Archive for August, 2013

HUFFINGTON POST ON NEW YORKS STOP AND FRISK RULING

Tuesday, August 13th, 2013

On Monday, Judge Shira A. Scheindlin, a federal judge in New York City, handed down her decision in Floyd v. The City of New York. The plaintiffs in Floyd challenged the constitutionality of New York City’s stop-and-frisk policy. In a truly remarkable and courageous opinion, Judge Scheindlin held that policy unconstitutional.

The Fourth Amendment to the United States Constitution provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated.” To the Framers of our Constitution, this was a fundamental precept of American freedom. This guarantee preserves our privacy and dignity, and reaffirms that in a self-governing society the government must respect the rights of the individual.

As the Supreme Court recognized more than a century ago, “No right is held more sacred, or is more carefully guarded, by the . . . law than the right of every individual to the possession and control of his own person, free from all restraint or interference, unless by clear and unquestionable authority of law.”

To this end, the Supreme Court has long held that a police officer cannot constitutionally search or seize an individual unless the officer has probable cause to believe that the individual has committed, or is about to commit, a crime.

In 1968, however, in a case called Terry v. Ohio, the Court, in an opinion by Chief Justice Earl Warren, carved out a carefully limited exception to the probable cause requirement, holding that a police officer can constitutionally “stop” an individual on the street for questioning if the officer has “reasonable grounds to suspect” that the person has committed, is committing, or is about to commit a crime, and that the police officer can constitutionally “frisk” that person for weapons if he has “reasonable grounds to suspect” that the individual is “armed and presently dangerous.”

The Court was fully aware that this was a constitutionally precarious decision, for it authorized “substantial interference” with the liberty and dignity of the individual by police officers whose judgment will naturally be “colored by their primary involvement in ‘the often competitive enterprise of ferreting out crime.’” Moreover, the Court acknowledged that this practice could very well “exacerbate police-community tensions in the crowded centers of our Nation’s cities.”

Nonetheless, Chief Justice Warren held that the practice of stop-and-frisk, if carefully administered and implemented, could serve important law enforcement goals and was therefore not an “unreasonable search and seizure” in violation of the Fourth Amendment.

In her decision in Floyd, Judge Scheindlin found that the New York Police Department had used stop-and-frisk an astonishing 4.4. million times between 2004 and 2012. After carefully scrutinizing the Department’s use of this practice, she concluded that the activities of the Department violated not only the Fourth Amendment, but also the provision of the Fourteenth Amendment guarantee all persons “the equal protection of the law.”

Judge Scheindlin found that in 88 percent of these stops, the individual was innocent of any wrongdoing; that in 98.5 percent of the frisks, no weapon was found; that 83 percent of the Department’s stop-and-frisks were directed at blacks and Hispanics, even though blacks and Hispanics make up only 52 percent of the population; that the police were 40 percent more likely to use force when dealing with blacks and Hispanics than when dealing with whites; and that the officers were 40 percent more likely to find weapons and 28 percent more likely to find contraband when they frisked whites than when they frisked blacks and Hispanics.

Judge Scheindlin therefore held that, although the use of stop-and-frisk is constitutionally permissible if it is undertaken in accord with constitutional requirements, the New York City Police Department had in fact employed this practice in a manner that blatantly violated both the Fourth Amendment and the Equal Protection Clause of the United States Constitution.

A decision like the one in Floyd illustrates why we need a strong and independent federal judiciary. For most New Yorkers, the Police Department’s stop-and-frisk policy seemed something to applaud. It helped bring down crime and made the City safer. Moreover, most New Yorkers knew to a moral certainty that they themselves would never be subjected to the indignity and public humiliation of a stop-and-frisk. So, why not have such a policy?

COAKY Issues Mandamus Writ Lifting Stay of Discovery In Bad Faith Action So Defendant Could Pursue Evidence Justifying Time-Limited Removal To Federal Court

Tuesday, August 13th, 2013

By David Kramer | dkramer@dbllaw.com

More Sharing ServicesShare|Share on facebookShare on twitterShare on emailShare on printIn ProNational Insurance Co. v. Caudill, 2013-CA-639-OA (6/24/13), the Kentucky Court of Appeals issued a writ of mandamus compelling a trial court to lift a stay of discovery in an insurance bad faith claim so the defendant could seek evidence justifying removal to federal court before the right to remove expired. The defendant insurance carrier had originally removed the case to federal court based on diversity of citizenship, but the federal court remanded the matter because there was not sufficient evidence of record to establish that the amount in controversy met the $75,000 threshhold for diversity jurisdiction.

On remand, the trial court then entered a stay of discovery at the plaintiff’s request pending resolution of the underlying civil action (coincidentally the case of Shy v. Walker, the subject of my July 30 blog post), which was then on appeal to the Court of Appeals. The Court of Appeals in ProNational v. Caudill noted that bifurcation of bad faith claims from the underlying tort action is proper procedure, and that issuance of a stay of discovery in such cases is within the discretion of the trial court. However, the defendant had asked the trial court to lift the stay for the limited purpose of conducting discovery into the amount in controversy so it could meet the criteria for removal back to federal court. The “irreparable harm” requirement for seeking a writ was based on the assertion that the defendant’s statutory right to remove the case to federal court would be lost if the defendant could not conduct discovery into the amount at issue.

Under these circumstances, the Court of Appeals found that the trial court had abused its discretion in declining to lift the stay for the limited purpose of discovery into the amount in controversy, and that the defendant would be irreparably harmed if it could not avail itself of the right to remove the case to federal court.

This decision is probably of limited applicability outside of Kentucky due to the perhaps unique combination of Kentucky’s adoption of third-party bad faith liability (Kentucky is one of a relatively small minority of jurisdictions recognizing such liability) and Kentucky Civil Rule 8.01(2) (which prohibits a pleading from stating the amount of damages being claimed).

The order in ProNational v. Caudill is final but was not designated for publication in the South Western Reporter. Citation of unpublished decisions is governed by CR 76.28(4)(c).

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

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ARTICLE BY MICHAEL DOWLING – A SUPPORTER OF WILLIAM GALLION

Thursday, August 8th, 2013

August 8, 2013
THE KENTUCKY SUPREME COURT IN DISBARRING STAN CHESLEY ACCEPTED THE KBA’S ASSERTION THAT THE BOONE COUNTY SETTLEMENT WAS AN AGGREGATE SETTLEMENT FOR ONLY 440 KNOWN CLAIMANTS.
THE US DISTRICT COURT IN FRANKFORT CAME TO THE SAME CONCLUSION. THE 6TH CIRCUIT COURT OF APPEALS IN SPITE OF CHALLENGES THAT THE DEFENDANTS DID NOT RECEIVE A FAIR TRIAL AFFIRMED THE CONVICTION.
THE DEFENDANTS HAVE NEW EVIDENCE SHOWING THE DISTRICT JUDGE IN FRANKFORT HAD EX PARTE CONTACT WITH THE KBA RELATING TO THE KBA MOTION TO PREVENT THE DEFENSE FROM CROSS EXAMINING PROSECUTION WITNESSES CONCERNING PENDING BAR CHARGES.
THE KBA AND THE DEFENDANTS HAD AN AGREEMENT THAT DISBARMENT PROCEEDINGS WOULD NOT GO FORWARD UNTIL THE CRIMINAL CHARGES HAD BEEN RESOLVED. AFTER THE MISTRIAL IN COVINGTON THE KBA IMMEDIATELY PROCEEDED WITH THE DISBARMENT OF THE DEFENDANTS.
IN THE BOONE COUNTY CASE THE CLAIMANTS HAD SIGNED RELEASES AND SETTTLED THEIR CLAIMS. THE KBA WAS ACCUSING MR. CHESLEY OF ADVISING JUDGE BAMBERGER THAT FUNDS LEFT OVER WERE EXCESS FUNDS THAT DID NOT BELONG TO THE CLAIMANTS .
THE KBA KNEW MR. CHESLEY WAS TESTIFYING IN BOTH CRIMINAL TRIALS THAT HE DID NOT GIVE THIS ADVICE TO JUDGE BAMBERGER WHICH WAS THE ADVICE FOLLOWED BY THE DEFENDANTS IN ADMINISTERING THE BOONE CO. SETTLEMENT.
THE KBA ACTIVELY AND KNOWINGLY INTERFERED WITH THE DEFENDANTS’ RIGHT TO A FAIR TRIAL WITH THE BLESSINGS OF THE UNITED STATES ATTORNEYS.
ON BEHALF OF THE DEFENDANTS THERE IS MUCH TO BE SAID.
THE KENTUCKY COURT OF APPEALS REVERSED A $42 MILLION DOLLAR JUDGMENT.
IN THE FIRST CRIMINAL TRIAL IN COVINGTON THE JURY DEADLOCKED 10 TO 2 TO ACQUIT GALLION AND CUNNINGHAM. THE DEFENSE CHALLENGED THE GOVERNMENT WITNESSES TESTIMONY THAT THE $200 MILLION WAS ONLY FOR 440 CLAIMANTS AND INDEMNIFICATION WAS LIMITED TO 7.5 MILLION DOLLARS.
IN THE SECOND TRIAL THE DISTRICT COURT SYSTEMATICALLY THWARTED THE DEFENSES ALLOWED BY JUDGE BERTLESMAN IN THE FIRST TRIAL.
THE DEFENSE WAS DENIED THE RIGHT TO USE AN EXPERT WITNESS TO EXPLAIN THE SETTLEMENT AGREEMENT AND THE DEFENDANTS’UNDERSTANDING OF THE LAW APPLICABLE TO THE SETTLEMENT. JUDGE BERTLESMAN RULED THIS WAS A CLASS ACTION SETTLEMENT. THE DISTRIC T COURT IN FRANKFORT MOCKED THE “SMOKESCREEN CLASS ACTION”.
THE DISTRICT COURT IN THE FIRST TRIAL ALLOWED THE DEFENSE TO USE EXPERT TESTIMONY.
THE DEFENSE WAS DENIED THE RIGHT TO INTRODUCE THE ORDER MADE IN THE NATIONAL SETTLEMENT THAT DESCRIBED THE MEDICAL EVIDENCE AND THE MANNER OF VALUING CLAIMS FOR TAKING THE DIET DRUG MEDICATIONS. THE CRITERIA FOR VALUING CLAIMS WAS BASED ON AGE, LENGTH OF USE OF THE DIET DRUGS AND SEVERITY OF CONDITION.
THE NATIONAL SETTLEMENT ORDER WAS THE CORNERSTON FOR SETTLEMENT NEGOTIATIONS BETWEEN THE PARTIES.
THE DEFENSE WAS DENIED THE RIGHT TO COMPARE SETTLEMENTS MADE IN BOONE COUNTY, USING THE SAME CRITERIA AS FOLLOWED IN THE NATIONAL SETTLEMENT, WITH THE FAIRNESS VALUES FOR COMPARABLE CLAIMS ESTABLISHED IN THE NATIONAL SETTLEMENT.
THE DEFENSE WAS DENIED THE RIGHT TO CROSS EXAMINE THE GOVERNMENT EXPERT ON THE AFFIDAVIT OF KENNETH FEINBERG WHOSE OPINION OF THE SETTLEMENT WAS DIRECTLY CONTRARY TO THE GOVERNMENT WITNESS, WHO ACKNOWLEDGED FEINBERG AS AN EXPERT IN MASS TORT SETTLEMENTS.
BASED ON A MOTION FILED BY ANGELA FORD THE DEFENSE WAS DENIED THE RIGHT TO OFFER EVIDENCE SHOWING THE MEDICAL CONDITION OF THE CLAIMANTS. DAMAGE AWARDS IN PERSONAL INJURY CASES CUSTOMARILY REQUIRES SUPPORTING MEDICAL EVIDENCE.
IT WAS THE GOVERNMENT’S CONTENTION THAT EXHIBIT 3 TO THE SETTLEMENT LETTER WAS AN ALLOCATION FOR ONLY 440 CLAIMANTS. THE GOVERNMENT CONTENDED THAT ONE CLAIMANT WHO SAW A PHYSICIAN ONCE WITH NO FOLLOW UP AND NO FURTHER MEDICAL INTERVENTION WAS ALLOCATED $181,000.
IN UNDISPUTED TESTIMONY IN BOTH TRIALS 263 CLAIMANTS WOULD HAVE BEEN REIMBURSED UP TO $500 DOLLARS FOR PRESCRIPTIONS IN THE NATIONAL SETTLEMENT. THE GOVERNMENT CONTENDED THEIR CLAIMS WERE SETTLED FOR $95,000 EACH IN THE BOONE COUNTY SETTLEMENT.
KENNETH FEINBERG BASED ON A READING OF THE LANGUAGE OF THE SETTLEMENT LETTER, NOT WHAT BILL GALLION TOLD HIM, OPINED THAT EXHIBIT 3 WAS NOT A DECLARATION OF WHAT EACH CLAIMANT WAS ENTITLED TO RECEIVE. EXHIBIT 3’S PURPOSE WAS CLEARLY EXPRESSED IN THE LANGUAGE OF THE SETTLEMENT. Mr. Feinberg wrote that the law suit filed by Angela Ford was based on a naive misunderstanding of the language of the Settlement Letter.
THE SETTLEMENT LETTER STANDING ALONE UNDERMINES THE GOVERNMENT’S INTERPRETATION CONCERNING THE MEANING OF EXHIBIT 3. IS IT RATIONAL TO BELIEVE THAT AMERICAN HOME PRODUCTS MADE A $200 MILLION DOLLAR SETTLEMENT FOR ONLY 440 CLAIMANTS WITHOUT PROVIDING OVERSIGHT. WITHOUT HAVING CLAIMANT’S SETTLEMENTS VERIFIED. PARAGRAPHS 5 AND 6 OF THE SETTLELMENT LETTER THAT ABDICATED OVERSIGHT BY AHP UNDERMINES CLAIM THAT THE SETTLEMENT WAS ONLY FOR 440 CLAIMANTS.
THE PROTOCOL REQUIRED TO IMPLEMENT THE SETTLEMENT; THE COMPLETE ABDICATION BY AHP REGARDING PAYMENT OF THE SETTLEMENT FUNDS; THE PURPOSE OF EXHIBIT 3 IN THE SETTLEMENT LETTER; THE ABSENCE OF HOLD BACK PROVISIONS IN THE SETTLEMENT LETTER; TESTIMONY CONCERNING MODIFICATON OF THE FORM USED BY AHP IN SETTLING NON- CLASS ACTION CLAIMS; THE MEDICAL CONDITIONS OF THE CLAIMANTS HAD VALUES IN THE NATIONAL SETTLEMENT DRASTICALLY LESS THAN SUMS ALLOCATED ON EXHIBIT 3; IN OVER 20 INSTANCES CLAIMANTS IN FACT RECEIEVED SETTLEMENTS GREATER THAN ALLOCATED ON EX. 3; ALL OF WHICH UNDERMINE A REASONABLE BELIEF THAT EX. 3 WAS INTENDED TO BE THE MONIES THE CLAIMANTS WERE ENTTITLED TO AND THAT THIS WAS A SETTLEMENT FOR ONLY 440 CLAIMANTS.
It is unreasonable to believe Stan Chesley, Bill Gallion and American Home Products knew the $200 million dollar settlement was only for 440 claimants. Are there insurance attorneys and claims agents in Kentucky who know of any settlement where the Insurance Co. wanted a Release but did not want to know the claimant was paid the settlement that had been made?
Had Mr. Chesley known the settlement was only for 440 claimants why was his participation in the settlement not criminally culpable? Did he not participate in the conspiracy? Why wasn’t Mr. Chesley indicted for wire fraud? Why Judge Bertlesman was in the first trial so inept he did not see the attorneys stole their clients’ money? Did Judge Bertlesman not understand the settlement was for only for 440 claimants?

WHY WOULD THIS COMPANY ALLOCATE $95,000 DOLLARS TO 263 CLAIMANTS WHO ONLY WOULD HAVE BEEN REIMBURSED UP TO $500 DOLLARS IN THE NATIONAL SETTLEMENT?
AS ARGUED IN THE CIVIL CASE MEDICAL EVIDENCE IS RELEVANT AND NECESSARY TO ANSWER THE QUESTION OF FAIR COMPENSATION TO THE CLAIMANTS.
SAME FACT WITNESSES TESTIFIED IN BOTH TRIALS CONCERNING WHAT WAS AGREED TO AT THE MEDIATION MEETING. SAME FACT WITNESSES DISPUTED THE MEANING OF EXHIBIT 3. THE SIGNIFICANT DIFFERENCE IN SECOND TRIAL WAS THE INTRODUCTION OF THE DISBARMENT ORDERS AND THE TRIAL TESTIMONY OF THE CHIEF BAR COUNSEL OF THE KBA . THE DISBARMENT ORDERS WAS DISPLAYED TO THE JURY DURING EXTENSIVE TRIAL TESTIMONY OF BAR COUNSEL.
AT THE CONCLUSION OF THE TRIAL THE DISBARMENT ORDERS WERE REDACTED AND THE JURY WAS INSTRUCTED TO DISREGARD THE BAR COUNSEL’S TESTIMONY WHO WAS ONLY ALLOWED TO AUTHENTICATE DOCUMENTS.

IN THE SECOND TRIAL THE DISTRICT JUDGE INTERPERETED THE SETTLEMENT DOCUMENTS TO MEAN THE PARTIES NEGOTIATED AN AGGREGATE SETTLEMENT FOR ONLY 440 CLAIMANTS. THE DISTRICT COURT CREDITED THE GOVERNMENT’S EVIDENCE AND ARGUMENTS NOTWITHSTANDING CONTRARY EVIDENCE AND ARGUMENTS OFFERED BY THE DEFENSE.
THE DISTRICT JUDGE INSTRUCTED THE JURY THAT THEY HAD TAKEN AN OATH TO FOLLOW THE COURT’S INSTRUCTIONS EVEN IF THEY PERSONALLY DISAGEED WITH THEM.
THE DISTRICT JUDGE INSTRUCTED THE JURY THAT THIS WAS AN AGGREGATE SETTLEMENT FOR 440 CLAIMANTS.
THE DEFENSE CASE SAID THE SETTLEMENT WAS NOT JUST FOR 440 CLAIMANTS. THERE WERE OTHER POTENTIAL CLAIMS. LIABILITY FOR INDEMNIFICATION WAS NOT LIMITED TO 7.5 MILLION DOLLARS.
THE GOVERNEMENT EXPERT WITNESS TESTIFED THIS WAS A $200 MILLION DOLLAR AGGREGATE SETTLEMENT FOR 440 CLAIMANTS.
THE DISTRICT COURT’S FINDING OF FACT ON THESE CORE ISSUES DISPUTED BY THE DEFENSE WAS TANTAMOUNT TO A DIRECTED VERDICT THAT IS ANATHEMA IN A CRIMINAL TRIAL. GIVEN THE $200 MILLION DOLLAR SETTLEMENT WAS FOR 440 CLAIMANTS THAT THE JURY WAS OBLIGATED TO FOLLOW HOW ONE CAN REASONABLY DENY THIS WAS ANYTHING BUT A DIRECTED VERDICT.
HOW COULD A DISBARRED LAWYER ARGUE TO A JURY THAT HE DID NOT UNDERSTAND WHAT THE JUDGE TOLD THE JUR Y HE WAS ETHICALLY REQUIRED TO DO?
THE SIXTH CIRCUIT WROTE THE FOLLOWING: “ THE DEFENDANTS WERE CHARGED WITH THE CRIMES OF WIRE FRAUD AND CONSPIRACY TO COMMIT WIRE FRAUD.. NEITHER OF THESE CRIMES CONTAINS AS AN ELEMENTOF THE OFFENSE THE REQUIREMENT THAT THE FRAUD OCCUR IN CONNECTION WITH AN AGGREGATE SETTLEMENT”.
THE COURT IS CORRECT THE ALLEGED FACT THAT THE AGGREGATE SETTLEMENT WAS FOR 440 CLAIMS WAS NOT AN ELEMENT OF THE OFFENSE OF WIRE FRAUD.
IT WAS THE WIRE FRAUD. IT WAS THE OFFENSE. HAD THIS BEEN A $200 MILLION DOLLAR SETTLEMENT FOR 440 CLAIMANTS THAT WAS NOT GIVEN TO THEM THIS WOULD BE STEALING. JUST THE SAME AS A SETTLEMENT OF $1000 IN A PERSONAL INJURY CLAIM THAT THE LAWYER TOLD THE CLIENT WAS ONLY $500.
THE SIXTH CIRCUIT CITED MENTZ, 840 F.2D @320 : “ THAT IS, THE JUDGE’S INSTRUCTIONS DID NOT HAVE THE EFFECT OF RELIEVING THE GOVERNMENT OF IT S BURDEN OF PROVING, BEYOND THE JURY’S REASONBLE DOUBT, THAT THE ACCUSED COMMITTED THE CRIMES CHARGED. “
THE GOVERNMENT’S EXPERT WITNESSS TESTIFIED THE $200 MILLION DOLLAR SETTLEMENT WAS AN AGGREGATE SETTLEMENT FOR 440 CLAIMANTS. THE DISTRICT COURT INSTRUCTED THE JURY THAT WHAT THE GOVERNMENT EXPERT TESTIFIED TO WAS TRUE. WOULD A REASONABLE PERSON NOT UNDERSTAND THAT THIS NOT ONLY RELIEVED THE GOVERNMENT OF ITS BURDEN OF PROOF BUT IN FACT PUT IT TO REST.
THE SIXTH CIRCUIT COURT OF APPEALS IS SILENT CONCERNING THE PREJUDICIAL IMPACT OF THE DISBARMENT ORDERS. REFERENCE IS MADE TO THE FACT THAT THE DISTRICT COURT REDACTED THE CHARGES AND FINDING S IN THE ORDERS. DID THIS CLEAR AWAY THE EXTREME PREJUDICE CAUSED BY THE DISBARMENT ORDERS ?
THE SIXTH CIRCUIT AGREED THAT THE INTRODUCTION OF THE DISBARMENT ORDERS DENIED THE DEFENDANTS’ CONFRONTATION RIGHTS. HOWEVER THE COURT SAID THIS WAS HARMLESS ERROR. THERE WAS OVERWHELMING PROOF OF GUILT AND THE CHARGES AND FINDINGS IN THE DISBARMENT ORDERS WERE CUMULATIVE OF EVIDENCE PROPERLY ADMITTED.
THE SIXTH CIRCUIT SET ASIDE CONSIDERATIONS THAT THE DEFENDANTS DISPUTED THE GOVERNMENT’S EVIDENCE. THE FIRST TRIAL DEADLOCKED 10 TO 2 TO ACQUIT IN A TRIAL WHERE FACTUAL DIFFERENCES WERE MADE OF WHAT OCCURRED DURING MEDIATION AND WHAT WAS TOLD OR NOT TOLD TO THE CLAIMANTS.
QUERY? IN A TRIAL WHERE FACTS ARE IN DISPUTE IS HAVING TWO AGAINST ONE AN UNFAIR ADVANTAGE?
THE DEFENDANTS ARGUED CONSTITUTIONAL ERRORS TO THE SIXTH CIRCUIT. THEY ARGUED THAT THE AGGREGATE SETTLEMENT INSTRUCTION DENIED THEIR RIGHT TO A JURY TRIAL. THE RIGHT TO CROSS EXAMINE PROSECUTION WITNESS DENIED THEIR RIGHT TO CONFRONT WITNESSES AGAINST THEM. THE DEFENSE WAS DENIED TO RIGHT TO OFFER EXPERT TESTIMONY TO DISPUTE THE GOVERNMENT’S EXPERT TESTIMONY.
THE DEFENSE ARGUED THE ADMISSION OF THE DISBARMENT ORDERS WAS PREJUDICAL ERROR. THE SIXTH CIRCUIT ADDRESSED THIS ISSUE BY FOCUSING ONLY ON THE ADMISSIONS THE DEFENDANTS MADE TO THE KBA. THE COURT AVOIDED ADDRESSING THE PREJUDICAL IMPACT PER SE OF THE DISBARMENT ORDERS. THE COURT SIDE STEPPED DECIDING WHETHER THE ADMISSION OF DISBARMENT ORDER WAS PREJUDICAL. IN THIS CASE THE COURT SHOULD HAVE DECIDED AS A MATTER OF LAW THESE ORDERS WERE PER SE PREJUDICIAL.
PERHAPS THE PANEL DECIDING THIS CASE IN THE 6TH CIRCUIT COURT OF APPEALS SHULD HAVE REVERSED THE CONVICTIONS. HOWEVER TWO TRIALS LATER AND OVER 1500 DOCKET ENTRIES WAS MORE THAN ENOUGH TO PERSUADE THE COURT TO AFFIRM.

The Kentucky Supreme Court should take notice that in a fair and plenary trial in Covington that lasted several weeks 10 jurors sided with the defense on core issues.

It should be noted that the defendants were indicted for wire fraud in june 2007 and endured a plenary trial on the grounds that they failed to follow class action law.

Double jeopardy precludes trying a defendant twice for the same crime. in the present case the government failed to convict the defendants for the crime involving failure to follow class action law so the government changed the crime to say the defendants failed to follow the aggregate settlement rule.

Over 4000 claimants responded to television commercials. This was a mass tort. are the substantive laws and ethics rules applied to mass torts the same as the public would expect in a traditional attorney client relationships.

In the first trial the defendants were able to compare settlements made in the national settlement developed pursuant to fairness hearings with settlements made in Boone county. In the second trial the jury was told such comparisons were not relevant.

The awards available in the national settlement were communicated to the claimants in order to inform their decision to join or opt out of the national settlement. the values in the national settlement was the foundation used by the parties in discussions about the value of claims during settlement negotiations.

The KBA accused Stan Chesley of advising Judge Bamberger that there were Excess Funds that could be used for Charitable purposes. The evidence is overwhelming that Chesley did so advise Judge Bamberger. However he did not stand to gain financially from the establishment of the Charity. Is it reasonable to believe a person of his experience in complex litigation with a nationally recognized reputation would advise Judge Bamberger to divert to Charity monies he knew were negotiated for 440 claimants ?

Is it reasonable to believe Bill Gallion who had a successful law practice in Lexington, Kentucky would intentionally divert to Charity monies he knew were negotiated and belonged to only 440 clients.

Given the fact that the United States vacillated over the law applicable to the settlement how it is reasonable to charge a Felony from a dispute among legal professionals over the law applicable to such complex litigation. Regardless of ethics issues it is a Horse of Another Color to say these attorneys knowingly and intentionally stole monies negotiated for only 440 claimants.

Gallion and Cunningham will seek post conviction relief. The defendants did not have the specific intent to steal the claimants monies.

LawReader Wonders What Is Taking so Long for the Supreme Court to Rule in the Boone County Abbott Case

Wednesday, August 7th, 2013

The Court of Appeals ordered a new trial 28 months ago, but the Supreme Court granted discretionary review and has so far has not issued a ruling.
The Boone County summary judgment in the “Abbott” case was reversed by the Court of Appeals on Feb. 4, 2011. This ruling ordered a new trial.
This order was “published”. ( NO. 2007-CA-001971-MR and Boone Circuit Court ACTION NO. 05-CI-00436).
In the Court of Appeals said:
“…we have determined partial summary judgment was improvidently granted to Abbott, several issues stemming from the order entered on March 8, 2006, are rendered moot including the award of $42 million dollars in baseline compensatory damages, the award of allegedly unproven damages, the application of joint and several liability, the lack of proof of damages by the individual plaintiffs, and the denial of due process.”
In March of 2011 a Motion for Discretionary review was filed by Abbot and the Kentucky Supreme Court subsequently granted that motion. That ruling is still pending.
The decision of the Court of Appeals ordering a new trial, has now been under consideration by the Ky. Supreme Court for close to 28 months.
This decision by the Supreme Court is well within their jurisdiction. They may take as long as they need in reaching a decision. Nevertheless members of the Bar have scratched their heads for two years trying to figure out why the Supreme Court took up this decision for review.
The issues are not extremely complex, and many attorneys have contacted LawReader and asked us why the Supreme Court has delayed this decision for over two years. We don’t know. We are just as puzzled as others.
Some speculate that the Supreme Court wants to strengthen the ruling of the Court of Appeals, and others say that they disagree with the reasoning and law of the Ct. of Appeals and that the Boone Circuit Judges summary judgment order will be upheld.
One side effect of this delay is that the claims of Stan Chesley was not included in the Boone Circuit Court summary judgment, but the effect of the appeals has been to delay his right to proceed. The Courts have even stayed his right to seek discovery in his defense. He has sought disclosure from Angela Ford (Abbott’s attorney) relating to possible bias and possible questionable actions of the KBA.
Chesley’s efforts to continue discovery has been denied pending the ruling of the Supreme Court.
The longer the Supreme Court takes to make this ruling, the longer the questions will be unanswered regarding the conduct of the KBA in the Fen Phen case.
Angela Ford unsuccessfully appealed twice to the 6th Circuit Court of Appeals in an attempt to suppress information about whom she shared some $42 million with in monies seized from the Fen Phen attorneys.
Chesley’s efforts to obtain a copy of Ford’s distribution list have been placed on the back shelf by the Ky. Supreme Court. Ford stated in an interview with Andrew Wolfson of the Courier-Journal that she shared the Fen Phen money with “other attorneys” , but she refuses to disclose their names and the amounts she paid them.
It would be nice if the Supreme Court when issuing their decisions discusses the issue of Ford’s refusal to disclose the names of attorneys on her payroll during the Abbott trial and the criminal trial of Gallion and Cunningham.
We fear that the Supreme Court is setting a precedent by allowing a party to refuse to submit to discovery if the KBA is involved.

KBA HAS IGNORED PROFESSOR TURLEY’S ADVICE FOR OVER A YEAR

Wednesday, August 7th, 2013

The Hon. Jonathon Turley published the following article
just over a year ago….the KBA has not yet taken his advice to apologize to John M. Berry Jr.:

Appellate Court Finds Kentucky Bar Violated Attorney’s Rights In Criticism of Judge

Published 1, July 30, 2012 Constitutional Law , Free Speech , Lawyering , Society 13 Comments

The United States Court of Appeals for the Sixth Circuit has ruled that the Kentucky State Bar violated the rights of John M. Berry Jr. who was threatened with an ethics charge after criticizing the state Legislative Ethics Commission. In an important victory for free speech, the panel found that the bar violated the first amendment rights of the attorney.

The bar sent Berry a warning that his criticism of a state judge could result in punishment for lawyers who make reckless or false comments about judges. We have previously discussed the trend of cases where lawyers have been charged over their criticism of judges. I have been critical of those cases on first amendment grounds.

Barry challenged the integrity of a ruling dismissing an ethics complaint against Senate President David Williams. Here is the set up by the panel on the facts:

John Berry, an attorney, attended a public session of the Kentucky Legislative Ethics Commission regarding alleged fund-raising violations by Senate President David Williams. Berry was unhappy with how the session was conducted—the Commission closed the session to the public but allowed Williams to remain—and Berry drafted a letter expressing his displeasure. The letter stated that the Commission’s procedures could cause the public to think that the “deck was stacked.” The Commission complained of the letter to the Kentucky Bar Association’s Inquiry Commission. After investigating the matter, the Inquiry Commission issued a letter warning Berry that his conduct violated Kentucky Rule of Professional Conduct 8.2(a), and advising him to refrain from similar conduct in the future. After exhausting his state remedies, Berry brought this First Amendment challenge to Rule 8.2(a). The district court granted summary judgment for the KBA. This decision was improper because Rule 8.2(a) is unconstitutional as applied to Berry’s speech.

What is astonishing is that the letter has raised a valid point in relatively moderate language. On October 5, 2007, Berry wrote:

The inquiry was conducted entirely behind closed doors with the exception of Senator Williams who was allowed to be present throughout the preliminary inquiry. The exclusion of the pub[l]ic and the media was enough to arouse suspicion, but the exclusion of the complainant (except for a brief appearance as a witness) coupled with the inclusion of the alleged violator throughout the proceeding gave cause for some to speculate that the deck was stacked and the Senator would be exonerated. I was not, and am not, willing to go that far, but I do believe that your Order . . . that exonerated him, was contrary to the undisputed evidence that was presented.

It is astonishing that any bar official would consider such a letter to be worthy of a referral, let alone possible punishment. What is even more astonishing is that the Bar President and counsel would persist in litigating this case — asserting the right to punish lawyers for speaking out in the public interest.

The panel drew a distinction between opinion and false statements:

An opinion can “be the basis for sanctions only if it could reasonably be understood as declaring or implying actual facts capable of being proved true or false.” Yagman, 55 F.3d at 1438–39 (citing Milkovich, 497 U.S. at 21)). An opinion relies on implied facts where a speaker utters an opinion without providing the underlying factual basis. Take, for example, a statement by A to B, “‘I think [C] must be an alcoholic.’ A jury might find that this was not just an expression of opinion but that it implied that A knew undisclosed facts that would justify this opinion.” See Restatement (Second) of Torts § 566, cmt. c, illus. 3. If A has no factual basis to support the assertion, then the statement would be actionable even if couched as A’s opinion. See Yagman, 55 F.3d at 1439.

Notably, the Yagman case involved a far more serious and pointed criticism but was found protected by the first amendment. In that case, an attorney was sanctioned by a judge and went public with a claim that the judge “has a penchant for sanctioning Jewish lawyers: me, David Kenner and Hugh Manes. I find this to be evidence of anti-[S]emitism.” Id. The court found that the three lawyers mentioned were in fact Jewish and that the lawyers were all sanctioned by the judge. The court found that charge of anti-Semitism was an opinion that was based on stated facts of the religion of the attorneys and their being sanctioned.

Notably, the panel reserved judgment on even more serious or offensive comments by lawyers: “We also take no position on the constitutionality of sanctioning a lawyer’s profanity or threats directed against the courts, or other examples of a lawyer’s unmitigated expression of disrespect for the law, even outside the courtroom. Nothing like that was going on in this case.”

This type of prosecution has occurred more often in other countries. I have spoken on multiple occasions to Kentucky bar groups and I have always found the state to be the home of truly outstanding lawyers, including our friend Frank Mascagni. I am for that reason astonished by the lack of judgment shown in this litigation by bar officials. While the Kentucky Bar Association President W. Douglas Myers said the bar would accept the judgment, a more welcomed response would have been an apology on the part of the bar

IT IS TRIAL COURT’S DUTY TO SUBMIT INSTRUCTIONS

Tuesday, August 6th, 2013

It is well-settled law that a trial court has a duty to instruct upon the whole law applicable to the case. As the Kentucky Supreme Court stated, “In a criminal case, the duty of the trial judge is to prepare and give instructions on the whole law of the case, and this rule requires instructions applicable to every state of the case deducible or supported to any extent by the testimony.” Taylor v. Commonwealth, 995 S.W.2d 355, 360 (Ky. 1999);

PROBLEMS IN KENTUCKY APPELLATE PRACTICE – A PRIMER AND A PROPOSAL BY HON. SHERYL SNYDER

Friday, August 2nd, 2013

PROBLEMS IN KENTUCKY APPELLATE PRACTICE – A PRIMER AND A PROPOSAL BY HON. SHERYL SNYDER
March 16, 2013

Sheryl G. Snyder is a Fellow of the American Academy of Appellate Lawyers and co-author of 19 KENTUCKY PRACTICE, APPELLATE PRACTICE (Thomson/West) (2006) (hereinafter “KENTUCKY APPELLATE PRACTICE”). He is a Past President of the Kentucky Bar Association and was Editor-in-Chief of Vol. 59 KY. L. J. (1970-71).

He is a Member of Frost Brown Todd LLC. The author expresses appreciation to Griffin Terry Sumner and Jason P. Renzelmann of Frost Brown Todd LLC who worked with him on the appeals discussed herein and, more importantly, for their valuable comments on this article. The author also acknowledges the invaluable research assistance of Reed Ennis, an attorney who provides extraordinary service in the law firm’s library in Louisville. 1 and the advent of substantial compliance with the rules of appellate procedure.2

Such positive developments occur when appellate judges and practitioners discern the need for, and then advocate, further improvement of the judiciary. 3 Unfortunately, several idiosyncrasies and traps for the unwary remain. Accordingly, in an effort to continue contributing to the reform process, this article identifies five issues that merit consideration by the bench and bar for changes in Kentucky appellate rules and practice. 4 Neither do the rules of other states.5 6 After the passage of the Judicial Article in 1975, the Court amended the rules. New CR 73.03 provided that “[t]he notice of appeal shall specify all the appellants and all the appellees; ‘et al.’ and ‘etc.’ are not proper designations of parties.”7

We have been unable to find any contemporaneous explanation of the reason for the change in the rule. 8 Rule 1.090(a) prescribed the contents of the mandatory statement of appeal, and required “[t]he name of each appellant and each appellee (only parties named are before the Court – ‘et al.’ and ‘etc.’ are not proper designations of parties).”9 Apparently in that era of strict compliance with the rules, a decision was made to create this trap for the unwary by moving the informational requirement from the post-notice procedural rules into the requirements of a notice of appeal.

In the era of substantial compliance, the pre-1976 wording of CR 73.03 should be restored. en banc in Yocom v. Franklin County Fiscal Court.10 The Court quoted both the old rule and new rule in their entirety11 and concluded that the amended rule “clearly requires that the notice of appeal specify the names of all of the appellees, as well as all of the appellants.”12 However, the Court decided it was sufficient that the caption of the notice identified the appellee. 13 14 But the Court of Appeals’ post hoc rationalization for the Supreme Court’s decision to revise the rule is clearly a makeweight argument because appellees make that decision in every other jurisdiction – and made that decision in Kentucky prior to 1976 – without the notice of appeal identifying the appellees against whom the appeal is taken.

Like the rules in other jurisdictions,15 CR 73.03(2) requires the clerk to serve all parties, each of whom may decide for themselves whether to cross-appeal. dicta in Yocom resulted in the indispensible party exception to the doctrine of substance compliance announced in City of Devondale.16 In that case, the fifth class City of Devondale purported to annex by referendum certain previously unincorporated territory. Some residents of the annexed area filed suit, and the City of Louisville and Jefferson County intervened to contend that their City-County Compact rendered the annexation void. The Jefferson Circuit Court granted summary judgment invalidating the annexation and the City of Devondale appealed. Devondale’s notice of appeal failed to name the City of Louisville or Jefferson County as appellees, but the notice of appeal was timely filed and served upon their counsel of record.

Over a dissent by Justice Leibson, the Supreme Court affirmed the dismissal of the appeal in an opinion written by Chief Justice Stephens. The majority reasoned that the City of Louisville and Jefferson County were indispensible parties to the relief sought by the 4 City of Devondale’s requirement of naming every appellee – on pain of dismissal of the entire appeal, for failure to name an indispensible party – is a trap for the unwary that has spawned needless satellite litigation and resulted in the dismissal of appeals in spite of the abrogation of the doctrine of strict compliance with appellate rules. That portion of CR 73.03(1) should be repealed, restoring the pre-1976 wording of the rule. Lassiter v. American Express,17

American Express sued the elected State Treasurer seeking a judgment declaring unconstitutional a provision in the biennial budget shortening the time period after which traveler’s checks are presumed abandoned. The elected State Treasurer, who soon thereafter became a candidate for Governor, was a Democrat who had no stake in defending the controversial use of “notwithstanding clauses” in the Republican Governor’s budget.18 The Treasurer therefore sought to implead both the Legislative Research Commission and Governor Fletcher’s Budget Director. The Franklin Circuit Court brought the Budget Director, but not LRC, into the case. Thereafter, the Budget Director defended the budget with the Treasurer filing “me too” briefs. City of Devondale19 – American Express moved to dismiss the Budget Director’s appeal. In a 2-1 decision, the Court of Appeals dismissed the appeal. Blackburn20 principle, the Department was properly named as an appellee to the appeal.”21 Lassiter implicitly reaffirmed the indispensible party doctrine announced in City of Devondale.

While the Supreme Court did not cite City of 6 , it reiterated that “tardy appeals and the naming of indispensible parties” continued to be exceptions to the rule of substantial compliance.22 Accordingly, while Lassiter was an important reaffirmation of the doctrine of substantial compliance with the rules of appellate procedure,23 it left the trap for the unwary that was created when CR 73.03 was amended to require the notice of appeal to name each and every appellee. Lassiter, both the Supreme Court and the Court of Appeals have continued to dismiss appeals for imperfections in the notice of appeal. For example, in A.M.W. v. Cabinet for Health and Family Services, Commonwealth of Kentucky,24 the Court of Appeals dismissed the appeal of a parent whose parental rights had been revoked, for failure to identify one of the parties as an appellee. In that case, the notice of appeal correctly stated that the “person or entity against whom this appeal is taken is the Petitioner, Cabinet for Health and Family Services, Commonwealth of Kentucky.” After all, it was the Cabinet that had filed the petition to revoke the appellant’s parental rights. But the notice of appeal failed to name or serve the child’s guardian ad litem, a nominal party. Rather than saving the parent’s appeal of a judgment terminating his parental rights by invoking the rule of substantial compliance, the Court of Appeals dismissed the appeal. Browning v. Preece,25 the Supreme Court affirmed the dismissal of a landowner’s appeal from a judgment granting an easement over his property because his notice of appeal named only the adverse party who obtained the easement and did not name the co-defendants whose property was also subject to the easement. The Court recited that the notice of appeal was served on the co-defendants’ attorney. The Court nevertheless held the co-defendants were indispensible parties to the appeal and that the failure to name them in the notice of appeal was “a jurisdictional defect that cannot be remedied . . . .”26 7

City of Devondale was wrongly decided to begin with. Devondale, the City’s notice of appeal stated that “[t]he name of the Appellees against whom this appeal is taken are” the individual residents who had filed the lawsuit. “Only the original plaintiffs were named as appellees. . . . [I]ntervenors Louisville and Jefferson County were not named as parties, but copies of the notice of appeal were served on their attorneys.”27 The City timely filed a prehearing statement which was also served upon counsel for the Louisville and Jefferson County, although they also were not named as parties in the statement of appeal, either. Shortly thereafter Devondale moved to amend its notice of appeal, but the Court of Appeals denied that motion. The Court of Appeals also initially denied the appellees’ motion to dismiss the appeal but, after oral argument, “the Court of Appeals changed its mind and did, in fact, dismiss the appeal.”28 The Supreme Court granted discretionary review, and affirmed the dismissal of the appeal. 29 30 He noted that Devondale’s notice of appeal had been timely filed. He then noted that “[t]he rest of CR 73.02(2) specifies that ‘failure of any party to comply with other rules relating to appeals . . . does not affect the validity of the appeal . . . but is ground only for such action as the appellate court deems appropriate’ . . .”.31 Because the City of Louisville and Jefferson County had been timely served with the notice of appeal, they were not prejudiced and prejudice to the opposing party is essential to the severe sanction of dismissal of the appeal. “Thus, contrary to the statement in the Majority Opinion that the ‘plain language of CR 73 supports this [the majority’s] view,’ the fact is that the ‘plain language of CR 73’ supports the opposite view.”32 City of Devondale “constitutes an aberration.”33 In an ensuing series of decisions – authored by Justice Leibson – he set about to prove that Devondale is an aberration. Johnson v. Smith,34 a notice of appeal is not “jurisdictional.” Appellate jurisdiction is vested by the Constitution, not by the parties’ filings. 9 create jurisdiction, but only prescribes “the method by which the jurisdiction of an appellate court is invoked.” . . . not jurisdictional. It is a procedural device prescribed by the rules of the court by which a litigant may invoke the exercise of the inherent jurisdiction of the court as constitutionally delegated.35 Johnson v. Smith,

Justice Leibson narrowed City of Devondale to its facts. Unfortunately, however, City of Devondale was not overruled, but was expressly reaffirmed in Justice Leibson’s opinion: Excepting for tardy appeals and the naming of indispensible parties, we follow a rule of substantial compliance.36 37 Thus, under the doctrine of substantial compliance, “dismissal is a disfavored remedy for violation of the civil rules related to appellate procedure.”38 Instead, “the sanction imposed should bear some reasonable relationship to the seriousness of the defect.”39 AK Steel Corp. v. Carico,40 the notice of appeal was timely filed in Devondale. Accordingly, Justice Leibson’s dissent in Devondale was better reasoned than Chief Justice Stephens’s majority opinion. The notice of appeal having been 10 41 and the policy that “the sanction imposed should bear some reasonable relationship to the seriousness of the defect”42 required granting leave to amend the notice of appeal to identify the party rather than dismissal of the appeal. further illustrates the point. In that case, Preece sued Mr. and Mr. Horn, claiming an easement in a roadway that straddled the boundary between the Horns’ and Browning’s property. Upon the Horns’ motion, Browning was added as a defendant. The circuit court upheld the claimed easement and Browning appealed. Apparently the Horns did not appeal. The notice of appeal named Mr. Horn in the caption but did not name Mrs. Horn in either the caption or the body of the notice. The notice was served on the Horns’ counsel of record. In federal and other states’ courts, that would have been sufficient. But the Supreme Court held the notice was fatally defective under the Devondale precedent. Reasoning that the easement could be widened or narrowed by the appellate courts, the Supreme Court held that “[t]he necessity of joining parties whose interest may be affected is not eliminated simply because the effect upon that interest may be minimal, or even beneficial to them”43 With respect, counsel for the Horns was served with the notice of appeal and they therefore could decide for themselves whether to participate in the appeal. 44 and its analogue in most states,45

Kentucky does not have a separate rule prescribing the procedure for obtaining a stay pending appeal of a nonmonetary, noninjunctive judgment or order. CR 62.03(1) and CR 73.04 set forth the procedure for staying execution upon a money judgment by posting a supersedeas bond. Similarly, CR 62.02, CR 65.07 and CR 65.08 set forth the procedure for obtaining relief from the Court of Appeals from an interlocutory order or final judgment granting or denying temporary or permanent injunctive relief, respectively.

CR 62.04 provides that when a trial court has entered judgment on some but not all of the claims in a multi-claim or multi-party case within the meaning of CR 54.02, “the court may stay enforcement of that judgment” until a final judgment has been entered as to the remainder of the case. However, “CR 62.04, which provides that a trial court may stay the effect of a partial judgment made final under CR 54.02, does not authorize an appellate court to do anything.”46 47 Compared to the federal rule, however, CR 76.33 inadequately describes the procedure for obtaining a stay pending appeal. And, in contrast to CR 65.09 and CR 76.36(7), CR 76.33 is silent on whether and how one may obtain Supreme Court review of a stay issued by the Court of Appeals under that rule.

While the Supreme Court held in Green Valley48 that a stay issued by the Court of Appeals pursuant to CR 76.33 may be reviewed by the Supreme Court via an 12 dictum in Ephraim McDowell49 creates a question whether that holding in Green Valley remains viable. And CR 76.33 remains silent as to Supreme Court review. A new rule patterned after federal appellate Rule 8, and expressly providing for Supreme Court review as provided in CR 65.09 as to injunctive relief, should be considered by the committee presently drafting rules of appellate procedure for Kentucky. 50 It is equally fundamental that the mere filing of an appeal does not stay the judgment appealed from.51 Execution on a money judgment is stayed by posting a supersedeas bond pursuant to CR 62.03(1) and relief from an injunction is obtained pursuant to CR 65.07 and CR 65.08, as the Court explained in Bella Gardens. Bella Gardens, the circuit court had ordered a tenant to vacate certain premises, and made the order final and appealable under CR 54.02. The tenant “moved the Court of Appeals for a stay of the judgment pending appeal, purportedly under CR 62.04 . . . .”52 The Chief Judge of the Court of Appeals entered an ex parte emergency order staying the circuit court’s order and, pursuant to the order of the Chief Judge, a supersedeas bond was posted in circuit court. The Court of Appeals subsequently dissolved its order, but held that the injunction issued by the circuit court continued to be stayed by the supersedeas bond. The owner of the apartments filed both a matter-of-right appeal and a petition for writ a prohibition. 55, which simply required certain portions of the record be filed with any “motion for an intermediate order under CR 75.10 or RCr 12.62 . . . .”56

Perhaps it is therefore not surprising that CR 76.33 is so succinct in contrast to federal appellate Rule 8. Green Valley, the Supreme Court held that the procedure for obtaining review by the Supreme Court of a stay issued by the Court of Appeals pursuant to CR 76.33 is to file an original action pursuant to CR 76.36 in the Supreme Court. In that case, environmentalists succeeded in overturning an administrative order granting Green Valley permits to construct and operate a solid waste landfill. Green Valley appealed. The environmentalists sought a stay of further administrative proceedings by the Cabinet for the duration of the appeal, and the Court of Appeals granted the stay pursuant to CR 76.33. 57 58 Green Valley is called into question by the opinion in Ephraim McDowell.59 In that case, the circuit court had granted a restraining order requiring the lessee of a hospital to vacate the premises. The Court of Appeals denied relief pursuant to CR 65.07 because a restraining order is not appealable.60 But, the lessee had also filed an original action, and the Court of Appeals granted “intermediate relief under CR 76.36(4) in the form of a temporary stay of the circuit court order.”61 temporary stay granted by the Court of Appeals under CR 76.36(4).”62 ever appropriate before this Court.”63 The Court parsed the wording of CR 76.36(1) and held that an original action is the appropriate procedure to obtain review of an interlocutory order issued by the Court of Appeals in an original action pending in the Court of Appeals: original action in this Court.64 Green Valley for the proposition that the lessor was not irreparably harmed because the stay merely preserved the status quo pendent lite. But before reaching the merits of that motion, the Court offered a rationale for its decision that seems to undercut the holding in Green Valley that a stay issued by the Court of Appeals in an appeal may be reviewed via an original action in the Supreme Court, because the Court seemed to say that an original action could be venued in the Supreme Court only if the order being reviewed was issued by the Court of Appeals in an original action in the Court of Appeals: an appellate court,” but the Rule also places a limit on when such an action may be brought, namely, such an action may be “prosecuted only against a judge or agency whose decisions may be reviewed as a matter of right by that appellate court.” As such, original actions in this Court are limited in that they may be filed against the Court of Appeals only when the final action of the Court of Appeals may be appealed to this Court as a matter of right. Such occurrence is rare because most decisions of the Court of Appeals are subject only to discretionary review by this Court. But, as CR 76.36(7) makes clear, original actions in the Court of Appeals are appealed to this Court as a matter of right. Thus, we conclude that an original action in this Court seeking to prohibit the proceedings in an original action in the Court of Appeals is allowed under the Rules because the final ruling in an original action in the Court of Appeals would be appealed as a matter of right to this Court.65 Green Valley sub silentio because, in Green Valley, the Court of Appeals issued the stay pursuant to CR 76.33 in an ordinary appeal, not in an original action. And the Supreme Court permitted review of the Court of Appeals order only via an original action in the Supreme Court. If original actions in the Supreme Court may be filed “only when” the Court of Appeals issues interlocutory orders pursuant to CR 76.36(4) in 17 Green Valley held was the lone procedural vehicle for review of Court of Appeals order issued under CR 76.33.

Ephraim McDowell seems nonessential to the holding, especially since the Court cited Green Valley with approval rather than overruling it. In its effort to explain that such cases would be rare, the Court in Ephraim McDowell parsed 76.36(1) too narrowly. CR 76.36(1) addresses the court in which the original action must be filed, not the kind of lower court actions that can become the subject matter of an original action in the higher court. The fact that an original action seeking relief against the Court of Appeals must be filed in the Supreme Court does not limit original actions in the Supreme Court to relief from interlocutory orders issued in original actions in the Court of Appeals. Technically, the obiter dictum in Ephraim McDowell did not overrule the actual holding in Green Valley, which continues to be the binding precedent. However, the apparent conflict between the subsequent decision in Ephraim McDowell and the previous decision in Green Valley leaves the practitioner at least somewhat uncertain as to the procedure available for obtaining review by the Supreme Court of a stay pending appeal issued by the Court of Appeals pursuant to CR 76.33. Any new rule dealing with stays pending appeal should resolve this issue by prescribing a procedure for review by the Supreme Court of stays issued by the Court of Appeals. ex hypothesi both wrong and irreparably damaging.66 67 with one important difference.

A stay pending appeal enjoins a judgment entered after there has been a full adjudication of the parties’ rights, whereas a preliminary injunction is issued at the outset of the litigation, often to preserve the status quo pending adjudication of the parties’ rights. Consequently, the movant need only show a substantial question on the merits for a temporary injunction if the equities weigh sufficiently in favor of the movant, whereas an appellant seeking to stay a final judgment must show a “substantial likelihood of success” on the merits of the appeal.68 Green Valley decision. Granting the Supreme Court discretion whether to grant review in the first instance avoids any concern that the Supreme Court’s docket would be deluged with appeals of interlocutory Court of Appeals orders, while preserving the ability of the Court to intervene in those few cases where a interlocutory stay by the Court of Appeals does threaten immediate irreparable consequences. Goodenough69 that section 115 of the Constitution guarantees an appeal in such cases, that holding should be reconsidered when the Court promulgates the new rules of appellate procedure. 70 Francis v. Taylor71 the real party in interest contended that only the Supreme Court may issue writs because section 110(2)(a) of the Constitution vests the supervisory power over the Court of Justice solely in the Supreme Court.

The Supreme Court rejected that contention and squarely held that – by vesting in the Court of Appeals “the power ‘to issue all writs necessary in aid of its appellate jurisdiction, . . .’ and to issue all writs necessary to aid ‘the complete determination of any cause. . .’” – section 111(2) empowered the Court of Appeals to decide petitions for writs of mandamus and prohibition.72

The Court rejected the argument “that the granting of a writ of mandamus is supervisory in nature and thus falls within the aegis of the exclusive authority of the Supreme Court as provided in Sec. 110(2)(a) of the Kentucky Constitution.”73 The Supreme Court held: have only appellate jurisdiction but have the power, through the issuance of writs, to implement that jurisdiction. The Supreme Court, in addition, has the control (or supervision) of the entire Court of Justice.74 Francis makes clear that deciding petitions for writs is the exercise of appellate jurisdiction.

Accordingly, the Supreme Court could provide by rule that further review is within the Supreme Court’s discretion, as with injunctive relief under CR 65.09. Sweasy,75 the Supreme Court held that the trial judge is not an indispensable party to an original action in the Court of Appeals, and the Court therefore denied a motion to dismiss an appeal to the Supreme Court despite the fact that the notice of appeal failed to name the trial judge as an appellee. The Supreme Court held that the trial judge is merely a nominal party, recognizing that original actions are “appellate proceedings” seeking interlocutory appellate relief in the underlying case pending in circuit court.

The Supreme Court held: in a pending action is different from other appellate proceedings. The trial judge is a party in name only. He has no interest in the outcome of the litigation, and no connection to it other than the obligation to abide by the Court of Appeals’ decision. . . . 76 77 In Kentucky, the trial judge rarely files a response, although that occasionally occurs.78 On at least one occasion, the Supreme Court has said that the Court of Appeals “acted as a trial court” in an original action79, and in Lexington Public Library80 the Supreme Court said that “[a] petition for an extraordinary writ is a separate civil action brought pursuant to CR 81, not an interlocutory appeal from the underlying action brought pursuant to CR 73.01(2).”81

However, that passing remark was made as part of the explanation that the Supreme Court did not have a full record on appeal to assist it in deciding the appeal from the decision of the Court of Appeals granting a writ of prohibition. The Supreme Court affirmed the Court of Appeals’ decision vacating a circuit court’s order compelling discovery of information that the Court of Appeals determined was protected by the attorney-client privilege.

The Supreme Court described that writ as “interlocutory intervention” in the underlying case,82 a recognition that the decision granting the writ granted interlocutory appellate relief in the underlying case in circuit court. 83 The terminology in the rule is “[o]riginal proceedings in an appellate court . . .”84 and is derived from the fact that a petition for an extraordinary writ is often referred to as invoking the appellate court’s “original jurisdiction” pursuant to the All Writs Clause. For example, the analogous Ohio rule says it 23 85 In contrast, federal Rule 21 refers to “petitioning for a writ of mandamus or prohibition”86 and an “application for an extraordinary writ”87 – a much simpler, and accurate, description of the appellate proceeding by which a litigant seeks interlocutory relief in the nature of mandamus or prohibition.

Goodenough and revise CR 76.36(7) to provide that it is in the Supreme Court’s discretion whether to review decisions of the Court of Appeals granting or denying petitions for writs of mandamus and prohibition.88 The Court could also reconsider the terminology “original proceedings” in favor of the simpler wording of federal Rule 21. 89 Previously in that same case, the lawyers had filed an original action in the Court of Appeals. The Court of Appeals dismissed the action, citing Delahanty v. Commonwealth ex rel. Maze90 for the proposition that original actions seeking relief against a district judge must be 24 91 92 holding that a timely-filed petition for rehearing did not toll the time for filing a notice of appeal.

The Court held that a Rule 59 motion should have been filed rather than a petition for rehearing because the appeal was in circuit court. The Supreme Court denied discretionary review. Commonwealth ex rel. Mason v. Hughes,93 the party adversely affected by the appellate decision of a circuit court filed a Rule 59 motion. When it was denied, a motion for discretionary review was filed in the Court of Appeals. The respondent moved to dismiss the discretionary review motion, arguing that a Rule 59 motion may not be filed in a circuit court sitting as an appellate court because Rule 59 is a trial court rule.

The Court of Appeals saw no reason why a Rule 59 motion could not be filed when circuit court is sitting as an appellate court; “however, the time for filing the motion for discretionary review is not affected by the CR 59 motion” because CR 76.20(2)(a) “do[es] not provide that the running of time for filing a motion for discretionary review in the Court of Appeals be terminated by a CR 59 motion.”94

Mason that the timely filed Rule 59 motion did not suspend the deadline for filing the motion for discretionary review, therefore the motion for discretionary review was dismissed as untimely. Bates v. Connelly,95 the Supreme Court overruled Mason, saying: “we find this holding to be inconsistent with other recognized appellate practice and uncalled for by the language of the rules.”96 The Supreme Court interpreted the word “judgment” in CR 76.20(2)(a) to mean a “final judgment.” Holding that “a judgment subject to a CR 59 motion cannot be final until the motion has been ruled on,” the Supreme Court held that a Rule 59 motion filed in circuit court sitting as an appellate court does suspend the running of time for filing a motion for discretionary review in the Court of Appeals.

Unfortunately, however, in the 17 years since Bates was decided, CR 76.20(2)(a) has not been amended to inform the practitioner what procedural vehicle to utilize to toll the time for filing a motion for discretionary review by the Court of Appeals of a circuit court judgment in a case appealed from district court. The rule continues to be silent on whether there is a procedural vehicle which tolls the running of time.

Bates does not hold that a party may not file a petition for rehearing in a circuit court sitting as an appellate court, nor that a timely filed petition for rehearing does not suspend the running of time for filing a motion for discretionary review. Instead, Bates applied the doctrine of substantial compliance with appellate rules of procedure to save that otherwise timely motion for discretionary review by permitting the timely Rule 59 motion to toll the running of time for filing the discretionary motion. 27 97 Conversely, CR 59 clearly speaks to trial court proceedings in circuit court, such as a motion for a new trial.

Adams that the literal wording of the rule “must be intended to except appellate opinions of the circuit court from its purview. . . . [B]ecause the (sic) CR 76.32 by its own terms does not extend to appellate opinions of the circuit court, it cannot serve to stay the time for filing a CR 76.20(2) motion for discretionary review to this Court.”98 The Court of Appeals therefore reasoned that, under Bates, the time for filing a motion with the Court of Appeals for discretionary review of an appellate decision of a circuit court can be tolled only by a Rule 59 motion. Concluding that the petition for rehearing was therefore a nullity, the Court of Appeals said “it cannot serve to stay the time for filing a CR 76.20(2) motion for discretionary review . . . .”99 Adams, it illustrates the traps for the unwary that arise from gaps in the rules applicable to appeals to circuit court from district court. Those proceedings also cause one to question the wisdom of vesting in the circuit court jurisdiction of petitions for writs against district judges. 100 And such supervisory power should be exercised only by those appellate courts.

In Indiana, for example, only the Supreme Court has jurisdiction to issue 28 101 In Ohio, only the Supreme Court or Court of Appeals may issue a writ of prohibition to an inferior court.102 103 While the Constitution provides that circuit courts “shall have such appellate jurisdiction as may be provided by law”104, it is the civil rules promulgated by the Supreme Court which vest this supervisory power in circuit courts.105

The Court of Appeals has extensive experience applying the well settled precedents governing relief in the nature of mandamus and prohibition. Most circuit judges have very little, if any, experience with such proceedings. Moreover, the judges of the Court of Appeals are further removed from the district judges than are circuit judges, both institutionally and geographically. Both judicial economy and consistent application of the law favor vesting jurisdiction over petitions for such writs against district judges in the Court of Appeals. T

he committee promulgating the new rules of appellate procedure should consider vesting jurisdiction over writs against district judges in the Court of Appeals. 106 it would seem that the relative importance of issues presented by a motion for discretionary review would be a situation in which amicus filings could be considerably helpful to the Court. For example, in a recent case the Court of Appeals issued a stay pending a landowner’s appeal of a utility’s right to take in an eminent domain action.107 The utility filed a motion for discretionary review of the stay.108

The potential for costly delay in projects approved by the Public Service Commission resulting from such stays made the order an issue of great significance to all major utilities doing business in Kentucky. Consequently, an amicus brief signed by counsel for ten regulated utilities was tendered to the Court with a motion for leave to file it.109 It was returned, unfiled, with a clerk’s notice stating that it was an “unauthorized” filing. 110 While the utility’s motion for discretionary review obviously made the point that the issue was of industry-wide importance, the credibility of that argument would clearly have been bolstered if the amicus curiae filing had been accepted.

And one can easily envision other situations in which the significance of the issues presented for review could be emphasized for the Court by permitting an amicus filing in support of a motion for discretionary review. 112 an amicus curiae brief in support of, or in opposition to, a petition for a writ of certiorari. Likewise, Ohio rules specifically authorize the filing of amicus curiae memoranda in support of, or in opposition to the Ohio Supreme Court granting review of a lower court decision, and leave of court is not required.113 Indiana’s appellate rules combine amicus filings on jurisdiction and the merits into a single rule, which requires leave of court.114 See sections 110 and 111, KY. CONST., ratified on November 4, 1975, as part of what is popularly referred to as the Judicial Article of the Constitution of Kentucky (“Judicial Article”). CR 73.02(2) (effective January 1, 1985); see also Ready v. Jamison, 705 S.W.2d 479 (Ky. 1986). Fischer v. Fischer, 348 S.W.3d 582, 591-97 (Ky. 2011) (quoting KENTUCKY APPELLATE PRACTICE § 11:5 (2006)). See, e.g., OHIO R. APP. P. 3(D). Kentucky Rules of Court, 1974 Desk Copy, p. 142 (West Publ’g Co. 1974) (copy on file in Louisville library of Frost Brown Todd LLC). Kentucky Rules of Court, 1976 Desk Copy, p. 141 (West Publ’g. Co. 1976) (copy on file in Louisville library of Frost Brown Todd LLC). The new 1976 rules changed the nomenclature to Rules of Appellate Procedure. See Kentucky Rules of Court, 1976 Desk Copy, p. 333 (West Publ’g Co. 1976). T

The appellate rules were incorporated into CR 76 by rules changes effective January 1, 1978. See Kentucky Rules of Court, 1978 Desk Copy, p. 159 (West Publ’g Co. 1978) (copy on file in Louisville library of Frost Brown Todd LLC). A committee chaired by Justice Lisabeth Abramson is presently drafting a new set of rules of appellate procedure, continuing a project commenced by then-Chief Judge Sara Combs. Kentucky Rules of Court, 1976 Desk Copy, p. 344 (West Publ’g Co. 1976). The statement of appeal has been replaced by the prehearing statement. See CR 76.03(4). For the convenience of the clerks and staff attorneys, the statement must identify each party and its counsel. However, defects in the prehearing statement are not jurisdictional. Crossley v. Anheuser-Busch, Inc., 747 S.W.2d 600 (Ky. 1988). Id. at 297. Id. Id. at 299. Id. at 297. See, e.g., Fed. R. App. P. 3(d)(1). City of Devondale v. Stallings, 795 S.W.2d 954 (Ky. 1990). Lassiter v. Am. Express Travel Related Serv. Co., 308 S.W.3d 714 (Ky. 2010). In Commonwealth ex rel. Armstrong v. Collins, 709 S.W.2d 437 (Ky. 1986), the Court held that the legislature has the authority under section 15 of the Kentucky Constitution to suspend substantive statutes for the biennium in the budget. The legislature exercises that power with provisions in the budget that say: “notwithstanding” a particular statute; hence, in Capitol jargon, suspensions of statutes are known as “notwithstandings.” The author argued the cause for Gov. Collins in that case. Blackburn v. Blackburn, 810 S.W.2d 55 (Ky. 1991). Id.

Significantly, that same term the Supreme Court reaffirmed that the doctrine of strict compliance continues to govern statutory appeals. Louisville Gas & Elec. Co. v. Hardin & Meade County Prop. Owners for Co-Location, 319 S.W.3d 397 (Ky. 2010). The author argued the cause for the prevailing party in both cases. Id. (quoting Nelson County Bd. Of Educ v. Forte, 337 S.W.3d 617, 616 (Ky. 2011) (quoting City of Devondale, 795 S.W.2d at 957). Id. at 956. Id. at 957. Id. at 958. Id. Id. Id. at 958. 885 S.W.2d at 949-50 (italics in original) (quoting Manly v. Manly, 669 S.W.2d 537, 539 (Ky. 1984)); accord Beard v. Commonwealth ex rel. Shaw, 891 S.W.2d 382 (Ky. 1994). Crossley, 747 S.W.2d at 601. Id. Ready v. Jamison, 705 S.W.2d at 482. Crossley, 747 S.W.2d at 601. Ready, 705 S.W.2d at 482. See, e.g., IND. R. APP. P. 39; OHIO R. APP. P. 7A; see generally AM. BAR ASS’N, SUPERSEDING AND STAYING JUDGMENTS, A NATIONAL COMPENDIUM (2007). Bella Gardens Apartments, Ltd. v. Johnson, 642 S.W.2d 898, 900 (Ky. 1982). Id. (“The authority of an appellate court to grant intermediate relief is derived from CR 65 and CR 76.33.”). CR 76.36(4) also authorizes “intermediate relief” when an original action is pending in the Court of Appeals or the Supreme Court. Green Valley Envtl. Corp. v. Clay, 798 S.W.2d 141 (Ky. 1990). Russell County, Ky. Hosp. Dist. Health Facilities Corp. v. Ephraim McDowell Health, Inc., 152 S.W.3d 230 (Ky. 2004). Elk Horn Coal Corp. v. Cheyenne Res., Inc., 163 S.W.3d 408 (Ky. 2005). Taustine v. Fleig, 374 S.W.2d 508, 509 (Ky. 1964). (“An appeal does not stay a judgment.”). Id. at 900. Id. KY. R.C.A. 1.179 (1974). 33 Id. Id. at 144. Id. at 233 (citing Common Cause of Kentucky v. Commonwealth, 143 S.W.3d 634 (Ky. App. 2004)). Id. at 231. Id. at 233 (italics in original). Id. at 234 (italics in original). Id. at 235 (italics in original) (internal citation omitted). Id. at 235-36 (italics in original) (emphasis added) (internal citation omitted). Coleman v. PACCAR, Inc., 424 U.S. 1301, 1304 (1976) (italics in original).

Coalition to Defend Affirmative Action v. Granholm, 473 F.3d 237, 244 (6th Cir. 2006) (“Our standard for reviewing a motion for a stay pending appeal is . . . [m]uch like the standard for determining whether to issue a preliminary injunction . . . .”). Ohio ex rel. Celebrezze v. Nuclear Regulatory Comm’n, 812 F.2d 288, 290 (6th Cir. 1987). Stephens v. Goodenough, 560 S.W.2d 556 (Ky. 1977); see also Gilliece v. City of Covington, 565 S.W.2d 451 (Ky. 1978). Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 808, 810-811 (Ky. 2004). 593 S.W.2d at 515 (quoting KY. CONST. §§ 110(2)(a), 111(2)). Id. Id. (emphasis added). Sweasy v. King’s Daughters Mem’l Hosp., 771 S.W.2d 812 (Ky. 1989). Id. at 817 (emphasis added). Doe v. Potter, 225 S.W.3d 395, 399 (Ky. App. 2006). Grange Mut. Ins., 151 S.W.3d at 809. Lexington Pub. Library v. Clark, 90 S.W.3d 53 (Ky. 2002). Id. at 56. Id. at 62 (quoting Southeastern United Medigroup Inc v. Hughes, 952 S.W.2d 195, 200 (Ky. 1997)). Sweasy, 771 S.W.2d at 817. Adams v. Karem, No. 2010-CA-001551-MR and No. 2010-CA-001609-MR, slip op. (Ky. App. Sept. 23, 2010).

By treating the lawyers’ misnomer as controlling, the Court of Appeals deviated from the maxim that the law will “not . . . permit the formal designation or name of a motion to control the rights of the parties where the nature of the relief sought is apparent and the substantive rights of the parties may be properly determined.” Cargo Truck Leasing Co. v. Piper, 394 S.W.2d 472, 474 (Ky. 1965); accord, Griffith v. Schultz, 609 S.W.2d 125, 126 (Ky. 1980) (“However, the nature and legal effect of a pleading will be determined by its substance rather than by mere linguistic form.”). Both a motion for discretionary review and notice of appeal were filed because the circuit court had consolidated Adams’s appeal from district court with her original action in circuit court. The author was appellate counsel for Adams. 725 S.W.2d 865 (Ky. App. 1987), overruled by Bates v. Connelly, 892 S.W.2d 586 (Ky. 1995). Id. at 867. 34 Id. at 588. Ash v. Security Nat’l Ins. Co., 574 S.W.2d 346, 349 (Ky. App. 1978). Adams v. Karem, slip op. at 13. Id. KY. CONST. §§ 110, 111. IND. R. P. for Original Actions 1(a). MARK P. PAINTER & DOUGLAS R. DENNIS, OHIO APPELLATE PRACTICE § 10:48 (2007-2008 ed.) (“An action in prohibition involving any court inferior to the courts of appeals may be brought in the Supreme Court or the courts of appeals, since both have concurrent original jurisdiction in prohibition. . . . No other courts have jurisdiction in prohibition.”). KY. CONST. § 109. KY. CONST. § 112(5). See CR 76.36(1) (“Original proceedings in an appellate court may be prosecuted only against a judge or agency whose decisions may be reviewed as a matter of right by that appellate court.”).

Ryan v. Commodity Futures Trading Comm’n, 125 F.3d 1062, 1063 (7th Cir. 1997) (“The vast majority of amicus curiae briefs are filed by allies of litigants and duplicate the arguments made in the litigants’ briefs, in effect merely extending the length of the litigant’s brief. Such amicus briefs should not be allowed. They are an abuse. The term ‘amicus curiae’ means friend of the court, not friend of a party.”). But that criticism is largely inapplicable to amicus filings at the discretionary review stage where the issue is whether the case is sufficiently important to merit further appellate review. Jent v. Ky. Util. Co., 2008-CA-001565, 2008-CA-001566, 2008-CA-001567 (Ky. App. May 6, 2009) (Order granting Mot. for Intermediate Relief). Ky. Util. Co. v. Jent, 2009-SC-000379-D (Ky. June 23, 2009). The utility also filed a motion for interlocutory relief pursuant to CR 76.33 and an original action pursuant to CR 76.36. The case presented the issues discussed above in the section advocating promulgation of a new rule to govern the procedure for obtaining review by the Supreme Court of stays issued by the Court of Appeals. Ky. Util. Co. v. Jent, 2009-SC-000379-D (Ky. July 8, 2009) (Motion for Leave to File Amici Curiae Brief in Support of Kentucky Utility Company’s Motion for Discretionary Review). Ky. Util. Co. v. Jent, 2009-SC-000379-D (Ky. Nov. 18, 2009) (Order Denying Discretionary Review). Jent v. Ky. Util. Co., 332 S.W.3d 102 (Ky. App. 2010); see also N. Ky. Port Auth., Inc. v. Cornett, 625 S.W.2d 104 (Ky. 1981). The author argued the cause for the utility in the Court of Appeals. SUP. CT. R. 37.2(a). OHIO S. CT. PRAC. R. 3.5 (“An amicus curiae may file a jurisdictional memorandum urging the Supreme Court to accept or decline to accept a claimed appeal of right or a discretionary appeal. Leave to file an amicus memorandum is not required.”). IND. R. APP. P. 41.

By: Sheryl G. Snyder*
*
Those who have practiced in Kentucky’s appellate courts during the last four decades have witnessed several positive developments in appellate practice, particularly the creation of the intermediate Court of Appeals.

For example, the Supreme Court recently cited commentators’ criticism of a “trap for the unwary,” and overruled prior decisions requiring a cross-motion for discretionary review to preserve arguments for affirming the decision under review.

Requiring notices of appeal to name each and every appellee is an unnecessary trap for the unwary.

CR 73.03(1) contains a requirement unique to Kentucky – that a notice of appeal must name each and every appellee. The parallel federal rule does not include that requirement.

Interestingly, Kentucky did not include that requirement, either, prior to July 1, 1976. The requirement of naming each appellee was added when the rules were amended with the 2
advent of the intermediate Court of Appeals after passage of the Judicial Article. The prior rule, CR 73.03, mirrored the federal rule and required only that “[t]he notice of appeal shall specify the parties taking the appeal . . . .”

Prior to the Judicial Article, the appellate rules – denominated Rules of the Court of Appeals Relating to Practice and Procedure (Ky. R.C.A.) – were separate from the Rules of Civil Procedure.

The newly amended rule was first considered by the then-new, intermediate Court of Appeals sitting In the consolidated companion case, the Court held the new rule would not apply until 3
January 1, 1977, to give lawyers more time to become familiar with the amendments promulgated in 1976. Presaging the advent of substantial compliance a decade later, the Court invoked “the new policy of Section 115 of the Kentucky Constitution that there shall be as a matter of right one appeal in every case.”

Unfortunately, however, the Court offered a rationale for the new rule: “In order that the court can determine who is entitled to the additional ten days to cross-appeal allowed by CR 74 . . . .”

The unfortunate City of Devondale’s appeal and that the failure to specifically name them as appellees in the notice of appeal was therefore a jurisdictional defect.

In the final analysis, For example, in When Judge Wingate held the traveler’s check provision contravened section 51 of the Kentucky Constitution, the Budget Director appealed. The Treasurer’s nonactive status in the litigation gave rise to an alleged defect in the notice of appeal which almost cost the Budget Director her right to obtain appellate review of a decision declaring unconstitutional an important provision in the biennial budget.

As noted, CR 73.03(1) provides that the “notice of appeal shall specify by name all appellants and all appellees (‘et al.’ and ‘etc.’ are not proper designation of parties) . . . .” 5
Implementing that rule, Official Form 22 directs that the notice of appeal shall state “[t]he name[s] of the appellee[s] against whom this appeal is taken . . . .” The Budget Director’s notice of appeal therefore accurately stated:

The name of the Appellee against whom this appeal is taken is American Express Travel Related Services Company, Inc., the plaintiff in this proceeding.

The Commonwealth of Kentucky, Kentucky Department of Treasury, Jonathan Miller, Treasurer, was also a defendant in this proceeding, but is not a party against whom this appeal is taken.

Contending that this choice of words divested the appellate courts of jurisdiction over the Treasurer – whom American Express contended was an indispensible party to the appeal under
In a 7-0 decision, the Supreme Court reversed. As counsel for the Budget Director, I will concede that the Supreme Court was correct when it noted that “the notice contained multiple imperfections” and was not “a model pleading.”

However, the Court was also correct in holding that the notice was sufficient to invoke the jurisdiction of the Court of Appeals over both the Budget Director’s appeal and the Treasurer. Reiterating its adherence to “a rule of substantial compliance in regard to notices of appeal” and holding “that the principal objective of a pleading is to give fair notice to the opposing party,” the Court held that the identification of the Department of the Treasury in both the caption and body of the notice of appeal “gave fair notice to American Express that the Budget Director was naming the Department as a party to the appeal, …

In view of these decisions, it is also worth reconsidering whether dissenting Justice Leibson was correct when he argued that In The City of Devondale argued that both the City of Louisville and Jefferson County had actual notice of the appeal because they were timely served copies of the notice of appeal and that the notice therefore substantially complied with CR 73.01 pursuant to CR 73.02(2), the rule of substantial compliance with appellate rules.

The Supreme Court adopted the Court of Appeals’ rationale that the City of Louisville and Jefferson County were indispensible parties to Devondale’s appeal because they were parties to a final judgment declaring Devondale’s annexation void and Devondale could not obtain a reversal of the judgment if Louisville and Jefferson County were not parties to Devondale’s appeal. Of course, all that begged the question whether the timely filed notice, served on counsel for those parties, substantially complied with CR 73.03 despite not expressly naming Louisville 8
and Jefferson County as appellees in the text of the notice.

The Supreme Court reasoned that a timely filed notice of appeal is essential to invoking the jurisdiction of the appellate court, which is why a timely notice of appeal is an exception to the rule of substantial compliance:

The plain language of CR 73 supports this view. CR 73.02(2) singles out the timely filing of a notice of appeal as being different from other rules relating to appeals and mandates that “[t]he failure . . . to file notice of appeal within the time specified in this Rule . . . shall result in a dismissal of the appeal.”

The dissent specifically disagreed with the majority’s interpretation of that portion of CR 73.02(2). Justice Leibson correctly stated that “[n]ew CR 73.02(2) specifies that the only defect in the notice of appeal which is automatically fatal to the appeal is ‘the failure of a party to file notice of appeal within the time specified.’”

As Justice Leibson carefully wrote in Notices of appeal merely invoke the court’s jurisdiction. And the timely filing of those jurisdiction-invoking pleadings are exceptions to the doctrine of substantial compliance as a result of the policy decision made by the Supreme Court when promulgating CR 73.02(2), not because they are “jurisdictional”:

Contrary to the Court of Appeals’ opinion, filing a notice of appeal in compliance with CR 73.02 is not a matter of jurisdiction, but only of procedure.

To be precise, losing litigants are constitutionally vested with a right of appeal and appellate courts are constitutionally vested with jurisdiction. Strictly speaking, the notice of appeal is

The battle between strict compliance with the rules of appellate procedure to avoid dismissal . . . and substantial compliance . . . is now over.

The objective of the doctrine of substantial compliance is “deciding cases on the merits, and seeing to it that litigants do not needlessly suffer the loss of their constitutional right to appeal.”

Unlike the untimely notice of appeal in timely filed – and having been served upon counsel for the parties whose names were negligently omitted from the notice of appeal by counsel for the appellants – the policy of “seeing to it that litigants do not needlessly suffer the loss of their constitutional right to appeal”

In sum, the court should simply amend CR 73.02 to reinstate the pre-1976 version of that rule – which is also the rule in federal and other state courts – by deleting the requirement that all appellees be named in the notice of appeal. That would eliminate a trap for the unwary that serves no useful substantive purpose in appellate practice and procedure. 11
The rules should expressly prescribe the procedure for obtaining review by the Supreme Court of a stay pending appeal issued by the Court of Appeals pursuant to CR 76.33.

Unlike the federal appellate rule Otherwise, however, the Kentucky rules mention “a stay pending appeal” only in CR 75.10, the rule pertaining to the record for motions filed before the full record on appeal has been transmitted to the Clerk of the Court of Appeals. Of course, CR 76.33 authorizes “intermediate relief” when an appeal is pending, and “intermediate relief” includes a stay pending appeal. original action pursuant to CR 76.36,

It is axiomatic that one need not supersede a judgment as a prerequisite to appealing from the judgment.

The Supreme Court first held that the supersedeas bond could not effect a stay of an injunction pending appeal:

[T]he provisions of CR 62.03 and CR 73.04 for effecting a stay of judgment by the execution of a supersedeas bond do not apply to a judgment granting or denying injunctive relief. . . . CR 65.08 is exclusive authority under which a stay may be had after a final judgment granting or denying injunctive relief has been appealed.53 13

The Court then explained that CR 76.33 is the rule authorizing an appellate court to stay a non-money judgment:

CR 62.04, which provides that a trial court may stay the effect of a partial judgment made final under CR 54.02, does not authorize an appellate court to do anything. The authority of an appellate court to grant intermediate relief is derived from CR 65 and CR 76.33.54
CR 76.33 was part of the new rules promulgated after passage of the Judicial Article, effective January 1, 1978. Prior to the promulgation of CR 76.33, a motion “for a stay pending appeal” was included in CR 75.10 (as it is today) and referenced in appellate Rule 1.170

In Green Valley sought review by the Supreme Court pursuant to both CR 76.33 and CR 65.09, and also filed an original action pursuant to CR 76.36. The Supreme Court held that only CR 76.36 could be used to obtain review by the Supreme Court of the stay pending appeal issued by the Court of Appeals pursuant to CR 76.33.

First, the Supreme Court held that a stay issued pursuant to CR 76.33 is not an order granting injunctive relief that may be reviewed pursuant to CR 65.09: 14

Although the effect of the Court of Appeals’ action in granting a stay of further administrative procedures herein may have been somewhat akin to the granting of injunctive relief, this Court is without jurisdiction to grant relief pursuant to CR 65.09. The specific mandate of the rule states that such action arises only when a party is affected by an order of the Court of Appeals in a proceeding under CR 65.07, CR 65.08 or in a habeas corpus proceeding. No such injunctive relief pursuant to CR 65.07 or CR 65.08 or proceeding for a writ of habeas corpus having been so filed, movant’s motion for interlocutory relief pursuant to CR 65.09 is denied . . . .

The Supreme Court also held that the stay issued by the Court of Appeals was an interlocutory order, not a final judgment, and therefore dismissed Green Valley’s purportedly matter-of-right appeal. The Court had previously denied Green Valley’s motion for relief under CR 76.33 and therefore did not expressly decide whether CR 76.33 was also unavailable, but that would seem to be a logical extrapolation from the dismissal of the matter-of-right appeal because CR 76.33 seems to contemplate a motion filed in the court in which the appeal is pending. The literal language of CR 76.33 does not encompass Supreme Court review of a decision by the Court of Appeals to issue a stay under that rule.

Third, the Supreme Court held that it could and would review the stay issued by the Court of Appeals under the auspices of the original action filed pursuant to CR 76.36. The inevitable consequence of that holding, however, was to apply the extremely narrow standards for obtaining a writ of prohibition, rather than to decide whether the Court of Appeals had correctly applied the standards for issuing a stay pending appeal. Noting the obvious point that “the Court of Appeals was proceeding within its jurisdiction,” the Supreme Court held that “Green Valley has the burden to prove it is without an adequate remedy by way of appeal and that it will suffer great and irreparable injury without extraordinary relief.”

In addition to applying the standard for a writ of prohibition, rather than determining whether the Court of Appeals had abused its discretion, the decision that a litigant may use CR 15
76.36 to obtain review by the Supreme Court of a stay issued by the Court of Appeals makes such review a matter-of-right, in contrast to CR 65.09, which provides that in a case involving the grant or denial of injunctive relief, “[t]he decision [by the Supreme Court] whether to review such order [by the Court of Appeals] shall be discretionary with the Supreme Court.”

As noted above, the holding in The lessor filed an original action in the Supreme Court under CR 76.36 and a motion for intermediate relief under CR 76.36(4), as well as a matter-of-right appeal under CR 76.36(7) and a motion under CR 65.09. The Supreme Court denied the motions filed under CR 76.36(4) and CR 65.09, respectively, but held that the “petition for a writ of prohibition filed under CR 76.36″ was an appropriate vehicle for review by the Supreme Court of “the In the Supreme Court’s view, the dispositive question was “whether an original action is
The argument could be raised that because CR 76.36(7)(a) allows for a direct, matter of right appeal of decisions in original actions at the Court of Appeals to this Court, then allowing a separate original action in this Court is unnecessary or somehow contrary to the spirit of CR 76.36(7)(a). . . . While that is certainly the appropriate remedy once the Court of Appeals has finally ruled on a petition for a writ of prohibition, what could be done if the Court of Appeals 16
somehow acted outside its jurisdiction while an original action was still pending before that court? The obvious and appropriate remedy in such a case would be a writ of prohibition from this Court, but such a writ can only be obtained by an Proceeding to the merits of the motion for intermediate relief, the Court cited As discussed above, CR 76.36(1) allows that an original action may be brought in ”

Read literally, that portion of the opinion would overrule original actions, then an order issued by the Court of Appeals pursuant to CR 76.33 would no longer be reviewable by the Supreme Court via an original action – …

However, the statement in The practice in the Supreme Court of the United States is that a single Justice may decide a motion to dissolve a stay issued by a federal circuit court of appeals despite the fact that no statute comparable to 28 U.S.C. § 1253 (expressly providing for Supreme Court review on preliminary injunctions) expressly authorizes dissolution of a stay. As Justice Rehnquist wrote in the course of reviewing such a stay: 18

[A] Circuit Justice has jurisdiction to vacate a stay where it appears that the rights of the parties to a case pending in the court of appeals, which case could and very likely would be reviewed here upon final disposition in the court of appeals, may be seriously and irreparably injured by the stay, and the Circuit Justice is of the opinion that the court of appeals is demonstrably wrong in its application of accepted standards in deciding to issue the stay.

A narrower rule would leave the party without any practicable remedy for an interlocutory order of a court of appeals …

That practice should be incorporated into a new Kentucky rule.

The model is CR 65.09 which provides that further review in a case involving injunctive relief is discretionary with the Supreme Court and the standard for review is appropriately very high:
The decision whether to review such order shall be discretionary with the Supreme Court. Such a motion will be entertained only for extraordinary cause shown in the motion.

CR 65.09 is also analogous because the standards for issuing a stay pending appeal are very similar to the standards for issuing a temporary injunction,
In addition to incorporating a new rule patterned after Rule 8 of the Federal Rules of Appellate Procedure, including review by the Supreme Court patterned after CR 65.09, the committee should consider incorporating into the body of the rule the four-prong standard for issuing a stay of a nonmonetary judgment pending appeal because the caselaw in Kentucky is unclear as to the standard and that lack of clarity is exacerbated by the Supreme Court’s decision 19
that a stay issued by the Court of Appeals is reviewed under the standard for obtaining a writ of prohibition, not the standard for reviewing the issuance of an injunction. Because the likelihood of success prong for a stay pending appeal is not merely presenting a substantial question, but having a strong likelihood of success on the merits of the appeal, it would be useful to the bench and bar to spell out the test in the rule rather than promulgating the rule and announcing the test months or even years later in an opinion construing the rule.

A new rule delineating the procedure for obtaining a stay pending appeal should not only enunciate the criteria to be applied by the Court of Appeals when deciding whether to grant the stay, but should also provide that further review by the Supreme Court would be a discretionary decision by the Supreme Court, consistent with the approach reflected in CR 65.09 and the
Appeals to the Supreme Court in original actions should be discretionary rather than matter-of-right.

The Supreme Court should also reconsider CR 76.36(7), which provides for a matter-of-right appeal to the Supreme Court in original actions commenced in the Court of Appeals.

A petition for relief in the nature of mandamus or prohibition is actually a form of interlocutory appellate review of a decision of the trial court, similar to appellate review of an 20
interlocutory decision granting or denying injunctive relief. Indeed, the source of the appellate courts’ jurisdiction to grant writs of mandamus or prohibition is the All Writs Clause in the Constitution, which empowers the Court of Appeals to issue a writ in aid of its future appellate jurisdiction over the case from which the petition arises. And a requirement for such relief (if the trial court has jurisdiction) is that subsequent appellate review would be inadequate, justifying interlocutory appellate review.

In the simplest of terms, both courts Section 115 guarantees one appeal as a matter of right “in all cases . . .” A petition for a writ is not truly a separate “case,” but is an appellate proceeding seeking interlocutory appellate relief from an order issued in a circuit court “case.” Section 115 therefore does not require the Supreme Court to hear an appeal in every “original action” commenced in the Court of Appeals. Moreover, section 110(2)(b) limits the Supreme Court’s mandatory jurisdiction to certain appeals 21 in criminal cases and expressly provides that “[i]n all other cases, criminal and civil, the Supreme Court shall exercise appellate jurisdiction as provided by its rules.” Section 110(2)(b) warrants interpreting section 115 as permitting the Supreme Court to decide in its discretion whether to review decisions by the Court of Appeals granting or denying petitions for writs, especially since…

The Court recognized the reality that petitions for writs are interlocutory appellate review when it added subsection 8 to CR 76.36 in 1985, which states that the trial judge is a nominal party and that the adverse party in circuit court is the “real party in interest” in writ proceedings in the appellate courts. In An original action in the Court of Appeals, such as this seeking a writ of mandamus or prohibition ordering a trial judge to grant or deny interlocutory relief
Recognizing this problem, in 1985 we amended the Civil Rules, CR 76.36(2) and (8), to provide that the “real party in interest” as well as the “party (judge) against whom relief is sought” can “file a response” to a petition seeking prohibition or mandamus against a trial judge. We define “real party in interest” in this Rule as “any party in the circuit court action from which the original action 22 arises who may be adversely affected by the relief sought pursuant to this Rule.” The real party in interest in the trial court is the person who will be adversely affected if the Petition is granted; he may respond and defend even though the trial judge does not. It is this party and not the trial judge who has an interest in perfecting the appeal when the writ of prohibition or mandamus is granted.

In federal appellate courts, the trial judge is prohibited from addressing the petition “unless invited or ordered to do so by the court of appeals.”

The misapprehension that the Court of Appeals is sitting as “a trial court” in “a separate civil action” arises, in part, from the terminology “original action.”

“applies only to actions . . . within the original jurisdiction of the Supreme Court under Article IV, Section 2 of the Ohio Constitution.”

In sum, the Supreme Court should overrule Gaps in the rules applicable to appeals from district court to circuit court create traps for the unwary.

Even experienced appellate practitioners rarely handle appeals from district court. Those proceedings are more often handled by the district court practitioners who are familiar with the substantive law applicable to matters within the jurisdiction of district courts. It might therefore surprise even seasoned appellate advocates to learn that the ordinary civil rules govern much of appellate practice in circuit court, rather than the rules of appellate procedure found in CR 73 through CR 76.

For example, in a recent, unpublished decision, the Court of Appeals dismissed a matter-of-right appeal from the denial of relief in an original action in the circuit court, holding that a motion under CR 65.07 was the exclusive avenue for appealing the circuit court’s denial of relief.
filed in circuit court. The next day, counsel refiled their petition in circuit court, seeking the exact same relief they had sought in the Court of Appeals, namely, an order prohibiting the district judge from taking certain action. But since they were now in circuit court, the lawyers slightly modified the wording of the petition to refer to a restraining order, citing CR 65. When relief was denied by the circuit court, an appeal was taken as a matter-of-right pursuant to CR 76.36(7). But the Court of Appeals held that CR 65.07 was the exclusive avenue for obtaining appellate review of the circuit court’s decision, and that the time had expired for filing such a motion. The Supreme Court denied discretionary review.

In that same case, the Court of Appeals dismissed as untimely a motion for discretionary review,
These rulings demonstrate the traps for the unwary created by gaps in the civil rules resulting from the failure of the rules to expressly state how and when they apply when the appeal is in circuit court rather than the Court of Appeals. The new rules of appellate procedure being drafted by Justice Abramson’s committee could remedy these problems.

CR 72 – entitled “Appeals from district courts” – relates to matter-of-right appeals from district court to circuit court. But Rule 72 covers only the manner of perfecting such an appeal. CR 72 stops there, and is silent as to what occurs after the counterstatement of appeal is filed by the appellee. Appellate counsel must look elsewhere in the rules for guidance after that step in the appellate process. 25

Looking elsewhere is authorized by CR 73.01(1), which expressly provides that “Rules 73, 74, 75 and 76 apply to all appeals in civil actions except as otherwise provided in Rule 72 . . . .” The practitioner would assume that CR 73.01(1) was intended to subsume most, if not all, of the procedural rules set forth in CR 76. But the Court of Appeals and Supreme Court have held otherwise.

Literally, CR 76.20(2)(a) provides that a “motion for discretionary review by the Court of Appeals of a circuit court judgment in a case appealed from the district court shall be filed within 30 days after the date on which the judgment of the circuit court was entered, subject to the provisions of Rule 77.04(2) and Criminal Rule 12.06(2)”, which are the rules pertaining to the clerk making a notation in the record of the date the judgment was served upon counsel for the parties. In contrast CR 76.20(2)(b) expressly provides that the time for filing a “motion for discretionary review by the Supreme Court of a Court of Appeals decision” is suspended by “a timely petition [for rehearing] under Rule 76.32 . . . .” Likewise, CR 73.02(1)(e) literally provides that a Rule 59 motion suspends the time for filing a notice of appeal and does not 26
mention motions for discretionary review. The Court of Appeals therefore held in
But CR 76.20(2)(a) expressly incorporates CR 77.04(2) as the trigger date, and a “judgment” is not a judgment for purposes of that rule until any timely filed Rule 59 motion is denied.

The practitioner could easily extrapolate from CR 73.01(1) that a petition for rehearing is the appropriate procedural vehicle. After all, “a petition for rehearing is a request by a party for an appellate court to modify or set aside its own judgment in an appeal.”
However, CR 76.32(1) literally permits a petition for rehearing to be filed only as to “an opinion of the Supreme Court or Court of Appeals . . . .” The Court of Appeals therefore held in
Whether one agrees or disagrees with the Court of Appeals decision in…

The Constitution vests jurisdiction to issue writs only in the Supreme Court and the Court of Appeals, expressly stating that each “shall have the power to issue all writs necessary in aid of its appellate jurisdiction . . . .” writs of mandamus or prohibition against inferior courts.
The circuit court is correctly described in the Constitution as “a trial court of general jurisdiction . . . .”
Amicus curiae briefs in support of motions for discretionary review should be allowed.
Under a prevailing (albeit unwritten) practice, the Kentucky Supreme Court Clerk will not accept for filing motions for leave to file an amicus curiae brief in support of a motion for discretionary review. While CR 76.12(7) provides for the filing of a brief for an amicus curiae if leave of court is granted, it is a subsection of the rule for the parties’ briefs on the merits and it therefore could logically be interpreted as being limited to amicus curiae briefs on the merits of an appeal. Moreover, CR 76.20, which prescribes the procedure for motions for discretionary review, makes no reference to filings by amici in support of (or opposition to) a grant of discretionary review. 29

Not surprisingly, then, when an amicus files a motion for leave to file a brief in support of a pending motion for discretionary review, the Clerk refuses to accept the motion for leave and returns it as “an unauthorized filing.” The Supreme Court should reconsider that unwritten policy.

While friend of court briefs on the merits are increasingly criticized as “friend of friend” briefs,
Discretionary review was denied.

Fortunately for Kentucky’s public utilities, the subsequent decision on the merits by the Court of Appeals effectively overruled the stay and reestablished the rule that public projects 30
should not be delayed by dragging out eminent domain litigation.111
In the United States Supreme Court, amicus briefs in support of petitions for certiorari are a staple for Supreme Court practitioners. The amicus briefs are often written by Supreme Court advocates with considerably more experience with certiorari practice than counsel for the parties, and amicus filings are therefore deemed useful by the Justices in deciding whether or not to grant certiorari. My partners in Indiana and Ohio tell me the practice is equally frequent in those states’ Supreme Courts. One would think that the Justices of the Kentucky Supreme Court would likewise benefit by a rule that would permit filings in support of motions for discretionary review.

The rules of the U.S. Supreme Court expressly authorize
From the standpoint of drafting new rules, a stand-alone rule governing all amicus filings – both at the discretionary review stage and the merits stage – would make the most sense to practitioners, rather than adding a subsection to CR 76.20 relating to motions for discretionary review and retaining CR 76.12(7) as to briefs on the merits. The Supreme Court could repeal CR 76.12(7) and promulgate a new, separate rule applicable to amicus filings in support of motions for discretionary review and amicus briefs on the merits of appeals. Such a rule could be patterned after U.S. Supreme Court Rule 37. 31
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4 Fed. R. App. P. 3(c)(1)(A).
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10 545 S.W.2d 296 (Ky. App. 1976).
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Conclusion

These five issues of Kentucky appellate practice and procedure are surely not the only challenges facing Justice Abramson’s committee and the Court. They are five vexing issues that this appellate advocate has encountered over the years. Hopefully, as they write the much needed rules of appellate procedure, the committee and the Court will consider:
(1) amending CR 73.02 to the pre-1976 version of that rule, eliminating the requirement of naming every appellee in the notice of appeal;
(2) adopting a new rule delineating the procedure and criteria for obtaining a stay pending appeal, and providing for discretionary review of stays by the Supreme Court;
(3) amending CR 76.36(7) to provide that further review by the Supreme Court in original actions is discretionary;
(4) encompassing appeals from district court in the rules of appellate procedure while vesting in the Court of Appeals, rather than circuit courts, jurisdiction of original actions involving district judges; and
(5) permitting amicus curiae filings in support of motions for discretionary review. 32

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19 795 S.W.2d 954.
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21 308 S.W.3d at 718.
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24 356 S.W.3d 134 (Ky. App. 2011).
25 2013 WL 646201, No. 2011-SC-000459-DG (Ky. Feb. 21, 2013).
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27 795 S.W.2d at 955.
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34 885 S.W.2d 944 (Ky. 1994).
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36 885 S.W.2d at 950 (citations omitted) (emphasis added).
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40 122 S.W.3d 585 (Ky. 2003).
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43 2013 WL 646201 at *3.
44 Fed. R. App. P. 8.
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52 642 S.W.2d at 899.
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57 798 S.W.2d at 143.
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59 152 S.W.3d 230 (Ky. 2004).
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71 593 S.W.2d 514 (Ky. 1980).
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77 Fed. R. App. P. 21(b)(4).
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84 CR 76.36(1).
85 Rules of Practice in the Ohio Supreme Court X § 1(A).
86 Fed. R. App. P. 21(a)(1).
87 Fed. R. App. P. 21(c).
88 At present, circuit courts entertain petitions seeking mandamus or prohibition against a district judge. This article argues (in the next section) that all such petitions should be filed in the Court of Appeals, not in circuit court. However, if that recommended change is not adopted, then the matter of right appeal from circuit court to the Court of Appeals would need to be considered. For the same reasons that the author favors vesting jurisdiction of petitions from district court in the Court of Appeals, matter of right appeals from circuit court decisions in original actions could remain appropriate. The better resolution of that policy question is to place the jurisdiction in the Court of Appeals.
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90 295 S.W.3d 136 (Ky. App. 2009).
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95 892 S.W.2d 586 (Ky. 1995).
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CALL FOR ETHICS RULE FOR RECUSAL OF U.S. SUPREME COURT JUSTICES

Friday, August 2nd, 2013

By Daniel Rothberg

August 1, 2013, 1:36 p.m.
Currently, all federal judges are required to obey a Code of Conduct for United States Judges. There’s just one exception: the Supremes.

For Supreme Court justices, following the code of conduct is voluntary. Or, as Chief Justice John G. Roberts Jr. put it in his 2011 year-end report, all members “consult” the rules and “in this way, the code plays the same role for the justices as it does for other federal judges.”

For several years now there have been legislative efforts to require that high court justices adhere to the same rules set forth for all other federal judges; and today, a group of Democratic legislators are behind a renewed effort to address this disparity.

In his year-end report, Roberts lays out some arguments against such a move. First, the Supreme Court is organized differently than other federal courts; for example, there is no replacement for a justice who recuses him or herself from a case. Additionally, Roberts argues that the Supreme Court is exempt because a code of conduct can apply only to courts established by Congress.

A spokeswoman for Rep. Louise Slaughter (D-N.Y.), one of the legislators introducing the Supreme Court Ethics Act of 2013, counters Roberts’ second point. She argues, in an article in Mother Jones, that Congress can regulate court administration and that such an action would hardly be unconstitutional.

Constitutionality aside, the fact remains that many justices have engaged in activities that would not be permitted under the ethics code required of all other federal judges, as the Mother Jones article reports:

In 2011, for instance, [Justice Clarence] Thomas and Justice Antonin Scalia headlined a fundraiser for the conservative legal group, the Federalist Society. Ordinary federal judges couldn’t have done that. Both also have attended hush-hush political events hosted by Koch Industries that are billed as efforts “to review strategies for combating the multitude of public policies that threaten to destroy America as we know it.” Koch Industries is owned by the right-wing Koch family that’s been dumping millions of dollars in the Republican politics, particularly after the court decided in Citizens United to allow unlimited corporate money into the electoral system. The code also requires federal judges to recuse themselves from cases in which a spouse or family member has a financial interest, a rule that might apply to the Thomases.

The last citation is a reference to the voices calling for Thomas to recuse himself from proceedings involving the Patient Protection and Affordable Care Act because his wife, a lobbyist and attorney, might have had a financial stake in the outcome. Under the current structure, there is no way to appeal a recusal decision — a decision, it’s worth noting, that is also not governed by any specific guidelines.

It’s unlikely that the new legislation will pass in Congress. And, even if it does, the Mother Jones article accurately points out that “it’s possible that the court could put up a fight — a fight that might ultimately have to be decided by … the Supreme Court.”

But perhaps the introduction of Supreme Court ethics legislation doesn’t need to become law to achieve many of its goals. The bill could be beneficial merely by drawing public attention to the issue. The fact that justices are not required to adhere to the same standards as all other federal court judges probably won’t play well with a public already giving the court low marks.

This might encourage the court to voluntarily implement elements of the code of conduct as it relates to recusal and conflicts of interest. Roberts has a point when he argues that the code would have a different effect on a court that can’t simply replace a recused justice. But that doesn’t mean the court shouldn’t, at the very least, have guidelines on the subject that recognize the differences but ultimately achieve the same goals. As The Times’ editorial board argued in 2011, “when it comes to ensuring public confidence, voluntary compliance is no substitute for mandatory adherence.”

NORTHERN KY. BAR OFFERS CLE AND SOCIAL OUTING

Thursday, August 1st, 2013

Immigration Law 101

o September 26, 2013

o LOCATION: The Bank of Kentucky ~ 7900 Tanner Gate Lane, Florence, KY 41042

o 8:00 a.m. – 12:30 p.m. ~ including continental breakfast

o Cost:

o NKBA Members

· $50 with flash drive

· $75 with paper material (cannot register online for paper material)

o Non-Members

· $75 with flash drive

· $100 with paper material (cannot register online for paper material)

· 3.0 hours pending in KY, OH & IN
◦To view agenda with topics and speakers visit http://www.nkybar.com/resources/Immigration%20Law%20Agenda%20Including%20Topics%20and%20Presenters.pdf
◦To register with check or for paper version of material please include form https://www.nkybar.com/resources/CLE%20Registration%20Form.pdf and mail to NKBA, 529 Centre View Boulevard, Crestview Hills, KY 41017
◦Moderated by attorney Deilfilia Diaz
◦Continental breakfast and lunch included

· CLE – Outsourcing ~ A New Business Model for Law Firms or New Operating Options for Law Firms of Today

o October 8, 2013

o LOCATION: Summit Hills Country Club – 236 Dudley Road, Crestview Hills, KY 41017

o 4:00 – 5:00 p.m. and Free Social Hour 5:00 – 6:00 p.m. Compliments of ProTem Legal Solutions

o 1.0 CLE Hour pending in KY, OH & IN

o Cost:

o $25 NKBA Members

o $50 Non-Members

o To view agenda with topics and speakers visit http://www.nkybar.com/resources/Agenda%20-%20Legal%20Outsourcing%20CLE%2010.08.13.pdf

o To register with check or for paper version of material please include form https://www.nkybar.com/resources/CLE%20Registration%20Form.pdf and mail to NKBA, 529 Centre View Boulevard, Crestview Hills, KY 41017

· CLE – Family Law CLE ~ FURTHER INFORMATION TO COME

o October 25, 2013

o LOCATION: The Madison Event Center in Covington, KY
◦Cost: ◦NKBA Members •$175 with flash drive
•$200 for paper material (cannot register online for paper material)

◦Non-Members •$225 with flash drive
•$250 for paper material (cannot register online for paper material)

◦To register with check or for paper version of material please include form https://www.nkybar.com/resources/CLE%20Registration%20Form.pdf and mail to NKBA, 529 Centre View Boulevard, Crestview Hills, KY 41017

o Hours pending in KY, OH & IN

o Moderated by attorney Jan Shaw
◦Continental breakfast and lunch included

· CLE – Perfecting the Practice Criminal Law CLE

Sponsored by: Gene Weaver & Associates, Central Bank & Trust Company & Chik-fil-A

o November 1, 2013

o 8:00 a.m. – 5:00 p.m.

o LOCATION: Central Bank & Trust Company in Florence, KY
•Cost: ◦NKBA Members ◦$175 with flash drive
◦$200 for paper material (cannot register online for paper material)

◦Non-Members ◦$225 with flash drive
◦$250 for paper material (cannot register online for paper material)

o To view agenda with topics and speakers visit https://www.nkybar.com/resources/4Criminal%20Law%20CLE%20Agenda%20with%20Topics%20&%20Speakers%2011.01.13.pdf

o To register with check or for paper version of material please include form https://www.nkybar.com/resources/CLE%20Registration%20Form.pdf and mail to NKBA, 529 Centre View Boulevard, Crestview Hills, KY 41017

o Hours pending in KY, OH & IN

o Moderated by attorney Jason Reed

o Continental breakfast and lunch included

SCHEDULED EVENTS

· NKBA AT REDS vs. CARDINALS ~ September 5, 2013, 7:10 first pitch on the Cincinnati Bell Riverboat Deck

NKBA FAMILY OUTING

SEPTEMBER 5, 2013

Cincinnati Bell Riverboat Private Party Deck

REDS vs. CARDIINALS

The Truth Be Damned: The First Amendment, Attorney Speech, and Judicial Reputation

Thursday, August 1st, 2013

Margaret C. Tarkington, Brigham Young University
Abstract
Throughout the United States, courts discipline and sanction attorneys who make disparaging remarks about the judiciary. Yet, in that context, state and federal courts have almost universally rejected the constitutional standard established by the Supreme Court in New York Times v. Sullivan for punishing speech regarding government officials. Indeed, some courts even deny attorneys the defense of truth. Attorneys have been punished even when they were not engaged in a representative capacity and regardless of the forum in which they made their statements (including to the press, in pamphlets, or even in personal letters). The punishment imposed for impugning judicial reputation is often severe, with suspension from the practice of law being typical and, in at least one state, mandatory. Notably, in the context of attorney discipline, courts act as judge and jury, and, where the speech regards the judiciary, the courts are also the victim. Yet the problem has not previously received the academic attention that it certainly needs.

In The Truth Be Damned, Professor Tarkington argues that Sullivan sets the constitutional standard that must be employed to punish attorneys for speech impugning judicial integrity. Such speech is core political speech entitled to the fullest constitutional protection. In addition to First Amendment doctrine, there are several reasons, vital to democracy itself, why the interests proffered by state and federal courts cannot justify the suppression of attorney speech. Attorneys are the very class of persons with the knowledge and exposure to have informed opinions about the judiciary. By denying their right to speak and the public’s corresponding right to receive such speech, the central purposes of the Speech Clause are defeated, including self-governance, robust debate on public issues, the unique sovereignty of the American people over government, and the ability of the public to employ democratic correctives to check and define the abuse of judicial power. This in turn clogs the wheels of political change, allowing for judicial self-entrenchment.

Suggested Citation
Margaret C. Tarkington. 2008. “The Truth Be Damned: The First Amendment, Attorney Speech, and Judicial Reputation” ExpressO
Available at: http://works.bepress.com/margaret_tarkington/2

UNITED STATES SUPREME COURT ISSUED A SERIES OF OPINIONS THAT PROTECT THE ENFORCEABILITY OF ARBITRATION AGREEMENTS.

Thursday, August 1st, 2013

Recently, in American Express Co. v. Italian Colors Restaurant, a sharply divided United States Supreme Court issued the latest in a series of opinions that protect the enforceability of arbitration agreements. Our previous post about oral arguments in the case can be found here. The Supreme Court’s decision clears the way for businesses to require consumers to arbitrate disputes on an individual basis regardless of the litigation costs associated with the proceeding.
In Italian Colors, a group of merchants who accept American Express cards brought a class action claim against American Express alleging a violation of federal antitrust laws. According to the plaintiffs, American Express violated Section 1 of the Sherman Act by using “its monopoly power in the market for charge cards to force merchants to accept credit cards at rates approximately 30% higher than the fees for competing credit cards.”
American Express responded by asserting that the agreement between the parties required the class members to arbitrate their claims on an individual basis. The plaintiffs responded that they should not be required to arbitrate their claims on an individual basis because the costs associated with bringing an individual action greatly outstripped the potential recovery by any one class member. The District Court agreed with American Express and dismissed the lawsuit. The Second Circuit Court of Appeals reversed the District Court’s opinion and remanded for further proceedings.
The Opinion of the Court (authored by Justice Antonin Scalia and joined by Chief Justice Roberts and Justices Thomas, Kennedy, and Alito) and the Dissenting Opinion (authored by Justice Kagan and joined by Justices Breyer, Ginsburg, and Sotomayor) disagreed over whether the arbitration clause could be voided under the judge-made “effective vindication” doctrine. The Effective Vindication Doctrine, first mentioned in Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., holds that arbitration clauses may be disregarded if they “operat[e] … as a prospective waiver of a party’s right to pursue statutory remedies.”
After determining that Congress had not prohibited the use of class arbitration waivers in arbitration clauses, the majority noted that the Effective Vindication Doctrine did not apply in this case because it only protects “the right to pursue” a statutory remedy, not the right to pursue a statutory remedy in the most cost effective manner possible. A class action waiver is permissible because the party initiating the arbitration still has the right to pursue its remedy, even if pursuing that remedy carries a hefty price tag.
Justice Kagan’s dissent claimed that the majority had failed to appreciate the full scope of the Effective Vindication Doctrine. In her opinion, the Supreme Court’s precedents established that the Doctrine applies when a provision in an arbitration agreement has the practical result of denying a party the ability to pursue a statutory remedy. Here, because the class arbitration waiver made arbitration prohibitively expensive by requiring arbitration on an individual, the class action waiver effectively barred merchants from vindicating their statutory rights and should have been disregarded.
The Italian Colors opinion reinforces that if parties consent to an arbitration agreement, the Court should respect the parties’ decision and require arbitration under the agreed to terms. After this opinion, options for plaintiffs who wish to challenge the validity of arbitration clauses because of the terms of the arbitration are very slim. Instead, plaintiffs will likely focus on issues related to contract formation and attempting to have arbitration clauses discarded by state courts under state unconscionability laws.
However, for the time being, it appears that parties seeking to have arbitration agreements enforced will have the upper hand. The state of the law makes it very important that companies consider the full impact of the terms contained in an arbitration agreement before entering into contracts in the future.
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