decision.
“Anyone who disagrees with the Department of Justice’s decision should blame Greg Abbott — for continuing to push a law that clearly disregards the promise at the heart of the Voting Rights Act,” said Matt Angle, a Texas Democratic consultant director of the Lone Star Project.
Sen. John Cornyn (R-Texas), said the Justice Department has been politicized and is “inserting itself into the sovereign affairs of Texas.”
“As Texans, we reject the notion that the federal government knows what’s best for us,” Cornyn said.
In the redistricting case, Perez v. Perry, the Justice Department will argue against the GOP state legislature’s congressional and state House redistricting maps, which were drawn in 2011, saying that they also suppress minority voters.
Those maps were not used in the 2012 election, as they were already being challenged in court and the Justice Department declined to approve them under preclearance. Instead, interim maps drawn by a three-judge panel were used.
The Justice Department is also asking the court to “bail in” Texas — i.e. rule that its electoral changes require preclearance. The Supreme Court struck down the formula used to determine which jurisdictions require preclearance, but not the practice preclearance itself.
The Justice Department is also looking at challenging a new law in North Carolina that includes Voter ID and several other measures that minority groups and Democrats say are designed to suppress the vote


Friday, August 23rd, 2013

Please accept this reminder that the deadline for nominations is September 15, 2012, for:

· Distinguished Lawyer of the Year –

· Volunteer Lawyer of the Year –

Please take the time to complete the forms for a deserving attorney!


Julie L. Jones

NKBA Executive Director

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

F: (859) 781-1277

U.S. Ninth Circuit Rules that Arizona Cannot Strip Medicade Funding for Doctors and Clinics that perform abortions

Friday, August 23rd, 2013

PHOENIX — Arizona has lost another battle in its ongoing war to restrict abortions, adding to a growing list of defeats this year for the state’s anti-abortion movement.

On Thursday, the 9th U.S. Circuit Court of Appeals ruled that Arizona cannot strip Medicaid funding from doctors and clinics that perform abortions, upholding a lower-court ruling.

STORY: House passes far-reaching bill to limit abortions

House Bill 2800, which the Legislature passed and Gov. Jan Brewer signed in 2012, would have halted Medicaid reimbursements for contraceptives, cancer screenings, treatment for sexually transmitted diseases and annual women’s exams at the state’s more than 80 hospitals and clinics that also perform abortions.

It is already a violation of state law to spend state or federal money on elective abortions, and that prohibition was not disputed in this case.

“It’s disappointing that Arizonans are going to continue to have to subsidize the abortion industry and Planned Parenthood,” said Center for Arizona Policy spokesman Aaron Baer, whose organization wrote the law. “Arizona is a pro-life state. This was a measure that the people of Arizona wanted. We shouldn’t be forced to give taxpayer money to any organization that performs abortions.”

The opinion comes on the heels of a May ruling from the same court overturning a 2012 state law banning abortions after 20 gestational weeks of pregnancy. It also follows the first legislative session in more than a decade in which lawmakers failed to pass an abortion-related law.

Anti-abortion leaders, who were regrouping after Thursday’s ruling, are essentially left with two options: appeal to a U.S. Supreme Court that is often more conservative in its decisions than the 9th Circuit, or try their luck with a 2014 Legislature that may be more willing to push abortion issues in an election year.

The appeals court in its opinion said the defunding law violates the federal Medicaid Act because it limits patients’ options when choosing a doctor.

“The free-choice-of-provider provision unambiguously requires that states participating in the Medicaid program allow covered patients to choose among the family-planning medical practitioners they could use were they paying out of their own pockets,” the opinion states.

The court dismissed the state’s argument that Arizona has the power to determine which doctors are qualified to serve Medicaid patients, saying that would open the door to a free-for-all in which states could ban doctors for arbitrary reasons such as their smoking habits or where they obtained their medical degrees.

“This is a victory for the thousands of low-income women who rely on Planned Parenthood for breast and cervical- cancer screenings, birth control and other basic health care,” Planned Parenthood Arizona President and CEO Bryan Howard said in a statement.

Arizona Attorney General Tom Horne and the Christian legal group Alliance Defending Freedom argued the state’s case.

Alliance senior counsel Steven Aden said they are “evaluating appropriate next steps.”

If they appeal to the Supreme Court, there’s no guarantee the high court will agree to hear the case. The court historically has been most interested in cases in which multiple appellate courts have issued conflicting opinions. On this issue, the lower courts have mostly been in agreement.

Arizona’s statute is most similar to an Indiana law, which the 7th U.S. Circuit Court of Appeals overseeing Indiana overturned earlier this year. The U.S. Supreme Court declined to hear an appeal of that ruling.

The high court is also still an option in the law banning abortions after 20 weeks. Supreme Court Justice Anthony Kennedy has given Maricopa County Attorney Bill Montgomery until Sept. 28 to decide whether to appeal.

The Center for Arizona Policy could also try to revive the laws by introducing bills containing a slightly different version of the measures when the legislative session begins in January.

The organization does not disclose in advance the bills it will introduce, but it could again propose a bill that failed to gain traction this year.

The group sought a more limited version of HB 2800 that would forbid clinics from providing abortion services and Medicaid services to the same person.

The bill got lost amid political negotiations as more moderate Republicans and Democrats united to push for Medicaid expansion. It never got a final vote.

Attorney General Conway Names 2013 Outstanding Commonwealth’s and County Attorneys

Friday, August 23rd, 2013

Office of the Attorney General

Press Release Date: Thursday, August 22, 2013
Contact Information: Daniel Kemp
Deputy Communications Director
502-696-5659 (office)

Attorney General Jack Conway today presented the awards for the 2013 Outstanding Commonwealth’s and County Attorneys as part of the Kentucky Prosecutors Conference at the Lexington Convention Center. Nearly 700 prosecutors, Commonwealth’s and County Attorneys, staff members, as well as law enforcement from across Kentucky are attending the three-day conference sponsored by the Office of the Attorney General and the Prosecutors Advisory Council (PAC).

The recipients of the 2013 Outstanding Commonwealth’s Attorney Awards are Laura Donnell, Commonwealth’s Attorney for the 53rd Judicial Circuit representing Anderson, Shelby and Spencer counties, and Brent Turner, who serves as Commonwealth’s Attorney for the 31st Judicial Circuit representing Floyd County.

When presenting Donnell’s award, General Conway said, “Laura is an enormous help to my Office of Special Prosecutions, having accepted five felony appointments as special prosecutor this year alone. I applaud her diligence, dedication to the criminal justice system, and work cracking down on drug dealers and re-offenders within the 53rd Judicial Circuit.”

Of Turner, General Conway stated, “Brent is a tremendous asset to the prosecutorial system. His work as special prosecutor resulted in the removal from office of Knott County Judge Executive Randy Thompson following his federal conviction for theft of federal funds and conspiracy. I also appreciate Brent’s service as a member of the Executive Board of the Appalachian High Intensity Drug Trafficking Area (HIDTA).”

The recipients of the 2013 Outstanding County Attorney Awards are Jenny Oldham, Hardin County Attorney since January 2011, and Mark Metcalf, who is in his third term as Garrard County Attorney.

“Jenny is committed to cracking down on drunk drivers in her community and across the Commonwealth. Her office consistently has one of the highest DUI conviction rates in Kentucky, reaching 93.5 percent in 2012. She has been a strong advocate for increased fees and penalties for drunk driving offenses and received an Outstanding Service Award from Mothers Against Drunk Driving. Jenny is also a tireless advocate for victims of abuse and neglect. She serves on the Kentucky Child Fatality and Near Fatality Review Panel and has been recognized for her extraordinary work in the prosecution of rape and sexual abuse cases.”

Of Metcalf, General Conway stated, “Not only does Mark have one of the highest DUI conviction rates in the Commonwealth, his attention to detail and thorough review of special prosecution cases have made him an exemplary special prosecutor. I would also personally like to thank Mark for his service to our country. He spent a year serving as Garrison Command Judge-Advocate at Victory Base Complex in Baghdad, Iraq with the 149th Brigade from Louisville. Mark’s commitment to his community and country are to be applauded.”

In concluding his remarks, General Conway thanked all of the members of Kentucky’s prosecutorial community who work every day to make our communities safer places to live, work and raise families.

Photos of this year’s award winners are available here:

Democratic state Sen. Kathy Stein of Lexington is interested in filling a vacant circuit judgeship in Fayette County.

Wednesday, August 21st, 2013

By Jack Brammer —

FRANKFORT — Democratic state Sen. Kathy Stein of Lexington, considered one of the most liberal members of Kentucky’s General Assembly, is interested in filling a vacant circuit judgeship in Fayette County.

Stein, an attorney elected to the state Senate in 2009 after being in the state House since 1997, said Tuesday that she “would be honored” to be considered for the job.

Family Court Judge Jo Ann Wise’s resignation took effect earlier this month, leaving a vacancy in Fayette Circuit Court’s Sixth Division.

Kentucky Supreme Court Chief Justice John D. Minton Jr. notified the secretary of state’s office Aug. 7 of the judicial vacancy.

To fill the vacancy, a seven-member judicial nominating commission chaired by Minton will submit three names to the governor to consider for an appointment.

Attorneys in the circuit may recommend someone to the commission or nominate themselves. The names of the applicants are not released. Once three people are nominated by the commission and their names are sent to the governor with no preference noted, the governor has 60 days to appoint a replacement and make the announcement.

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.

Stein enjoys a good working relationship with the governor, also a Democrat. If Beshear appoints Stein, she would make $124,620 a year, more than double what most part-time legislators make.

Because of a 2005 change in pension rules, part-time lawmakers who take jobs in the judicial branch or executive branch can count their higher-paying, full-time state salaries when calculating their legislative pension benefits.

A family court judge hears cases relating to divorce, child custody, adoption, termination of parental rights, domestic violence, child abuse and neglect.

Family court is a division of circuit court, Kentucky’s highest trial court level, and it employs full-time judges with the same qualifications as those who serve other divisions of the circuit court. Family court is held in 71 counties, serving more than 3.2 million Kentuckians.

Stein’s predecessor in the Senate, Democrat Ernesto Scorsone, became a Fayette circuit judge in 2008. Former Senate President David Williams of Burkesville left the legislature last year to become a circuit judge.

Stein, Kentucky’s only Jewish legislator, has been popular in her downtown Lexington legislative districts. She was unopposed for re-election in 2012.

Earlier that year, Senate Republicans tried to move Stein’s district to the northeastern part of the state in a Senate redistricting plan, but the Kentucky Supreme Court later declared the plan unconstitutional. Some Democrats said the move was a deliberate effort by Republican leaders to punish Stein, who was among the most vocal critics of Williams.


Wednesday, August 21st, 2013


DUI defendants in Carroll County can go to the local hospital and obtain a DUI blood test for only $61.00. But In Fayette County the police will only take a defendant to the UK hospital and facilities managed by UK and the typical charge is $424.00. If the defendant can’t raise this amount of cash, then he is denied his right to an independent blood test.

UK Hospital is a state operated facility. The Commonwealth has apparently not attempted to take reasonable steps to help the defendant obtain the independent blood test authorized by KRS 189A.105(4).

Fayette by selecting a blood testing lab that charges $424, when other facilities charge on $61, is alleged to be denying the defendant the independent blood test authorized by the Legislature.

The result of the defendants argument is that Fayette County by mandating blood testing be conducted at the Univ. of Ky. Hospital, is effectively overruling rights created by the Legislature.


CASE NO.: 13-T-08547





The Defendant, Jason Greene, through Counsel responds to the University of Kentucky’s motion to quash his subpoena as follows.
The University submitted a seven page motion which can be summed up in a paragraph. The University has objected to the subpoena pursuant to Kentucky Rule of Criminal Procedure 7.02(3) on the grounds the subpoena is purportedly unreasonable and oppressive. While the University is completely silent concerning the number of witnesses and the amount of effort it would take to comply with the Defendant’s subpoena, one can readily ascertain from reading the University’s motion that at least two Representatives will be required to appear at the suppression hearing. The University also argues that the topics and issues relating to its blood testing addressed in the subpoena are irrelevant to Defendant’s argument relating to the extraordinary cost required by the University in comparison to other regional hospitals. The University claims a subpoena is unnecessary because it allegedly offered to provide an affidavit which addressed what it deems as issues relevant to Defendant’s argument. Lastly, instead of detailing the allegedly burdensome and oppressive nature of the subpoena, the University elects to argue the Commonwealth’s case and while doing so relies upon non-controlling authority from Vermont and Georgia.
Defendant moved for suppression of the Intoxilyzer results because he was denied an independent blood test based upon the extraordinary cost of the test required by UK Healthcare. After his arrest and after the Defendant was informed by the Officer of his right to a blood test, he was also informed by the arresting Officer that he could pay between $400 and $600 for a blood test which would be taken at University Hospital. The Officer did not provide any less expensive alternatives. The University has since confirmed the cost of the blood test for a DUI arrestee is $424.00. The arresting officer allowed Greene to contact friends and family members to coordinate payment and Greene did so. But in the end, although Greene wanted the independent blood test he could not afford to pay between $400 and $600 for the test.
While the Officer indicated he would be taken to “UK”, through the DUI implied consent card Greene was informed he had a choice to take a blood test at either University Hospital or Good Samaritan. In reality when it comes to hospitals, Greene had only one choice because UK Healthcare controls and operates both hospitals. “UK Hospital” locally known as the University of Kentucky Chandler Medical Center is an agency of the state, as it operated under the direction and control of the state and is funded by the state treasury. See Withers v. University of Kentucky, Ky., 939 S.W.2d 340 (1997). Over a decade ago, it was established that UK Hospital was entitled to sovereign immunity. See Id. Accordingly, the Commonwealth via the University and UK Healthcare is setting the price of the independent blood test offered in Fayette County.
UK Healthcare through University Hospital and Good Samaritan Hospital charges DUI suspects in Fayette County $424.00 for an independent blood test. In preparation for the instant suppression hearing, Defendant sought to obtain information about the cost of independent blood tests offered to DUI suspects outside of Fayette County. The first two counties the Undersigned engaged that were willing to provide information concerning the cost of the independent blood test were Carroll and Woodford Counties. Carroll County Memorial Hospital charges $61.00 for an independent blood test while Bluegrass Community Hospital located in Versailles charges $78.75. Thus, UK Healthcare charges DUI suspects 693% more for an independent blood test than similarly situated persons who are arrested in Carroll County and 538% more than similarly situated persons who are arrested in Woodford County.
A DUI arrestee has a due process right to an independent blood test which is statutorily conferred upon him under KRS 189.103(7). This right is derived from the right of an accused to attempt to obtain exculpatory evidence, the Commonwealth’s duty to accommodate the arrestee’s ability to obtain exculpatory evidence and the short-lived nature of blood alcohol evidence. On its face, UK Healthcare’s action of charging $424.00 per blood test puts a person arrested in Fayette County at a severe disadvantage to preserve potentially exculpatory evidence and thwarts his ability to exercise his due process right when compared to persons who pay substantially less for the same blood-alcohol evidence when arrested elsewhere. The University’s act also invokes equal protection questions.
The Undersigned served the University of Kentucky through its General Counsel with a subpoena requesting that a representative or representatives of the University appear and provide answers and explanations concerning the medical basis for charging a Fayette County DUI suspect several hundreds of dollars more for the same blood test offered in Woodford and Carroll counties. Now the University moves to quash the subpoena.
At the outset, Kentucky law affords the trial court with great discretion in ruling upon such motions to quash and an appellate court will not interpose to control the exercise of such discretion by a court of original jurisdiction, unless there has been an abuse or a most unwise exercise thereof. See Commonwealth v. House, 295 S.W.3d 825, 828-829 (Ky. 2009). Defendant will address the University’s arguments in the order presented.
I. The subpoena is not oppressive and the material requested within is not irrelevant.
The University argues that the subpoena is oppressive because no one person at the University has knowledge concerning all of the issues addressed in the Defendant’s subpoena. Further the University argues that the Defendant’s requests are irrelevant to the arguments presented within his suppression motion.
Kentucky has adopted the federal court approach for determining if a subpoena is oppressive which was set forth in United States v. Nixon, 418 U.S. 683, 698-99, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974). See Commonwealth v. House, 295 S.W.3d 825, 828 (Ky. 2009). The moving party must show: (1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general “fishing expedition.” Id.
The litany of issues and topics addressed in Greene’s subpoena propounded upon the University ask for information and documentation pertaining to the real (or “wholesale”) cost of blood testing performed by the University. Because there is such a great cost disparity between the cost of the test performed by the University and the same test performed outside of Fayette County, the Defendant has sought information and documentation in an attempt to understand the difference in charges. The Defendant has asked the University to provide information about the equipment and the cost of the equipment to perform a blood test. The Defendant has asked the University to answer whether special credentialing is necessary to draw blood and the cost of any such credentialing to ascertain if said credentialing contain the “hidden” charges which raise the University’s rate for blood tests approximately 700% over the costs in other counties. The Defendant has asked for the University to provide information as to the costs of blood testing for normal everyday patients. Similarly, the Defendant asked the University to supply information concerning the charges for the blood test when applied to the Commonwealth for law enforcement purposes.
The Defendant also subpoenaed the University to provide information about the possible discriminatory impact of its $424.00 charge. He did so by subpoenaing the University to produce the number of blood draws requested by DUI suspects and completed by University Hospital and Good Samaritan Hospital to be compared with the number requested and completed for usage by the Commonwealth during the same time period. All of the foregoing information and documentation requested are evidentiary and relevant to the Defendant’s argument that a due process and equal protection violation has occurred. Thus, the University’s argument fails on House’s first criteria.
House, supra requires that the Defendant that the information and documentation requested are not otherwise reasonably procurable in advance of trial, or in this case a suppression hearing, by exercise of due diligence. All of the information requested is known only to the University. The University only agreed to confirm the cost of its blood testing prior to the original August 8th hearing. No amount of due diligence exercised by the Defendant would lead to the procurement of the information requested without the cooperation of the University, which is lacking. The University’s argument fails the second prong.
Thirdly House requires that the party cannot prepare for trial without the information subpoenaed. If this prong is taken in context of a suppression hearing, clearly the Defendant’s argument will be irreparably damaged if the University refuses to produce the information requested. As Defendant has acknowledged it appears to be his burden to submit evidence in favor of a finding that the Commonwealth (in this case via the University) has denied him his due process rights and denied him equal protection under the law. If the hearing begins with the supposition that the University’s $424.00 charge due a DUI suspect is unreasonable for the implied purpose of obtaining exculpatory evidence when compared to the medical cost of the same test performed in other counties, then, presumably the Defendant is not in need of any of the subpoenaed information. In other words, it would be the Commonwealth’s burden to prove that the $424.00 cost is reasonable for its intended purpose (e.g. to test the suspects blood alcohol level) and it has not been artificially increased to deprive the preservation of exculpatory evidence. But it is more likely that this Court will require the Defendant to prove that the University’s cost is arbitrary, capricious, unreasonable and the implementation of these extraordinary costs resulted in a violation of the protections inherit in the Fourteenth Amendment. If this Court determines the burden falls to the Defendant then it follows that the University loses the third prong of the analysis.
Lastly, House requires the moving party to be exercising good faith and to have not commenced a general “fishing expedition”. A good faith basis should be self-evident based upon the extreme cost differential when comparing the University’s cost and the costs in hospitals outside Fayette County. Defendant avers that he has done his best to ask for all relevant information and documentation concerning the cost to the University to discover if there is a valid medical reason for a Fayette County arrestee paying approximately 700% more for a potentially exculpatory blood test than a Carroll County arrestee. The University’s argument fails the fourth prong of House. It is also worth noting that the number of witnesses a party is required to produce does not enter the analysis prescribed by House.
II. The University’s Affidavit is Unsatisfactory and a Poor Substitute for Live Testimony

The University argues that since it can produce an affidavit with information concerning charges for the blood test there is no need to present live witnesses. In its motion and for the first time the University breaks down the components of the testing into three categories: (1) $29 for venipuncture (sticking the needle and drawing the blood); (2) $163 to perform the serum alcohol test; (3) and $232 for a ED Level A visit…” which the University is quick to point out is the lowest level ED visit that a person may be billed. (See Motion at p. 5).
The Roark Affidavit presents more questions than answers. Why does the “blood-serum test” performed by the University cost more than twice the amount of the entire blood alcohol test performed by other regional hospitals? Is there a cheaper but reliable alternative the University may offer? What are the steps taken when performing the test and how are those different than other counties? Is the blood-serum outsourced to another laboratory? Is the blood-serum examined in house? Can the testing be performed cheaper (whether in-house or whether outsourced)? What is the cost to the Commonwealth for the same test? What is the cost to the average patient for a blood test? If a DUI suspect is simply requesting a blood test and exhibits no need for medical attention whatsoever, why is it necessary to subject that individual to a “ED Level A visit”? If the DUI arrestee is not in need of medical attention but simply requests a test to preserve exculpatory evidence, why is it necessary to have their vital signs checked? What other services are provided during an “ED Level A visit” and what equipment and supplies are used which account for the $232.00 cost? Does the University check the vital signs or subject every patient to whatever a “ED Level A visit” requires before taking a routine blood draw? Is every patient, for example a diabetic patient, charged an additional $232 when obtaining a blood sample?
The Affidavit does not address these questions among many others and the affidavit does not speak to the potential discriminatory impact of the high cost assigned to a DUI arrestee. Production of a witness or witnesses is necessary to address these issues.
III. No testimony has been taken from Greene, therefore the University’s Arguments concerning the merit of Defendant’s motion to suppress are uninformed.

Next the University assumes the Commonwealth’s role and attempts to argue that Defendant’s motion to suppress is meritless. The University contends that since Greene argued that he is indigent that all issues may be resolved without the production of any witnesses. The University’s argument is uninformed for the following reasons.
While at the time of his arrest Greene was not employed and could be considered indigent, the Defendant submits that the testimony will reflect that the police officer allowed him to contact his girlfriend to procure funds to pay for an independent blood test. Neither Greene nor his girlfriend have testified, but it is believed that their testimony will reflect that she could have arrived at the University to help Greene pay a reasonable amount for an independent blood test (e.g. $61.00, $78.75 and perhaps more). Contrary to the University’s assertion (see Motion at page 5), Greene will argue that if the charge for a blood test was lower and reasonable (e.g. $61.00 or $78.75) he could have paid it with the assistance of his girlfriend. Accordingly the University’s argument which relies upon authority from Vermont, State of Vermont v. Benior, 174 Vt. 632, 819 A.2d 699 (2002), is unpersuasive.
In the Vermont case the Court determined that an indigent DUI suspect is not constitutionally entitled to have the state pay for an independent test. Id. at 702. Greene is not arguing that he was denied his due process rights because the Commonwealth did not pay for the blood test. He is arguing that on the face of the information available to the Defendant it appears the University is systematically denying DUI arrestees the ability to obtain exculpatory evidence by unnecessarily inflating the cost of a routine blood-alcohol test without a legitimate reason. Or in the alternative, the University’s has raised its cost to impede, frustrate and dissuade a suspect from obtaining the test. The facts of Benior are inapposite because Greene could have paid for a blood test at a reasonable cost.
The irony should not be lost on the Court that the University cites a Vermont case from 2002 wherein the cost of a blood alcohol test was Fifty Dollars ($50.00). Interestingly, the cost of living in Vermont far exceeds the cost of living in Kentucky. Nonetheless, the University appears to contend in its motion that paying $424.00 for a blood-alcohol test is reasonable.

IV. Comparing costs in other jurisdiction to the cost charged by the University is relevant to the Defendant’s Due Process and Equal Protection arguments.

The University submits that the fact it “charge(s) more than small rural hospitals in the state is irrelevant.” (See Motion at p. 7). And, it argues in a little bitty footnote “comparing the charges of a large academic medical center located in Lexington, Kentucky to the charges of two rural hospitals is truly an example of comparing apples and oranges.” (Motion footnote #1 p. 7). Baloney! Not one word of the University’s motion is dedicated to explaining the substantial difference in cost required by a “large academic medical center” vis a vis the costs of “small rural hospital(s).” Yet, the University would have this Court rely upon its conclusion that a learned and prestigious large academic medical center cannot figure out how to perform a blood alcohol test for less than $400.00. The entirety of the Defendant’s motion and subpoena is dedicated to discovering the reasoning for why the University has subjected this Defendant (and potentially many others) to this extraordinary cost and if the University is categorically denying DUI arrestees their statutory right to an independent blood test by unnecessarily and unreasonably inflating its costs without justification. The University’s witnesses need to show up at 9:00 a.m. August 22, 2013 in the Fayette District Courthouse, 150 North Limestone, Lexington Kentucky, Courtroom Number 2 and put their mouths where the University’s money is.
WHEREFORE, for the foregoing reasons the Defendant moves the Court to DENY the University’s motion to quash.

Respectfully submitted,

John L. Tackett Attorney at Law PLLC
The Lexington Building
201 West Short Street, Suite 310
Lexington, Kentucky 40507
Telephone: 859-576-9272
Facsimile: 859-253-9824

BY: _______________________________


I hereby certify that a true and correct copy of the foregoing was sent on this the ____ day of August 2013 to the following:

Hon. Clifton Iler
Associate General Counsel
University of Kentucky
301 Main Building
Lexington, Kentucky 40506

Hon. J.J. Alleman
Assistant Fayette County Attorney
110 West Vine Street Ste. 400
Lexington, KY 40507
Attn: Prosecutions/Second Division

Clerk, Fayette District Court
Fayette District Courthouse
150 N. Limestone
Lexington, KY 40507

John L. Tackett

Defendant moved the Court to suppress the breath test due to the exorbitant cost of the statutorily prescribed independent blood test under the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution. See Fourteenth Amendment Constitution of the United States. When the motion was previewed before the Court on August 8, 2013 the Court directed the Undersigned to provide case law or authority supporting Defendant’s argument to suppress the breath results due to the blood test due to the extraordinary cost. While an independent blood test is a statutorily prescribed right which must be offered to all DUI suspects who submit to the Officer’s test (see KRS 189A.105) there is scant case law concerning the independent blood test. This appears to be a case of first impression.
The Fourteenth Amendment to the Constitution of the United States provides: “No state shall…deny to any person within its jurisdiction the equal protection of the laws.” In this case the persons who are cited with DUI and offered an independent blood test in Fayette County are being discriminated against by having to pay nearly 700% more than similarly situated persons arrested in Carroll County Kentucky and almost 550% more for those arrested in Woodford County Kentucky. Defendant has subpoenaed witnesses from UK to request information pertaining to what objective is being served by fixing such an extremely high price for a routine blood draw. Because of the great disparity between the price of the test in Fayette County and the prices in neighboring Woodford County and in Carroll County (located between Louisville and Cincinnati) the Defendant has subpoenaed employees from the University of Kentucky to provide information whether there is a medical need for such a high cost.
The Fourteenth Amendment’s promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons. Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 271-272, 60 L. Ed. 2d 870, 99 S. Ct. 2282 (1979); F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 64 L. Ed. 989, 40 S. Ct. 560 (1920). The United States Supreme Court “attempted to reconcile the principle with the reality by stating that, if a law neither burdens a fundamental right nor targets a suspect class, (the Court) will uphold the legislative classification so long as it bears a rational relation to some legitimate end.” See, e. g., Heller v. Doe, 509 U.S. 312, 319-320, 125 L. Ed. 2d 257, 113 S. Ct. 2637 (1993).
A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense. “The guaranty of ‘equal protection of the laws is a pledge of the protection of equal laws.’” Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 86 L. Ed. 1655, 62 S. Ct. 1110 (1942) (quoting Yick Wo v. Hopkins, 118 U.S. 356, 369, 30 L. Ed. 220, 6 S. Ct. 1064 (1886)). When an entity controlled by the government acts to make it nearly 700% more difficult for a person to exercise a right conveyed to them under a statute, then equal protection under the law has been denied. There does not appear to be any legitimate purpose for UK Healthcare to upcharge a DUI suspect $424.00 for a

Romer v. Evans, 517 U.S. 620, 633-634, 116 S. Ct. 1620, 134 L. Ed. 2d 855, 1996 U.S. LEXIS 3245, 64 U.S.L.W. 4353, 70 Fair Empl. Prac. Cas. (BNA) 1180, 68 Empl. Prac. Dec. (CCH) P44,013, 96 Cal. Daily Op. Service 3509, 96 Daily Journal DAR 5730, 9 Fla. L. Weekly Fed. S 607 (U.S. 1996)

While the cost of the test examined by itself may appear neutral, it has a substantially discriminatory impact upon poor and indigent persons. It seems to have a discriminatory purpose of denying all but the very wealthiest of Kentuckians the right of an independent blood test which has been conferred upon them by statute. When a law or governmental action is challenged under the Equal Protection Clause, it is subjected to either strict scrutiny, intermediate scrutiny or a rational basis test. The burden of the justification of the action rests entirely with the state (when describing intermediate scrutiny). United States v. Virginia 116 S.Ct.2274, 2275 (1996).
Even if it fits under rationale basis the challenger can win against the state: Romer v. Evans, 116 S.Ct. 1620 (1996), City of Cleburne v. Cleburne Living Center Inc. , 473 U.S. 432 (1985), Zobel v. Williams 457 U.S. 55 (1982)United States v. Moreno 413 U.S. 528 (1973).
For rational basis there has to be a legitimate purpose for the University to charge 600% more than other hospitals.
“Social and economic legislation … that does not employ suspect classifications or impinge upon fundamental rights must be upheld against equal protection attack when the legislative means are rationally related to a government purpose. Moreover, such legislation carries with it a presumption of rationality that can only be overcome by a clear showing of arbitrariness and irrationality.” Hodel v. Indiana 452 U.S. 314, 331-332 (1981).
Met Life Insurance Company v. Ward: (Court declared Unconstitutional a state law that attempted to encourage growth of an in-state insurance industry by taxing in-state companies at much lower rates than out of state companies doing the same business. 470 US 869 (1985).
Discrimination against the poor- Griffin v. Illinois violated equal protection to deny free trial transcripts to indigent criminals defendants who were appealing their convictions. 351 U.S. 12 (1956). “in criminal trials a State can no more discriminate on account of poverty than on account of religion, race or color. At p 17.
In Harper v. Virginia Board of Elections, the Supreme Court declared unconstitutional a poll tax for state and local elections and said that “lines drawn on the basis of wealth and poverty, like those of race are traditionally disfavored.” 383 U.S. 663 (1966).
(shepardize this 5-4 decision –discrimination against poor does not warrant heightened scrunity- 411 US 17-29)
Lack of personal resources has occasioned the loss of a statutorily prescribed right.
Proving a discriminatory purpose – look at page 586 Yick Wo

Kentucky’s appellate courts have consistently held that an individual arrested for driving under the influence who has submitted to the initial test administered by the state “is allowed an independent test to obtain another result to compare with or controvert the police officer’s test”. Commonwealth v. Long, Ky. Ct. App., 118 S.W.3d 178, 181, (2003), Commonwealth v. Minix, Ky., 3 S.W.3d 721, 724 (1999); see KRS 189A.103(7) (emphasis added). The relevant statute which guarantees this right KRS 189A.103(7) states as follows: After the person has submitted to all alcohol concentration tests and substance tests requested by the officer, the person tested shall be permitted to have a person listed in subsection (6) of this section of his own choosing administer a test or tests in addition to any tests administered at the direction of the peace officer….” (emphasis added) “Not only must a person be afforded the right to an independent blood test, but they must also be informed of this right under KRS 189A.105 as well as some other rights that attach upon the individual’s submission to a breath, blood or urine test.” Commonwealth v. Long, Ky. Ct. App., 118 S.W.3d 178, 181, (2003). Defendant was denied this right and as a result the breath results must be suppressed.
Moreover, Defendant moves for suppression of the breath results on the basis that he was denied access under the “totality of circumstances” doctrine as adopted by Kentucky’s appellate courts in Commonwealth v. Long, Ky. Ct. App., 118 S.W.3d 178, 181, (2003). The Implied Consent Card used by the arresting officer only provided the Defendant with two “choices” of where he was to be transferred to obtain an independent blood test, UK and Samaritan Hospital. In reality there is no choice because both entities are operated and run by UK Healthcare. Oversight for UK HealthCare’s activities is provided by the University of Kentucky Board of Trustees, with particular responsibility placed on members of the board’s University Health Care Committee. “UK Hospital” locally known as the University of Kentucky Chandler Medical Center is an agency of the state, as it operated under the direction and control of the state and is funded by the state treasury. See Withers v. University of Kentucky, Ky., 939 S.W.2d 340 (1997). Over a decade ago, it was established that UK Hospital was entitled to sovereign immunity. See Id. Presumably Samaritan Hospital, also run by UK Healthcare should be considered a state entity and would likewise be entitled to the same protections.
The Commonwealth, through the arresting officer and its medical facilities, require a Defendant to pay Four-Hundred and Twenty Four Dollars ($424.00) at the time the independent blood test is to be performed. Approximately ten years ago the cost of an independent blood test in Lexington, Fayette County, was $150.00. In the past decade the cost of pursuing this statutory right has inexplicably risen 283%. Due to the staggering and unreasonable costs the Commonwealth requires of Defendants to pay for an independent blood test, the Commonwealth is effectively denying this statutory right to all but the wealthiest DUI suspects.
The facts of this arrest also raise the equal protection issue of Greene’s indigence. Greene is marginally employed and the $424.00 sum was not readily available to him. Paying this expense would have caused Greene a financial hardship. If the Commonwealth is going to allow an individual an option it cannot be denied solely due to one’s ability to pay. It can be easily observed that a well healed DUI suspect with the means to pay for an independent blood test at the time it is requested is conferred far more rights than an indigent person. Requiring payment for the blood test upfront denies equal protection to the Defendant and others similarly situated. The high cost demanded by the Commonwealth, runs afoul of principles articulated in by the United States Supreme Court in Gideon v. Wainwright, 372 U.S. 335 (1963). The country’s highest court ruled “…that any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” Id. It seems that both our state and federal courts abhor denying equal justice to those who cannot afford the legal protection enjoyed by others with reasonable means. Certainly, the Legislature did not intend to confer the statutory right of an independent blood test on only the wealthiest Kentuckians. For the above stated reasons the Defendant moves the Court to suppress the intoxilyzer results.

Noticed for: at the convenience of the Court.

Dated: June 26, 2013

Respectfully submitted,

John L. Tackett Attorney at Law PLLC
The Lexington Building
201 West Short Street, Suite 310
Lexington, Kentucky 40507
Telephone: 859-576-9272
Facsimile: 859-253-9824

BY: _______________________________


I hereby certify that a true and correct copy of the foregoing was sent via hand-delivery, on this the ____ day of June 2013 to the following:

Hon. Larry Roberts
Fayette County Attorney
110 West Vine Street Ste. 400
Lexington, KY 40507
Attn: Prosecutions/Second Division

Clerk, Fayette District Court
Fayette District Courthouse
150 N. Limestone
Lexington, KY 40507

John L. Tackett

Ethics Law Necessary to Keep High Court Justices in Line

Saturday, August 17th, 2013

Public deserves bill requiring Supreme Court justices to follow Code of Conduct.
By William Yeomans The National Law Journal

August 19, 2013

ethics A group of lawmakers earlier this month introduced legislation that would hold U.S. Supreme Court justices accountable to the same ethics code as other federal court judges.

Senators Richard Blumenthal (D-Conn.), Christopher Murphy (D-Conn.) and Sheldon Whitehouse (D-R.I.) joined Representative Louise Slaughter (D-N.Y.) and 15 House members in introducing the Supreme Court Ethics Act of 2013. To the surprise of many, Supreme Court justices are not bound by any code of conduct.

That situation is intolerable in a society grounded in the rule of law as enforced by independent and unbiased judges who must operate with the confidence of the people. By calling on the Supreme Court to adopt a simple code of conduct, the bill offers the court an easy path to buttress its own legitimacy. The Code of Conduct for all other U.S. judges ensures that lower federal judges will uphold the integrity and independence of the judiciary, both in fact and appearance. It ensures that they will not engage in partisan activity, and will not speak or appear as honored guests at fundraisers or rule on matters in which they or a family member have financial or other interests. Proponents of the bill have said that some appearances of Supreme Court justices at fundraisers, attendance at partisan gatherings, failure to report spousal income earned from political activities and refusal to recuse themselves from high-profile cases would not have been tolerated of any other federal judge. Critics of their conduct have said that Justice Antonin Scalia and Justice Clarence Thomas have attended partisan gatherings to plot electoral strategy. Justice Samuel Alito has participated in fundraising for The American Spectator. Thomas’ wife, whose income he failed to disclose for six years, has been involved in groups promoting positions on issues that reached the court, yet Thomas has seen fit to rule on those issues. Criticism also arose regarding Justice Elena Kagan’s decision to rule on the constitutionality of the Affordable Care Act, despite her service in the U.S. Department of Justice while the issue was in the lower courts. In each of these instances, the public and the bar would have benefited from public assurance that the justices had examined their conduct and a transparent explanation as to how they found it consistent with a published code.

Faced with these concerns, Chief Justice John Roberts responded defensively and dismissively in his 2011 end-of-year report to calls for the court to adopt an ethics code. He stated that justices consult the code, among other sources, but rejected the notion that justices needed to be bound by it. Roberts’ response belies the general view that he cares deeply about the image and legitimacy of the court he leads. A recent Gallup poll shows that for the first time more people have an unfavorable than a favorable view of the court. As it tackles a steady diet of controversial issues with substantial political ramifications, it needs to minimize concern about its lack of independence and bias. Adopting a code of conduct would reassure the public and strengthen the court’s legitimacy.

The Supreme Court Ethics Act is very modest. It instructs the court to adopt a code of conduct that incorporates the five basic provisions that govern other federal judges, but it authorizes the court to make whatever changes it considers “appropriate.” It does not prescribe an enforcement mechanism or specify punishments. Indeed, the bill fails to require transparency, which is the principal source of the court’s legitimacy. We entrust the court with enormous power because it writes reasoned, public opinions that explain its actions. Decisions regarding ethics should be subject to the same transparency. Similarly, the bill does not address the process for recusal. Justices now decide on their own whether they have a conflict of interest in a case.

Opponents of the bill argue that Congress lacks authority to tell the court to adopt a code of conduct. Congress, however, has long involved itself in the administration of the court, including how much they get paid and what finances they must disclose, as well as requiring that they recuse themselves under specified circumstances.

Apparently signaling his willingness to engage in a separation of powers showdown, Roberts, in his 2011 report, noted that the court had never addressed the constitutionality of the recusal statute or the financial disclosure requirement. Surely, however, Congress has authority to protect the integrity of the court by ensuring that the public knows if justices are accepting money and gifts from entities with business before the court. And surely it can prohibit justices from deciding cases in which they have large personal interests. The court’s only advantage in a battle over these requirements would be its ability to have the last word, but that should not be enough. Regardless, the Supreme Court Ethics Act is even more respectful of the separation of powers, since it allows the court to shape its own ethics code.

If the court resists adopting a code, proponents of the legislation should push ahead. While the bill does not yet have bipartisan support, that is likely to change as discontent with the court grows. The bill does not pick political favorites. All justices will have to comply with an ethics code. The big beneficiaries will be the court and the public — not a political party.

William Yeomans is a professor at American University Washington College of Law and served as Senator Edward Kennedy’s chief counsel on the Senate Judiciary Committee

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Saturday, August 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 Family Court judgeship for the 28th Judicial Circuit, which is composed of Lincoln, Pulaski and Rockcastle counties.

The three attorneys named as nominees to fill the vacancy are Daryl Kevin Day of Stanford, William “Bill” David Gregory of Mount Vernon and Marcus Lee Vanover of Somerset.

Day has served as the county attorney for Lincoln County since January 2007 and previously was the assistant commonwealth’s attorney for Lincoln, Pulaski and Rockcastle counties. He received his juris doctor from the University of Kentucky College of Law.

Gregory is an attorney with Cynthia G. Crider law firm. He received his juris doctor from the University of Tennessee College of Law.

Vanover has served as an assistant county attorney for the Pulaski County Attorney’s Office since 2005 and owns a private law practice. He earned his juris doctor from the University of Kentucky College of Law.

The vacancy was created when Judge Walt Maguire retired June 30.

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.

Circuit Court
Circuit Court is the court of general jurisdiction that hears civil matters involving more than $5,000, capital offenses and felonies, divorces, adoptions, termination of parental rights, land dispute title cases and contested probate cases.

In counties with a Family Court, the Family Court has primary jurisdiction in cases involving family issues, including divorces, adoption, child support, domestic violence and juvenile status offenses. Family Court is a division of Circuit Court.

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.

New Foxsports1 Channel on Time Warner channel 551 in Louisville area..see other channels

Saturday, August 17th, 2013

The new sports channel FOXSPORTS1 will be broadcast in the Time Warner cable in the Louisville Area at channel 551. The channel begins broadcasting Sat. Aug. 17, 2013. This channel was formerly the SPEED channel.

On AT&T the channel will be 62 and 1652.
On Dish the channel will be 150.
On DirectTV the channel will be 219.


Friday, August 16th, 2013

August 16, 2013
CHARLESTON, W.Va. — Mingo County Circuit Judge Michael Thornsbury was arrested Thursday after federal authorities allege he targeted his ex-lover’s husband and used his position on the bench to manipulate criminal charges against the man.
The indictment, returned Wednesday by a federal grand jury in Charleston, charges Thornsbury with conspiring to violate the constitutional rights of his former secretary’s husband. An indictment means that grand jurors have decided that enough evidence exists to warrant a criminal trial.
The former secretary and her husband were identified by their initials in the indictment. A statement from the lawyer for the former secretary and her husband identified them as Kim and Robert Woodruff, according to The Associated Press.
Prosecutors allege Thornsbury, the county’s only circuit judge, put his business partner in charge of a Mingo grand jury as foreman, plotted to plant drugs on Robert Woodruff and tried to get the man sent to jail.
Thornsbury, a Democrat, “persecuted his secretary’s husband, his romantic rival” and used the justice system for his own “nefarious purpose,” Booth Goodwin, U.S. Attorney for the Southern District of West Virginia, said in a Thursday news conference.
Thornsbury surrendered himself to authorities in Charleston. After an initial appearance in federal court, he was released on $10,000 bond.
A State Police trooper and a Mingo County official who allegedly helped the judge will not be charged, federal prosecutors said.
The state Supreme Court decided Thursday to suspend Thornsbury without pay, and also to suspend his law license. Chief Justice Brent Benjamin appointed John Cummings, a senior status judge from Cabell County, to replace Thornsbury on the Mingo County bench. Thomas McHugh, a retired state Supreme Court justice, will assist Cummings.
Thornsbury, 57, of Williamson, has served as circuit judge since 1997. He allegedly began a relationship with his secretary in early 2008.
After Kim Woodruff broke off the relationship in June 2008, prosecutors say, Thornsbury asked his friend Jeff Cline to plant drugs underneath Robert Woodruff’s pickup truck. The judge had allegedly made plans for police to pull Woodruff over and conduct a search.
Cline backed out at the last minute, prosecutors say.
The indictment also alleges Thornsbury enlisted State Police Trooper Brandon Moore, who worked in the Williamson detachment, to file a criminal complaint against Robert Woodruff, accusing him of stealing scrap metal from his employer.
Woodruff worked at a coal preparation plant, where mined coal was processed before being shipped. There, he removed scrap metal that had fallen in with the coal.
When Thornsbury found that Woodruff’s supervisors allowed him to salvage drill bits, among other scraps that could be repurposed, he allegedly persuaded Moore to file a criminal complaint against him.
Moore — who was named West Virginia State Police “Trooper of the Year” in 2010 — resisted at first because he knew Woodruff’s bosses allowed him to take the metal, according to prosecutors. But the trooper eventually gave in to the judge and filed the complaint, the indictment alleges.
Then-Magistrate Eugene Crum issued a warrant and Woodruff was arrested and charged with grand larceny in December 2008. Crum eventually dismissed the charge after county prosecutor Michael Sparks disqualified himself from the case — which, according to the indictment, could have led to discovery of Thornsbury’s scheme.
Prosecutors also identified one of Thornsbury’s business partners as part of the conspiracy.
In January 2009, Thornsbury chose Jarrod Fletcher, Mingo County’s director of homeland security and emergency management, to be the foreman of a new grand jury.
Fletcher owned a commercial real estate business and a wine shop with Thornsbury. The two also were joint debtors on $1.8 million in business loans.
The business relationship between Thornsbury and Fletcher was not widely known at the time, and Thornsbury did not disclose it when he made Fletcher the grand jury foreman, prosecutors say.
With Fletcher in charge of the grand jury, Thornsbury was allegedly able to sway the jury’s authority and use it to victimize Robert Woodruff.
The judge allegedly created a set of self-styled subpoenas, which Fletcher signed, ordering Woodruff’s employer and various other local companies to surrender private documents about him, the indictment alleges.
While most companies handed over the documents, one of the companies, identified as DBC Inc. in the indictment, requested more time to respond.
Thornsbury entered an order denying that request. But DBC waged a legal battle against the subpoena and eventually discovered the business ties between the judge and Fletcher, which the company revealed in a court filing, prosecutors say.
That forced Thornsbury to abandon his plan to use the grand jury against Woodruff, prosecutors say — but they say it wasn’t the judge’s last attempt.
Last year, Woodruff was involved in an altercation with two men at a convenience store. One of the men swung at Woodruff and the other pulled a gun. The two men were arrested and charged with assault.
But about a month later, the charges against those two men were dismissed, and, instead, Woodruff was charged with assault and battery.

Kentucky Supreme Court has three days of public oral arguments Aug. 21-23

Thursday, August 15th, 2013

If you have time you should drop by Frankfort and see some of the states best lawyers argue in front of our outstanding Supreme Court.

You can read all the briefs by going to the SUPREME COURT OF KENTUCKY – web site.


Tuesday, August 13th, 2013

By Stan Billingsley, Senior Editor LawReader (The author notes that he served previously on the Judicial Conduct Commission.)

The following article details the actions of the Kentucky Judicial Conduct Commission against Judge Martin F. McDonald. Judge McDonald did not take well to the Commission’s decision and responded in a newspaper interview:
In a interview with the Courier- Journal he described the six members of the Judicial Conduct Commission as “clowns who can’t figure out they don’t have any authority over me. I’m retired, I’m done”. Responding to his public reprimand, he said, “So what? Big deal.”

His public statements about the Commission members are in such bad taste that they give credence to the findings of the Judicial Conduct Commission. Not only were the comments in bad taste, they incorrectly stated the law with regard to the Commission’s jurisdiction.

Judge McDonald just doesn’t get it. As a judge he is not a Dictator. He is a representative of the Commonwealth, and he had a duty to treat all who come before him with courtesy.

He obviously has never read SCR 3.130 (8.2) in which the KBA tried to sanction former Ky. State Senator John M. Berry Jr. for a very mild observation about the proceedings held by the Legislative Ethics Commission by allowing then Senate President David Williams to be in the hearing but excluding the public.

That prosecution of Senator Berry was overruled by the 6th. Circuit Court of Appeals and ended up costing the KBA close to $400,000 in legal fees and costs. But the point is that this rule still stands. There is no suggestion of political influence in this case as there was in the Berry case.

The rule allows sanction of any attorney (and this includes Judge McDonald who is still a member of the KBA) who makes a false or true but reckless” statement about a judicial officer or a public legal officer, questioning the qualifications or integrity of a Judicial or legal official. The intent of this Rule was to forbid and sanction “false” statements about judicial officers. But the Supreme Court adopted the ABA version of the rule which included the ability of the Bar Association to sanction an attorney for “true” statements, if the KBA determined that the true statement was “reckless”. (And the KBA gets to say what is reckless as no definition is given in the Supreme Court Rules. I guess the definition of “reckless” is criticizing anyone in power.)

Judge McDonald should remember that the trial judge in the Fen Phen case was sanctioned by the Conduct Commission and then disbarred by the KBA, and that judge was supposedly protected by the doctrine of Judicial Immunity….but McDonald’s statements are not protected by judicial immunity since he had resigned from the judiciary. The Conduct Commission does not have to file a complaint with the KBA…in the Fen Phen case the KBA instituted their own investigation without a reference from the Conduct Commission.

See: SCR 3.130(8.2) Judicial and legal officials
(a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.

A similar rule has been repealed in Ohio and Arkansas, but our calls on the Kentucky Supreme Court to rewrite this rule have so far been ignored. Unfortunately Judge McDonald has single handedly made an argument in behalf of the retention of this anti-free speech rule.

McDonald may lend support to those in the Bar Association who want to have the power to limit the free speech of attorneys. Nevertheless the rule is so egregious that we respectfully suggest that Judge McDonald’s intemperate criticism of the Conduct Commission be ignored. He is an ill man, and the members of the Conduct Commission are so respected that his comments are not likely to have hurt them, and by the very fact he made such statements only proves the correctness of the Commission’s ruling.
We hope that Judge McDonald is not given more publicity by further action by the KBA to punish him for his free speech. That rule is a bad rule and should be repealed.

The Judicial Conduct Commission Issues Public Reprimand to Judge Martin F. McDonald.

The six members of the Judicial Conduct Commission (Hon. Stephen Wolnitzek, Judge Janet Stumbo, Judge Eddy Coleman, Judge Susan Johnson, Diane E. Logsdon and Joyce King Jennngs, issued findings against Judge Martin F. Mcdonald on August 12, 2013 finding him guilty of two counts of violation of the Judicial Conduct Code.

In count one the Judge refused to allow a pro se (non- attorney) to “present an any argument (in his defense) because he was not a lawyer.”

In count two involving a death penalty case, Judge McDonald was found guilty of threatening to “strangle” the attorney for the defendant if he ever called the judge again on his cell phone. And that Judge McDonald would try to get the attorney’s law license “yanked” if he did it again.

When the attorney tried to explain that opposing counsel had authorized his call to the judge, the judge stated “negative”, “be quiet”. In other statements the judge publically criticized the defendant’s counsel. He once ordered the bailiff to bring the defendant in a murder case, to the courtroom by saying “Bring his carcass out here.”
The Commission noting McDonald’s retirement, stated:
“A public reprimand is the most severe sanction available. Were Judge McDonald still a member of the Ky. Judiciary, a much more severe sanction, perhaps including removal from the Bench, would have been warranted, and would have been ordered.”

Judicial Conduct Commission
Findings of Fact, Conclusions of Law and Final Order
In re the matter of: Martin F. McDonald, Former Senior Status Special Judge

These findings and condlusions may be accessed by placing the following link in your browser:

Judicial Conduct Commission

The mission of the Kentucky Judicial Conduct Commission is to protect the public, to encourage judges, commissioners and candidates for judicial office to maintain high standards of conduct, and to promote public confidence in the integrity, independence, competence, and impartiality of the judiciary.