Archive for January, 2014

Secretary of State 640 Candidates Filed with Secretary of State’s Office to Run in May 20 Primary

Friday, January 31st, 2014

Secretary of State Alison Lundergan Grimes announced today that 640 candidates filed with her office to run in the May 20 Primary Election. The deadline to file was January 28, 2014, at 4:00 p.m., local time at the place of filing.

“More than double the number of candidates who filed with my office in 2012 are seeking public office this year, and more than 4,800 candidates filed statewide to run in the Primary” said Grimes. “I’m excited to see so many engaged people who want to serve their fellow Kentuckians, and I’m grateful to our state and local election officials and staff members for their hard work this filing season.”

There are 37 contested primaries for legislative offices that file with the Secretary of State: 2 for U.S. Senator, 4 for U.S. Representative, 6 for State Senator, and 25 for State Representative. There will also be a number of primaries for judicial offices. Candidates for county and city offices file with the county clerk in the county in which they serve.

Drawings for ballot position for the Primary Election will be held in the respective filing officials’ offices at 2:00 p.m. on Thursday, January 30.

Individuals seeking to run as independent, political organization or political group candidates for most partisan offices must file a statement-of-candidacy form no later than Monday, April 1, 2014, and a petition of nomination no later than August 12, 2014.

A complete list of candidates who have filed is available on the Secretary of State’s website at

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Chief Justice Minton to discuss priorities for Judicial Branch budget before legislative committee Feb. 4 in Frankfort

Thursday, January 30th, 2014

Chief Justice MintonFRANKFORT, Ky. Jan. 30, 2014 – Chief Justice of Kentucky John D. Minton Jr. will discuss the Judicial Branch budget before the General Assembly’s House Budget Review Subcommittee on Justice and Judiciary on Tuesday, Feb. 4, in Frankfort. The meeting is open to the public and will take place at noon EST in the Capitol Annex.

The Judicial Branch budget bill covers funding for Fiscal Years 2014-2016 and has been filed as House Bill 238.

On Tuesday, Chief Justice Minton will outline his priorities for the biennial budget, including a complete overhaul of the Judicial Branch’s broken salary structure. Salaries for court system personnel have fallen behind those in the private sector and the other branches of state government. In addition, one-quarter of Judicial Branch employees fall under the federal poverty guidelines for a family of four and an even larger number qualify for food stamps.

Chief Justice Minton will also address his other priorities, which call for maintaining the Judicial Branch’s base budget at current levels with no reductions, funding the required cost of employee benefits and reinvesting savings from House Bill 463 into the Judicial Branch.

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

Judge Sara Walter Combs Receives Lifetime Achievement Award From The Kentucky Women’s Law Enforcement Network

Wednesday, January 29th, 2014

Release on :
January 17, 2014

(FRANKFORT, Ky.) – On January 17, 2014 the Kentucky Women’s Law Enforcement Network awarded Judge Sara Walters Combs with a Lifetime Achievement Award. This award is given to someone from any field including, academia, business, government, public safety or law enforcement. Nominees must have no less than 20 years in direct support and/or service to the law enforcement community. Nominees demonstrate a measurable support to KWLEN. Nominees must have made significant and meritorious contributions to the law enforcement community during her/his career.

Throughout Judge Combs’s career, she has shown a tremendous amount of support to KWLEN and the entire law enforcement community. In addition to her personal accomplishments she has improved public understanding of the law enforcement profession. Judge Combs demonstrates the highest ethical and professional standards and without question deserves the 2013 KWLEN Lifetime Achievement Award.

Judge Sara Walter Combs was the first woman and the first judge from the Eastern Kentucky counties of the 7th Appellate District to serve as chief judge of the Kentucky Court of Appeals. She served in that role from June 2004 until May 2010.

Judge Combs also made history by being the first woman to serve on the Supreme Court of Kentucky when then Gov. Brereton Jones appointed her to serve on the state’s highest court in l993. After she narrowly lost her election to retain that seat on the Supreme Court, Gov. Jones appointed her to fill a vacancy on the Court of Appeals in 1994. She was elected to the court in November 1994 and re-elected in 2000 and again in 2006.

The Kentucky Bar Association named Judge Combs as Outstanding Judge of the Year in June 2010. Judge Combs ranked second in her class at the University of Louisville Brandeis School of Law, which later honored her with a Distinguished Alumni Award. She was valedictorian at both Sacred Heart Academy in Louisville and U of L, where she obtained an undergraduate degree in French. She also earned her master’s degree in French from U of L, having been recognized as a Woodrow Wilson Designate.

Judge Combs has taught at the high school and university levels in addition to gaining broad experience in the practice of law. She began her career as an associate with Wyatt, Tarrant & Combs in Louisville before serving as corporate counsel to an advertising company. She also practiced law with her late husband, former Kentucky Gov. Bert T. Combs; established a solo practice in Stanton; and became a regional associate with the Louisville law firm of Mapother & Mapother.

She is affiliated with numerous professional, educational and civic organizations. She is a member of the Kentucky Bar Association, the Louisville Bar Association and the University Press of Kentucky. She also serves on the boards of Pikeville College and Lees College. She previously served for seven years on the Kentucky Appalachian Commission.

When Judges Believe in ‘Natural Law’ — Justice Clarence Thomas believes the Holy Spirit Overrides the Constitution

Tuesday, January 28th, 2014

At least two Supreme Court justices think there’s a divine legal code underlying the Constitution. How will this influence the outcomes of Hobby Lobby and other cases where the plaintiffs claim a moral high ground?
Anthony Murray Jan 27 2014, 10:29 AM ET

…Justice Clarence Thomas (calls) … on the Holy Spirit to guide judges, attorneys, and other legal professionals. Thomas’s belief in natural law came to light during his 1991 Senate confirmation hearings. (Reuters)
This year the U.S. Supreme Court will rule on at least two cases that weigh constitutional and statutory law against religious or moral beliefs. Both involve challenges to the Obamacare provision that requires for-profit companies to offer health insurance policies that cover contraception. In Conestoga Wood Specialties Corp. v. Secretary, etc., a national wood-supply company and its owners assert that they are entitled to an exemption based on their Mennonite owners’ view that contraception “is intrinsic evil and a sin against God to which they are held accountable.” In Hobby Lobby Stores, Inc., et al. v. Sibelius, Hobby Lobby and its owners argue that they operate under Christian principles and that it would be “immoral” for them to provide contraception coverage.
The court is also likely to hear a third case: In Gilardi v. U.S. Dept. of Health and Human Services, a court of appeals case decided in November, the court held that the contraception mandate violated the constitutional and statutory rights of the plaintiffs, two Roman Catholic brothers who own a food-processing company. The judge who wrote the opinion, Janice Rogers Brown, has frequently been mentioned as a potential Republican candidate for the U.S. Supreme Court.
According to a 2006 New York Times article by David D. Kirkpatrick, Brown “has often argued that judges should look to higher authority than precedent or man made laws in making decisions.” Her opinion in the Gilardi case relies explicitly on “moral” law in interpreting the Constitution and statutes. Forcing the Gilardi brothers to comply with the contraception mandate, she wrote, would be a “compelled affirmation of a repugnant belief.” She said the Affordable Care Act forces the plaintiffs to make a “Hobson’s choice”: Either they refuse to provide contraception coverage and pay a large monetary penalty, “or they become complicit in a grave moral wrong.”
If natural law exists, what is in it? Is it a blank slate on which anyone may write subjective beliefs?
If Judge Brown believes that constitutional and statutory law must yield to a “higher authority,” she isn’t alone. In 1991, shortly before Supreme Court Justice Clarence Thomas’s Senate confirmation hearings, Harvard Law School professor Laurence H. Tribe wrote in The New York Times that Thomas was “the first Supreme Court nominee in 50 years to maintain that natural law should be readily consulted in constitutional interpretation.” Thomas was repeatedly grilled on this point during the hearings that followed. Though he acknowledged that the Constitution is “[t]he positive law,” he added, “We look at natural law beliefs of the Founders as a background to our Constitution.”
Many natural-law believers cite Thomas Jefferson’s Declaration of Independence to support their beliefs. In the familiar opening lines, Jefferson wrote:
When, in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
And then:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.
In this powerful language, Jefferson cited every possible source of the rights the new country was claiming. They came from “powers of the earth,” from “laws of nature and of nature’s God”; they were “self evident,” and “endowed by [a] Creator.” By investing the rights with a divine origin, the Declaration elevated them. These were not mere political rights. They were higher, transcendent rights that were “unalienable.” If the rights were God-given, they could neither be denied nor withdrawn by the target of the Declaration, Britain’s King George III.
The Declaration’s natural-law position embraced an ancient tradition of religious thought. Over 500 years earlier, Thomas Aquinas, the 13th-century Dominican priest and theologian, had made natural law a cornerstone of Roman Catholic philosophy. In the centuries that followed, natural-law advocates grounded their theories on religion-based theology, or simply found them “self evident,” the phrase Jefferson used. None of these believers attempted to provide an empirical basis for natural rights.
If natural law were regarded as simply a religious creed, it would not conflict with the positive laws embedded in our Constitution and laws. The threat lies in the use of natural law by courts in judicial decisions. Invoking it in construing the Constitution and statutes raises an obvious question: If natural law exists, what is in it? Is it a blank slate on which anyone may write subjective beliefs? Does it include religious dogmas? If so, of what religions?
Importantly, neither Jefferson nor any of the other Founders claimed that the Declaration’s natural-law concepts were incorporated into the Constitution. Indeed, the Constitution explicitly rules out any such suggestion. The Supremacy Clause of the original 1787 document provides that the Constitution and the laws and treaties made “in pursuance thereof … shall be the supreme law of the land.” It doesn’t say that they shall be supreme unless countermanded by a “higher law.”
Supreme Court Justice Oliver Wendell Holmes emphasized the danger of invoking divine morality when he wrote, in a 1917 opinion, “The law is not a brooding omnipresence in the sky.” He elaborated a year later, in a Harvard Law Review article titled “Natural Law.” Holmes noted we all have impulses that convince us, as individuals, of what is and is not true. He called those impulses a system of “Can’t Helps”: We can’t help believing them because, to us, they seem so true. “Men to a great extent believe what they want to,” Holmes wrote, “although I see in that no basis for a philosophy that tells us what we should want to want.”
Addressing the subject of “jurists who believe in natural law,” Holmes wrote that they “seem to me to be in that naïve state of mind that accepts what has been familiar and accepted by them and their neighbors as something that must be accepted by all men everywhere.” But he argued that this notion—“our truth is cosmic truth”—was entirely unfounded. Among all of our wishes, Holmes pointed out, the desire to live probably ranks the highest. But does that fundamental urge give us a right to life? No, said Holmes: “The right to life is sacrificed without a scruple not only in war, but whenever the interest of society, that is, of the predominant power in the community, is thought to demand it.” At that point, he wrote, “the sanctity disappears.”
Like Thomas Jefferson, who famously called for a “wall of separation between church and state,” Holmes believed that personal beliefs had no place in judicial decisions. Justice Thomas apparently disagrees. In a 2005 case, Cutter v. Wilkinson, Thomas wrote in a concurring opinion that “Congress need not observe strict separation between church and state or steer clear of the subject of religion. It need only refrain from making laws ‘respecting an establishment of religion.’”
Thomas is not the only Supreme Court justice who believes our law has a divine origin. In a 2005 New Yorker article, “Supreme Confidence,” Margaret Talbot quoted Justice Antonin Scalia as saying that “government carries the sword as ‘minister of God’ to execute wrath upon the evildoer” and that the Ten Commandments are a “symbol of the fact that government derives its authority from God.”
But in the courtroom, the only commandments that matter are the Constitution and the laws enacted pursuant to it. A government that tries to invoke divine law ceases to be of, by, and for the people. As Supreme Court Justice Harry Blackmun noted in a concurring opinion in the 1992 case Lee v. Weisman, “Democracy requires the nourishment of dialog and dissent, while religious faith puts its trust in an ultimate divine authority above all human deliberation.” The moment a judge turns to natural law, democracy vanishes.

Five Class Action Takeaways from the U.S. Supreme Court’s AU Optronics Decision

Tuesday, January 28th, 2014

Article By:
Brian W. Shaffer Thomas J. Sullivan Morgan, Lewis & Bockius LLP
posted on: Tuesday, January 28, 2014 Civil Procedure / Litigation / Trial Practice

Court’s decision provides key takeaways for class action defendants, including how the decision limits the use of CAFA’s mass action provision to suits that actually name 100 or more persons as plaintiffs.
On January 14, the U.S. Supreme Court issued its decision in Mississippi ex rel. Hood v. AU Optronics Corp.,[1] holding that a parens patriaeaction filed by the state of Mississippi on behalf of its citizens was not a “mass action” as defined by the Class Action Fairness Act (CAFA) and thus could not be removed to federal court on that basis. The Court interpreted the definition of “mass action” as requiring 100 or more parties to be actually named as plaintiffs. The Court also rejected arguments that the state’s citizens should have been counted as the real unnamed parties in interest for purposes of the 100-person threshold. Instead, Mississippi’s parens patriae lawsuit included only one plaintiff, the state.
There are five significant takeaways from AU Optronics that any potential defendant should understand. First, the decision limits the use of CAFA’s mass action provision to suits that actually name 100 or more persons as plaintiffs. Second, the ruling likely enhances the incentive for private contingency-fee counsel to pair with state attorneys general and bringparens patriae actions in state court. Third, the opinion underscores the possibility that a defendant may face both class actions and parens patriae actions for the same alleged conduct—often in different courts. Fourth, private contingency-fee counsel may be further encouraged to urge state attorneys general to use parens patriae actions as an alternative to private class actions that would otherwise be barred, such as when potential class members have signed class action waivers. Finally, despite these possibilities, the AU Optronics decision is limited to jurisdiction under CAFA and does not eliminate or restrict the ability of litigants to remove attorney general cases on other grounds.
CAFA’s Mass Action Provision
Congress enacted CAFA to expand federal jurisdiction and to provide for jurisdiction over class actions with national importance.[2]Among its various provisions, CAFA contemplates two types of cases: class actions and mass actions.[3] For both types of actions, CAFA loosened federal statutory jurisdictional requirements by only requiring minimal diversity among the parties[4] as well as an aggregate amount in controversy that exceeds $5 million.[5] Mass actions are defined under CAFA as the following:
[A]ny civil action (except a [class action] within the scope of section 1711(2)) in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs’ claims involve common questions of law or fact, except that jurisdiction shall exist only over those plaintiffs whose claims in a mass action satisfy the jurisdictional amount requirements under subsection (a).[6]
Of particular note is the limitation in the final clause, providing that, unlike a typical class action under Federal Rule of Civil Procedure 23, federal jurisdiction in a mass action “‘shall exist only over those plaintiffs’ whose claims individually satisfy the $75,000 amount in controversy requirement.”[7] CAFA also provides certain exceptions for mass actions, including actions that involve principally local issues or raise matters of state concern.[8]
Supreme Court Opinion
In AU Optronics, the state of Mississippi, represented by private contingency-fee counsel, sued AU Optronics and other manufacturers of liquid crystal displays (LCDs), alleging that they formed an international cartel to restrict competition and raise prices of LCDs.[9] Mississippi brought a parens patriae action in state court on behalf of itself and Mississippi citizens who purchased LCD products at allegedly inflated prices. Defendants removed to the U.S. District Court for the Southern District of Mississippi. The district court found that the state’s action qualified as a mass action because the state sought to represent the interests of many unnamed citizens, exceeding the “100 or more persons” requirement for a mass action.[10] The district court interpreted the words “persons” and “plaintiffs” in the mass action section of CAFA as including the real parties in interest. The district court remanded, however, finding that the “general public” exception applied.[11] The U.S. Court of Appeals for the Fifth Circuit agreed that the AU Optronics action qualified as a mass action but reversed the district court’s finding that the suit fell within the general public exception.[12]
Justice Sonia Sotomayor, writing for a unanimous Court, disagreed with both the district court and the Fifth Circuit, instead interpreting the phrase “persons” as including only plaintiffs named in the action. Turning first to the statutory text, Justice Sotomayor observed that the “mass action” definition does not include “100 or more named or unnamed real parties in interest,” instead referring to “100 or more persons.”[13] According to the Court, had Congress intended to include the “unnamed real parties in interest,” it could have drafted language to that effect as it did elsewhere within CAFA.[14] The Court also foresaw administrative complications for district courts if they were required to consider unnamed parties to a mass action, such as determining whether unnamed parties’ claims satisfied the $75,000 requirement and how to handle claims valued at less than $75,000.[15]
Significantly, the Court observed that the mass action component of CAFA “functions largely as a backstop to ensure that CAFA’s relaxed jurisdictional rules for class actions cannot be evaded by a suit that names a host of plaintiffs rather than using the class device.”[16] In doing so, the Court rejected arguments that federal courts are required under CAFA to look at the substance of actions for jurisdictional purposes in order to determine the real parties in interest. While the Court agreed that analyzing the real parties in interest is a “background principle” for determining diversity, the justices disagreed with the conclusion that Congress intended that principle to apply to CAFA’s mass action provision.[17]
Five Takeaways
AU Optronics creates a significant limitation for parties seeking to remove certain actions under CAFA’s mass action provision generally and for attorney general actions specifically. There are five key takeaways for any potential class action party:
The Court limited use of CAFA’s mass action provision to those actions that actually name “100 or more persons” as plaintiffs. In addition, although not expressly held by the Court, each plaintiff must have a claim in excess of $75,000 for the claim to remain in federal court. As the Court reasoned, the mass action provision serves as a “backstop” to CAFA’s relaxed jurisdictional rules and ensures that plaintiffs cannot evade federal jurisdiction by naming “a host of plaintiffs rather than using the class device.”[18]
As a practical matter, the Court’s ruling enhances the incentive for private contingency-fee counsel to pair with state attorneys general and bring parens patriae actions in state court on behalf of state citizens in tandem with or immediately following private class actions. Thus, there is an increased possibility of follow-up actions after the settlement of a class action, possibly brought by the same private counsel under the authority of a state attorney general.
Such multiple cases for essentially the same conduct are likely to proceed in different courts. Chief Justice John Roberts homed in on this problem during oral argument in AU Optronics, questioning whether an attorney general could file a parens patriae action immediately following a class action settlement for the same alleged conduct.[19] Counsel for Mississippi responded by pointing out (among other things) that the state’s interest inparens patriae actions is broader than those of a class seeking damages to individual consumers as it includes, for example, indirect harms. The concern about multiple actions, also reflected in questions by Justices Antonin Scalia and Anthony Kennedy, is an area of significant debate. Although the underlying issues are more substantive than jurisdictional, the Court may have the opportunity to address such concerns in the future.
The AU Optronics decision leaves open the possibility that private contingency-fee counsel may bring parens patriae actions on behalf of a state’s citizens in state court where a class action would otherwise be impossible. For example, a parens patriaeaction may be a viable alternative to claims involving consumer products or services where a class action waiver has been signed.[20] In this way, AU Optronics presents a potential end run around other Supreme Court class action jurisprudence.
The holding in AU Optronics, although significant for attorney general actions, is limited to addressing jurisdiction over attorney general parens patriae actions under CAFA. The decision does not eliminate or restrict the ability of litigants to remove attorney general cases on other grounds, such as where state-law claims implicate significant federal issues, nor does it speak to situations where a single, diverse, private plaintiff invokes state law to attempt to recover more than $75,000 based on conduct harmful to other citizens.[21]
Removing a path to federal court under CAFA’s mass action provision paves the way for attorney general actions to remain in state court and underscores the incentive for states and private contingency-fee counsel to pursue these actions. In fact, 46 states filed as amici curiae in support of Mississippi, suggesting that federal jurisdiction over parens patriaeactions improperly places state actions in federal courts.[22]
The full impact of AU Optronics will be revealed as new claims are pursued by or in the name of state attorneys general. The universe of potential defendants is broad and could include all producers or sellers of goods or services within a state. Potential defendants should be aware of this important development, as it is increases the potential for class-like litigation in state courts and underscores the risk of multiple lawsuits involving the same conduct.

Prison System Gives Richie Farmer his uniform number ….it includes his UK jersey number 32

Monday, January 27th, 2014

LOUISVILLE — The University of Kentucky may have retired Richie Farmer’s number 32 jersey, but the federal Bureau of Prisons is bringing it back.

The prison system has assigned Farmer inmate number 16226-032 for use when he reports to a yet-to-be revealed prison by March 18.

The former Kentucky Agriculture Commissioner is set to serve 27 months behind bars after pleading guilty to abusing his public office.

Read more here:

Kentucky Retirement Systems Encouraged by Governor’s Proposal

Monday, January 27th, 2014

Press Release Date: Thursday, January 23, 2014

On January 21st, Governor Beshear presented his budget proposal for the two-year budget cycle that begins July 1st. The Governor’s proposal dedicates money from the general fund in fiscal 2015 and 2016 to pay the full actuarially required employer contribution. This meets funding guidelines set out in Senate Bill 2, the pension reform law passed during the 2013 legislative session.

We are encouraged by the Governor’s proposal. KRS staff will monitor the budget bill as it moves through the House and Senate. Follow along with us.


Sunday, January 26th, 2014

To update the candidate filings in Judicial Races go to:

Teresa L. Cunningham
75 Cavalier Blvd. #212
Florence, KY 41042 Justice of the Supreme Court 6th Nonpartisan 1/21/2014
Michelle M. Keller /
315 Summit Lane
Ft. Mitchell, KY 41011 Justice of the Supreme Court 6th Nonpartisan 11/6/2013

Denise Guess Clayton
830 E. Main St.
Louisville, KY 40206 Judge of the Court of Appeals 4th/2nd
Nonpartisan 11/6/2013
Stan Whetzel
2304 Bonnycastle Avenue
Louisville, KY 40205 Judge of the Court of Appeals 4th/2nd
Nonpartisan 1/22/2014

Allison Jones
3200 Hillcreek Court
Prospect , KY 40059 Judge of the Court of Appeals 6th/1st
Nonpartisan 1/3/2014
Justin Sanders
15 Lorup Ave.
Fort Wright, KY 41011 Judge of the Court of Appeals 6th/1st
Nonpartisan 11/6/2013

Janet L. Stumbo
P.O.Box 2002
Prestonsburg, KY 41653 Judge of the Court of Appeals 7th/2nd
Nonpartisan 11/12/2013
W. Kent Varney
P.O. Box 106
Pikeville, KY 41502 Judge of the Court of Appeals 7th/2nd
Nonpartisan 1/24/2014

Bill Adkings
Humes Ridge Road
Williamstown, KY 41097 Circuit Judge 15th
Nonpartisan 12/5/2013
R. Leslie Knight
P.O. Box 17
Dry Ridge , KY 41035 Circuit Judge 15th
Nonpartisan 11/6/2013
John Brent Threlkeld
6 LaPine Avenue
Williamstown, KY 41097 Circuit Judge 15th
Nonpartisan 1/23/2014

Jason Hiltz
604 Rosemont Avenue
Park Hills, KY 41011 Circuit Judge 16th/1st
Nonpartisan 11/22/2013
Kathy Lape
1304 Brightleaf Blvd
Erlanger, KY 41018 Circuit Judge 16th/1st
Nonpartisan 11/12/2013
Mary K. “Kate” Molloy
899 Riverwatch Drive
Crescent Springs, KY 41017 Circuit Judge 16th/1st
Nonpartisan 11/13/2013
James T. Redwine
1210 Devou Woods Drive
Covington, KY 41011 Circuit Judge 16th/1st
Nonpartisan 11/6/2013
Robert A. Winter Jr.
P.O.Box 175883

Fort Mitchell, KY 41017 Circuit Judge 16th/1st
Nonpartisan 11/8/201

Heather Combs
336 Lafayette Circle
Irvine, KY 40336 Circuit Judge 23rd
Nonpartisan 1/17/2014
Michael Dean
103 Main Street
Irvine, KY 40336 Circuit Judge 23rd
Nonpartisan 11/7/2013
Thomas J. “Tom” Smith
P.O.Box 832
Irvine, KY 40336 Circuit Judge 23rd
Nonpartisan 11/22/2013

Karen S. Davenport
P.O.Box 349
Harlan, KY 40831 Circuit Judge 26th
Nonpartisan 12/6/2013
Kent Hendrickson
P.O.Box 390
Harlan, KY 40831 Circuit Judge 26th
Nonpartisan 1/2/2014
Henry S. Johnson
P.O.Box 1679
Harlan, KY 40831 Circuit Judge 26th
Nonpartisan 12/2/2013

David Allen Barber
617 North Lake Drive
Suite B
Prestonsburg, KY 41653 Circuit Judge 31st/2nd
Nonpartisan 12/6/2013
J. Sam Doyle
291 North Lake Drive
Prestonsburg, KY 41653 Circuit Judge 31st/2nd
Nonpartisan 12/20/2013
Ashley Tackett Laferty
88 Charby Hollow Road
Martin, KY 41649 Circuit Judge 31st/2nd
Nonpartisan 1/23/2014
Earl “Mickey” McGuire
P.O.Box 1746
Prestonsburg, KY 41653 Circuit Judge 31st/2nd
Nonpartisan 11/21/2013
C. V. Reynolds
P.O. Box 3
Prestonsburg, KY 41653 Circuit Judge 31st/2nd
Nonpartisan 1/3/2014
Thomas M. Smith
P.O.Box 746
Prestonsburg, KY 41653 Circuit Judge 31st/2nd
Nonpartisan 12/9/201

Scott Blair
233 Riverview Drive
Hazard, KY 41701 Circuit Judge 33rd
Nonpartisan 12/11/2013
Sam R. Collins
P.O.Box 816
Hazard, KY 41702 Circuit Judge 33rd
Nonpartisan 11/12/2013
John Hansen
137 Turner Ave
Hazard, KY 41701 Circuit Judge 33rd
Nonpartisan 1/10/2014
Alison C. Wells
P.O.Box 1816
Hazard, KY 41702 Circuit Judge 33rd
Nonpartisan 11/6/2013

Rick Brueggemann
2800 Beaver Road
Union, KY 41091 Circuit Judge 54th/1st
Nonpartisan 1/6/2014
Edward Drennen
2072 Bayberry Lane
Union, KY 41091 Circuit Judge 54th/1st
Nonpartisan 1/21/2014
Howard L. Tankersley
2897 Sherwood Court
Burlington, KY 41005 Circuit Judge 54th/1st
Nonpartisan 11/15/2013
Marcia Thomas
4289 Adena Tr.
Petersburg, KY 41080 Circuit Judge 54th/1st
Nonpartisan 11/7/2013

Chris Hollowell
548 Lakeview Drive
Paducah, KY 42003 District Judge 2nd/2nd
Nonpartisan 12/2/2013
Craig F. Newbern Jr.
3000 Harrison Street
Paducah, KY 42001 District Judge 2nd/2nd
Nonpartisan 1/22/2014
Jeremy Ian Smith
215 Forest Ridge Cove
Paducah, KY 42003 District Judge 2nd/2nd
Nonpartisan 1/21/2014

Randall Hardesty
443 Winebarger Lane
Manitou, KY 42436 District Judge 4th/1st
Nonpartisan 1/16/2014
David G. Massamore
34 Huntington Ridge Drive
Madisonville, KY 42431 District Judge 4th/1st
Nonpartisan 11/6/2013
Shaun C. McEntire
331 Fox Chase Circle
Madisonville, KY 42431 District Judge 4th/1st
Nonpartisan 11/12/2013

Jason Petrie
P.O. Box 397
Elkton, KY 42220 District Judge 7th
Nonpartisan 11/6/2013
Kenneth R. Williams Jr.
213 Duncan Ridge Rd.
Lewisburg, KY 42256 District Judge 7th
Nonpartisan 11/7/2013

Vanessa Mullins Dickson
1004 Thatchers Mill Road
Paris, KY 40361 District Judge 14th/2nd
Nonpartisan 12/3/2013
Chad Wells
935 Lane Circle
Versailles, KY 40383 District Judge 14th/2nd
Nonpartisan 12/6/2013

Steven Royse Zweigart
1316 East Second Street
Maysville, KY 41056 District Judge 19th
Nonpartisan 1/23/2014
Brian C. McCloud
1605 Gainesway Drive
Worthington, KY 41183 District Judge 20th
Nonpartisan 12/23/2013

Howe E. Baker
391 K Fork Road
Hagerhill, KY 41222 District Judge 24th/1st
Nonpartisan 1/24/2014
John T. Chafin
3027 Ky. Rt. 3224
River, KY 41254 District Judge 24th/1st
Nonpartisan 11/7/2013
Paul L. Pack
126 N. Dawkins Ave.
P.O. Box 1188
West Van Lear, KY 41268 District Judge 24th/1st
Nonpartisan 11/6/2013

Annette Karem
1804 Aberdeen Dr.
Louisville, KY 40205 District Judge 30th/1st
Nonpartisan 11/7/2013
Brendan Joseph McLeod
2914 Edmonia Ave
Louisville, KY 40220 District Judge 30th/1st
Nonpartisan 11/13/2013

Josh P. Schneider
2726 Field Ave
Louisville, KY 40206 District Judge 30th/2nd
Nonpartisan 11/25/2013
John J. Vandertoll
6801 Hunters Run Place
Prospect, KY 40059 District Judge 30th/2nd
Nonpartisan 11/20/2013
Amber B. Wolf
317 Winton Ave.
Louisville, KY 40206 District Judge 30th/2nd
Nonpartisan 12/10/2013

Matthew K. Eckert
14008 Waters Edge Drive
Louisville, KY 40245 District Judge 30th/3rd
Nonpartisan 1/8/2014
Sandra L. McLaughlin
5015 Old Federal Rd.
Louisville, KY 40207 District Judge 30th/3rd
Nonpartisan 11/8/2013

Donald E. Armstrong Jr.
600 West Jefferson St.
Louisville, KY 40202 District Judge 30th/5th
Nonpartisan 11/14/2013
Jennifer Leibson
7607 Old Orchard Ct.
Louisville, KY 40222 District Judge 30th/5th
Nonpartisan 12/11/2013

David P. Bowles
3911 Glen Oak Dr.
Louisville, KY 40218 District Judge 30th/8th
Nonpartisan 11/6/2013
Josephine Layne Buckner
4035 Cheviot Drive
Louisville, KY 40216 District Judge 30th/8th
Nonpartisan 1/17/2014

Gina Kay Calvert
P.O.Box 4355
Louisville, KY 40204 District Judge 30th/11th
Nonpartisan 11/7/2013
Susan Jones
3702 Hillsboro Road
Louisville, KY 40207 District Judge 30th/11th
Nonpartisan 1/17/2014

Dana Michelle Cohen
2077 Ravinia Avenue
Louisville, KY 40205 District Judge 30th/17th
Nonpartisan 1/14/2014
Erica Lee Williams
11106 Rock Bend Way
Louisville, KY 40241 District Judge 30th/17th
Nonpartisan 11/6/2013

John Preston Thompson
806 Kibbey Street
Grayson, KY 41143 District Judge 37th
Nonpartisan 1/9/2014
Rupert Wilhoit
750 Lakewood Drive
Grayson, KY 41143 District Judge 37th
Nonpartisan 1/3/2014
Monica Rice-Smith
P.O.Box 286
Hyden, KY 41749 District Judge 41st/1st
Nonpartisan 1/3/2014
Allen B. Roberts
505 White Hall Road
Manchester, KY 40962 District Judge 41st/1st
Nonpartisan 11/6/2013

Donna Dutton
3709 Mount Eden Road
Shelbyville, KY 40065 District Judge 53rd/2nd
Nonpartisan 11/13/2013
Emily Farrar-Crockett
3490 Fisherville Rd.
Finchville, KY 40022 District Judge 53rd/2nd
Nonpartisan 1/17/2014

Kristi Castillo
P.O.Box 734
Burkesville, KY 42717 District Judge 60th
Nonpartisan 11/12/2013
Stephen Howard Poindexter
P.O. Box 904
Burkesville, KY 42717 District Judge 60th
Nonpartisan 12/19/2013

Attorney Fees …Judge says BigLaw firm sought fees for research on ‘basic and banal’ legal principles

Friday, January 24th, 2014

Posted Jan 21, 2014 6:15 AM CST
By Debra Cassens Weiss

Mayer Brown took a thrashing last week from a Manhattan judge who denied the firm’s $126,000 fee request for helping two tenants recover a $6,400 security deposit and treble damages from their landlord.

Judge Frank Nervo said a junior associate spent “a grossly unnecessary amount of time” on simple matters, and the firm had “unabashedly invoiced” oversight work by a senior associate with a billing rate of $615 an hour and a partner with a rate of $895 an hour. The New York Law Journal (sub. req. after five articles) has the story. The opinion is posted here (PDF).

Nervo said the law firm’s statement of counsel services “demonstrates much duplicated effort” as well as “research on the most basic and banal legal principles.”

One of the tenants was the son of a corporate CEO who is a client of the law firm. The firm’s lawyer had indicated that Mayer Brown represented the tenant as a favor and was not looking to recover any fees from the clients.

“The court will not countenance the gross overreaching evidenced under the facts and circumstances of this case in which the client is not even being billed for legal services,” Nervo wrote. “To move any court to put its imprimatur of approval on such practices is simply intolerable.”

The junior associate on the case now works at Brooklyn Defender Services. She told Nero in a hearing last month that her goal was to complete the lawsuit “as diligently and as completely as I could and as I would for any other client in any other court.” She noted several issues, including service of process when the landlord has only provided a Maryland PO box, the location of her clients in France, and delaying tactics by the landlord.

A Mayer Brown spokeswoman did not comment to the New York Law Journal

Foreign law in American courts — yes, no, or maybe?

Thursday, January 23rd, 2014

By Eugene Volokh
January 23 at 12:06 pm

There’s a movement afoot — mostly from my side of the political aisle — opposing the use of foreign law in American courts. Oklahoma, for instance, enacted an unusually broad ban on such use of foreign law. This ban was later struck down by a federal court on the grounds that part of the ban singled out Islamic law for special restriction. That, though, was a narrow objection, which the legislature could easily deal with by just banning foreign law without mentioning Islamic law. Indeed, after the federal court decision, Oklahoma enacted just such a narrower restraint on the use of foreign law by Oklahoma courts, as have other states. Still more state legislatures have considered the issue, and it remains under consideration in some.

I was invited to give a lecture at the University of Oklahoma last year on this subject, and that turned into a law review article, which was just published in the Oklahoma Law Review. I thought I’d serialize this article on the blog, since in my experience many of our readers have been interested in the subject.

Here’s the general summary: I’m skeptical of some of the internationalist impulses that often come from the left, in particular when it comes to using foreign law to influence how the U.S. Constitution is understood. But I also think the criticism of the use of foreign law in the American legal system misses some important matters — matters involved in much less glamorous but more frequent cases, whether having to do with contracts, torts, judgments, family law, or other things. And the proposed solutions to a real but relatively minor problem may cause much more serious problems instead.

And the problems that these proposals would cause should concern most Americans, without regard to ideology. They would be practical problems for American businesses and individuals, affecting the everyday functioning of our legal and economic systems.

We shouldn’t embrace every attempt to introduce foreign law into the American legal system, but neither should we rush to reject foreign law generally. There are times when American law does, and rightly should, call for reference to foreign law, and there are times when it should not. (In an article in the following issue of the law review, which I also plan to serialize in a couple of weeks, I say something similar about the use of religious law in the American legal system.)

Carmichael’s Bookstore Features Collection of Kentucky Essays in… This I Believe, KY

Thursday, January 23rd, 2014

You can find this excellent book at essays at Carmichael’s Bookstore on Frankfort Ave. Louisville.

Essayists include Steve Mershon, Retired Judge & Mediator, Muhammad Ali, Jean Edwards, Barry Bingham, Sr., Tori Murden McClure, Sallie Bingham, Owsley Brown III, Nana Lampton, Dianne April, Sara Jeter Naslund, Carol Besse (speaking of Carmichael’s) & many more. Lots of interesting thoughts.

You can check out this web site: You may read or hear it at

Pithy Quote in Worker’s Compensation Case – It is unlikely that he volunteered to be murdered…

Thursday, January 23rd, 2014

JJ’s Smoke Shop, Inc. v. Walker (Ky. App., 2013) 2012-CA-000851-WC February 1, 2013

Here, the ALJ found that JJ’s is a business prone to robbery and burglary and that a direct relationship existed between Pendleton’s knowledge and capability of accessing the store and his murder.
Specifically, the ALJ found:
“Although Pendleton voluntarily got into the motor vehicle after his usual work hours, it was probably under a false pretext. Because he was murdered, Joshua Pendleton was unable to testify. It is highly unlikely that he volunteered to be murdered as a part of a scheme to rob the smoke shop. The owner of the smoke shop testified that he did not believe that [Pendleton] was involved in a plot to rob the store. I do not believe that that has been established either. I find that he was not a participant in the burglary.

The employer asserts that he left the course and scope of his employment after he closed up the shop. I agree. But he was later forced back into his role as an employee when he was either duped or forced into reopening the shop and turning off the alarm.”

Supreme Court upends top patent court’s “burden of proof” rule

Thursday, January 23rd, 2014

The burden of proving infringement is always on a patent owner, high court says.
by Joe Mullin – Jan 22 2014, 4:19pm EST
In patent disputes, it’s the patent holder—not the accused infringer—who must always bear the burden of proof. That’s true even when the parties had struck a licensing deal in the past, the US Supreme Court made clear in a ruling published today.
The case decided was Medtronic, Inc. v. Mirowski Family Ventures. Michel Mirowski and co-inventor Morton Mower were pioneers in the area of implantable heart-stimulation devices (pacemakers). Medtronic paid royalties to Mirowski for some of its products, harking back to its first licensing deal in 1991. But the company said a new generation of devices didn’t infringe, and it resisted paying for additional patents Mirowski had acquired in 2003 and 2007.
Mirowski, no surprise, disagreed. The two parties went to court, with Medtronic firing the first shot: a so-called “declaratory judgment” lawsuit saying that it didn’t infringe Mirowski’s patents.
The situation escalated last year, when the US Court of Appeals for the Federal Circuit, the nation’s top patent court, ruled that the burden of proof in that dispute should actually be on Medtronic, not Mirowski, as the lower court had ruled.
Today the Federal Circuit was overruled, in a 9-0 decision written by Justice Stephen Breyer. The burden is always on the patent holder to prove infringement, he explained—even in a situation where in the past, the accused infringer agreed to take a license.
Since patent licensing is so common in the tech sector, the case will have implications beyond the devices at issue. It will generally offer a slight tip of the scales of power, away from companies that want to enforce their patents and in favor of companies that want to challenge those patents.
While it will have an impact on competitors who license patents to each other, it probably won’t make much difference in the many battles over the patent-licensing shops called “patent trolls.” Most settlements with non-practicing patent holders are onetime, lump sum payments, not ongoing royalties like Medtronic was paying to Mirowski.
Supreme Court patent slapdown has sequels on the way
The situation for licensees that wanted to challenge patents actually used to be much worse. Until 2007, someone who’d agreed to a patent license typically was not allowed to challenge the patents at all; if the patents were agreed to once, essentially, they were agreed to forever.
The situation changed when the Supreme Court stepped in to override the Federal Circuit in the Medimmune v. Genentech case.
But while the Federal Circuit was allowing licensees to challenge patents, as the Supreme Court told it to, in today’s decision Breyer noted that the Federal Circuit had allowed Medtronic to have its day in court, but it was still creating a “significant obstacle” and making the process “disadvantageous” for Medtronic.
Today’s decision is one of several in recent years in which the Supreme Court has struck down Federal Circuit rules that were seen as too friendly to patent owners.
This first 9-0 decision doesn’t bode well for the Federal Circuit. Today’s Medtronic case is the first of several big Federal Circuit rulings that the Supreme Court is reviewing. Predicting outcomes is a loser’s game, but they presumably didn’t take up the cases because they’re thrilled with the status quo.
The high court has shown an unprecedented interest in patents this year. There are four more patent cases still to be argued in front of the justices, a remarkable number. There’s Alice v. CLS Bank, a case that seeks to bring order out of chaos when it comes to the law around software patents; Limelight v. Akamai, which will resolve questions around “divided infringement;” Nautilus v. Biosig, grappling with what kinds of patents are written too vaguely; and the twin cases Highmark v. Allcare and Octane Fitness v. Icon Health, two cases that are being heard together, which will determine when attorney’s fees can be awarded in a patent case.


Monday, January 20th, 2014

This decision clearly imposes a duty on the Commonwealth to allow a DUI defendant a reasonable opportunity to use their cell phone to contact their attorney prior to the BA test.

362 S.W.3d 341

Elizabeth FERGUSON, Appellant,
COMMONWEALTH of Kentucky, Appellee.

No. 2010–CA–001031–DG.

Court of Appeals of Kentucky.

June 24, 2011.Rehearing Denied Feb. 27, 2012.

Edward M. Bourne, Owenton, KY, for appellant.

James C. Monk, Special Assistant Attorney General, Carrollton, KY, for appellee.
Before TAYLOR, Chief Judge, CAPERTON and WINE, Judges.

Elizabeth Ferguson appeals from an order of the Carroll Circuit Court affirming the ruling of the Carroll District Court denying Ferguson’s motion to suppress the results of a breathalyzer test due to an alleged violation of KRS 189A.105(3). After a thorough review of the parties’ arguments, the record and the applicable law, we agree with Ferguson that her motion to suppress should have been granted. Accordingly, we reverse the Carroll Circuit Court’s order and remand this matter for further proceedings.

In the early morning hours of April 19, 2009, a vehicle driven by Ferguson was stopped by Trooper Brandon Maupin of the Kentucky State Police for not having any tail lights. Ferguson was administered field sobriety tests and a portable breath test, after which Ferguson was placed under arrest and charged with no tail lights and operating a motor vehicle under the influence of alcohol (“DUI”). Trooper Maupin then transported Ferguson to the Carroll County Detention Center. On the way to the detention center, Ferguson used her cellular telephone with Trooper Maupin’s permission to call her roommate, who had been in the vehicle with Ferguson at the time of the traffic stop.

Once at the detention center, Trooper Maupin escorted Ferguson into a room containing a breathalyzer machine. A deputy jailer joined Ferguson and Trooper Maupin and confiscated Ferguson’s purse containing her cell phone. Trooper Maupin then read Ferguson her rights under the Kentucky implied consent laws. It was at this point that Ferguson was first informed of her right under KRS 189A.105(3) to an opportunity to attempt to contact and communicate with an attorney during the ten to fifteen minutes immediately preceding the administration of the breathalyzer test.

After being advised of this right, Ferguson requested to speak with her attorney prior to submitting to the breathalyzer test. Ferguson had an attorney in Lexington, Kentucky, who had instructed her to call any time she had a problem. Ferguson requested to contact said attorney. Ferguson informed Trooper Maupin that her attorney only used a cell phone, as opposed to a landline, and that her attorney’s cell phone number was stored in Ferguson’s cell phone. Ferguson requested access to her cell phone to call her attorney but the deputy jailer prohibited such use because of a jail policy against detainees’ use of cell phones. Ferguson was then provided access to a collect-call only telephone on the wall of the jail. Ferguson attempted to use the telephone but to no avail because she could not collect-call her attorney’s cell phone. Ferguson submitted to the breathalyzer test and produced a result of 0.092.

Ferguson moved to suppress the results of the breathalyzer test before the Carroll District Court but the court denied her motion. Ferguson entered a conditional guilty plea and appealed the denial of her motion to suppress to the Carroll Circuit Court. The Carroll Circuit Court affirmed the district court’s relying on Bhattacharya v. Commonwealth, 292 S.W.3d 901 (Ky.App.2009). The circuit court further noted that Ferguson had the opportunity to use her cell phone to contact her attorney while in Trooper Maupin’s cruiser, and the fact that the jail would not provide access to her cell phone was not a reason to overturn the decision of the district court. It is from this judgment that Ferguson now appeals.

On appeal Ferguson argues that she was denied her right under KRS 189A.105(3), and that said denial requires that her breathalyzer result be suppressed. In actuality, Ferguson’s argument presents two questions: (1) was her right under KRS 189A.105(3) violated, and, (2) if so, does the violation require suppression? The Commonwealth counterargues that Ferguson’s right under KRS 189A.105(3) was not violated. With these arguments in mind, we now turn to the applicable law.

At the outset, we note that our appropriate standard of review is set forth in Bhattacharya v. Commonwealth, 292 S.W.3d 901, 903 (Ky.App.2009), wherein this Court stated:

If the trial court’s findings of fact are supported by substantial evidence, then they are conclusive. We conduct de novo review of the trial court’s application of the law to the facts. We review findings of fact for clear error, and we give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.

Id. at 903 (internal citation omitted).

At issue here is KRS 189A.105(3) which states:

During the period immediately preceding the administration of any test, the person shall be afforded an opportunity of at least ten (10) minutes but not more than fifteen (15) minutes to attempt to contact and communicate with an attorney and shall be informed of this right. Inability to communicate with an attorney during this period shall not be deemed to relieve the person of his obligation to submit to the tests and the penalties specified by KRS 189A.010 and 189A.107 shall remain applicable to the person upon refusal. Nothing in this section shall be deemed to create a right to have an attorney present during the administration of the tests, but the person’s attorney may be present if the attorney can physically appear at the location where the test is to be administered within the time period established in this section.

KRS 189A.105(3). Since the proper interpretation of KRS 189A.105(3) is purely a legal issue, our review is de novo. Commonwealth v. Long, 118 S.W.3d 178, 181 (Ky.App.2003). As noted in Long:

On review, it is our duty to construe the statute so as to effectuate the plain meaning and unambiguous intent expressed in the law. Moreover, we understand that the judiciary is not at liberty to add or subtract from the legislative enactment … or to attempt to cure any omissions.

Id. at 181 (internal quotations and citations omitted).

This Court in Bhattacharya, supra, addressed KRS 189A.105(3) and held that Bhattacharya’s motion to suppress was correctly denied when “Bhattacharya was given an opportunity to attempt to contact and communicate with an attorney, even if [the arresting officer] was the person dialing the telephone numbers that Bhattacharya requested to be dialed.” Id. at 904. In Bhattacharya, the arresting officer provided Bhattacharya with a local telephone directory wherein attorneys’ telephone numbers were listed. The arresting officer then “insisted on Bhattacharya telling him which numbers he wanted to dial, and [the arresting officer] dialed the two telephone numbers provided by Bhattacharya and listened as the telephone rang, but no one answered either call.” Id. at 903.

The circuit court and the Commonwealth interpret Bhattacharya as being wholly dispositive of the case sub judice. We disagree. Unlike Bhattacharya, Ferguson knew which attorney she wished to contact and had the phone number in her cell phone.1 In today’s technologically advanced society, many people store important contact information in their cell phones. It is not unreasonable to require some minimal police assistance, such as here, by providing reasonable access to a cell phone in the immediate area for the limited purpose of procuring an attorney’s phone number or contacting said attorney in order to exercise one’s right as provided by KRS 189A.105(3). See Long at 183.2

In order to exercise the right contained in KRS 189A.105(3), Ferguson required access to her attorney’s phone number contained on her cell phone and should have been given the opportunity to retrieve the number and provided a telephone to contact said attorney. Thus, Ferguson’s right contained in KRS 189A.105(3) was violated when, based on the totality of the circumstances, she was not provided with the means capable of contacting her attorney. See Long at 183. This is not to say that Ferguson had the right to maintain physical access to her cell phone but only such access as would be necessary, in the presence of Trooper Maupin and jail personnel, to retrieve her attorney’s telephone number. We believe that either the deputy jailer or Trooper Maupin were capable of either monitoring Ferguson’s use of her cell phone to obtain her attorney’s phone number or of obtaining the phone number themselves from Ferguson’s cell phone.

Providing such limited access would allay the Commonwealth’s security fears concerning cell phone and data usage, such as taking pictures. Further, in Bhattacharya, the officer dialed the phone and listened for an answer. The same procedure could have been utilized in this situation. We understand that in our technologically advanced society, certain telephone or cellular phone numbers may not accept calls with reversed charges/collect calls. This requires that Ferguson be furnished with a telephone capable of connecting with the number to be dialed; although, any charges for such connection would be at Ferguson’s expense. It is our opinion that the circuit court incorrectly determined that Ferguson’s right was not violated. Accordingly, we must reverse.

We also disagree with the circuit court’s statement that Ferguson had the opportunity to use her cell phone to contact her attorney while in Trooper Maupin’s cruiser. Ferguson was informed of her right under KRS 189A.105(3) after she exited the cruiser and did not have access to her cell phone. Without Ferguson’s being informed, i.e., knowing of her right prior to the loss of her cell phone, she could not waive her right under KRS 189A.105(3). See Delacruz v. Commonwealth, 324 S.W.3d 418, 420 (Ky.App.2010). Moreover, the right contained in KRS 189A.105(3) is limited to “the period immediately preceding the administration of any test, the person shall be afforded an opportunity of at least ten (10) minutes but not more than fifteen (15) minutes….” KRS 189A.105(3). Thus, the circuit court incorrectly determined that Ferguson’s ability to use her cell phone while in the cruiser satisfied her right under KRS 189A.105(3).

In addressing the second issue, whether the violation requires suppression, we review KRS 189A.105(3). That statute states, “Inability to communicate with an attorney during this period [preceding the tests] shall not be deemed to relieve the person of his obligation to submit to the tests and the penalties specified by KRS 189A.010 and 189A.107 shall remain applicable to the person upon refusal.” Certainly the inability of Ferguson to contact and communicate with an attorney did not relieve her of the obligation to undergo the tests. However, it is just as certain that the sentence preceding the above-quoted sentence granted Ferguson the right to communicate with an attorney,3 and by virtue of state action Ferguson’s right to attempt to contact her attorney was frustrated.

While the above-quoted sentence could be read to allow state action to eviscerate the right to attempt to contact and communicate with an attorney, we believe that this would be a strained reading of the statute and instead find that once the legislature granted the right to attempt to contact and communicate with an attorney, it did not intend for the succeeding sentence to render the right meaningless. Therefore, we find that Ferguson’s right to contact and communicate with her attorney was frustrated by state action, and, thus, the trial court erred in not suppressing the results of all tests conducted pursuant to KRS 189A.

In light of the aforementioned, we reverse the circuit court’s affirmance of the district court’s denial of Ferguson’s motion to suppress and remand this matter for further proceedings not inconsistent with this opinion.



1. Moreover, we are unclear as to whether Ferguson was even provided a local telephone book since the Commonwealth failed to cite to the record to support its assertion that she was provided one. Absent specific citations as required by Kentucky Rules of Civil Procedure (CR) 76.12, we are required to assume that the evidence supported the findings of the lower court. See Porter v. Harper, 477 S.W.2d 778 (Ky.1972). See also Smith v. Smith, 235 S.W.3d 1, 5 (Ky.App.2006), where this Court addressed a similar issue:

Carolyn is correct that it is not our responsibility to search the record to find where it may provide support for Jim’s contentions. But rather than striking Jim’s brief, we choose to give little credence to the arguments by either party that are not supported by a conforming citation to the record.

Smith at 5.

2. In Bhattacharya, we found that where a detainee was interested in contacting an attorney, a phone book was sufficient for locating a number. In contrast, the detainee in the matter sub judice had the phone number of her attorney stored in her cell phone and advised the officer that her attorney only received phone calls on a cell phone. Certainly in today’s society, ubiquitous use of cell phones makes the request to retrieve a phone number from a cell phone a reasonable request, and limiting an individual to a phone that makes collect-only phone calls places an impermissible limitation on the right to attempt to contact an attorney. Few attorneys are in their offices twenty-four hours a day, thus a call to an attorney’s cell phone is reasonable. Also, expecting an attorney to accept a collect call, in such a situation, from a jailhouse phone is not reasonable. We are not saying that the officer need go beyond what is reasonably accessible in the immediate area to permit an individual to attempt to contact an attorney.

3. See discussion, supra.

Letters: When we can’t afford justice

Sunday, January 19th, 2014

January 18, 2014

Re “Budget plan assailed by chief jurist,” Jan. 15

Without law, there is no civilized society. Without courts to apply it, there is no law. California government has underfunded our court system so badly that courts have had to close and court staff have been laid off. Cases have been delayed and access to justice has been cut off.

Blowback: Readers take on The Times
The Reply: Opinion writers respond to reader comments and letters
The Reply: Opinion writers respond to reader comments and letters
Brown’s budget plan would require cuts, chief justice says
Brown’s budget plan would require cuts, chief justice says If California can’t do something as basic as providing us with a functioning legal system, why do we even need a state government?

Mark Leinwand
Agoura Hills

Managing the state budget seems at best to be a matter of damage control. California’s needs are many and there is clearly not enough tax revenue to go around. Stripping our legal system to the bone through unrealistic cutbacks will end up costing everyone.

Taking a matter to court has increasingly become a matter of chance, as overburdened judges deal with increased caseloads and have lost the critical aid of law clerks to assist in researching the arguments put before the court.

Good luck, Gov. Jerry Brown, if you need a matter properly adjudicated. Having right on your side and the best attorney in town guarantee nothing if your judge doesn’t have the time to read the facts.

David Bruck
Granada Hills,0,6014356.story#ixzz2qrOYPC38

Public Service Commission Two Weeks to 10-digit Dialing in Western Kentucky – PSC urges area code 270 residents to complete preparations

Sunday, January 19th, 2014

Press Release Date: Friday, January 17, 2014
Contact Information: Andrew Melnykovych
502-782-2564 or 502-564-3940
502-330-5981 (cell)

Everybody who works or lives in area code 270 has only two weeks left to get into the habit of making 10-digit local calls.
“If you still need to update the automatic dialing in your telephone, computer, fax machine or other telecommunications devices, now is the time to do it,” Kentucky Public Service Commission Chairman David Armstrong said. “The end of seven-digit local calling in area code 270 is almost here.”
Mandatory 10-digit dialing for local calls begins Feb. 1, when area code 364 is added to the same geographic area as the current area code 270. That date also marks the end of the “permissive dialing” period during which customers can dial either seven or 10 digits when making local calls in area code 270.
The permissive dialing period allows customers to get used to the new dialing pattern and permits telecommunication providers to prepare and test equipment in advance of the establishment of the new area code.
An informational video about the permissive dialing period is available on the PSC YouTube channel at
Area code 364 was created in December 2012 when the PSC decided that the best way to meet the need for more telephone numbers in area code 270 was through the creation of an overlay, which superimposes a new area code over an existing area code.
“Keep in mind that nobody’s current number changes on the first of February,” Armstrong said. “The only change is to the dialing requirement.”
The overlay option is the least disruptive for all customers and imposes the smallest cost on businesses in the area, the PSC said in its order creating area code 364. This is the first area code in Kentucky created by an overlay.
Dialing 1 for local calls is not necessary now and will not be necessary after Feb. 1. Local calls will not become long-distance calls.
In its December 2012 order, the PSC noted that public comments received in the case overwhelmingly favored an overlay. The other option was to split area code 270 and designate a portion as area code 364, with both landline and wireless customers in the affected portion required to change their area code as a result.
The PSC noted that area code overlays have become the preferred method for creating new area codes nationwide. Overlays pose the fewest technical issues for implementation by an increasing complex telecommunication industry, the PSC said.
The first numbers using area code 364 may be assigned beginning March 3, 2014. Area code 270 numbers can be assigned after that date, but their availability will depend on how many remain in the inventory of each individual service provider.
Service providers in area code 270 are required by the PSC to educate their customers about the changes resulting from the new area code.
All records in the area code case are available on the PSC website, The case number is 2012-00129.
The PSC is an independent agency attached for administrative purposes to the Energy and Environment Cabinet. It regulates more than 1,500 gas, water, sewer, electric and telecommunication utilities operating in Kentucky and has approximately 90 employees.


1. All current area code 270 numbers remain unchanged. Everyone with a 270 area code number can keep it. Nobody is required to change their area code or phone number.

2. The overlay affects both landline and wireless services.

3. Area code 364 will be overlaid on top of area code 270. That means that area codes 270 and 364 will occupy the same physical space beginning March 2014.

4. In order to distinguish between phone numbers with area code 270 and those with area code 364, 10-digit dialing will be required for all local calls within the overlay.

5. Ten-digit dialing also will be required for local calls into or out of the overlay in those areas that now allow seven-digit local calling across the area code 270 boundary.

6. Ten-digit dialing means dialing the area code before dialing the number itself – for example: 270-555-1212 or 364-555-1212.

7. Long-distance calls within the overlay will require 11-digit (1-plus) dialing, just as long distance calls to other area codes do now.

8. A transition period, known as permissive dialing, began Aug. 3, 2013, and will end Jan. 31, 2014. During that time, local calls can be made using either seven-digit or 10-digit dialing.

9. On Feb. 1, 2014, 10-digit dialing for local calls will become mandatory in the area code 270/364 territory.

10. Numbers with area code 364 may be distributed beginning March 3, 2014. Telecommunication service providers may continue to distribute 270 numbers for as long as they have any remaining in their inventories.


Ky. legislature must fund pensions; Weak revenue no excuse for dodging obligation

Sunday, January 19th, 2014

Ky. legislature must fund pensions; Weak revenue no excuse for dodging obligation, again
January 19, 2014

Ky. legislature must fund pensions; Weak revenue no excuse for dodging obligation, again
Welcomed Rogers’ leadership
Time for state smoking ban; Health hazard clear for 50 years
Water crisis case of lax regulation: W.Va., like Ky., too easy on polluters
Uphold recess appointments; Supreme Court must not sanction gridlock
On the closing day of the 2013 General Assembly, state lawmakers passed a “pension reform” bill and a companion measure expected to generate about $100 million annually in new revenue.

Ostensibly, the extra money will allow legislators to fulfill the commitment made in the reform part of the package to fully fund the state’s share of the actuarially recommended contribution (ARC) to the beleaguered Kentucky Retirement Systems starting with the fiscal year that begins July 1, 2014.

Unfortunately, this reform and revenue package contained no direct linkage between the commitment and the money.

Instead of creating a dedicated revenue stream for the pension fund, lawmakers chose to let the new tax dollars go into the General Fund and rely on their (and their successors’) integrity to live up to the commitment to fully fund the ARC.

The integrity of current legislators, the ones who made the commitment not so many months ago, will be challenged as they get to work on the budget Gov. Steve Beshear will propose in an address to a joint session of the House and Senate Tuesday night.

And more than 20 years of history suggests they may try to avoid fulfilling their commitment to fund the ARC.

The “defined benefits” pension plan of the past wasn’t the main culprit in creating billions of dollars in unfunded liabilities for the state’s retirement systems (more than $8 billion for the main plan covering state workers and retirees). And the reform’s hybrid mix of “defined benefits” and “defined contributions” (heavy on the contributions side) covering state and local government employees hired after Jan. 1, 2014 will not make the systems whole again.

Kentucky’s pension plans are in the hole they are in today largely because lawmakers, beginning more than 20 years ago, failed to fully fund the ARC year after year after year, by a collective total of $3 billion. That’s $3 billion in lost investment potential and years of lost earnings from those investments.

Lawmakers got addicted to this habit in good economic years, when shorting pension plans by small increments so they could put the money to “more important uses” didn’t cause many problems.

But they couldn’t shake the addiction in lean times, when balancing the budget without increasing taxes prompted them to underfund the ARC by hundreds of millions of dollars annually and create huge unfunded liability problems.

Times remain lean. The biennial budget lawmakers will take up won’t have a whole lot more money than the budget the state is living with now. And the demands, including Beshear’s vow to restore some previously cut education funding, will be great.

So, the temptation for lawmakers to abandon their 2013 commitment and once again succumb to their decades-old habit of robbing state pension plans to pay for other programs and services will also be great. They must not do so. They must shake their addiction and fully fund the ARC, in the next biennial budget and all the budgets to come.

If they do not, if they break another promise and shirk another responsibility with another exercise in fiscal insanity, they all need to be sent home in November.

Read more here:

Pimp convicted of stomping customer sues Nike over lack of warning label on shoes

Friday, January 17th, 2014

Posted Jan 14, 2014 12:30 PM CST
By Martha Neil

Disruptive in court when he was convicted and sentenced last year for robbery and violent crimes against a prostitute and a customer who tried to avoid paying her, a 26-year-old former pimp has now found a way to maintain a high profile as he serves a 100-year prison sentence in the Portland, Ore., case.

Convicted of stomping a customer in the face, Sirgiorgio Sanford Clardy has now sued the manufacturer of the athletic shoes he wore at the time, Nike, for failing to warn him that the footwear could constitute a dangerous weapon, the Oregonian reports.

“Under product liability there is a certain standard of care that is required to be upheld by potentially dangerous product,” Clardy wrote in the pro se complaint he filed last week in Multnomah Circuit Court in Portland. “Due to the fact that these defendants named in this tort claim failed to warn of risk or to provide an adequate warning or instruction, it has caused personal injury in the likes of mental suffering.”

The suit seeks a court order requiring Nike to put warning labels on all “potentially dangerous Nike and Jordan merchandise” as well as $100 million in damages.

The newspaper article didn’t include any comment from Nike, which had not yet been served with the complaint at that point.

A photo of Clardy when he was sentenced last year for robbery, second-degree assault and compelling prostitution shows him sitting alone at the defense table, strapped to a restraining wheelchair. He was also wearing a mesh hood to restrict his spitting, according to an earlier Oregonian article.

It says nine deputies were at the sentencing for security reasons and Clardy was alone at the defense table because a judge had ruled it was not safe for a lawyer to sit beside him. Although Clardy was required to defend himself, a lawyer was appointed by the court as standby counsel to advise him … from a safe distance on the sidelines.

That lawyer, Jonathan Sarre, said a day before Clardy’s sentencing that he wanted to step down but was persuaded by the judge to stay on the case for a few more days.

”It’s not worth it to put my safety at risk, for what they’re paying me to do this,” Sarre told the court after an expletive-filled tirade by Clardy.

Kentucky Leads Nation in New Business Creation, According to U.S. Bureau of Labor Statistics

Friday, January 17th, 2014

Jan. 16, 2014
Commonwealth’s national rankings for new businesses created rose each of the past four quarters
FRANKFORT, Ky. – Kentucky currently leads the nation in new businesses created, according to the most recent data from the U.S. Bureau of Labor Statistics.
Specifically, Kentucky saw a 6.05 percent year-over-year jump in new businesses opened during the second quarter (Q2) of 2013, the most recent quarter for which information is available.
Kentucky saw 6,686 new businesses open during Q2 2013.
“Business creation is one of the key building blocks for economic development,” said Gov. Steve Beshear. “The fact that Kentucky leads the nation in this key metric by a big margin shows that our hard work has put us on the right track. New businesses are a sign of economic know-how and success, so this report is important to both the business community and the Commonwealth.”
The data highlights Kentucky’s ongoing upswing in new business creation. During the first quarter of 2013 Kentucky ranked second nationally, by percentage, in new businesses opened. During the fourth quarter of 2012 it ranked third, and during the third quarter of 2012 fourth. Over the four most recently reported quarters, Kentucky ranked third nationally in new businesses created.
Many of the new businesses created in Q2 2013 were “micro-enterprises,” businesses with five or fewer employees.
“This is very good news, because new businesses are a key part of Kentucky’s ongoing, positive economic story,” said Cabinet Secretary for Economic Development Larry Hayes. “They are a source of new jobs and new business ideas. Knowing this, we continue to partner with them and share our resources to help them succeed.”
Such new business growth is in line with Kentucky’s 2013 efforts to kick-start its entrepreneurial culture, specifically by launching the Kentucky Angel Investors Network (Kentucky Angels) and the Office of Entrepreneurship.
Kentucky Angels links companies pursuing funding with would-be investors from across the state. The first meeting is Jan. 28, 2014.
The Office of Entrepreneurship was designed to develop an entrepreneurial climate for new talent in Kentucky, provide guidance and support to startup operations, assist existing small businesses with growth opportunities and create a pipeline of business activity that can be streamlined with traditional growth opportunities. It is a division of the Kentucky Cabinet for Economic Development.
Last year was strong for many aspects of Kentucky’s economy, including a record $23.1 billion in exports of Kentucky-made products and services, up 14.2 percent, through last November. Kentucky also created 274 new business projects, totaling $3.17 billion in investment, in 2013.

Justice Scalia Mercilessly Mocks A Lawyer

Thursday, January 16th, 2014

Justice Scalia Mercilessly Mocks A Lawyer (And He Was Totally Right To Do It)
Justice Scalia is kind of a troll sometimes. He routinely snarks out his fellow justices and is a total dick to legal luminaries like Judge Posner. His belligerence is drenched in sarcasm and usually arbitrary.

In a sense, Antonin Scalia is ATL’s spirit guide.

But when he went after an attorney appearing before him, he got immediately chastised by a fellow justice and raised the ire of even conservative commentators.

In this instance, I’m going out on a limb and say Justice Scalia was absolutely, positively, 100 percent right….

This all took place yesterday during the opening moments of the oral argument in Marvin M. Brandt Revocable Trust v. United States. Steven J. Lechner, the Vice President and Chief Legal Officer of the Mountain States Legal Foundation, was making his first appearance before the Supreme Court. That’s when things took a turn:

Lechner began with the customary, “Mr. Chief Justice and may it please the Court,” and continued on for about a page in the transcript, when he was interrupted by Justice Scalia.
MR. LECHNER: It is axiomatic that the highest evidence of title in this country is a patent from the government. When the government issues a patent, it divests itself of title except for those interests expressly reserved. Here, the patent did not reserve any interest in the 1875 Act -­
JUSTICE SCALIA: Counsel, you are not reading this, are you?
After what Lyle Denniston described as “a lengthy embarrassed moment,” Justice Breyer came to the lawyer’s aid by reassuring him: “It’s all right.”

Professor Josh Blackman had this to say about the exchange:

Pardon the French, but this is a dick move by Justice Scalia. Just because he wears a robe does not entitle him to be a jerk, and embarrass the lawyer for something like this. Scalia can be annoying, and pester lawyers on the merits, but attacking him for reading (what seemed to be a position Scalia agrees with!) is uncalled for. I understand judges at all levels are often mean and discourteous to the litigants, but generally at the Supreme Court both the bar and bench try to comport themselves at a higher level.
Meanwhile, Robert Thomas of Inverse Condemnation wrote:

You know, we’ve all been there in some venue, haven’t we? We’re all not übermensch Supreme Court litigators who can do this without a net and who have the stones to go to the lectern sans notes. Heck, we won’t even go down to muni court naked (so to speak). Especially when what’s at stake is the language in an otherwise obscure 1875 federal statute, where it’s important to get the language just so. To the Justices, oral argument is just another day at the office. And maybe that’s also true for the usual suspects downrange at the Court who appear regularly. But for those lawyers from outside the D.C. bubble, a Supreme Court case can be a once-in-a-career experience, and, we imagine, a very nerve-wracking experience, even if you do get a nice feather pen for your troubles. Especially with all of the coverage of every argument — even those not of obvious public interest that may have in years past, gone unnoticed by the larger media — where counsel’s every movement is blogged, twittered, and splashed all over the front pages of the papers for everyone to comment upon. So come on folks, give the guy a break. At least until you have stood in his brogues, and gone toe-to-toe with Their Honors and lived to tell the tale.
Given that the Mountain States Legal Foundation is exactly the sort of right-wing advocacy group that Justice Scalia bases his jurisprudence around, you’d think he’d take it easy on this guy — and he basically did after getting this first dig out of his system. And maybe that’s why conservative analysts like Professor Blackman took this hard. Liberals would surely look askance at Justice Breyer ripping a NARAL lawyer. But this is actually one of the best reasons why Justice Scalia was totally justified: you should hold the people you agree with to a higher standard. I mean if the guy is chained to his notes, how can he be expected to hold his own when Justice Ginsburg starts grilling him?

Also, according to reports, Lechner “continued on for about a page in the transcript.” I’m not saying every advocate before the Court has to completely wing it like Paul Clement, but there’s a big gap between going “down to muni court naked” and reading a page worth’s of argument verbatim from notes.

A prominent litigator once told me before an oral argument that I should have a pad bearing only my name on it. His logic was that the first thing you have to do is introduce yourself and once you get that right you should be able to handle the argument just fine. I’m not sure I’d give the same advice to everyone, but if you’re going before a judge — and especially if you’re going before the Supreme Court — you can use your notes to keep citations straight or to guarantee you’re properly quoting from the opposing brief or prior opinions, but take the time to get the skeleton of your oral argument committed to memory. If you haven’t lived with this case enough to have its nooks and crannies committed to memory, you probably aren’t ready anyway.

Moreover, as Ben Adlin noted in a piece we linked to in Non-Sequiturs last week, appellate judges (except Justice Thomas) interrupt counsel almost immediately to pepper them with questions:

Amid the turning gears of the appellate engine, oral argument is a “minor, almost formulaic part,” said Loyola Law School professor Allan Ides, a former Supreme Court clerk. “I can tell you, at the Supreme Court level, very, very rarely are oral arguments going to make a difference,” he said. “You don’t even in most cases get to make an oral argument. You just get grilled.”
Relatively speaking, lawyers today give argument at a sprint – counsel at the Supreme Court typically have only 30 minutes, and even then justices so pepper them with questions that they, in the words of Justice Elena Kagan, “don’t get a chance to talk in paragraphs.”
There’s little value to drafting something to read. The justices read the briefs, and when they sense that they’re just getting a rehash of a polished brief, they are more inclined to start screwing with the flow. And as Lechner learned yesterday, it’s even more jarring when a prepared statement is interrupted.

So good for Justice Scalia to shame the guy off his notes. From the rest of the account of the oral argument, once Lechner gave up on his crutch he did a decent job — Scalia just gave him the nudge he needed.

Next time he should just put his name on his pad.

(Flip to the next page to see the full transcript.)