Archive for October, 2013

Justices: Freezing assets could deny right to counsel

Thursday, October 17th, 2013

Richard Wolf, USA TODAY 5:38 p.m. EDT October 16, 2013

New York couple accused of reselling medical devices alleges the government froze the assets they needed to hire attorneys

Chief Justice John Roberts

(Photo: Pablo Martinez Monsivais, AP)

Story Highlights
Supreme Court case examines government’s use of frozen assets
Chief Justice Roberts says ability to pay lawyers must be preserved
Pre-trial hearings after indictments and before trials could be used


WASHINGTON — Chief Justice John Roberts led a Supreme Court assault Wednesday against the government’s increasingly common practice of freezing defendants’ assets, arguing it can tie up the money needed to mount a proper defense.

The conservative Roberts was joined by several more liberal colleagues in denouncing the practice, raising the chances that the high court will reverse two lower federal courts and allow for pretrial hearings where defendants who risk asset forfeiture can challenge the evidence supporting their indictments.

The current grand jury process, Roberts said, is “not great insulation from the overweening power of the government.”

But not all the justices were convinced of the need to alter the current criminal justice system and create a new layer, used in some regions of the country now, because defendants almost always lose their challenges. Justice Elena Kagan said such challenges were denied in all 25 hearings reviewed by her law clerks from the Second Circuit, which includes New York.

“What are we going through all this rigmarole for, for the prospect of, you know, coming out the same way in the end?” she asked.

And the Obama administration argued the interim hearings would force the government to try cases twice and risk losing any potential restitution for crime victims on attorneys’ fees. Getting that money back if the defendant wins, Deputy Solicitor General Michael Dreeben said, “doesn’t happen very often.”

The case was brought by New York residents Kerri and Brian Kaley, who were charged in 2007 with stealing and reselling used prescription medical devices that had been discarded by hospitals. The government won court approval to freeze the couple’s assets, including their home and a $500,000 certificate of deposit.

The Kaleys’ challenge is based on several factors: that they didn’t steal the medical devices, that their profits are not linked to the seized property, and that they cannot hire good lawyers without access to their money. They cite the 5th Amendment’s due process protection against the loss of property and the 6th Amendment’s guarantee of the right to counsel.

Federal appeals courts have split on the subject of such pre-trial hearings. Some allow defendants to challenge the evidence that led to the indictment. Others merely examine the link between the seized assets and the criminal charges. Still others do not allow the hearings at all.

Federal forfeitures, meanwhile, have grown from $94 million in 1986, when the Assets Forfeiture Fund was created, to $1.6 billion last year. “Under modern civil forfeiture laws … filling law enforcement’s coffers is often the primary purpose of the seizure,” the conservative Institute for Justice argues in an amicus brief siding with the Kaleys.

It appeared to be an uphill battle, since a precedent-setting Supreme Court ruling in their favor would change a system that has relied on grand jury findings of probable cause to trigger indictments and criminal trials.

“We’ve been doing it for 1,000 years … and it’s hard to say that it violates what our concept of fundamental fairness is,” Justice Antonin Scalia told the couple’s attorney, Howard Srebnick. But Scalia suggested instead a rule that would prevent funds from being seized if they are needed to mount a defense.

He was not alone in appearing conflicted between the two sides. Justices Anthony Kennedy and Ruth Bader Ginsburg also appeared to be of two minds. And the remaining justices did not line up along typical partisan lines.

Opposing Roberts during most of the hour-long oral argument was Justice Samuel Alito, President George W. Bush’s other nominee, who agrees with the chief justice more often than any of his colleagues. Alito said defense lawyers seek the hearings to learn details of the prosecution’s case before trial; winning exoneration, he said, is “fantasy land for the most part.”

Justices Stephen Breyer and Sonia Sotomayor lined up with Roberts. “Without a good lawyer, they’re never going to make their case,” Breyer said of the defendants. And even if their chance of getting an indictment tossed out at a hearing was “one in a million,” Sotomayor told Srebnick, it “might be your case.”


Thursday, October 17th, 2013

It is with great pleasure to announce the NKBA 2014 election results:


· President Robert (Rob) C. Ziegler

· President-Elect Todd McMurtry

· Secretary Emily Walters

· Treasurer Aaron Beck

· Treasurer-Elect Vanita Fleckinger

· Immediate Past President: Michael Sutton


· Jeffrey Blankenship, Boone Co.

· Joshua Crabtree, At-Large

· Chrissy Dunn, At-Large

· Jennifer Dusing, Boone Co.

· Jack Gatlin, Kenton Co.

· Ginger A. Jansen, Outlying

· Steven D. Jaeger, Kenton Co.

· John Lange IV, Campbell Co.

· Lisa Moore, Campbell Co.

· Mills Rouse, Boone Co.

· Carey K. Steffen, At-Large

· Charles (Chuck) Vaughn, Kenton Co.


· Bryce Rhoades


· William Kathman

· James Kruer

· Judge Richard Woeste

A special thank you to the candidates who ran in contested races; as well as to everyone who took the time to vote.

Thank you to the NKBA members who expressed an interest in serving on a board level. We had so many members show an interest it was a very difficult decision for the election committee


Julie L. Jones

NKBA Executive Director


Wednesday, October 16th, 2013

The Boone County Judicial Center has changed phone systems, which has required many telephone and fax lines to change.

To view the changes please visit:


Wednesday, October 16th, 2013

Fall 2013 State of the Judiciary Address:
The Changing Face of Kentucky Courts
Chief Justice John D. Minton Jr.
Testimony before the Interim Joint Committee on Judiciary Friday, October 4, 2013, 10 a.m. CDT Christian County Justice Center
Hopkinsville, Kentucky
Chairman Westerfield, Chairman Tilley, Members of the Judiciary Committee and Guests,
It’s a pleasure to be here with you today and an honor to be visiting Hopkinsville.
Since my early days as chief justice in 2008, I’ve come before you many times to let you know how things are going with the courts. I’m proud of the partnership we’ve forged these last few years and I believe we’ve managed to achieve that elusive balance of good government – maintaining the separation of powers without compromising the power of collaboration.
The people of Kentucky are the winners when we work together to make decisions that are in their best interests. For the important role you play in helping the Judicial Branch meet the needs of our citizens, I want to thank you.
There are several guests who have joined us today and I appreciate them taking time to be here.
Also with me today are AOC Director Laurie Dudgeon, AOC Budget Director Carole Henderson and my Chief of Staff Katie Shepherd, who is a proud Hopkinsville native.
The last time we discussed the state of the judiciary was in January of this year at the Capitol Annex. While it has only been nine months since we last met, 2013 has been a seminal year in terms of breakthroughs in court technology in Kentucky.
Supreme Court of Kentucky
Chambers, State Capitol
Frankfort, Kentucky 40601 502-564-4162
John D. Minton, Jr.
Chief Justice of Kentucky
I’m excited about the progress we’re making with technology and I’ll give you some specifics on that later. But first, I want to talk about something that has been on my mind and is affecting how I do my job – and that is the changing face of the court system in Kentucky.
Several factors are having a profound effect on how we carry out the business of the courts. Changing demographics, the budget crisis and constant leaps in technology are forever altering how courtrooms operate. All of these dynamics are placing new, complex demands on judges, circuit court clerks and court personnel.
Years ago, when I was sitting on the Circuit Court bench, the process was pretty predictable and straightforward. Attorneys represented their clients, cases went to trial and judges presided over the proceedings.
It’s not that simple anymore.
Mediation on the Rise The court model we’re familiar with is evolving in a number of ways. For one thing, today’s cases might not even make it to court. And if they make it to court, they are not likely to be resolved by a jury trial.
Since 2005, we have seen a significant decline in jury trials, with the number of circuit and district criminal jury trials dropping by more than two-thirds. We’ve seen a similar drop in civil jury trials, which have declined by half. There are several reasons for this, including the rising cost of discovery, the expense and time involved with going to trial, and the unpredictability of jury verdicts.
Mediation mitigates some of these concerns by giving parties an opportunity to save time and money. While it is historically true that most cases settle, we are finding that more parties are using formal mediation to resolve their disputes.
Since the AOC created a mediation program nearly a decade ago, we’ve seen an increase in parties using mediators to resolve their conflicts. Whether this is a positive trend for our justice system is very much up for debate, but there is no question that mediation relieves some of the strain on court dockets.
Because many attorneys get their cases mediated before being ordered to by a judge, there’s really no way to track the number of cases being mediated. However, it appears that a significant amount of civil cases statewide are being mediated or otherwise settled out of court.
Felony cases are being mediated as well. The Felony Mediation Program has grown steadily since it started in 2008. In just five years, more than 1,300 felony cases have been mediated and 1,100 have settled, for an 81 percent settlement rate.
Growing Number of Self-Represented Litigants While we’re seeing fewer cases make it to the courtroom, we’re seeing fewer lawyers in the courtroom as well. Although we don’t currently track self-represented litigant cases, there has been a surge in people who are foregoing attorneys and choosing to represent themselves in court. This trend has been particularly apparent in Family Court, where the number of self-represented litigants has been on the rise for several years.
We believe the cost of legal representation is one of the factors driving this trend, with fewer people able to afford an attorney. And we continue to see an increase in litigants who decide to represent themselves using forms and legal advice from the Internet.
Loss of funding for civil legal aid programs is also playing a role. Since 2007, funding for legal aid through all revenue sources – including federal funds, state appropriations, filing fees and grants – has decreased by more than $3 million, which amounts to one-quarter of the statewide legal aid budget.
During that same period, the number of low-income Kentuckians increased by 27 percent. The state’s four civil legal aid programs have lost 16 attorneys and closed five offices. In spite of losing ground financially, legal aid managed to assist approximately 68,000 low-income people last year. However, 55 percent of eligible applicants were denied legal service due to a lack of resources.
The increase in self-represented litigants presents an entirely new set of challenges for the court system. Court proceedings take more time because self-represented litigants are often unfamiliar with court procedures and require guidance. The margin for error is higher, which can impact the course and outcome of a case. And self-represented litigants often ask circuit court clerks, who are prohibited from providing legal advice, to help complete legal forms and file motions.
In 2010, the Supreme Court created the Kentucky Access to Justice Commission in part to improve civil legal aid to low-income citizens. As part of its work, the commission is providing information on legal resources through public libraries and circuit court clerks’ offices statewide.
The commission is comprised of diverse members from across the state and includes two of your own, Rep. Kelly Flood and Sen. Brandon Smith.
Escalating Demand for Court Interpreters Another challenge involves the parties and defendants who enter the court system without the ability to communicate in English. The court system is required by statute to provide court interpreters in any case in which a party, juror or witness is deaf or hard of hearing, cannot communicate in English or has another type of disability that prevents him or her from properly understanding the nature of the proceedings.
The U.S. Department of Justice has also placed strict requirements on court interpreting for any state that receives federal funds.
When I was on the circuit bench, there was the occasional need for a Spanish interpreter. Today there’s a huge demand for Spanish interpreters along with requests statewide for dozens of other, less common languages. Recently we’re seeing a trend for Burmese, Nepali and Karen in addition to a number of indigenous Latin American languages such as Akateko.
More than a decade ago, the AOC enhanced its court interpreting program to accommodate the state’s changing demographics. We adopted national standards for training and certifying court interpreters and developed Supreme Court Rules to govern our language access program. Our primary goals are to provide access to justice for the deaf and hard of hearing and limited English-proficient individuals, and to comply with the standards and requirements set forth by state law and the Department of Justice.
Today the court system employs or contracts with interpreters to provide access to all court programs and services. We also provide interpreting services for court proceedings to parties, witnesses, certain non-parties, deaf jurors and deaf attorneys.
The AOC recruits and trains interpreters from Kentucky and neighboring states to address the growing need for language access. We have more than 90 certified and registered interpreters – representing 31 different languages – listed on the AOC Interpreter Directory. In addition, there are 50 provisional interpreters available to assist with rare language assignments. In the past year, the AOC received interpreting services requests for 48 different languages.
In 2013 alone, the court system spent more than $2 million on court interpreting. Given the increase in the volume of requests and the number of languages, the court system faces a tremendous challenge to fund, recruit and train court interpreters.
Growth of Problem-Solving Courts Along with other states, Kentucky is embracing the role of problem-solving courts to deal with specific types of problems or cases. Trial court judges are devoting time and energy to problem-solving roles that were unknown to their predecessors on the bench.
Family Court. Although technically a division of Circuit Court, Family Court was the state’s first true problem-solving court. Kentucky launched a Family Court pilot project in Jefferson County in 1991. This became the commonwealth’s first court to focus solely on the needs of families and children. Its unique structure allowed one judge to provide continuity by hearing all of a family’s legal problems and issues.
Family Court became a permanent part of the Kentucky Constitution when voters overwhelmingly passed an amendment in 2002. Today Family Court serves 3.2 million citizens in 71 counties and is considered a national model.
Family Court handles family law matters that would otherwise be heard in Circuit Court and District Court, which includes everything from dissolution of marriage to status offenses.
I mentioned earlier that we are seeing a decline in the civil and criminal cases in Circuit and District courts. The opposite is true in Family Court, where the case filings have increased. Frankly, the number of cases handled by Family Court judges in some jurisdictions is simply unmanageable. In Fiscal Year 2012, the one Family Court judge in Lincoln, Pulaski and
Rockcastle counties was faced with 2,700 new cases. The numbers were similarly high for the Family Court judges in Boone and Gallatin counties and Floyd, Knott and Magoffin counties.
Family Court is also seeing the highest percentage of self-represented litigants, which adds to the workload of the Family Court judge.
Drug Court. Drug Court, which most people associate with the term “problem-solving court,” is an example of our success in combining treatment with court supervision. Instead of spending time in jail, eligible participants complete a substance abuse program supervised by a judge. Drug Court graduates are more likely to return to productive lives and stay gainfully employed, pay child support and meet other obligations.
What began as a pilot project by the AOC in Fayette County in 1996 has now expanded to 115 counties. Circuit and district judges volunteer as Drug Court judges. These judges devote a considerable amount of time consulting with Drug Court staff and meeting with Drug Court participants, filling essential roles as members of the Drug Court treatment team.
Since the program’s inception, 6,000 people have graduated, saving the state more than $80 million in prison costs. During that time, 865 drug-free babies have been born and defendants have paid more than $4.5 million in court obligations and performed more than 1.1 million community service hours.
Veterans Treatment Court. We’re faced with another type of social pressure from our lengthy conflicts in Iraq and Afghanistan. As our military personnel return home from these wars, the number of veterans entering the court system continues to grow.
Kentucky is joining other states that are implementing Veterans Treatment Courts to provide treatment and support services to help veterans stabilize their mental health and recover from addiction. The team includes judges, prosecutors, defense attorneys, treatment providers and Veterans Justice Outreach staff. Circuit and district judges volunteer as Veterans Treatment Court judges.
Kentucky’s first Veterans Treatment Court began operating in Jefferson County in November 2012. It was funded by a three-year, $350,000 grant from the U.S. Department of Justice. Hardin County recently received the same $350,000 grant to start a court and we are applying for grants to fund courts in Fayette and Christian counties. These four counties are home to the majority of veterans in Kentucky.
Mental Health Courts. The other emerging problem-solving court in Kentucky deals with mental health issues. Mental Health Courts use judicial oversight and mental health assessments and treatment to reduce the recidivism rate of mentally ill offenders while protecting public safety.
There are currently two Mental Health Courts operating in the state. One court serves Boone, Campbell and Kenton counties and the other serves Hardin County. The judges who operate Mental Health Courts also volunteer their time. As with Veterans Treatment Courts, the court
system does not provide any funding or staffing for Mental Health Courts. Funding is secured through outside sources, such as community corrections grants.
To be successful, Mental Health Courts require a significant commitment from the judges and community partners, including law enforcement, prosecutors, defense counsel and treatment providers. Since 2010, the Northern Kentucky Regional Mental Health Court has diverted 219 participants from more than 36,000 jail days and achieved a recidivism rate of only 16 percent for those active in the program.
Expanding Role of Pretrial Services Another adjustment we’re making has to do with the expanding role of Pretrial Services. House Bill 463, which was passed in 2011 to stem the cost of incarceration in Kentucky, has affected the culture of the court system, with Pretrial Services on the front lines of those changes.
Pretrial officers interview and investigate most individuals who have been arrested and make recommendations to a judge regarding their pretrial release. HB 463 created the Deferred Prosecution Program, which allows defendants charged with certain drug-related offenses to avoid a guilty plea and conviction through supervision by Pretrial Services or Drug Court.
House Bill 463 also increased the number of defendants that pretrial officers supervise through the Monitored Conditional Release Program. Since the legislation went into effect in 2011, pretrial officers have made more than 327,000 defendant contacts, ranging from call-ins and in-person check-ins to curfew checks and drug tests.
These programs have produced a higher rate of pretrial release for moderate- and high-risk defendants, but they have also dramatically increased the workload of our pretrial officers, who already operate under heavy demands.
These programs are also relieving the budgets of state and county governments, which is the intended effect of House Bill 463. However, the court system is absorbing the cost of adding and training personnel who can handle this level and volume of supervision.
End of Senior Judges Program As the lawyers on this committee likely know, the Senior Status Program for Special Judges is quickly nearing its end. The program began in 2000 when the General Assembly passed House Bill 439, allowing retiring judges to commit to five years of additional service in exchange for an enhanced retirement benefit. The law prevented judges from entering the program after January 31, 2009.
Seventy-seven judges have completed their service since the Senior Judges Program began. Of the 14 remaining judges, most will complete their service before January 31, 2014.
I realize that this program has had its critics, but I also recognize how valuable it has been to the efficient operation of the courts. Senior judges covered for sitting judges when they were absent because of illness, recusals, continuing judicial education and other matters. The court system saved money by allowing senior judges to fill in for judicial vacancies, delaying the
cost of a new sitting judge. And people got access to justice more quickly when there were experienced senior judges to keep cases moving through the court system.
We will soon be reverting back to the system of requiring sitting judges to cover for each other when there are absences. It’s hard to predict how this change will affect the court system, but I suspect that lawyers and litigants will begin to notice longer delays when there are no senior judges to fill vacancies and alleviate heavy dockets.
Reduced Judicial Pensions
While I’m on the topic of retired judges, another troubling matter is how recent legislative changes to the state pension system will have a detrimental effect on Kentucky’s ability to attract experienced, competent attorneys to become judges. Kentucky’s judicial salaries have stagnated and fallen behind other states in the past decade, but our judicial retirement plan helped entice attorneys to leave lucrative law practices in spite of earning less money on the bench.
However, judges who come into the system after January 1, 2014, will find a retirement plan that provides only a fraction of the benefits previously available. An early estimate from the Judicial Form Retirement System indicates that judges coming in under the new guidelines will receive one-third of the benefits upon retirement than their colleagues who took the bench prior to the changes. This scenario concerns me and it should concern anyone who is interested in maintaining a highly qualified judiciary.
Purchase of New AOC Office Building The changing face of the court system also includes a physical move for the Administrative Office of the Courts. When the AOC moves from Millcreek Park to the former Home Depot building on Vandalay Drive in November 2013, it will be the first time the AOC has owned its building since the agency was formed in 1976.
The move is part of the AOC’s efforts to reduce costs wherever possible in light of ongoing state budget cuts. Since 1987, the AOC has spent $16.7 million in rent and renovations on the Millcreek campus without gaining any equity in the property. The payments for the lease-purchase of the building are within the rental amount the AOC pays for Millcreek Park. The AOC will save more than $1 million a year when the building is paid off.
The AOC currently operates out of five buildings at Millcreek Park and the new office space will bring staff together under one roof, which will improve work flow and promote staff interaction.
The facility’s large conference room and smaller meeting rooms will let us host a variety of events, including educational programs for judges, circuit court clerks and court personnel. We also look forward to offering the use of our meeting space to other government agencies.
This move is positive for all involved. The AOC will acquire much improved office space at a reduced cost, Frankfort will benefit from the occupation of a vacant building and the state will own valuable property in a desirable location.
I look forward to inviting each of you to the building’s dedication in early 2014.
Breakthroughs in Court Technology I referred to breakthroughs in court technology at the beginning of my remarks and I want to elaborate on that now.
By far, our biggest challenge in terms of sheer scope is harnessing the rapid changes in technology for use by the courts. Technology is the key to a more cost-effective, more efficient court system and basically everything we do now is either facilitated by the technology that we do have or hindered by the technology that we need.
I spoke to you this spring about our obsolete case management system and how we’ve lagged behind the federal courts and other state courts in offering electronic filing. While laying the groundwork for a sophisticated new case management system, we’ve also been planning in earnest to bring eFiling to Kentucky courts.
We cleared a major hurdle on both projects in March 2013 when we got legislative approval to issue bonds to fund a new case management system. Resolving the funding issue jump-started our progress and I appreciate your support of that legislation. We’re moving quickly on the new system, which will make it possible for us to test eFiling in Franklin County by the end of 2013.
We are already forming committees to oversee the eCourts initiative and to address the changes to court rules, guidelines and business processes that the advent of court technology requires. The committees are comprised of a diverse group of stakeholders in the justice system, including judges, circuit court clerks, legislators, prosecutors, defense counsel, private attorneys and AOC personnel.
There’s other good news as well. The AOC is installing a new accounts receivable program that will automate bookkeeping functions in circuit court clerks’ offices statewide. And this spring, the AOC launched CourtNet 2.0, a vastly improved application that will replace the older CourtNet and let judges, attorneys and other members of the legal system access civil and criminal court cases online in real time.
There are also advances taking place behind the scenes to make our internal processes work better through technology. For example, we are paving the way for our eCourts projects by updating networks and hardware across the state.
Pay Equity for the Judicial Branch While technology is our biggest challenge in terms of scope, pay equity for court employees is our greatest need. Investing in our human resources is my top priority and an issue that must be addressed.
Judicial Branch salaries have historically trailed those of the Executive and Legislative branches, severely compromising our ability to recruit and retain the caliber of employees who can handle the complex work of the courts. More than 600 of our 3,300 non-elected employees fall under federal poverty guidelines for a family of four. An even larger number qualify for food stamps based on their current salaries.
Experienced employees and new hires alike are leaving for higher wages in the other branches of government and in the private sector. In many cases, we train employees only to have them get better-paying jobs elsewhere in state government. This brain drain reduces the quality of service we provide and makes it more difficult to handle the increasing demands on the courts.
In 2010, I formed a Compensation Commission to review the Judicial Branch’s salary structure and recommend ways to make it more fair and competitive. This group of judges, circuit court clerks and court personnel recommended that we must make our entry-level salaries more competitive, restructure our salary scale to be equitable at all levels and bring key positions into parity with their peers in the public sector.
During the upcoming legislative session, I will be requesting an appropriation to increase the wages of the lowest-paid positions within the court system and bring the Judicial Branch salaries in line with the other branches of government. Pay equity for the Judicial Branch will be my top legislative priority and a proposal that I hope you will consider and support.
Conclusion I’ve given you a lot of information this morning and I appreciate your interest and your time.
In closing, I want to emphasize that Kentucky’s judiciary is resourceful and resilient. We’re mustering every bit of our creativity and drive to deliver justice at a high level in this daring new era of change.
I will admit that there are times when change comes too fast and we are stretched by too many needs and too few resources. That’s when we regroup and figure out how to keep making progress in spite of our limitations.
As you know, standing still is not an option. Wishing things would stay the same is not an option. Our only option is to adopt a mindset of expectation, a mindset that believes if we work hard enough and if we work together enough, we can keep improving the experience that people have when they come before Kentucky courts.
That’s my vision for the Judicial Branch and I’m counting on your support to help us make that happen.
That concludes my prepared remarks and now I will be happy to take your questions.

The Kentucky Arts Council is accepting nominations until Nov. 1,

Tuesday, October 15th, 2013

FRANKFORT, Ky. — The Kentucky Arts Council is accepting nominations until Nov. 1, 2013, for the 2014 Governor’s Awards in the Arts.

The Governor’s Awards are the Commonwealth’s highest honor in the arts. The awards recognize individuals and organizations that have made extraordinary and significant contributions to the arts in Kentucky. The nomination process is coordinated by the arts council.

“For more than 30 years, Kentucky’s governors have used these awards to acknowledge the people and organizations that have sustained and advanced the arts in the Commonwealth,” said Lori Meadows, arts council executive director. “The arts are everywhere in Kentucky and anyone can make a nomination.”

Eligibility is specific to each of the nine award categories: Milner, Artist, Business, Community Arts, Education, Folk Heritage, Government, Media and National. Depending on the category, eligible nominees must be residents of Kentucky, organizations located in Kentucky or have close ties to Kentucky. Past recipients and posthumous nominees are not eligible.

For guidelines, instructions and nomination forms, visit For more information about the nomination process, contact Dan Strauss at or 888-833-2787, ext. 474.

The 2013 Governor’s Awards in the Arts ceremony is 10 a.m. Oct. 29, in the Capitol Rotunda, in Frankfort. The event is open to the public.

The Kentucky Arts Council, the state arts agency, creates opportunities for Kentuckians to value, participate in and benefit from the arts. Kentucky Arts Council funding is provided by the Kentucky General Assembly and the National Endowment for the Arts.


Tuesday, October 15th, 2013

Virginia Gaither, 73, lost her grandson Lebron Gaither in 1996, at age 18, after he was murdered while working as an informant for the Kentucky State Police.’ Questions have surrounded the case and the KSP’s handling of Gaither as an informant, with accusations of exposing Gaither and placing him in harms way soon to be brought before a court of appeals.

by Andrew Wolfson The Courier-Journal October 9, 2013

He was supposed to be a confidential informant, his name a secret to all but a handful of Kentucky State Police detectives.
Instead, they allowed the target of their drug trafficking investigation to learn his name, yet still used 18-year-old special education student LeBron Gaither of Lebanon, Ky., to make another drug buy from him.
Gaither was kidnapped, tortured and shot to death.
A judge later said the detectives, through their actions, “sentenced him to death.” One expert — a former prosecutor — said that using him for the buy after his identity was compromised was the “most “reckless, stupid and idiotic idea” he’d ever heard of.
But 17 years later, the teen’s grandmother, 73-year-old Virginia Gaither, a disabled former factory worker who raised him, is still fighting for compensation from the state.
She said she has been unable to pay his $5,573 funeral bill and had to surrender her own plot in Lebanon’s St. Augustus Cemetery so he could be buried.
The Kentucky Board of Claims in 2009 awarded her $168,720 in damages, finding that the detectives had compromised her grandson’s identity by having him testify before a grand jury, then breached their duties by using him for the buy even though he had been “burned” as an informant.
But a Franklin circuit judge threw out the award,and his decision was affirmed last year by the state Court of Appeals.
While the detectives’ decisions were “tragically flawed,” they were “discretionary” and thus immune from liability under state law, the court held over the furious objection of dissenting Judge Kelly Thompson, who wrote that surely no state agency has the discretion to “arrange for the death of a citizen.”
Now, the Kentucky Supreme Court will hear the case, which repeatedly has been delayed by appeal, and Virginia Gaither said she will be there for the arguments at 9 a.m. Thursday.
“I am fighting for my grandson, who can’t fight for himself,” she said. “I think he was done wrong.”

Sovereign exemption
Virginia Gaither, unable to afford a headstone to mark her grandson’s grave, turned to the Board of Claims for relief.
Under the law, the state and its agencies can’t be sued because of the ancient doctrine of sovereign immunity — the notion that the king can do no wrong.
But citizens injured by the state can seek damages from the board — with a few caveats. Awards are limited to $200,000, there is no recovery for pain and suffering, and the state employee involved must have been performing a “ministerial” function — that is, one that is either routine or mandated by law.
If a state trooper’s car crosses the center line and injures another motorist, for example, that would be covered because driving is routine. Acts involving judgment are exempt, however, on the theory that if there was liability, it would discourage government officials from exercising their initiative, especially when they face difficult choices, said Richard Ausness, a University of Kentucky law professor.
Taylor presented the board with heavyweight witnesses who testified that Burton and the other detectives violated routine duties owed to a confidential informant.
Circuit Judge Phil Patton of Glasgow and Barry Bertram of Campbellsville, both former commonwealth’s attorneys, testified as expert witnesses that informants should never testify before grand juries.
James L. Avritt, a former prosecutor and judge, said that “anybody with an ounce of common sense would know” that once LeBron Gaither testified, “his identity was exposed.” Asked if his use as an informant should have been discontinued, Avritt said, “Absolutely, unless you want to get him killed.”
The board agreed. “Once an informant is known, drug traffickers are sure to retaliate” because “dead men tell no tales,” the board said in its decision.
“There is no discretion whether to use a burned informant again,” the board concluded. “It is simply not done.”
But Kentucky State Police lawyers Feltner and Miller say in their brief that the department’s rules on informants require only that they be closely monitored; no rules ban detectives from having them testify or bars their use afterward.
The lawyers also say that detectives must be given broad leeway in deciding when undercover operations should be halted or when “events don’t go according to script.”
In their brief, they pin the blame on Esarey, for the grand jury leak, and on LeBron Gaither, for violating orders when he got in Noel’s car.
They also said that LeBron Gaither was paid $3,150 for doing drug buys over 10 months, that he didn’t have to participate, and that he was killed by Noel, not the state.
A glaring failure
Taylor counters that “specific regulation or not,’’ the duty of the state police was to preserve confidential informant Gaither’s identity “as well as his life, both of which they failed to do.”
Detectives “glaringly” violated their duty, Taylor says, including to immediately abort the undercover buy when it went awry.
Virginia Gaither acknowledges she doesn’t understand the legal nuances of the case, which involves issues that have long vexed the courts.
The Supreme Court is not likely to rule for several months. If it finds in her favor, she said, she will finally pay off LeBron Gaither’s funeral bill and buy a monument for his grave.
If she loses, she said, “I will know I have done all I can to get justice for my grandson.”
A glaring failure
Taylor counters that “specific regulation or not,’’ the duty of the state police was to preserve confidential informant Gaither’s identity “as well as his life, both of which they failed to do.”
If she loses, she said, “I will know I have done all I can to get justice for my grandson.”
James L. Avritt, a former prosecutor and judge, said that “anybody with an ounce of common sense would know” that once LeBron Gaither testified, “his identity was exposed.” Asked if his use as an informant should have been discontinued, Avritt said, “Absolutely, unless you want to get him killed.”
The board agreed. “Once an informant is known, drug traffickers are sure to retaliate” because “dead men tell no tales,” the board said in its decision.
“There is no discretion whether to use a burned informant again,” the board concluded. “It is simply not done.”
But Kentucky State Police lawyers Feltner and Miller say in their brief that the department’s rules on informants require only that they be closely monitored; no rules ban detectives from having them testify or bars their use afterward.
The lawyers also say that detectives must be given broad leeway in deciding when undercover operations should be halted or when “events don’t go according to script.”
In their brief, they pin the blame on Esarey, for the grand jury leak, and on LeBron Gaither, for violating orders when he got in Noel’s car.
They also said that LeBron Gaither was paid $3,150 for doing drug buys over 10 months, that he didn’t have to participate, and that he was killed by Noel, not the state.
Kentucky State Police rules
KSP’s general orders do not bar detectives from having confidential informants testify before grand juries — or from using them for additional undercover work after they do. But rules do stress the importance of keeping their identity secret.
A copy of the agency’s General Order obtained under the Kentucky Open Records Act says informants must be assigned a code number and that all other information about them must be kept in a file maintained with “strict security” and not divulged to anyone “without the permission of the commissioner.”
Kentucky Board of Claims
• Founded: 1946
• Accepts: Negligence claims filed against state agencies, state departments or state employees while working within the scope of their employment.
• Maximum award: Not to exceed $200,000 for an individual. If a single act of negligence results in multiple claims, the total award shall not exceed $350,000, to be divided among the claimants.
• Exemptions: No awards for pain, suffering or mental distress.


Tuesday, October 15th, 2013

Affirmative action opponents persuaded Michigan voters to outlaw any consideration of race after the Supreme Court ruled a decade ago that race could be a factor in college admissions.

That state’s constitutional amendment is now being examined by the high court to determine whether the change the voters sought is in fact discriminatory.

It is a proposition that even the lawyer for civil rights groups in favor of affirmative action acknowledges is a tough sell, at first glance.

“How can a provision that is designed to end discrimination in fact discriminate?” said Mark Rosenbaum of the American Civil Liberties Union. Yet that is the difficult argument Rosenbaum will make on Tuesday to a court that has grown more skeptical about taking race into account in education since its Michigan decision in 2003.

A victory for Rosenbaum’s side would imperil similar voter-approved initiatives that banned affirmative action in education in California and Washington state. A few other states have adopted laws or issued executive orders to bar race-conscious admissions policies.

Black and Latino enrollment at the University of Michigan has dropped since the ban took effect. At California’s top public universities, African-Americans are a smaller share of incoming freshmen, while Latino enrollment is up slightly, but far below the state’s growth in the percentage of Latino high school graduates.

The case is the court’s second involving affirmative action in as many years. In June, the justices ordered lower courts to take another look at the University of Texas admissions plan in a ruling that could make it harder for public colleges to justify any use of race in admissions.

For Michigan Attorney General Bill Schuette, whose office is defending the measure known as Proposal 2, the case is simple.

“We are saying no preferences. We’re not discriminating. We’re saying equal treatment,” Schuette said.

But the federal appeals court in Cincinnati that ruled on the dispute concluded that the matter was not that straightforward.

The issue, according to the 6th U.S. Circuit Court of Appeals, was not affirmative action, but the way in which its opponents went about trying to bar it.

That is why the ACLU’s Rosenbaum said, “This is a case about means, not about ends. It is not about whether a state can choose not to have” affirmative action.

In its 8-7 decision, the appeals court said the provision runs afoul of the Equal Protection Clause of the U.S. Constitution’s 14th Amendment because it presents an extraordinary burden to affirmative action supporters who would have to mount their own long, expensive campaign to repeal the constitutional provision.

That burden “undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change,” Judge R. Guy Cole Jr. wrote for the majority on the appeals court.

The governing boards at the University of Michigan, Michigan State University and other public colleges set admissions policies at the schools, which included the use of affirmative action before the amendment passed.

Other groups seeking changes in admissions still could lobby the policymakers at the schools. Only proponents of affirmative action would have to change the constitution, the appeals court said.

The appeals court vote broke along party lines, and there were other oddities. Two Republican-appointed judges sat out the case because of their ties to Michigan schools. One judge in the majority, Martha Craig Daughtrey, is a senior judge and typically would not be allowed to take part in the full appeals court hearing. But she sat on the original three-judge panel that heard the case.

Civil rights and education experts who are not involved in the case at the high court said they expect the justices to overturn the 6th Circuit ruling.

Harvard University Law School professor Tomiko Brown-Nagin said five of the Supreme Court justices “are skeptical of race-conscious affirmative action” and could be expected to side with Michigan. Those justices are Chief Justice John Roberts, Samuel Alito, Anthony Kennedy, Antonin Scalia and Clarence Thomas.

But Brown-Nagin said impact of such a ruling would be muted because “affirmative action already is on life support.”

Peter Kirsanow, a Republican member of the U.S. Commission on Civil Rights and an opponent of racial preferences, was more blunt. “I would eat a copy of the 14th Amendment if in fact the court upholds the 6th Circuit’s decision,” Kirsanow said.

Justice Elena Kagan will not take part in the Michigan case, just as she excused herself from last term’s case about the University of Texas admissions program. Kagan worked on the cases while serving in the Justice Department before she joined the court.

Kathy Stein Appointed to Fayette Circuit Court judgeship by Gov. Beshear

Monday, October 14th, 2013

Gov. Steve Beshear on Monday named state Sen. Kathy Stein, D-Lexington, to an open Fayette Circuit Court judgeship, creating an opening in the Kentucky Senate.Stein, 58, said she expected to be sworn in as a judge on Monday and assume her new responsibilities in the circuit’s family court.

Read more here:


Saturday, October 12th, 2013

Case No. 2013-SC-0006777-OA



Comes now the Petitioner and for his Reply to the KBA’s Response and says as follows.
The Court has the exclusive authority over the Kentucky Bar Association by virtue of Section 116 of the Kentucky Constitution. Ex Parte Auditor of Public Accounts, 609 S.W.2d 682 (Ky.1980) The KBA is answerable only to the Kentucky Supreme Court.
The Petition for Writ of Mandamus says the KBA had ex parte contact with the Federal Court preventing the defense from cross examining prosecution witnesses concerning charges the KBA leveled against them. The KBA does not deny that allegation. The Petition says the KBA files contained information that contradicted trial testimony of such prosecution witnesses. Was the Information in the KBA files just “some tidbit of exculpatory evidence”? Mr. Chesley told the jury in the criminal trial that Gallion was advised to hold back Excess funds and if no claims were made then the Excess funds should be paid to the clients.
The KBA accused Mr. Chesley, and the Court disbarred him, for advising Judge Bamberger that the Excess funds, that the KBA alleged belonged to the 440 claimants, could be placed in a cy pres trust. The Petitioner offered an advice of counsel defense to rebut charges that he had the specific intent to defraud the claimants.
In the first criminal trial the defendants were faulted because they did not give Notice to the claimants allowing their participation in the disposition of Excess Funds. Chesley advised Judge Bamberger that the claimants had signed Releases and the remaining funds were Excess that did not belong to the claimants. This was the fundamental and principled charge that wrecked the legal career of the Petitioner, i.e., the failure to keep the claimants informed.
The Petitioner argues that the premise of the second trial was fundamentally flawed. The Petition says that Excess funds were discussed by the Plaintiffs counsel, i.e., the Petitioner, during Mediation in the presence of the attorneys representing American Home Products. The KBA does not challenge this allegation. Excess funds would not be available in an aggregate settlement for 440 claimants.
The KBA says that this Petition is” nothing more than an improper, impermissible collateral attack on the Sixth Circuit’s decision upholding Petitioner’s criminal conviction.” The Petitioner has a right under Federal law to challenge the validity of the criminal conviction. Title 28 USC Sect. 2255.
The KBA says “disbarments involved in the Fen-Phen litigation are and should be over.” The Petition does not challenge Petitioner’s disbarment. The Petitioner had a right to a fair trial. He had a right to defend charges that culminated in a 25 year prison sentence a $127 million dollar Restitution Order. The KBA interfered with the Petitioner’s right to a fair trial. The KBA does not deny or challenge facts or allegations made in the Petition. Suffice it to say the Petitioner argues the KBA played an improper role in a conviction the Petitioner argues was wrongful.
It should give one pause to reflect that the legal rulings in the trial that convicted the Petitioner were directly contrary to rulings made by the Federal Judge in the first trial.
The Petitioner argues that the KBA misinterpreted the Settlement Documents and that the Settlement had indemnity obligations as argued in the Petition for Rehearing, Case No. 2009-SC- 000291 pending before the court. Kenneth Feinberg called the allegations made in the civil litigation were based on a naïve misunderstanding of the language of the Settlement agreement.
The second trial proceeded on the theory that the $200 million dollar settlement was for only 440 claimants. The Petitioner argues this was the same faulty premise used by the KBA in disbarment proceedings arising out of the Boone Co. settlement.

The jury in the first criminal trial voted 10 to 2 to acquit the Petitioner of charges that he intended to defraud the claimants.

The KBA billing records were provided to Mr. Chesley to support costs alleged incurred by the KBA in his disbarment proceedings. These records were not available to the Petitioner during the pendency of the proceedings before the District Court or the 6th Circuit Court of Appeals.The culpable conduct of the KBA overrides the attorney client privilege alleged.

The Petition is styled as a Mandamus Writ. The KBA is the arm and agency of the Kentucky Supreme Court. Should the Court believe extraordinary relief is not available, the Petitioner asks the Court to treat the Petition as a request to the Court to exercise its authority over the KBA granting the Petitioner access to information that may assist his efforts to obtain a fair trial.
WHEREFORE, the Petitioner respectfully requests that the Court to direct the KBA to produce the un-redacted billing records referred to in the Petition.
Respectfully submitted,
Michael R Dowling
Counsel for William Gallion
P.O. Box 1689
Ashland, Kentucky 41105
(606) 325-7682
This is to certify that a copy of the foregoing Reply was mailed to the following on the 12th day of October, 2013.
John D. Meyers
514 West Main Street
Frankfort, Kentucky 40601
Michael R. Dowling

Respondeat Superior — Let the Master Answer — Sup Ct is responsible for actions of the KBA and should provide a remedy for improper actions taken by the Bar.

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

Saturday, October 12th, 2013

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

Gov. Beshear has reappointed Michael W. Alvey, of Owensboro, as chairman of the Kentucky Workers’ Compensation Board. The order is effective Jan. 5, 2014.

Michael W. Alvey, of Owensboro, shall serve for a term expiring Jan. 4, 2018.
Gov. Beshear has appointed J. Gregory Allen as an administrative law judge in the Department of Workers Claims, to replace Allison E. Jones, who resigned. Allen shall serve for the remainder of the unexpired term ending Dec. 31, 2015.

J. Gregory Allen, of Allen, is an attorney with Riley & Allen P.S.C.
Gov. Beshear has appointed R. Roland Case as an administrative law judge in the Department of Workers Claims, to serve for a term expiring Dec. 31, 2017. This order is effective Jan. 1, 2014.

R. Roland Case, of Pikeville, is an attorney with Case Law Office.
Gov. Beshear has reappointed the following administrative law judges in the Department of Workers Claims, effective Jan. 1, 2014, to serve for terms expiring Dec. 31, 2017.

J. Landon Overfield, of Henderson
John B. Coleman, of Pikeville
Robert L. Swisher, of Lexington
Jeanie Owen Miller, of Owensboro.


Friday, October 11th, 2013

Attorney General Jack Conway, along with the Attorneys General of 46 other states and the District of Columbia, announced today that Connecticut-based Affinion and its subsidiaries, Trilegiant and Webloyalty, will pay more than $30 million to settle allegations that they misled consumers into signing up and paying for discount clubs and memberships. Kentucky’s share of the settlement is $160,000.

Affinion and its subsidiaries operate multiple discount clubs and membership programs offering a variety of services such as credit monitoring, roadside assistance and discounted travel. Many Kentucky consumers have alleged that Affinion charged them for services without their knowledge, and once consumers learned they were being charged, some had trouble cancelling or getting a refund. Other consumers were confused about who Affinion even was because the offers looked like they came from the company’s marketing partners, which were typically banks or retailers that consumers did business with.

Today’s judgment now prohibits two of Affinion’s marketing practices– live check solicitations and online data pass offers.

In a live check solicitation, consumers were sent an offer via direct mail that appeared to be a check, but when they endorsed and deposited the checks, they unknowingly authorized Affinion to enroll them in membership programs and bill them monthly.

In an online data pass offer, consumers were presented an Affinion offer immediately after an online purchase from a retailer. Affinion would then enroll and bill consumers without obtaining any of their account information because the business would send the information to Affinion.

Additionally, the judgment requires Affinion to clearly provide information to its consumers regarding their membership after enrolling. The company must also issue routine reminders of their enrollment and changes to cancellation practices.

Affinion will provide $19 million for refunds to some consumers who received unauthorized charges for programs.

“I am pleased that we were able to stop these deceptive marketing practices,” General Conway said. “Consumers who believe they were improperly charged by Affinion or its subsidiaries can file a complaint with my office online or by calling 502-696-5300.”

When filing a complaint, consumers should explicitly mention that it pertains to the “Affinion Settlement.” All complaints must be received by the Attorney General’s Office by Feb. 14, 2014.

Consumers checking their credit card and bank account statements should also look for the names of Affinion’s membership programs, since that is how the company’s charges often appear on their bills.

A complete list of Affinion’s membership programs are listed here:

The complete settlement terms and refund eligibility can be found here:

U.S. Supreme Court Hear Challenge to Campaign Finance Laws

Friday, October 11th, 2013

Friday, October 11, 2013 :: Staff infoZine
By Zahra Farah – The U.S. Supreme Court on Tuesday questioned whether it’s fair to cap the amount an individual can give to federal candidates and state and local party committees, but overlook how much an individual can contribute to a political action committee.

Washington, DC – infoZine – Scripps Howard Foundation Wire – In the case of McCutcheon v. Federal Election Commission, Chief Justice John G. Roberts Jr. asked Solicitor General Donald B. Verrilli Jr., who represented the Federal Election Commission, how limits that Congress sets on individual contributions prevent corruption.

Verrilli said the so-called aggregate limit restricts someone from making contributions to too many candidates. However, it does not limit the amount someone can give to an independent political action committee, which may support the interests of a candidate but cannot coordinate with that campaign.

Justice Antonin Scalia wanted to know how one type of contribution could lead to corruption, while the other would not.

“Big money can be in politics,” Scalia said. “The thing is, you can’t give it to the Republican Party or the Democratic Party, but you can start your own PAC. That’s perfectly good. I’m not sure how that’s a benefit to our political system.”

Maryland State Director Craig L. Rice with Young Elected Officials Network speaks to those who oppose big money in politics on Tuesday at the steps of the U.S. Supreme Court. SHFWire photo by Nick Prete
Shaun McCutcheon, an Alabama resident and owner of Coalmont Electrical Development, an engineering firm that specializes in the mining industry, is challenging the constitutionality of the Bipartisan Campaign Reform Act’s “aggregate limits,” which is the amount of money that one person can give to political candidates during each two-year election cycle. Under current federal law, the aggregate limit is $48,600 to individual candidates, plus $74,600 to political parties, a total of $123,200.

The case is supported the Republican National Committee and Senate Minority Leader Mitch McConnell, R-Ky. Both filed friend-of-the-court briefs saying spending limits violate First Amendment rights of free expression.

McCutcheon does not challenge the limit he can give to one candidate. But his lawsuit argues that he should be able to make individual contributions to more candidates and parties than the law allows.

“What we really have is a system that’s forcing money out of the most transparent way possible to make contributions, which is directly to the candidates and the parties and the PACs,” McCutcheon’s lawyer, Erin E. Murphy, said.

If court rules for McCutcheon, it could change 40 years of campaign finance laws and allow wealthy donors to give millions of dollars to candidates.

The court could also overturn Buckley v. Valeo, a 1976 decision in which the Supreme Court upheld an aggregate contribution ceiling, saying it prevents corruption or pass-through contributions, in which someone gives a third party money to donate.

Several justices said, however, that there were so many hypotheticals in the arguments that they might send the case back to a lower for more fact-finding.

McCutcheon’s case could be as important to campaign finance laws as Citizens United v. Federal Election Commission, which struck down Austin v. Michigan Chamber of Commerce and allowed corporations and labor unions to spend unlimited amounts of money independently in campaigns.

Verrilli argued that “aggregate limits combat corruption” and prevent individuals from funneling large amounts of money to specific candidates.

Justice Elena Kagan expressed this same concern. She wanted to know if eliminating caps would allow politicians to write big check to party officials.

Murphy said a law cannot be designed to prevent one person from circumventing it by prohibiting “everyone else from engaging in contribution.”

Justice Ruth Bader Ginsburg asked who, exactly, “everyone else” is.

“Can you give us an idea of whose expression is at stake? I mean, most people couldn’t come even near the limit,” she said.

Murphy said she did not have the number of people whose free speech is at stake.

Scalia retorted: “I assume that a law that only prohibits the speech of 2 percent of the country is OK.”

Ginsburg asked Bobby R. Burchfield, a lawyer who is representing McConnell, how these limits restrict political speech.

Ginsburg said that it’s been argued these limits promote expression and democratic participation. It encourages candidates to try to raise money from many people instead of focusing on the super-affluent.

“Then the little people will count some,” she said.

Burchfield argued aggregate limits starve political parties. He said it leaves party members competing for “the same artificially limited pool of money.”

Fred Wertheimer, president of Democracy 21, an advocacy group that provides the public with the latest information on campaign finance reform efforts, said in an interview after the court session that parties are not starving for money.

Wertheimer, who has helped write campaign finance laws since 1974, also wrote the friend-of-the-court brief filed on behalf of Reps. Chris Van Hollen, D-Md., and David Price, D-N.C., to defend the constitutionality of the overall contribution limits. Wertheimer said that in the 2012 election parties and candidates spent $5.2 billion under the existing overall limits, while outside groups spent $1 billion.

“Candidates and parties are not starving,” he said. “They spent most of the money and raised billions of dollars under these aggregate limits.”

While the court was in session, protesters from 15 groups such as North Carolina Association for the Advancement of Colored People, Free Speech for People and Common Cause rallied against big money in politics. Some had signs that said “Citizens Not United” and waved an American flag with dollar bills stapled to it to symbolize democracy being “bought and sold.”

Stephen Spaulding, staff counsel for Common Cause, said donors who write checks “expect more than a rubber chicken dinner and a photo with the candidate.”

“They expect to have a place at the table and set an agenda, and that agenda is not necessarily in the public’s interest,” he said

Judicial Nominating Commission announces nominees for vacant Family Court judgeship in Fayette County

Friday, October 11th, 2013

FRANKFORT, Ky., Oct. 11, 2013 – The Judicial Nominating Commission, led by Chief Justice of Kentucky John D. Minton Jr., today announced nominees to fill the vacant Fayette County Family Court judgeship. Fayette County is the 22nd Judicial Circuit and the vacancy is in the circuit’s 6th Division.

The three attorneys named as nominees to fill the vacancy are Carl David Devine, Kathy W. Stein and Christian Renau Worth, all of Lexington.

Devine practices with the law firm of Miller, Griffin and Marks. Stein has served as a state senator since 2008. Worth has been in sole practice since 1997. They each received their juris doctor from the University of Kentucky College of Law.

The Family Court vacancy was created when Judge Jo Ann Wise retired Aug. 2, 2013.

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

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

Family Court

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

Administrative Office of the Courts

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


Friday, October 11th, 2013

FRANKFORT, Ky., — The public is invited to a dedication ceremony for the Pike County Judicial Center on Tuesday, Oct. 22, at 11 a.m. EDT at 175 Main St. in Pikeville.

“Since the early days of the commonwealth, Kentucky courthouses have held a special place as the center of our communities,” Chief Justice of Kentucky John D. Minton Jr. said. “The Pike County Judicial Center will provide an efficient facility where citizens can carry out court business and seek access to justice. I appreciate the county leaders and state legislators who joined the Judicial Branch in making this project a reality.”

The judicial center consists of approximately 89,920 square feet and includes space for Circuit Court, District Court, the Office of Circuit Court Clerk and ancillary services.

The new court facility is designed to greatly enhance the delivery of court services. It is equipped with the latest computer, video and networking technology. The judicial center also provides the highest level of Kentucky court security through a single-point entry with magnetometers and security personnel. In addition, prisoners will be segregated from the public by separate entrances and corridors.

The Pike County Judicial Center was designed to meet the standards required by the Administrative Office of the Courts. Sherman Carter Barnhart architectural firm of Lexington designed the Pike County Judicial Center. Codell Construction Co. of Winchester was the construction manager for the project and Ross, Sinclaire & Associates, which serves Kentucky and six other states, is the financial agent.

Chief Justice Minton and Pike County Judge-Executive Wayne T. Rutherford will be among the speakers at the dedication ceremony. State legislators, circuit and district judges, the Pike County circuit court clerk, county magistrates, other local officials and AOC staff are also expected to attend. For more information, contact Judge-Executive Rutherford at 606-432-6247.

As the administrative and fiscal agent for the state court system, the AOC oversees the construction and maintenance of court facilities statewide. The AOC also supports the activities of nearly 3,300 Kentucky Court of Justice employees and 403 elected justices, judges and circuit court clerks


Friday, October 11th, 2013

Of UIM, a Coots Advance, Subrogation, and Identification of the Parties (Psihountakis vs. Courtney Moore and Auto-Owners Insurance Company COA, Not To Be Published, 6/21/2013)

Posted: 10 Oct 2013 07:25 PM PDT

The following not to be published decision by the Court of Appeals is a good read for two reasons. First, it contains a succinct summary of the law on identification of the parties in a motor vehicle collision case in which the underinsured motorist carrier (Auto Owners) protected its subrogation rights by advancing the liability limits tendered on behalf of the at-fault driver; and second, it reveals some of the practical issues involved when trying such a case, from addressing the parties in the style of the case, motions in limine regarding what can be said and used in the trial, etc.

Another interesting point is the twist of party identification that occurred. Typically, the UIM carrier advances to protect its subrogation rights which keeps the defendant driver in as a party as well as the UIM carrier which after Earle v. Cobb was a major shift toward common sense pleading and practice and a rejection of the fiction and an embrace of honesty. No more games since a juror knows about mandatory insurance law presumably would not be shocked to discover insurance was an issue in the trial. However, the Plaintiff did not want the the tort feasor in the mix. This approach is the flip side and is/was obviously rejected. To have done otherwise would have been unfair to tortfeasor who had the right to be in the trial, protect his interests, and defend him/herself against the plaintiff’s direct claim for damages AND the subrogation claim of the UIM carrier.

This was not the Wonderful World of Oz, and the jury was entitled to see behind the curtain.

Psihountakis vs. Courtney Moore and Auto-Owners Insurance Company
COA, Not To Be Published, 6/21/2013
Boone Cir. Ct., Judge James R. Schrand, II

THOMPSON, JUDGE: The issue in this appeal concerns whether an underinsured motorists (UIM) carrier was sufficiently identified at trial and whether the participation of the UIM carrier and the alleged tortfeasor at trial was so prejudicial that a new trial is required. We affirm.

The liability insurance carrier for Moore tendered its liability limits in settlement of the remaining claims against her. On March 16, 2010, Auto-Owners substituted those liability limits pursuant to Kentucky Revised Statutes (KRS) 304.39-320 and preserved its subrogation rights against Moore.

Prior to trial, the trial court restyled the case caption as “George and Linda Psihountakis, Plaintiffs v. Auto-Owners Insurance Company, the underinsured motorist carrier of George and Linda Psihountakis and Courtney Moore, Defendants.” However, except for general voir dire questions regarding insurance, the Court ruled that evidence or argument pertaining to UIM coverage would not be permitted. A jury trial was commenced and the court identified Auto-Owners as the UIM carrier and as a defendant. Further, in voir dire, the Psihountakis’ counsel informed the jury that damages where sought against Auto-Owners when he stated: This is going to be a lawsuit in which George is suing his own insurance company, Auto-Owners. Do any of you for any reason have some feeling one way or the other about whether or not somebody should be able to collect on their insurance policies?

Despite the trial court’s ruling, in opening statement, the Psihountakis’ counsel, stated: We believe that when you have heard all the evidence, we believe you’ll believe as we do that the Defendant Auto-Owners is simply trying to deny George the compensation he deserves.1 In addition to the above references to Auto-Owners, Auto-Owners’s attorney stated in voir dire and opening statement that he represented Auto-Owners and he actively participated in the trial.

The Psihountakis contend that Moore should not have been permitted to participate in the trial because the participation of Moore and Auto-Owners unfairly denied them a fair trial. This argument strikes this Court as disingenuous in light of the Psihountakis’ withdrawal of their motion to dismiss Moore as a party. Moreover, we can find no authority that would preclude Moore, a defendant and responsible to pay Auto-Owners in subrogation if the jury found against her, from participating in the trial.


The settlement of the Psihountakis’ claim against Moore and her insurance carrier was entered into using a procedure set forth in Coots v. Allstate Ins. Co., 853 S.W.2d 895 (Ky. 1993), and later codified by KRS 304.39-320. “When an injured party intends to settle with a tortfeasor and the tortfeasor’s liability insurance carrier, the Coots procedure allows the UIM carrier to preserve its subrogation rights against the tortfeasor by paying the injured party the policy amount.” Mattingly v. Stinson, 281 S.W.3d 796, 798 (Ky. 2009).

In Earle v. Cobb, 156 S.W.3d 257 (Ky. 2004), the Court considered whether a UIM carrier that used the Coots procedure must be identified at trial. Although the Court recognized the rule that evidence of liability insurance to show culpability is inadmissible, it concluded that when a direct action is pursued against a UIM carrier and the alleged tortfeasor, the UIM carrier must be identified to the jury. Id. at 262. When the Coots procedure is used, the tortfeasor is released from liability to the plaintiff and only remains liable to the UIM carrier and, therefore, the UIM carrier becomes the only real party with potential liability to the plaintiff. Id. In those circumstances, it is “improper to maintain the legal fiction of permitting the UIM carrier to either participate or sit idly by and allow the tortfeasor to defend at trial, thereby hiding the identity of a bona fide party.” Id. at 261.

Earle stands only for the proposition that when the Coots procedure is used, the UIM carrier that participates at trial must be indentified to the jury. In this case, Auto-Owners’s identity was clearly revealed to the jury by the court and counsel for all parties. It was identified as the Psihountakis’ UIM carrier and as a defendant and the Psihountakis’ counsel was permitted to expressly inform the jury that this was a case against Auto-Owners. There was no legal fiction such as in Earle. The jury was not left to speculate as to the parties’ identities or the interest represented by counsel participating in the trial. Id. at 260.

Nevertheless, the Psihountakis assert that the mere identity of Auto-Owners was insufficient. Although not specific regarding what evidence or argument was improperly prohibited by the trial court’s ruling, they argue that references to insurance should have been permitted as well as an instruction to the jury that Moore’s liability was extinguished and only damages were to be decided. Not only does this assertion go beyond Earle’s holding, it is a misstatement of the law. The Psihountakis’ claim against Auto-Owners was based on contract. However, the issues at trial were Moore’s negligence and damages. This was precisely the holding in Kentucky National Insurance Co. v. Lester, 998 S.W.2d 499, 504 (Ky.App. 1999), where the Court expressly rejected the contention that a Coots settlement precluded the UIM carrier from contesting the issue of fault. The Court held that the liability of the tortfeasor and the amount of damages are elements that must be established before determining the UIM carrier’s obligation. Proof of fault is essential to be entitled to recover from a UIM carrier in a lawsuit against that carrier. Id. Here, the existence of UIM coverage was not in dispute and the only issues of fact were fault and damages. References to or evidence concerning Auto-Owners other than its identity as the Psihountakis’ UIM carrier and as a defendant would serve only to confuse and prejudice the jury.

No Fault: DOI Bulletin 2013-04, dtd 10/4/2013 Addresses PIP Carriers Who UNILATERALLY reduce Provider Bills

Posted: 10 Oct 2013 08:31 AM PDT

bullhornThe following bulletin from the Kentucky Department of Insurance addresses a recurring problem when a reparations obligor (aka PIP carrier) decides to reduce a doctor or medical provider’s statement of services without obtaining an agreement. Although negotiated reductions seem reasonable and is a normal practice in the medical/insurance arena, it needs to be done the correct way.

The underlying premise is that medical providers charge different amounts for the same service, depending on the patient or his/her insurance. For example, each health insurer had a payment schedule for approved amounts which affect the write-off, co-pay deductible, or prohibition against balance billing; other insurers or agencies have approved payment schedules, eg., Medicare, Medicaid, Passport, Workers Compensation, Federal Government Plans which are controlled by statute; and automobile insurance to name a few.

Unfortunately, the approved rate of payment for the service seems to follow the bargaining power of the person paying, with an uninsured patient at the bottom of the totem pole of payments, only (for some unexplained reason) the no fault car insurance not far behind. Large health insurers and government provided insurance rules the roost on their payment schedules.

The net result is the person least able to afford it (the uninsured) pays the most, and in effect subsidizes everyone else, to include other uninsureds who do not pay.

Now what about no-fault (PIP)? With mandatory PIP coverages, this means the ONLY insurance to pay medical bills for those with no health insurance who are hurt in a car accident is no fault. Thus, these individuals need to be good stewards of their limited insurance funds for medical and wage loss. If their no fault carrier permits the provider to charge more than it charges everyone else, then guess who gets screwed? Yes, the person at the bottom

I can only assume this is the reason behind the legislative change – provide some parity and muscle for those who need the help the most.

To that end, some no fault carriers do step up to the plate and are participants in groups which have reduced payments or actually request and obtain a negotiated reduction. This works fine.

Others take the next step and conduct peer reviews of the providers medical or chiropractic services and may then disallow the amount, in whole or in part, based upon reasonableness and necessity of the service provided. Now this raises a whole new area of concern about the propriety of the no fault carrier’s actions which I will address another day.

Personal injury lawyers can also help maximize their client’s no fault insurance benefits by reserving or designating payments among elements of loss or even attempting to restrict the PIP benefits to cover the client’s out of pocket medicals after using their health insurance to pay first and obtain the benefits of the reduced payments per the payment schedules will encounter the stiff arm of the health insurer who will refuse to coordinate the benefits and shift the loss to their insured. And, the personal injury lawyer’s attempts to protect their client then can come under the threat of a bar complaint when the provider has obtained an assignment against their patient’s personal injury settlement recovery.

It is hard to bargain from strength when the ethical rules for lawyers in Kentucky convert a legal professional representing the interests of their injured client into a “bill collector” for the provider based upon a piece of paper. In due time, I will address this issue too.

The purpose of the above is to first thank the Department of Insurance for their efforts to add some muscle behind the statute (KRS 304.39-245) on negotiated reductions, but also to share my concerns about the hazards, risks and unfairness of the system.

Based upon the statute and the DOI Bulletin, I would like anyone’s comments on the liability of a no fault insurer not complying with Section 245 or other provisions regarding the payment of medical bills since the no fault act prescribes the procedures for honoring a PIP claim?

With that said, thanks for the help, and I hope and expect the automobile insurers will not capitulate and ignore their opportunity to address the inequitable billing rates and thus pursue a rule of convenience and pay the stated amounts and close the file.

One avenue of attack for the health insurer would be to obtain the payment schedule from a government agency and based upon the CPT billing codes etc. seek a reduction accordingly. If the provider refuses, then coordinate with the Department of Insurance and the Attorney General’s Office to address the disparate billing rates using the insurance and consumer protection code as their slingshot and stone against Goliath


Thursday, October 10th, 2013

Recently it was alleged that a judge denied a DVO to a wife who had been shot 5 times by her husband, and who sought contempt for the estranged husband for 182 times texting, sending e-mail, texts, and by threatening her via cyber means. Her DVO petition was set aside by the court.

The victim and her family seek a change in the law to include such cyper harrassment. The court apparently denied the DVO.

The following message was sent to LawReader this week:

“The 31-year-old Florence woman whose estranged husband, Dennis D.J. Mathis shot her five times Aug. 6, leaving her paralyzed, is about to enter a new part of her journey to live a more normal life Waters no longer has a neck brace. She’s off the ventilator most of the day. Her feeding tube is shut off in the morning, and she is eating with help. On Monday, her dad fed her lunch.
A drive to change the law

Waters family is telling her story and trying to change Kentucky’s domestic violence law, as Alisha wants.
“We are seeking an amendment to Kentucky law to clearly state that stalking and threatening via cyber means (text, email and social networking) are reason enough to grant a Domestic Violence Order,” Scudder said. DVOs place restrictions on a potential domestic violence offender, so he or she cannot come within a certain distance of the victim.
A DVO would have also shown up in a criminal background check, preventing Mathis from buying a gun, which he did the day before the shooting.

“That’s all the family and myself are asking with our petition, Scudder said. So far the petition has gathered 1,407 signatures at:

Mathis texted Waters 186 times in two weeks prior to her seeking an Emergency Protection Order, the first step toward a DVO. She received the EPO on April 16, but was denied a DVO six days later.

The April 22 court order from Kenton County Family Court Judge Lisa Bushelman reads no allegation of domestic violence.”



KRS 403.715 Interpretation of KRS 403.715 to 403.785 by court.

KRS 403.715 to 403.785 shall be interpreted by the courts of the Commonwealth of
Kentucky to effectuate the following express legislative purposes:
(1) To allow persons who are victims of domestic violence and abuse to obtain effective, short-term protection against further violence and abuse in order that their lives will be as secure and as uninterrupted as possible;
(2) To expand the ability of law enforcement officers to effectively respond to situations involving domestic violence and abuse so as to prevent further such incidents and to provide assistance to the victims;
(3) To provide peace officers with the authority to immediately apprehend and charge for violation of a protective order any person whom the officer has probable cause to believe has violated an order of protection issued under KRS 403.740 or 403.750 and to provide courts with the authority to conduct contempt of court proceedings for these violations;
(4) To provide for the collection of data concerning incidents of domestic violence and abuse in order to develop a comprehensive analysis of the incidence and causes of such violence and abuse; and
(5) Nothing in KRS 403.715 to 403.785 shall be interpreted to repeal or supplant any duties, responsibilities, services, or penalties under KRS Chapters 209 or 620.
Effective: July 14, 1992

KRS 403.740 Emergency protective order.
(1) If, upon review of the petition, as provided for in KRS 403.735, the court determines that the allegations contained therein indicate the presence of an immediate and present danger of domestic violence and abuse, the court shall issue, upon proper motion, ex parte, an emergency protective order:


Effective: July 13, 2004

Comment: It would appear that under the forging statute that a DVO can order that a protective order can restrain ‘ANY COMMUNICATION”…but the victim in this case suggests that cyber harassment was not deemed by the court to fall within the prohibition of “any communication”.

KRS 403.750

KRS 403.720 Definitions for KRS 403.715 to 403.785.
As used in KRS 403.715 to 403.785:
(1) “Domestic violence and abuse” means physical injury, serious physical injury, sexual abuse, assault, or the infliction of FEAR OF IMMINENT PHYSICAL INJURY, serious physical injury, sexual abuse, or assault between family members or members of an unmarried couple;
(2) “Family member” means a spouse, including a former spouse, a parent, a child, a stepchild, or any other person related by consanguinity or affinity within the second degree; and
(3) “Member of an unmarried couple” means each member of an unmarried couple which allegedly has a child in common, any children of that couple, or a member of an unmarried couple who are living together or have formerly lived together.

LawReader admits that we do not know all the facts of the requested petition, but opines that the existing DVO Chapter 403 is written broadly enough to restrain “any communication” and that this includes “cyber threats.”
However, if the Court is correct that Chapter 403 does not include cyber threats, then we would be in favor of the amendment of Chapter 403, to clearly grant the court authority to restrain such cyper threats.
We invite comment from the Court or from any party about this issue. Please e-mail comments to

The last PIP payment actually made or reissued is the last date for SOL purposes (even if mistakenly stated by the reparations obligor and relied upon by the injured insured) is pending MDR before SCOKY

Wednesday, October 9th, 2013

The Latest from Kentucky Cases


SOL: COA decision holding that the last PIP payment actually made or reissued is the last date for SOL purposes (even if mistakenly stated by the reparations obligor and relied upon by the injured insured) is pending MDR before SCOKY. (Beaumont vs. Muluken, COA, NPO 6/28/2013)

Posted: 08 Oct 2013 06:38 PM PDT

oops my badBeaumont vs. Zeru Muluken, COA, NPO, 6/28/2013 (pending motion for discretionary review before the Kentucky Supreme Court) produces a horrendous result with the clear and succinct analysis found in the dissent rather than the majority opinion. To follow the status of the MDR, click here for the case information page at the Court of Appeals.

Basically, the Court of Appeals held that a claimant receiving personal injury protection benefits cannot rely upon the assertion, even if mistaken, by the reparations obligor aka PIP insurer for the last date of PIP payment upon which to calculate the statute of limitations. In this case, the PIP carrier notified the insured’s attorney by letter (not ledger) that the last pip payment was a certain date, and suit was timely filed based upon that date. But, and this is a big but, it later turns out that the date the reparations obligor stated in their letter was not the last date of PIP payment but rather the date a check was RE-issued to a provider (the assumed name of a provider). The same entity but a different name.

My practice has been typically to write the reparations obligor to confirm in writing the last date of the PIP payment and letting them know that I am relying upon that date for statute of limitations (SOL) purposes. If one cannot rely upon anything from the insurer after the two year anniversary of the car collision, then the rule is simple – file before the two year anniversary and kick the cases to a litigious posture.

COMBS, JUDGE, DISSENTING: The reasoning of the majority opinion is persuasive in its reliance on Wehner v. Gore – albeit an unpublished opinion. Nonetheless, I must dissent because there is an additional factor in the case before us that distinguishes it from all other pertinent precedent. That element is the affirmative representation by letter dated July 29, 2010, by Cincinnati Insurance that the last PIP payment had been made by the issuance of the check of September 25, 2009, to Kentucky Orthopedic Rehab Team, LLC.

Beaumont timely filed her lawsuit in legitimate reliance on the date that could only be provided by Cincinnati Insurance. Date of payment is not involved (and need not be) since the question posed and answered was date of issuance of the final check. That is the sole question before us.

Sound and time-honored principles of estoppel should apply to prevent Cincinnati Insurance from denying this critical representation. The case should be permitted to proceed.

And now a word from the majority:

MOORE , JUDGE: Bonita Beaumont appeals the Jefferson Circuit Court’s dismissal of her personal injury claims against Muluken Zeru in this automobile accident case. At issue is whether Beaumont’s complaint was timely filed under Kentucky Revised Statutes (KRS) 304.39-230(6), which specifies in pertinent part that a tort action must be filed within two years after the last payment made by a reparations obligor.

The pertinent provision of the Kentucky Motor Vehicle Reparations Act, (KMVRA) provides that “[a]n action for tort liability not abolished by KRS 304.39-060 may be commenced not later than two (2) years after the injury, or the death, or the last basic or added reparation payment made by any reparation obligor, whichever later occurs.” KRS 304.39-230(6). Thus, if the last payment made was the August 13, 2009, check to Jewish Hospital, Beaumont’s action is barred as untimely; if it was the reissue of the check on September 25, 2009, her action may proceed.

An almost-identical argument was addressed and rejected by a panel of this Court in an unpublished opinion, Wehner v. Gore, 2006 WL 2033894 (Ky. App. 2006) (2005-CA-000689-MR). In that case, the claimant Wehner’s reparations obligor, State Farm Insurance Company, paid the last PIP payment to Nicholasville Road MRI on December 13, 2000. This last payment exhausted Wehner’s PIP benefits. The check to MRI was either not received or lost, and MRI asked State Farm to reissue the check. State Farm issued a new check on August 13, 2001. Wehner filed her complaint on July 14, 2003, more than two years after the first check to MRI was issued.

In reliance on Wilder, the opinion held that her suit was untimely, because the date a check is received or deposited has nothing to do with the date of final payment. Final payment is the date the last check is cut, dated, or “made.” That date was December 13, 2000. The August 13, 2001, check was not a check “made” for additional services, but a replacement check between MRI and State Farm.

Although we are not bound by the holding of this unpublished opinion, we see no reason to deviate from its reasoning. Although it is unfortunate that Cincinnati Insurance provided the date of the reissued check as the date of final payment in responding to Beaumont’s attorney’s inquiry, the PIP ledger shows a total amount paid of $10,400, which should have prompted further inquiry into the sequence of payments.

The order of dismissal is therefore affirmed. TAYLOR, JUDGE, CONCURS.


Tuesday, October 8th, 2013





The Kentucky Bar Association announces a vacancy in the position of Deputy Bar Counsel in the Office of Bar Counsel (OBC). The applicant must be a licensed member of the Kentucky Bar, with a minimum experience in the practice of law of 3 years. Litigation experience preferred.

The OBC is responsible for the investigation and prosecution of all disciplinary cases against members of the Kentucky Bar, pursuant to the Rules of the Supreme Court of Kentucky. OBC lawyers investigate bar complaints, review and analyze allegations of professional misconduct, present complaints to the Inquiry Commission regarding the issuance of disciplinary charges, examine witnesses at evidentiary hearings, present oral arguments to the KBA Board of Governors, and write briefs.

The OBC also advises the Board of Governors and Bar Committees on issues relating to ethics and the practice of law, provides staff support to the Attorneys’ Advertising Commission and the Clients’ Security Fund; assists the Executive Director with the enforcement of prohibitions against the unauthorized practice of law; and performs various other duties relating to the regulation of the Kentucky legal profession, as directed by the Board of Governors and the Executive Director.

The OBC is supervised and directed by a Chief Bar Counsel and a Chief Deputy. In addition, there are seven Deputy Bar Counsel. Each Deputy is responsible for a full caseload of disciplinary files and may be assigned one or more administrative or supervisory responsibilities.

This position represents a unique opportunity for a member of the Bar to use litigation skills and acquire expertise in the field of ethics as applied to the practice of law.

This is a full-time professional position in the public service sector that requires the same level of dedication as any other legal career. Lawyers employed by the Kentucky Bar Association are not permitted to serve private clients or otherwise practice law outside of their official duties. The OBC lawyers keep regular office hours at the Kentucky Bar Center in Frankfort and are required to engage in occasional travel throughout the state. The contemplated salary for the vacant position is competitive with salaries for lawyers with 3 or more years of experience. Benefits include vacation and sick leave, paid single health insurance and participation in the Kentucky Employees’ Retirement System (KERS).

To apply for the position, mail two copies of a detailed professional resume, which must include your salary history, references, and two copies of a recent legal writing sample, to John Meyers, Executive Director, Kentucky Bar Association, 514 West Main Street, Frankfort, Kentucky 40601-1883, before November 8, 2013. No e-mail or fax submissions will be accepted. The Kentucky Bar Association is an equal opportunity employer.


Tuesday, October 8th, 2013

Heather Gerken knows her way around the law and politics.
The Yale Law School professor was a clerk for former U.S. Supreme Court Justice David H. Souter and was in the “boiler room” as part of the election day legal team for Barack Obama’s two presidential campaigns.
On Monday, she came to Marquette University Law School to talk about “the so-called dark money trend” and its effect on American politics. She gave the annual lecture named in honor of Robert F. Boden, who was the law school’s dean from 1965 to 1984.
In her speech, she sought to “debunk the conventional wisdom” about the 2010 Citizens United decision when the U.S. Supreme Court lifted many restrictions on corporate and labor union spending in elections.
And she tried to put a focus not on the campaign cash but on the rise of what she called “shadow parties” that are becoming dominant in the political system.
“I’m not going to tell you the near-ubiquitous tale that reformers, reporters and even a good number of academics tell about the current state of affairs,” she said. “That story, one you all know well, is that Citizens United ushered in a new era of dark money, with wealthy corporations spending wildly, saturating the airwaves, and taking over American politics.”
Gerken, 44, said the Citizens United decision matters “not because it opened the corporate floodgates. They were already, in effect, open to any well-advised corporation. Citizens United mattered because of what it said about independent spending and corruption.”
The court, she said, “narrowed the definition of corruption, which is regularly invoked whenever Congress wants to pass reform.”
She ruminated about the campaign cash doled out in the 2012 presidential campaign by billionaires and super PACs, an elite that may be squeezing out the party faithful, “the foot soldiers of our democracy.”
“My fear is that the ‘dark money’ trend is a symptom of a deeper shift taking place in American politics as we move from the political parties we know to a system dominated by powerful groups acting outside of the formal party structure,” she said. “Put succinctly, my worry isn’t so much about dark money, but about shadow parties.”
In many cases, the super PACs, while supposedly independent, are often closely tied to candidates, a state of affairs revealed by, of all people, comedian Stephen Colbert. His parody super PAC raised awareness about such gaps in campaign finance laws.
“In my view, Stephen Colbert has singlehandedly done more for campaign finance reform than anyone in the 20th century except Richard Nixon,” Gerken said.
Gerken said she was concerned about what independent organizations like super PACs “mean for the political parties and the way American politics is structured.”
“American politics churns at a marked pace,” she said. “Any academic who tells you he knows what’s going to happen in the wild and woolly world of politics isn’t an academic worth paying attention to.”
However, she said, the center of gravity may shift, from the Democratic and Republican parties to these “shadow parties.”
“What happens if the elites run the shadow parties and the party faithful are left by themselves in the shell of the formal party structure?” she said. “What happens if what really matters in politics happens in the shadow party, not the formal party?”
Gerken is concerned that these well-financed groups may separate “the party elites from the party faithful.”

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Monday, October 7th, 2013

Last month, a three-judge panel from the U.S. Court of Appeals for the Ninth Circuit ruled that a prosecutor in San Mateo County, Calif., committed “textbook” misconduct when she “knowingly elicited and then failed to correct false testimony” during an armed robbery trial. A judge from the U.S. District Court for the Northern District of California also found misconduct in the case, but ruled it was a “harmless error” and upheld the conviction of the defendant, La Carl Martez Dow. The appeals court panel overturned that ruling, and Dow’s conviction.

But an important detail was missing from both those rulings — the prosecutor’s name, Jennifer Ow. At the time of Martez Dow’s conviction, she was an assistant district attorney for San Mateo county. She currently holds the same title in Nevada County, Calif.

Earlier this year, the U.S. Supreme Court declined to hear an appeal alleging misconduct by a federal prosecutor who made racially offensive remarks during a drug trial in Texas. Justice Sonia Sotomayor wrote a separate opinion that excoriated the prosecutor, who, she wrote, “tapped a deep and sorry vein of racial prejudice that has run through the history of criminal justice in our Nation.”

“It is deeply disappointing to see a representative of the United States resort to this base tactic more than a decade into the 21st century,” she wrote. “Such conduct diminishes the dignity of our criminal justice system and undermines respect for the rule of law. We expect the Government to seek justice, not to fan the flames of fear and prejudice.”

But Sotomayor didn’t name the prosecutor, either. And while her opinion attracted a fair amount of media attention, those initial accounts also failed to give the prosecutor’s name.

Ken White, a former federal prosecutor who now blogs at, checked the legal document service PACER and tracked down the name: Sam L. Ponder. He is still an assistant U.S. attorney in Texas.

After White found Ponder’s name, many media outlets amended their original reports to include it. But the case is an exception. The names of misbehaving prosecutors are rarely if ever included in appellate court opinions that find misconduct. Those opinions aren’t all that well covered in the media to begin with, but when they are, it can take a fair amount of digging for a reporter on the courts beat to match the prosecutor to the case. So most don’t.

There’s no formal rule precluding the publication of a prosecutor’s name in an opinion. White says it’s more about professional courtesy.

“It’s tradition. It’s an informal practice driven by the government’s fairly strong stand that the names shouldn’t be published,” he said. “I’ve seen some really egregious, outrageous examples of misconduct in which the government actually asked for opinions to be republished to remove names of specific prosecutors.”

Some prosecutors argue that they should be protected from false allegations of misconduct. At the U.S. Department of Justice, disciplinary actions against federal prosecutors are usually kept confidential, out of respect for the prosecutors’ privacy. Many state bar associations keep disciplinary complaints and outcomes against prosecutors (and other attorneys) secret for similar reasons.

“I find it kind of odd,” White said. “You’re dealing with a justice system where the defendant never gets that kind of protection of anonymity. There’s no delay in releasing his name until he’s actually convicted. Instead, prosecutors put out press releases and make public statements about the accused. I just don’t think there’s a legitimate argument you can make as to why prosecutors should get more protection from allegations of wrongdoing than defendants do.”

The practice also makes it more difficult to track repeat offenders. To see whether a prosecutor found to have committed misconduct in a certain case has been similarly rebuked in other cases, you would need to search for all the cases handled by that prosecutor’s office in which an appeals court found misconduct, then either call someone associated with the cases to inquire about the prosecutor’s name, or look up each of those cases on PACER, then sort through court filings and records. Even then, the identity of the offending prosecutor isn’t always apparent.

“If it’s a case where you have team of prosecutors, and the misconduct involves a statement made in court, it isn’t always clear which prosecutor is at fault,” White said. “It’s all needlessly complicated.”

The complexity of piecing together a particular prosecutor’s record not only makes it more difficult for journalists and watchdog groups to identify misconduct, it also makes it nearly impossible for voters to learn about a prosecutor’s performance when he or she runs for re-election, or moves on to run for judge or political office.

Charles Sevilla, an attorney in San Diego, is pushing a broader rule that would require appeals courts in California to include the names of all trial attorneys for both sides in their opinions. “They already name the trial judge and the attorneys for the appellee and the appellant,” he said. “There’s no reason why they can’t add an extra line to include the trial attorneys.”

Sevilla says it’s not about holding just prosecutors accountable, but the courts system in general. “Any member of the public who is looking for an attorney should be able to go on the Internet to see the names of attorneys who have tried similar cases, and to see the result in those cases,” he said. “The people have the right to know what’s going on in the public courts.”

That public scrutiny should then also apply to under-performing defense attorneys. Appeals courts rarely name the attorney at fault when ruling in favor of a claim of ineffective assistance of counsel, although White says the practice isn’t nearly as consistent as it is with prosecutors.

“You have to remember, the bar for ineffective assistance is set really low,” he said. “You have to make a really egregious mistake to be found ineffective.”

Sevilla’s blanket proposal to name all the trial attorneys would address both positions equally. True accountability would mean a searchable, easy-to-use database of misconduct cases.

“You are starting to see some bloggers and public defenders keep running files on bad prosecutors,” White said. “That’s a good start.”

Internet shaming has certainly worked on Sam L. Ponder. Should he ever run for office, his behavior as an assistant U.S. attorney is pretty easy to find. Half the returns on the first page of a Google search for his name are articles and blog posts about his conduct in the case for which Sotomayor rebuked him.

Also on HuffPost:

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