Archive for March, 2014

Justice Scott – Court could offer extra help to vets

Sunday, March 30th, 2014

Cohron: Program would go ‘the extra mile’

Posted: Sunday, March 30, 2014 1:00 am

By DEBORAH HIGHLAND The Daily News 783-3243 | 0 comments

Kentucky Supreme Court Justice Will T. Scott, a decorated Vietnam War veteran, understands perhaps better than some judges the unique challenges and needs of combat veterans who encounter Kentucky’s legal system.

“The wounds of war have changed,” said Scott, who is the task force commander for the Veterans Subcommittee of the Kentucky Supreme Court Access to Justice Commission, which was set up by Kentucky Chief Justice John D. Minton Jr.
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“I spent a year in Vietnam. Most of your wounds had exterior indicators. There were flesh and wound piercings. … Starting in the early 2000s, the wounds of war changed. The IED’s (improvised explosive devices) came into play in Iraq and Afghanistan,” he said.

Now, veterans are returning with brain injuries.

In a nation that has been at war for more than a decade, the number of veterans is rising along with the number of veterans who encounter the criminal justice system, prompting Kentucky and several other states to begin Veterans Treatment Courts.

The first such court in Kentucky was established in Jefferson County and has officially been going for one year there. Hardin County followed. Fayette and Christian counties have carved out slots from their drug courts to establish veterans courts, and there is interest in starting a veterans court in Warren County.

“Fifteen years ago, we would periodically have (veterans) in our court systems,” Warren County Commonwealth’s Attorney

Chris Cohron said. “Obviously, since the length of time that we have had people in combat zones and returning, we have seen both men and women veterans, unfortunately, enter into the criminal justice system. Obviously, as troops are drawing down, we are seeing more and more individuals. We are going to be dealing with more and more veterans having to adapt to civilian life.”

Need to serve veterans grows

Between July 16, 2010, and Feb. 18, 2014, 16,778 people were arrested and booked into jail in Warren County and completed a pretrial services interview in which they answered a variety of questions about themselves. Of those interviewed, 481 told the court they were veterans. Of those 481 veterans, 170 veterans had seen combat, according to the Administrative Office of the Courts. Comparatively, in Jefferson County for that same time period, out of 115,114 people arrested and interviewed, 5,856 of those reported to the court they were veterans. Of those veterans, 2,261 had seen combat.

“Due to their service to our country, it can leave residual problems like substance abuse and entail health issues,” Cohron said. “So with a veterans court, we want to be able to apply the resources out there available for veterans to help them with these issues.

“Our goal is hopefully never get to the point where incarceration is needed (and) address the problems quickly before they commit criminal offenses that will only lead to full prosecution and incarceration,” he said.

Establishing a Veterans Treatment Court is “going the extra mile for the men and women who have served our country (and) is the least we can do,” Cohron said.

The court may not be appropriate in all matters, Scott said.

“The concept is in appropriate cases where we can work with a Veterans Justice Outreach Officer and the Veterans Administration to achieve a better, quicker result for that veteran,” Scott said. “But there are some cases where you just don’t do this. These are calls that will be made on a local level. It’s a team effort.

“The genesis for it is the change in the wounds of war. We are just getting a new type of war injury that we weren’t able to cope with before. It’s the concussive effect of all these IEDs. The concussive blow is unbelievable.” Scott said.

Multiple deployments create challenges

In Christian County, where Fort Campbell straddles the Kentucky/Tennessee line, Christian Circuit Judge Andrew Self saw a need for the courts to help veterans address the root cause of their problems to hopefully avoid costly incarceration when they run afoul of the law.

“Unfortunately, sometimes (veterans) find themselves in the criminal justice system,” Self said. “There are multiple challenges and multiple issues that need to be diagnosed.

“We’ve had extended, long-term multiple deployments by a lot of soldiers,” Self said. “The cumulative effect of that is pretty profound.”

Many people in Christian County recognized a need for veterans court, Self said.

“We became aware that veterans courts modeled after our very successful drug courts were starting to emerge throughout the United States,” he said. “We’ve had tremendous community support.”

The veterans courts work similar to a drug court where treatment is used to reach the goal of helping veterans stay out of the criminal justice system and lead productive lives. The separate setup is needed because veterans have problems specific to their military service such as brain injuries or post-traumatic stress disorder and may also have a substance abuse issue as well. Veterans who have been honorably discharged also have access to a wide range of services through the VA that civilians are not qualified to receive. The veterans courts work directly with the VA to make sure that veterans receive all of the treatment options available to them.

“We don’t want any veteran in Kentucky to receive anything less than the full service that they are entitled to,” Minton said.

Veterans court requires willingness on the part of the veteran.

“Somewhat like our drug court model, we will try to get them on a treatment track. As long as those individuals are willing to work with us, we will be willing to work with them,” he said.

A judge must request a veterans court

Connie Neal, general manager for the Kentucky Administrative Office of the Courts Department of Statewide Services Division of Drug Courts, is working with judges at their request to set up veterans courts.

Here’s how the process works for individual courts. Neal doesn’t recruit judges to start the process. She waits for a judge to come to her.

“Normally a judge will call and say, ‘I’m interested in a Veterans Treatment Court,’ ” Neal said. “At that point I will advise the judge he has to have a 10-member team.”

The 10-member team is a judge, a prosecutor, a Department of Public Advocacy defense attorney, a treatment provider, a Veterans Justice Outreach coordinator, a program coordinator that would normally be the drug court coordinator, a community supervision agency that for this purpose would be a drug court case manager, a law enforcement officer, a mentor coordinator and a clinician from the Veterans Administration. Then Neal conducts a brief, modified training for the team, which later has to attend a national training process that is conducted by the National Drug Court Institute. Neal also writes grants to help fund some costs.

“There is no set timetable for establishment of a Veterans Treatment Court in Warren County; however, I am confident that staffing the court with participants from the prosecutorial, DPA, and judicial standpoint will not be an issue,” Cohron said.

The program is so new to Kentucky that no one has yet graduated from Veterans Treatment Court in Jefferson County.

“Our oldest program has only been going for a year,” Neal said. “We don’t have any graduations yet. They didn’t take their first client until December 2012, and it’s an 18-month program. Of the 14 clients that have entered the Jefferson County program, we’ve only terminated one.”

“This is an awesome project,” Neal said. “And, I think Kentucky is doing great things for our veterans, and this is just one piece of it.”

— Follow news editor Deborah Highland on Twitter at or visit

IRS Warns of New Email Phishing Scheme Falsely Claiming to be from the Taxpayer Advocate Service

Friday, March 28th, 2014

WASHINGTON —The Internal Revenue Service today warned consumers to be on the lookout for a new email phishing scam. The emails appear to be from the IRS Taxpayer Advocate Service and include a bogus case number.

The fake emails may include the following message: “Your reported 2013 income is flagged for review due to a document processing error. Your case has been forwarded to the Taxpayer Advocate Service for resolution assistance. To avoid delays processing your 2013 filing contact the Taxpayer Advocate Service for resolution assistance.”

Recipients are directed to click on links that supposedly provide information about the “advocate” assigned to their case or that let them “review reported income.” The links lead to web pages that solicit personal information.

Taxpayers who get these messages should not respond to the email or click on the links. Instead, they should forward the scam emails to the IRS at For more information, visit the IRS’s Report Phishing web page.

The Taxpayer Advocate Service is a legitimate IRS organization that helps taxpayers resolve federal tax issues that have not been resolved through the normal IRS channels. The IRS, including TAS, does not initiate contact with taxpayers by email, texting or any social media.

For more on scams to guard against see the “Dirty Dozen” list on

U.S. Supreme Court Physical force gets expansive meaning in SCOTUS interpretation of domestic-violence gun ban

Friday, March 28th, 2014

Posted Mar 26, 2014 1:03 PM CDT
By Debra Cassens Weiss

The U.S. Supreme Court has held that offensive touching can qualify as a “misdemeanor crime of domestic violence” that disqualifies the perpetrator from owning a gun.

The court ruled (PDF) in the case of James Alvin Castleman, who pleaded guilty to the misdemeanor offense of intentionally or knowingly causing bodily injury to the mother of his child. Though the court was unanimous in holding that Castleman’s conviction disqualified him from possessing a gun under federal law, a debate emerged over the meaning of domestic violence.

One the one side was Justice Sonia Sotomayor, who wrote the opinion for the court, and on the other was Justice Antonin Scalia, who was among three concurring justices. Justice Samuel A. Alito Jr. wrote the second concurrence, joined by Justice Clarence Thomas.

At issue was the meaning of the federal gun-control law that bars people from possessing guns if they have been convicted of a misdemeanor crime of domestic violence, defined as a crime that “has, as an element, the use or attempted use of physical force.”

Prosecutors had accused Castleman of selling guns on the black market and alleged that he violated the federal gun law because of his prior misdemeanor conviction for bodily injury in Tennessee. The state law defined bodily injury to include a cut, abrasion, bruise, burn or disfigurement. Sotomayor said these injuries constitute a use of force under the common-law meaning.

At common law, Sotomayor said, the element of force in the crime of battery was “satisfied by even the slightest offensive touching.” Because perpetrators of domestic violence are often prosecuted under assault or battery laws, it makes sense for Congress to have considered such offensive touching to satisfy the standard that disqualifies a person from owning a firearm, Sotomayor said.

The word “violent” may connote a substantial degree of force when standing alone, but not in the context of domestic violence, Sotomayor added. Indeed, Sotomayor said, quoting from a 2000 Justice Department report (PDF), “most physical assaults committed against women and men by intimates are relatively minor and consist of pushing, grabbing, shoving, slapping and hitting.”

“Minor uses of force may not constitute ‘violence’ in the generic sense,” Sotomayor wrote. But a minor act such as a squeeze of an arm, causing a bruise, is “easy to describe as ‘domestic violence,’ when the accumulation of such acts over time can subject one intimate partner to the other’s control.”

In his concurrence, Scalia agreed that Castleman’s conviction disqualified him from owning a gun, but he took issue with Sotomayor’s “inventive, nonviolent definition” of physical force.

The court ignores accepted definitions of domestic violence, Scalia said, opting instead to cite expansive definitions in an amicus brief by the National Network to End Domestic Violence and publications issued by the Justice Department’s Office on Violence Against Women. As an example of the broad definition, Scalia cited amici’s description of domestic violence as acts that humiliate, isolate, frighten and blame; excessive monitoring of a woman’s behavior; repeated accusations of infidelity; and controlling contact with others.

“The offerings of the Department of Justice’s Office on Violence Against Women are equally capacious and (to put it mildly) unconventional,” Scalia said. Its publications describe domestic violence as a pattern of abusive behavior used to maintain control over another, undermining a partner’s sense of self-worth, name-calling, and damaging a partner’s relationship with children, he said.

“Of course,” Scalia said, “these private organizations and the Department of Justice’s (nonprosecuting) Office are entitled to define ‘domestic violence’ any way they want for their own purposes—purposes that can include (quite literally) giving all domestic behavior harmful to women a bad name. (What is more abhorrent than violence against women?) But when they (and the court) impose their all-embracing definition on the rest of us, they not only distort the law, they impoverish the language. When everything is domestic violence, nothing is.”

Circuit Court candidate Steve Hurt Found to be Eligible to be candidate for Circuit Court in race against Judge David A. Williams

Friday, March 28th, 2014

Steve Hurt is opposing Circuit Judge David Williams. The Frankfort Circuit Court has ruled that Hurt is an eligible candidate and that HB 427 which sought to forbide “double dipping” by drawing retirement benefits, was unconstitutional. Under this ruling it was held that a retired judge may be a candidate for the office of Circuit Judge.


Friday, March 28th, 2014

March 28, 2014 – By Senior Editor Stan Billingsley

Cumberland Circuit Court Candidate Steve Hurt served as a district judge from 1986 to 2009, when he retired from the judiciary after serving five years as a Senior Status Special Judge. HB 427 purports to disqualify him as a candidate.

An order of the Franklin Circuit Court Order was issued in case number 14-CI-152, Hurt v State Board of Elections.

Steve Hurt has sought a declaratory judgment, a summary judgment and injunctive relief to challenge House Bill 427 enacted by the Legislature in 2013. This bill is codified in KRS 118A.
The statute provides:

“a judge who elected to retire as a Senior Status Special Judge in accordance with KRS 21.580 shall not become a candidate or a nominee for any elected office during the five (5) year term prescribed in KRS 21.580(1)(a)1, regardless of the number of days served by the judge acting as a Senior Status Special judge.”

Hurt’s motions have been granted and the motion of the Board of Elections was denied. The Franklin Circuit Court found that Hurt had completed his five year term of service as Senior Judge and was eligible to be a candidate for Circuit Judge.

The court ruled:
“This motion challenges the constitutionality of HB 427 on the grounds that the qualifications for election to the office of Circuit Judge are established in Section 122 of the Kentucky constitution, and the General Assembly has no power to add to, or subtract from, the qualifications for that office set by constitutional mandate.”
“The plaintiff (Hurt) has filed as a candidate for the office of Circuit Judge, but is confronted with the situation that HB 427 raises a question as to his eligibility to be a candidate. The Secretary of State and the Board of Elections have accepted his candidacy papers, and his name will appear on the ballot absent a successful challenge to his qualifications under KRS 18.176 by a “qualified voter” of “opposing candidate. Under the law governing such challenges, an action challenging his “bona fides” as a candidate “may be commenced at any time prior to the regular election.” KRS 118.176(2). Thus absent some form of judicial relief, the plaintiff will be forced to undergo an entire election campaign with the cloud of HB 427 hanging over his candidacy.”(See Stephenson v. Woodward, 182 S.W.3rd 162 (Ky 2005).”

“The plaintiff has a right to obtain a ruling that will “eliminate” or minimize the risk of wrong action” regarding his eligibility to be a candidate for Circuit Judge. “
“The Commonwealth, in its response filed March 20, 2014, seems to agree with the plaintiff on this point. “
“The Commonwealth further argues that it does not have reason to dispute their authenticity.”
“C. House Bill 417 attempts to alter the constitutional qualifications for candidacy for judicial offices, and thus is unconstitutional.”
“…this prohibition against judicial candidacy for Senior Judges is flatly inconsistent with Section 122 of the Kentucky Constitution.”
“The court in Broughton recognized that the legislature has the right to regulate elections, but held that such regulation could not include disqualification of a candidate who meets all qualifications set forth in the constitution.”

“The Commonwealth suggests that the purpose of HB 427 may be to prevent “double dipping” so that judges who draw an enhanced retirement benefit from their service as Senior Judges will be precluded from “drawing a paycheck” in addition to their enhanced retirement benefits….while this may be a salutary purpose, the legislature may not achieve it through an unconstitutional method. Prohibiting a person, who meets all constitutional qualifications for an office established by the Constitution, from becoming a candidate for that office, is an unconstitutional means to achieve this goal.”

“The General Assembly has no power to add to, or subtract from , the qualifications for that office established in the constitution., and HB 427 has the purpose and effect of altering the constitutional qualifications for election. As such it is void.”

The Franklin Circuit Court ruled was entered by Judge Phillip J. Shepherd.


Thursday, March 27th, 2014

SCR 3.130(3.8) Special responsibilities of a prosecutor

The prosecutor in a criminal case shall:

(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;

(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;

(c) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;

(d) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes:

(1) the information sought is not protected from disclosure by any applicable privilege;

(2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and

(3) there is no other feasible alternative to obtain the information;

(e) refrain, except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons under the supervision of the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.

HISTORY: Amended by Order 2009-05, eff. 7-15-09; adopted by Order 89-1, eff. 1-1-90


(1) A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence. Precisely how far the prosecutor is required to go in this direction is a matter of debate and varies in different jurisdictions. Many jurisdictions have adopted the ABA Standards of Criminal Justice Relating to the Prosecution Function, which in turn are the product of prolonged and careful deliberation by lawyers experienced in both criminal prosecution and defense. Applicable law may require other measures by the prosecutor and knowing disregard of those obligations or a systematic abuse of prosecutorial discretion could constitute a violation of Rule 8.4.

(2) The exception in paragraph (c) recognizes that a prosecutor may seek an appropriate protective order from the tribunal if disclosure of information to the defense could result in substantial harm to an individual or to the public interest. (3) Paragraph (d) is intended to limit the issuance of lawyer subpoenas in grand jury and other criminal proceedings to those situations in which there is a genuine need to intrude into the client lawyer relationship.

(4) Paragraph (e) supplements Rule 3.6, which prohibits extrajudicial statements that have a substantial likelihood of prejudicing an adjudicatory proceeding. In the context of a criminal prosecution, a prosecutor’s extrajudicial statement can create the additional problem of increasing public condemnation of the accused. Although the announcement of an indictment, for example, will necessarily have severe consequences for the accused, a prosecutor can, and should, avoid comments which have no legitimate law enforcement purpose and have a substantial likelihood of increasing public opprobrium of the accused. Nothing in this Comment is intended to restrict the statements which a prosecutor may make which comply with Rule 3.6(b) or 3.6(c).

(5) Like other lawyers, prosecutors are subject to Rules 5.1 and 5.3, which relate to responsibilities regarding lawyers and nonlawyers who work for or are associated with the lawyer’s office. Paragraph (e) reminds the prosecutor of the importance of these obligations in connection with the unique dangers of improper extrajudicial statements in a criminal case. In addition, paragraph (e) requires a prosecutor to exercise reasonable care to prevent persons under the supervision of the prosecutor from making improper extrajudicial statements. Ordinarily, the reasonable care standard will be satisfied if the prosecutor issues the appropriate cautions to law-enforcement personnel and other relevant individuals.


Miller v. Commonwealth (Ky., 2013) February 21, 2013

The professional ethics rules provide the underlying basis for permissible and impermissible prosecutorial conduct. The 2009 Supreme Court Commentary to SCR 3.130(3.8) underscores these principles: “A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence.”

Scalia Hints at NSA Case, But is Supreme Court the Final Word?

Wednesday, March 26th, 2014

Written by Joe Wolverton, II, J.D. Wednesday, 26 March 2014 10:15

During an appearance last week at Brooklyn Law School, Supreme Court Justice Antonin Scalia (shown) hinted that he and his colleagues are likely to soon consider a challenge to the constitutionality of the unwarranted surveillance programs of the National Security Agency (NSA).
Although he apparently believes the Supreme Court will take up the issue, he clearly said he doesn’t think the justices are qualified to settle questions as critical as national security.
“The Supreme Court doesn’t know diddly about the nature and extent of the threat,” Scalia said. “It’s truly stupid that my court is going to be the last word on it,..”

U.S. Supreme Court: Company can move forward with lawsuit against Lexmark

Wednesday, March 26th, 2014

By Sam Hananel
Associated PressMarch 25, 2014 Updated 24 hours ago
WASHINGTON — The Supreme Court ruled Tuesday that a competitor of printer maker Lexmark International Inc. can move forward with a lawsuit accusing the Lexington company of disparaging its business.
The unanimous decision upheld a federal appeals court ruling allowing Static Control Components Inc. to go ahead with a complaint of false advertising against Lexmark, a Lexington-based producer of printers and printer cartridges.
Static Control makes parts that allow the repair and resale of Lexmark toner cartridges. The two companies have been fighting over Static Control’s business, and Static Control says Lexmark falsely told customers their products infringed on Lexmark’s intellectual property and that using remanufactured Lexmark toner cartridges was illegal.
A federal judge threw out that complaint, but the 6th U.S. Circuit Court of Appeals reinstated it.
Lexmark spokesman Jerry Grasso wrote in an email statement that the Supreme Court “has rejected the 6th Circuit Court of Appeal’s test for standing under the Lanham Act and has adopted a different test. Under the test adopted today, the Supreme Court of the United States found that Static Control has standing to sue under the Lanham Act but made no determination on the merits of the litigation.”
“Lexmark strongly believes that it has not made any false or misleading representations in its commercial advertising or promotion,” Grasso wrote. “Lexmark remains confident that it will ultimately prevail in this matter.”
The Lanham Act is a federal trademark law from 1946. It prohibits activities including trademark infringement, trademark dilution and false advertising.
Writing for the Supreme Court, Justice Antonin Scalia said Static Control can bring its lawsuit under the Lanham Act because the company alleges that it lost sales and had its business reputation damaged by Lexmark’s conduct.
The two companies have wrangled for more than a decade over Lexmark’s use of microchips in ink toner cartridges. In 2002, Lexmark began placing the chips inside the cartridges to thwart companies such as Sanford, N.C.-based Static Control from refilling and reselling the cartridges to Lexmark customers.
Lexmark later modified its chips to prevent the refurbished cartridges from working with some printers, but Static Control was able to get around the new controls with its own microchips and continued reselling used and refilled toner cartridges to Lexmark’s customers.
Lexmark responded by telling its customers that use of Static Control’s microchips would infringe Lexmark’s patent. In 2004, Static Control sued Lexmark, alleging false advertising and seeking a ruling that its modified chips did not violate Lexmark’s patent.
Herald-Leader staff writer Cheryl Truman contributed to this report.

Read more here:

Three-Day Mail Rule Under Kentucky and Federal Civil Rules

Wednesday, March 26th, 2014

By David Kramer |

Confusion sometimes arises about when a litigant is entitled to the extra three days to act or respond under Kentucky CR 6.05 and its federal counterpart, FRCP 6(d), when another party serves the litigant by mail or e-mail.

First, Kentucky’s amended Rule 6.05 (effective Jan. 1, 2014), provides that the extra three days that are afforded to a party when served by regular mail also apply when service is by e-mail or fax, even though such service is usually effectuated instantaneously. Presumably the rationales for providing the extension for electronic service include the fact that such service might be made late in the day (after normal business hours), and that some lawyers might not have access to e-mail when an e-mail is received.

Lawyers should bear in mind that this extension of time is afforded only for actions that are triggered by service, not those that must be taken within a certain time after court action or filing. For instance, the extension does not apply to the deadline for filing a notice of appeal or to the filing of certain post-judgment motions, such as those filed under CR 59. Counsel should verify that the three-day extension applies before taking the extra time to act or respond. When time is of the essence, and the serving party wishes to avoid giving an opponent an extra three days, the serving party may serve documents by personal service.

The three-day mail rule can be somewhat meaningless in motion practice. Under the local rules of most Kentucky venues, motions are required to be filed and served only three business days before the date on which the motion is noticed to be heard. (An exception is made for motions for summary judgment, which are required under CR 56.03 to be served at least 10 days before the date of hearing.) Where service of a motion is done by regular mail, opposing parties often receive a copy of the motion a day or two before the date the hearing is noticed, though service on non-local opponents may even occur on the day of the hearing itself or even afterwards. Parties can obtain more advance notice of motions by filing a notice of election of electronic service under CR 5.02, as amended effective Jan. 1, 2014. Parties who have formally elected to make and receive electronic service must be provided an electronic copy of any documents served on or before the day they are filed. In addition, most circuit judges are lenient about providing additional time for opposing parties to prepare and file responses to motions that are served a very short time before the date set for hearing.

For federal litigants, FRCP 6(d) states that the three extra days for mail service are added to the time period for action or response when service is made under FRCP 5(b)(2)(E), which relates to electronic service. (Under the federal rule, unlike the state rule, the extension is also provided when service is made by leaving the document with the court clerk for a party who has no known address, or by any other agreed method other than personal service at the recipient’s office or residence.) Likewise, Joint General Order 11-02 of the Eastern and Western Districts of Kentucky incorporated a set of administrative procedures that include a provision that “service by electronic means is treated the same as service by mail for the purposes of adding three (3) days to the prescribed period to respond.”

Note: The foregoing post includes commentary reprinted from the forthcoming 2014 supplement to 7 Phillips & Kramer, Rules of Civil Procedure Annotated, 6th ed. (Kentucky Practice Series), by David V. Kramer, with permission of the author and publisher. Copyright (c) 2014 Thomson Reuters. For more information about this publication please visit

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

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Elections: Michael O’Connell and Karen Faulkner, Candidates for Jefferson County Attorney, will debate at the LBA on March 28

Wednesday, March 26th, 2014

Elections: Michael O’Connell and Karen Faulkner, Candidates for Jefferson County Attorney, will debate at the LBA on March 28
Posted on March 25, 2014 by Michael Stevens • 0 Comments

O’Connell and Faulkner

Elections tend to favor the incumbent in any office. And greatly favor the Jefferson County attorney who has so many tools at his disposal just to keep his name in the news that it is very, very disturbing. But, that’s politics.

Well, the Jefferson County Attorney election is a very important election this year as the incumbent seems to be in the news with accusations flying that he is violating the independence of the courts, using his attorneys as campaign contributors for job security, and even attempting to vicariously benefit from a court-packing scheme by allowing his attorneys to run for judicial office. The most damaging news might just be the Kentucky Bar Association’s reprimand issued against Michael O’Connell for violating the ethics required of lawyers.

Well, O’Connell is being challenged by Karen Faulkner, and there is a debate coming up where they will be side by side. Age and years in office should favor the old war horse O’Connell, especially since he has been weathering the bad news stories from the Courier-Journal with no loss in his aggressiveness to promote his own agenda.

If you are interested in how to the two pair up, there is a debate sponsored by the Louisville Bar Association on March 28, 2014. Here is the bar associations post. Note that Joe Sonka the moderator, and if you want your question asked and answered then see the info below.

The LBA’s Public Interest Section will be hosting a debate on March 28 for the Democratic nominees for Jefferson County Attorney, Mike O’Connell and Karen Faulkner.

Joe Sonka, debate moderator and LEO news editor, will begin his questions at noon at the Louisville Bar Center.

Questions for the candidates may be submitted to Public Interest Section Chair Soha Saiyed at through 5 p.m. on Monday, March 24.

The debate is free and open to the public, but reservations are requested. Lunch will be provided with advanced registration. To RSVP, CLICK HERE or contact Lisa Anspach at or (502) 583-5314.

For more information on Karen Faulkner you can go to Karen Faulkner’s web site – Faulkner for Jefferson County Attorney.

I was unable to locate O’Connell’s campaign site using a simple Google(tm) search using “michael o’connell web site for county attorney”, but his free web site as the County Attorney can be found here.

Supreme Court seems divided over birth control rule

Wednesday, March 26th, 2014

Supreme Court seems divided over birth control rule


March 25, 2014 Updated 17 hours ago

Supreme Court Birth Control

In this May 22, 2013, customers enter and exit a Hobby Lobby store in Denver. The Obama administration and its opponents are renewing the Supreme Court battle over President Barack Obama’s health care law in a case that pits the religious rights of employers against the rights of women to the birth control of their choice. Two years after the entire law survived the justices’ review by a single vote, the court is hearing arguments on Tuesday in a religion-based challenge from family-owned companies that object to covering certain contraceptives in their health plans as part of the law’s preventive care requirement. The largest company among them, Hobby Lobby Stores Inc.

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WASHINGTON — In an argument that touched on medical science and moral philosophy, the Supreme Court on Tuesday wrestled with whether corporations may refuse to provide insurance coverage for contraception to their workers based on the religious beliefs of the corporations’ owners.

The court seemed ready to accept that at least some for-profit corporations may advance claims based on religious freedom. But the justices appeared divided along ideological lines over whether the objections before it, based on a requirement in President Barack Obama’s health care law, should succeed.

Justice Anthony M. Kennedy, who probably holds the decisive vote, asked questions helpful to both sides. He appeared skeptical that the two family-controlled companies that objected to the contraception coverage requirement were burdened by the law, as they could cease providing health insurance at all. He also expressed solicitude for “the rights of the employees.”

But Kennedy also had reservations about whether the government could require the companies in the case to provide coverage in light of the many exemptions and accommodations it has offered to other groups.

The lower courts are divided over whether corporations may object to generally applicable laws on religious liberty grounds.

In June, the 10th U.S. Circuit Court of Appeals, in Denver, ruled for Hobby Lobby, a corporation owned by a family whose members have said they try to run the business on Christian principles. The company, which operates a chain of arts-and-crafts stores and has more than 13,000 full-time employees of many faiths, objected to a requirement in Obama’s health care law that large employers provide their workers with comprehensive insurance coverage for contraception.

Hobby Lobby told the justices that it had no problem offering coverage for many forms of contraception, including condoms, diaphragms, sponges, several kinds of birth control pills and sterilization surgery. But drugs and devices that may prevent embryos from implanting in the womb are another matter, the company said; its owners believe those would make the company complicit in a form of abortion.

Failure to offer comprehensive coverage could leave it subject to fines of $1.3 million a day, Hobby Lobby said, while dropping insurance coverage for its employees entirely could lead to fines of $26 million a year. Those choices, the company said, placed a burden on its owners’ religious beliefs in violation of the Religious Freedom Restoration Act of 1993.

In July, the 3rd U.S. Circuit Court of Appeals, in Philadelphia, ruled against the Conestoga Wood Specialties Corp., which makes wood cabinets and is owned by a Mennonite family that had similar objections to the law. The 3rd Circuit concluded that “for-profit, secular corporations cannot engage in religious exercise.”

The 3rd Circuit rejected an analogy to the Supreme Court’s 2010 decision in Citizens United, which said corporations have a First Amendment right to free speech. Though the First Amendment also protects the free exercise of religion, Judge Robert E. Cowen wrote for the majority of a divided three-judge panel, “it does not automatically follow that all clauses of the First Amendment must be interpreted identically.”

But a five-judge majority of an eight-judge panel of the 10th Circuit, in the Hobby Lobby case, said that “the First Amendment logic of Citizens United” extended to religious freedom.

“We see no reason the Supreme Court would recognize constitutional protection for a corporation’s political expression but not its religious expression,” Judge Timothy M. Tymkovich wrote for the majority.

A dissenting member of the court, Chief Judge Mary Beck Briscoe, wrote that the majority’s approach was “nothing short of a radical revision of First Amendment law.”

The Obama administration has exempted many religious groups from the coverage requirement, which is part of the Affordable Care Act. But it said that for-profit corporations could not rely on religious objections to opt out of compliance with the law.

Tuesday’s arguments took place almost exactly two years after the arguments in a challenge to another part of the Affordable Care Act. The Supreme Court upheld that provision, which requires most Americans to obtain health insurance or pay a penalty.

A decision in the new cases — Sebelius v. Hobby Lobby Stores, No. 13-354, and Conestoga Wood Specialties v. Sebelius, No. 13-356 — is expected by the end of June.

Read more here:

In Ohio, a Law Bans Lying in Elections. Justices and Jesters Alike Get a Say.

Tuesday, March 25th, 2014

MARCH 24, 2014


WASHINGTON — The Supreme Court gives lawyers who argue before it a little guidebook. One tip: “Attempts at humor usually fall flat.”

P. J. O’Rourke, the satirist, is taking his chances. He has filed a funny supporting brief in a Supreme Court case over what the government can do to address lies in election campaigns. Mr. O’Rourke says spin and smear are central to American democracy.

But his brief, amusing though it is, cannot compete with the work of a professional politician. Michael DeWine, Ohio’s attorney general, is filing briefs on both sides of the case.

“It certainly is rare, and it should be rare,” Mr. DeWine, a Republican, said in an interview. But he said he had dual constitutional obligations.

One was to defend an Ohio law that makes it a crime to say all sorts of false things during political campaigns. The other was to explain to the justices how enforcement of the law can do violence to the First Amendment.
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“What’s important is not only how the law is written, but how it is used in practice as a club in political campaigns,” Mr. DeWine said.
The humorist P. J. O’Rourke, shown in 2007, filed a brief. Credit Michael Buckner/Getty Images

The Ohio law makes it a crime to make knowingly or recklessly false statements about political candidates that are intended to help elect or defeat them. Complaints, which can be filed by anyone, are heard by the Ohio Elections Commission, which makes preliminary determinations and can recommend criminal prosecution. The first offense could lead to six months’ imprisonment, the second to disenfranchisement.

The law applies to everyone. It covers, Mr. DeWine said, “the Internet and blogs and Facebook and citizens exercising their First Amendment rights in the town square.”

Mr. DeWine arranged to have outside lawyers to make those points on his behalf.

“In practice,” that brief said, “Ohio’s false statements law allows the state’s legal machinery to be used extensively by private actors to gain political advantage.”

Staff lawyers in the attorney general’s office will file a second brief this week, this time defending the law. “I told them to go at it hard,” Mr. DeWine said, adding that the two sets of lawyers have not been in contact.

The case, Susan B. Anthony List v. Driehaus, No. 13-193, will be argued next month. It was brought by an anti-abortion group that had sought to put up a billboard attacking Steven Driehaus, a Democrat, in the midst of what turned out to be his unsuccessful 2010 run for re-election to the House of Representatives.

“Shame on Steve Driehaus!” the billboard would have said. “Driehaus voted FOR taxpayer-funded abortion.” The advertising company that owned the space refused to rent it after hearing from Mr. Driehaus’s lawyers, who invoked the Ohio law.

The statement itself, based on Mr. Driehaus’s vote for the Affordable Care Act, may be true in some sense, but you would need strong coffee and an accountant to understand the reasoning. On the other hand, it is hardly clear that assessing the truth of a political advertisement is the sort of thing better entrusted to bureaucrats and prosecutors than to the citizenry.

That is the point Mr. O’Rourke and the libertarian Cato Institute made in their cheeky, hilarious and quite possibly counterproductive brief. They said they were “unsure how true the allegation is given that the health care law seems to change daily, but it certainly isn’t as truthy as calling a mandate a tax.”
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Truthiness, the brief explained, is a characteristic of a statement made “from the gut” or because it “feels right” but “without regard to evidence or logic.” The reference to “calling a mandate a tax” is, of course, a nod to Chief Justice John G. Roberts Jr.’s 2012 opinion upholding a central part of the Affordable Care Act.

The guidebook for Supreme Court lawyers does not address whether it is a bad idea to mock the chief justice of the United States as you seek his vote, but that does seem to be the consensus view.

The actual legal question before the justices is, as is so often the case at the court, a preliminary one. Here it is whether the anti-abortion group is entitled to sue at all. On the one hand, the Ohio Elections Commission said there was probable cause to think the group had violated the law. On the other, the matter fizzled out after Mr. Driehaus lost the election.

The federal appeals court in Cincinnati dismissed the suit, saying the group no longer had anything to worry about. In earlier decisions, courts have upheld the law.

But that was before United States v. Alvarez, a Supreme Court decision issued the same day as the health care ruling. It struck down a federal law that made it a crime to lie about receiving military decorations, and it cast doubt over the constitutionality of the Ohio law and similar ones in 15 other states.

Mr. O’Rourke connected the dots on the first page of his brief, assuring the justices that he, his lawyers, his family members and his pets “have all won the Congressional Medal of Honor.”

Low-tech high court to weigh police search of smartphones

Tuesday, March 25th, 2014

Posted Apr 1, 2014 3:50 AM CDT
By Mark Walsh

Jeffrey Fisher, who represents Riley in the Supreme Court: “The police shouldn’t have any access to a cellphone’s digital content.” Photo courtesy of Fisher.

U.S. Supreme Court Justice Elena Kagan told a university audience last summer that she and her colleagues “are not necessarily the most technologically sophisticated people.”

While law clerks regularly use e-mail, Justice Kagan said last August, the justices haven’t taken to communications technology that most working Americans have used for at least two decades. Much of the court’s internal work is conducted as it has been for decades, via memos printed on ivory paper and delivered by messenger to the justices’ chambers, Kagan said.

But the Supreme Court’s caseload often intrudes on this old-fashioned image. This month, the court will hear arguments in two cases involving whether the police may search the contents of a cellphone seized incident to the lawful arrest of a criminal suspect.

The cases come just four years after the court dealt with the Fourth Amendment implications of a warrantless search of a government employee’s pager. In a few short years, the justices are moving from a relatively old technology to the latest smartphones, with a case involving an old “flip phone” thrown in for good measure.

“If we took a survey of Americans, and they thought that everything in their smartphones would be accessible to a police officer if they were arrested, they would be very disturbed,” says Charles E. MacLean, an assistant law professor at Indiana Tech Law School.

For the cases of Riley v. California and United States v. Wurie, to be argued April 29, the justices will be presented with two sets of facts, and a gulf of about a decade in cellphone technology.

In 2007, Boston police officers arrested Brima Wurie for possession of crack cocaine after they observed him make a sale to another person in his Nissan. At the station, while Wurie was being booked, officers noticed that one of two cellphones taken from him—a Verizon LG flip phone model—was repeatedly receiving calls from a source the phone identified as “my house.”

Without obtaining a warrant, officers opened the phone and browsed its call log to find the phone number associated with “my house.” They were able to get an address through an online directory. The phone’s screen featured a photo of a young woman and a baby.

Wurie denied living at the address, but police suspected they might find a larger “mother cache” of crack cocaine there. Upon arriving at the address, police observed through a window the woman pictured on the suspect’s phone, as well as a mailbox with Wurie’s name on it.

After obtaining a warrant, the police found 215 grams of crack cocaine and other contraband. Once a federal district court rejected a motion to suppress the cellphone search, Wurie was convicted of drug and weapons charges and sentenced to 262 months in prison.

A panel of the 1st U.S. Circuit Court of Appeals at Boston ruled 2-1 that evidence stemming from the search of Wurie’s phone should have been suppressed.

The majority traced the evolution of modern search-incident-to-arrest doctrine, including key Supreme Court decisions such as Chimel v. California (1969), which said such warrantless searches were justified for the safety of police officers and to seize evidence that might be destroyed; and U.S. v. Robinson (1973), in which the court upheld a search of an arrestee that turned up a crumpled cigarette package found to contain drugs.

In setting a bright-line rule in that case, the court said that officers conducting a search incident to arrest may open and search through all items on the suspect, even when they are in a closed container, which has been interpreted to include purses and wallets.

Although the case before it involved a relatively rudimentary flip phone, the 1st Circuit majority observed that “in reality, a modern cellphone is a computer, and a computer is not just another purse or address book.”

“That information is, by and large, of a highly personal nature,” including photos, written and audio messages (text, email and voicemail), calendar appointments, Web search and browsing history, and financial and medical records, the 1st Circuit continued.

The court ruled that warrantless cellphone searches were categorically unlawful under the search-incident-to-arrest exception to the Fourth Amendment.

Meanwhile, in California a college student named David Leon Riley was having his troubles with the police in 2009. His Lexus was pulled over by San Diego police for having expired tags. Police found that Riley was driving on an expired license, and they impounded his car.

An inventory search turned up two guns hidden under the hood, leading to Riley’s arrest. The police seized Riley’s phone, a Samsung smartphone, then conducted two separate, warrantless searches of it. At the scene, an officer scrolled through the phone’s contents and noticed that some words in text messages and contacts that normally began with the letter K instead led off with the letters CK. The police believed this was related to a gang known as the Crip Killers or the Bloods.

The second search occurred hours later at a police station. A gang unit detective searched the phone looking for evidence of other crimes, he would later testify. The detective found photos and videos suggesting Riley’s gang membership and a photo of Riley posing in front of an Oldsmobile that the police suspected had been involved in a shooting some three weeks earlier.

Riley was eventually charged with attempted murder and other counts related to the earlier shooting. Prosecutors also charged that the crimes were committed to benefit a criminal gang.

Riley was convicted based largely on circumstantial evidence such as the photos from his phone linking him to the Oldsmobile. With gang-related sentencing enhancements, he received 15 years to life in prison.

While Riley’s case was pending, the California Supreme Court had ruled in People v. Diaz that the Fourth Amendment’s search-incident-to-arrest doctrine permitted police to search cellphones, even hours later at a station, whenever the phone had been taken from the person of the arrestee. A state appellate court had no trouble ruling that the Diaz decision controlled Riley’s case and the police searches of his cellphone were legal.

Adam M. Gershowitz, a professor at William & Mary Law School who has written about cellphone searches, says he is encouraged that the court took the two cases, including the one involving a type of smartphone that many people use.

“Plenty of drug dealers still use flip phones,” he says, so those are still important issues, but “we’re really living in an iPhone and Android world.”

“I think it will be very hard … to fashion a rule on what content can be searched and what content cannot be searched” in the context of warrantless searches incident to arrest, Gershowitz says.

Jeffrey L. Fisher, a professor at Stanford Law School who represents Riley in the Supreme Court, says he will encourage the justices to rule that once the police have seized a suspect’s cellphone and have exclusive possession of it, “they shouldn’t have any access to the digital content.”

“The police should not be allowed to conduct these wide-ranging searches of the digital content of the phone any more than if they went to your home they could go rummaging through your files” without a warrant, Fisher says.

California prosecutors didn’t respond to a request for comment, but they argue in court papers that the U.S. Supreme Court’s precedents in this area validate the search of Riley’s phone because “it was an item of personal property on his person at the time of his lawful arrest.”

In an early brief in Wurie, U.S. Solicitor General Donald B. Verrilli Jr. argues that Robinson and other precedents establish that the police may search any item found on the person of an arrestee.

Also, cellphone searches are critical to preserving evidence because “a significant risk exists that evidence contained on a cellphone could be destroyed by an arrestee’s confederates before the police have the opportunity to obtain a warrant,” Verrilli says in the brief.

Verrilli also argues that the 1st Circuit’s blanket rule against warrantless cellphone searches in this context goes too far, and such searches should at the very least be permitted when the police are looking for evidence related to the crime of arrest.

Clifford S. Fishman, a former New York City prosecutor and now a law professor at the Catholic University of America, makes a similar argument.

“Because a cellphone contains so much information, it should be treated differently from a pair of pants or an address book or a wallet,” says Fishman, who wrote about the issue recently in the Rutgers Law Review.

But if the police thought a drug suspect had used his cellphone to facilitate narcotics sales, for example, they should be able to search the phone for such evidence incident to arrest for that particular crime, Fishman argues.

“Give the police some room to fish, in limited circumstances,” he says, “but don’t give them the entire ocean.”

This article originally appeared in the April 2014 issue of the ABA Journal with this headline: “Learning How to Cell: Low-tech high court to weigh police search of smartphones.”

Cloud-based e-discovery can mean big savings for smaller firms

Tuesday, March 25th, 2014

Posted Apr 1, 2014 2:40 AM CDT
By Joe Dysart

Alan Winchester: “For firms without robust IT departments, [cloud-based e-discovery] grants them the experts to manage the technology operations and security.” Photo by Adam Lerner.

Smaller law firms may be able to save a significant amount of money by ‘renting’ e-discovery applications in the cloud rather than bringing a full-fledged hardware and software solution in-house.

“Only a few years ago, e-discovery in the cloud wasn’t even available,” said Gareth Evans, an Irvine, Calif.-based partner at Gibson, Dunn & Crutcher, adding that these days, even the smallest law firms have a wide variety of e-discovery firms they can source.

Evans spoke as part of a panel at LegalTech New York 2014 in February.

Panelist Alan Winchester, a partner at the New York City firm Harris Beach, agreed: “For firms without robust IT departments, it grants them the experts to manage the technology operations and security.”

While renting e-discovery services a sliver at a time may cause some firms to worry about the security of their data offsite, the panelists advised that with a good contract, those concerns can be minimized.

They also ticked off a number of benefits associated with going to the cloud for e-discovery services, including:

• No need for software updating: Updates to cloud software tend to evolve over time, with users easily absorbing smaller, steadier changes over a much longer time span.

• Best practices are continually updated. E-discovery cloud vendors learn to avoid the pitfalls with software much more quickly, given that they are working with multiple law firms at once. Essentially, the mistakes and misunderstandings that can happen with an e-discovery software package tend to happen at a much faster rate.

• No need for yearlong rollouts. With e-discovery in the cloud, all the hardware and software installation logistics are sidestepped. Instead, firms can focus entirely on training staff and bringing them up to speed.

• The return on investment can be very attractive. Smaller law firms may go months or even years before needing a robust e-discovery package. Instead of spending major dollars—and then watching helplessly as the system grows obsolete—they can go to the cloud for e-discovery on an ad hoc basis and often save handsomely.

Law firms do need to look under all the rocks before committing to the cloud, according to computer and network security expert Kai Axford, a director of strategic services for Overland Park, Kan.-based Fishnet Security.

“As a security guy, I tend to look at the idea of cloud computing from a risk perspective,” Axford says. “I have to tell you, I don’t see a lot of companies agreeing to become liable if your data gets breached on their network.”

Outsourcing your e-discovery also means you’re relying on strangers if there’s an 11th-hour turn in an important case. If you’ve got your cloud IT in-house, you can turn to those people to work crazy hours to slam-dunk the case. But you may not find that same loyalty with an outside firm.

There’s also a danger of becoming trapped with an e-discovery cloud provider. Essentially, once someone has your data, there may not be smiles all around when you inform the firm you’ve decided to go with a different provider or to bring the operation in-house.

Obviously, cloud e-discovery is tempting. But law firms do need to take a hard look at the technology both ways before taking the plunge.

This article originally appeared in the April 2014 issue of the ABA Journal with this headline: “Eye in the Sky: Cloud-based e-discovery can mean big savings.”

U.S. Supreme Court Clarifies Limits of Bankruptcy Judge’s Equitable Authority Under Section 105(A)

Friday, March 21st, 2014

Greenberg Traurig

Article By:
Mark D. Bloom
Michael H. Moody
Greenberg Traurig, LLP
posted on: Thursday, March 20, 2014
Administrative & Regulatory / Bankruptcy & Restructuring / Civil Procedure / Litigation / Trial Practice
All Federal

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On March 4, 2014, a unanimous United States Supreme Court decided Law v. Siegel 1 and clarified that exercising statutory or inherent powers, a bankruptcy court may not contravene specific statutory authority. Law will likely have broad implications for business bankruptcy cases even though it directly involved the exercise of a bankruptcy judge’s authority under section 105(a) to create a pragmatic solution to the actions of a bad actor in a consumer bankruptcy case.

In Law, a Chapter 7 trustee had succeeded in obtaining a determination that a second mortgage on the debtor’s homestead property was a fiction designed to preserve the debtor’s equity in his residence beyond what he was able to exempt under the Code. After this determination, the Bankruptcy Court permitted the trustee to “surcharge” the entirety of the debtor’s $75,000 homestead exemption to pay for the attorney’s fees incurred by the trustee in the litigation, because the debtor had caused the expense and protraction of the litigation by apparently submitting ghost-written pleadings for the non-existent second lien lender.

The Bankruptcy Appellate Panel for the Ninth Circuit and the Ninth Circuit Court of Appeals affirmed the Bankruptcy Court’s decision to permit the surcharge, based largely on the authority of an earlier Ninth Circuit decision, Latman v. Burdette (In re Latman),2 which had approved a surcharge of exempt property to prevent a debtor from retaining property in excess of the applicable exemption statute.

In the opinion written by Justice Scalia, the Law Court determined that the bankruptcy Judge had exceeded its authority under section 105(a) and any inherent powers it may possess by imposing the sanction of a surcharge against exempt property. The Court examined section 105(a) which states, in pertinent part, that a bankruptcy court has statutory authority to “issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of” the Code.3 Simply stated, because the “Code’s meticulous – not to say mind-numbingly detailed – enumeration of exemptions and exceptions” did not contain an exception that would permit the denial of an exemption for bad-faith conduct, the Bankruptcy Court was powerless to issue such a sanction.

Perhaps, most notably, the opinion re-cast and clarified the Court’s decision in Marrama v. Citizens Bank of Massachusetts4 which had led to a resurgence in attempts by practitioners to convince courts to use equitable powers to prevent abuses of the bankruptcy system. InMarrama, the Court had held that “the broad authority granted to bankruptcy judges to take any action that is necessary or appropriate to ‘prevent an abuse of process’ described in § 105(a) of the Code, [was] surely adequate to authorize an immediate denial of a motion to convert filed under § 706” even where such denial was not expressly authorized by the Code.5 The Law Court noted that “[a]t most, Marrama’s dictum suggests that in some circumstances a bankruptcy court may be authorized to dispense with futile procedural niceties in order to reach more expeditiously an end result required by the Code. Marrama most certainly did not endorse, even in dictum, the view that equitable considerations permit a bankruptcy court to contravene express provisions of the Code.”

Before Law’s limiting statements, some commentators had believed Marrama signaled expansion of the inherent equitable powers of bankruptcy judges that the Supreme Court originally recognized in Pepper v. Litton.6 In Pepper, the Court noted that the inherent equitable power of the bankruptcy courts “ha[s] been invoked to the end that fraud will not prevail, that substance will not give way to form, that technical considerations will not prevent substantial justice from being done.”7 After Pepper, however, a number of other pronouncements made it clear that if equitable authority existed in the bankruptcy courts, such authority was extremely limited. In Norwest Bank Worthington v. Ahlers8 the Court had held that a bankruptcy court cannot use its general equitable powers to confirm a reorganization plan in contravention of the absolute priority rule based on an equity holder’s promise of “future labor, experience, and expertise.” 9 In Ahlers, the Court had noted “whatever equitable powers remain in the bankruptcy courts must and can only be exercised within the confines of the Bankruptcy Code.”10 After Law, it is clear that Marrama did not signal a retrenchment fromAhlers in favor of the views expressed in Pepper.

It bears noting that the majority in Marrama expressly reasoned that nothing in the text of either “§ 706 or § 1307(c) limits a court’s authority to take appropriate action in response to fraudulent conduct by the atypical litigant who has demonstrated that he is not entitled to the relief available to the typical debtor.”11 And the dissent, which was joined by Chief Justice Roberts and Justices Scalia and Thomas, noted consistently with Law, that although bankruptcy courts can, and have, “crafted various remedies for a range of bad-faith conduct” pursuant to section 105(a), “… whatever steps a bankruptcy court may take pursuant to § 105(a) or its general equitable powers, a bankruptcy court cannot contravene the provisions of the Code.”12

It appears likely that many of the pragmatic equitable solutions created by resort to section 105(a) and reliance on Marrama in recent years may no longer be permissible after Law. Clearly, surcharges of exempt assets are no longer permissible per the holding in Law, unless authorized by the state exemptions statute upon which the exemption is based, but other equitable remedies routinely employed by the bankruptcy courts may also no longer be available. For example, bankruptcy courts routinely have denied dismissal as a matter of right under section 1307(b), where evidence of bad-faith conduct is present, and have instead required conversion to Chapter 7 even though the Code does not specifically authorize such conversion.13 Law may provide new grounds to resist efforts to obtain bankruptcy-specific equitable remedies, such as equitable disallowance of claims, substantive consolidation, and imposition of the automatic stay as to non-debtors. Further, litigants may use Law to seek denial of requests in business bankruptcy cases for actions based on section 105(a) and “the doctrine of necessity” where the relief would otherwise run afoul of the treatment provisions of the Code.14 And, it may be harder to obtain expanded discharge or channeling injunctions under section 105(a) that exceed the scope of sections 524(e) or (g) of the Code.15

The Law decision is only one of several recent limitations imposed on bankruptcy judges. The Bankruptcy Abuse and Prevention and Consumer Protection Act (BAPCPA) of 200516 congressionally limited judicial discretion of bankruptcy judges. BAPCPA removed the authority of a bankruptcy judge to extend the exclusivity period under section 1121 and the timeframe to assume or reject a lease under section 365(d)(4), and limited a bankruptcy judge’s discretion in approving key employee retention plans under section 503(c). In Stern v. Marshall17 the Supreme Court determined that absent consent, bankruptcy courts lack constitutional authority to enter final judgments on state law counterclaims that are not resolved entirely through the claims allowance or disallowance process, even though Congress purportedly granted such authority in 28 U.S.C. section 157(b)(2)(C). The Court is now set to determine Executive Benefits Insurance Agency v. Arkison 18 which may further impair the authority bankruptcy judges have relied upon to determine business bankruptcy cases expeditiously. In Executive Benefits, the Court will decide a split of authority that has developed since Stern, as to whether a party may or may not waive consent or waive objection to the limited Constitutional authority of an Article I bankruptcy court. Seen in the context of this trend toward limiting bankruptcy court power, the Law decision sends an additional clear message as to the limits of the authority of bankruptcy judges.

“Arkansas Judge Ruled for Corporation Just Days After PAC Contributions”

Thursday, March 20th, 2014

Two weeks ago, an Arkansas trial court judge was revealed as the person behind an anonymous online pseudonym linked to racist, homophobic, and sexist comments on a sports website. Circuit Judge Mike Maggio apologized for the comments and stepped out of the 2014 race for a seat on the Arkansas Court of Appeals.

But while Maggio was still in the race, his campaign received at least $10,000 in contributions linked to a corporate chain of nursing homes that benefited from a major ruling in their favor by Maggio. The donation was made through several entities owned or controlled by Michael Morton, to several Political Action Committees (PACs) that were set up by the same entities. Just days after the entities donated thousands to these PACs, Maggio issued a ruling that lowered a verdict against Morton’s company from $5.2 million to $1 million. Several months after the ruling, the PACs contributed the funds to Maggio’s campaign.

The lawsuit was filed by the family of a patient, Martha Bull, who died just days after being admitted to one of Morton’s nursing homes. (The Arkansas Times described the plaintiffs’ tragic allegations.) A blogger at Blue Hog Report said that it appeared Judge Maggio had allowed Morton to “buy his way out of full responsibility for the death of Martha Bull for less than one cent on the dollar.”

The state’s judicial ethics agency confirmed on Monday that it is investigating the “general allegations concerning campaign contributions” to Maggio’s campaign. Though Morton failed to elect Maggio to the appeals court, he has also donated generously to an incumbent appeals court judge who is running for the state supreme court. Columnist Max Brantley noted that well more than half of Judge Rhonda Wood’s campaign contributions came from “nursing home businesses and operators,” including Morton’s corporations.

The nursing home industry’s increasing financial support for judicial candidates comes after the Arkansas Supreme Court struck down a tort reform bill in 2011. These bills make it harder for the victims of nursing home malpractice and other forms of negligence to seek justice in court.

A 2013 Center for American Progress report looked at similar trends in other states and found that, after state supreme courts struck down tort reform laws in the 1980s and 1990s, corporate groups began spending big to elect judges who would uphold these laws. “In the span of a few short years, big business succeeded in transforming courts such as the Texas and Ohio supreme courts into forums where individuals face steep hurdles to holding corporations accountable.”

These political battles over tort reform are likely to attract even more money to judicial elections—money from trial lawyers who oppose limiting liability and money from big businesses that support it. The scandal in Arkansas shows that the type of independent spending unleashed by the U.S. Supreme Court in Citizens United is having a corrupting influence in judicial races.

Some courts have not been caught up in this political battle over tort reform, because their judges are selected through a “merit selection” process, rather than contested elections. The Florida Supreme Court, for example, recently ruled unconstitutional a bill which would have limited the verdict awarded to the family of Michelle McCall, a mother who died following childbirth. A nurse failed to inform anyone of McCall’s “dangerously low” blood pressure. The new mother went into “shock and cardiac arrest as a result of severe blood loss. It is not clear how long Ms. McCall had been in this state, since no one had monitored her or checked her status for the hour following” a surgical procedure.

The Florida Supreme Court ruled unconstitutional a law which strictly limited the non-economic damages available to the multiple claimants in this lawsuit. The court found no “medical malpractice crisis” to justify the limits, and it doubted that the limits would even remedy such a crisis. The court also called the bill “inherently discriminatory,” noting that “the greater the number of survivors and the more devastating their losses are, the less likely they are to be full compensated for those losses.”

State must pay newspapers $301,000 to cover legal bills in child-abuse records dispute

Tuesday, March 18th, 2014

By Bill Estep

bestep@herald-leader.comMarch 18, 2014 Updated 9 minutes ago
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Judge: State must pay newspapers $301,000 to cover legal bills in child-abuse records dispute 8 minutes ago
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File: Read a copy of the judge’s final order

The state must pay more than $301,000 to Kentucky’s two largest newspapers to cover their attorneys’ fees in a court fight over records about children killed or badly hurt from child abuse, a judge ruled Tuesday.

Franklin Circuit Judge Phillip Shepherd also refused to rescind his earlier order for the cabinet to pay a fine of $756,000 for willfully withholding public records from the Lexington Herald-Leader and The Courier-Journal of Louisville.

The cabinet is “reviewing” Shepherd’s order, spokeswoman Jill Midkiff said Tuesday. She declined to comment further about the order, which could be appealed.

Shepherd strongly criticized the cabinet, saying its actions dragged out the case, which “vastly increased” what it must pay.

Shepherd said the cabinet refused to comply with the state’s open-records law; sought unjustified emergency regulations to shield files; pursued unsuccessful attempts to switch the case to federal court and appeal one of his rulings; and repeatedly failed to comply with his instructions on releasing documents.

“The record in this case vividly documents the cabinet’s willful and unyielding determination to shield its conduct from the public scrutiny” required by state law, Shepherd said in the ruling.

Of the legal fees Shepherd ordered the cabinet to pay, $72,896 is for the Herald-Leader’s legal bills and $228,887 is for The Courier-Journal’s bills during the long-running litigation.

“If just a fraction of the energy spent fighting this open-records case was devoted instead to shining a light on child abuse, we might make some progress in preventing further tragedies,” Kif Skidmore, an attorney for the Herald-Leader, said after Shepherd’s ruling.

The cabinet has withheld “massive amounts” of information from the files sought by the newspapers, without the required examination of whether the redactions were justified or proper, Shepherd said.

Cabinet attorneys and officials have argued that their aim is to protect vulnerable children and families, and they have cited a concern that releasing certain information about deaths and near-deaths could discourage people from reporting suspected abuse.

In his order, Shepherd countered that the cabinet’s conduct in the cases at issue shows that the “fortress of secrecy” it has built “is consistently used to cover up the cabinet’s own malfeasance and its failure to protect our most vulnerable children.”

Shepherd said the cabinet has made important improvements under current Secretary Audrey Haynes, but the public can’t adequately understand breakdowns in child protection if the agency remains shrouded in secrecy.

“The record in this case demonstrates that such preventable tragedies will continue to occur as long as the Cabinet’s conduct in child fatality cases remains effectively shielded from public scrutiny,” the judge wrote.

Shepherd said in his order that he is mindful that the cabinet will have to pay the fine and attorney fees from public funds, but he concluded taht it’s the only way to secure justice in a case in which some of the cabinet’s acts have been an “extraordinary departure from customary litigation.”

The cabinet has already paid the newspapers more than $50,000 to cover their legal bills in an earlier related lawsuit over child-abuse records.

Read more here:

Fla. Supreme Court strikes down cap on ‘pain and suffering’ awards

Friday, March 14th, 2014

Staff and wire reports
Published: March 13, 2014

TALLAHASSEE — The Florida Supreme Court Thursday struck down a state law that limits the amount of money for “pain and suffering” in deaths caused by medical malpractice, saying the cap violates the state constitution.

The 5-2 ruling also is a blow to the legacy of former Gov. Jeb Bush, a Republican who called a special session of state lawmakers to overhaul the way medical malpractice cases are handled.

Physicians complained that large jury awards were driving up their insurance rates and that some stopped practicing in Florida.

The 2003 law limits the amount of “non-economic damages” from a death or injuries caused by medical negligence to $500,000 to each plaintiff, and no more than $1 million from all defendants in a single lawsuit.

Non-economic damages may include emotional distress and loss of one’s companionship, things that aren’t easily quantifiable with a dollar amount.

Thursday’s decision, written by Justice R. Fred Lewis, says putting a limit on those kinds of damages violates the state constitution’s equal protection clause, which provides that no one can be denied the protection of laws that cover everyone else.

“The statutory cap … fails because it imposes unfair and illogical burdens on injured parties when an act of medical negligence gives rise to multiple claimants,” Lewis wrote. “In such circumstances, medical malpractice claimants do not receive the same rights … because of arbitrarily diminished compensation.”

In other words, the law essentially punishes plaintiffs when there are more of them in any one case because it forces them to take smaller shares of money awarded for damages.

Chief Justice Ricky Polston, in a dissent joined by Justice Charles Canady, said the ruling ignores “the Legislature’s policy role under Florida’s constitution.”

In limiting damages, lawmakers had a legitimate interest in “decreasing medical malpractice insurance rates and increasing the affordability and availability of health care in Florida,” Polston wrote.

A task force convened by Bush found that “the increase in medical malpractice liability insurance premiums has resulted in physicians leaving Florida, retiring early … or refusing to perform high-risk procedures, thereby limiting the availability of health care.”

The Florida Medical Association, which represents physicians and had provided key support for passage of the caps in 2003, said the decision was a disappointment.

The caps were put in place to stem the tide of physicians leaving the state because of out-of-control litigation and which discouraged physicians from coming to Florida, Dr. Alan Harmon, president of the FMA, said in a statement.

“Thanks to the Florida Supreme Court, we can be sure that patients will face an intensified access to care crisis,” Harmon said. “The likely outcome will be that trial lawyers will refocus their sights on physicians, meritless lawsuits will clog our courts, and physicians will move to states with a more favorable litigation climate, like Texas.”

But Matt Powell, a personal injury attorney in Tampa, said people with severe medical injuries often have severe mental anguish.

“If you’re a quadriplegic because of a doctor’s stupid mistake, a cap on (non-economic) damages is draconian,” Powell said.

Paul Anderson, president of the Florida Justice Association, a trial-lawyers group that fought the limits, issued a statement praising the ruling. He said “victims and their families will have the opportunity to be fully compensated for their losses. The cap on non-economic damages unfairly punished victims whose lives were permanently altered by no fault of their own.”

The court’s decision followed the U.S. 11th Circuit Court of Appeals asking for guidance on questions of state law.

The case involved Michelle McCall, a Panhandle woman who died after childbirth while being treated by Air Force doctors. Her family sued the federal government, which was found liable.

A north Florida federal judge found that her family’s noneconomic damages totaled $2 million — $500,000 for McCall’s son and $750,000 for each of her parents, according to the opinion.

But that same court reduced the total award to $1 million, based on the state law. McCall’s family then appealed.

Tribune reporter James Rosica and the News Service of Florida contributed to this report.


Thursday, March 13th, 2014

March 13, 2014
This week I received the good news that I had won $550,000 and a new Mercedes, all I had to do was to buy $1500 in “Green Dot Moneypak, to insure my winnings.
Suspecting a scam, I searched Publishers Clearing House and they called this a scam.
Damn, I would have looked great in that new Mercedes!!!
Stan Billingsley
The Publisher’s Cleraing house reports:

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The Judicial Nominating Commission, led by Chief Justice of Kentucky John D. Minton Jr., today announced nominees to fill the vacant Warren County Family Court judgeship

Wednesday, March 12th, 2014

FRANKFORT, Ky. — The Judicial Nominating Commission, led by Chief Justice of Kentucky John D. Minton Jr., today announced nominees to fill the vacant Warren County Family Court judgeship. Warren County is the 8th Judicial Circuit and the vacancy is in the circuit’s 3rd Division.

The three attorneys named as nominees to fill the vacancy are James Richard Downey, David A. Lanphear and Rebecca Adams Simpson, all of Bowling Green.

Downey served as an attorney with Kentucky Legal Aid from 2006 to 2012 and was previously an attorney in private practice. He received his juris doctor from the University of Kentucky College of Law.

Lanphear has been a partner in the law firm of Lanphear & Walton in Bowling Green for 14 years. He received his juris doctor from Northern Kentucky University Salmon P. Chase College of Law.

Simpson has served as an attorney with Kentucky Legal Aid since 2008 and was previously an attorney in private practice. She received her juris doctor from the University of Louisville Louis D. Brandeis School of Law.

The Family Court vacancy was created by the passing of Warren County Family Court Judge Margaret R. Huddleston on Jan. 3, 2014.

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.