Archive for April, 2014

Gun rights may return to Supreme Court’s agenda

Monday, April 14th, 2014

USA Today, USAToday.com April 13, 2014
(USA TODAY) WASHINGTON — The push and pull over the Second Amendment right to bear arms is heating up again, thanks in part to a former Supreme Court justice’s new book.
Friday, the high court will consider whether to hear a challenge to a New Jersey law restricting the right to carry guns in public. If the court grants the petition, it would be the most important gun control case since the justices upheld the right to keep handguns at home for self-defense in 2008.
While the justices ponder what the Constitution’s framers meant with the words “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed,” former Justice John Paul Stevens suggests it be rewritten.
In his new book, Six Amendments: How and Why We Should Change the Constitution,Stevens, 93, advocates adding the words “when serving in the militia” to reduce the number of firearms-related deaths — roughly 88 per day — that occur in the USA.
Stevens was on the losing side of the court’s 5-4 ruling in 2008 that established the right to keep handguns at home for self-defense. Two years later, he was again in the minority when the court ruled that Chicago could not prohibit private citizens from owning handguns.
“Emotional claims that the right to possess deadly weapons is so important that it is protected by the federal Constitution distort intelligent debate about the wisdom of particular aspects of proposed legislation designed to minimize the slaughter caused by the prevalence of guns in private hands,” Stevens writes. “Those emotional arguments would be nullified by the adoption of my proposed amendment. The amendment certainly would not silence the powerful voice of the gun lobby; it would merely eliminate its ability to advance one mistaken argument.”
The “gun lobby” seeks to move in the opposite direction. Despite losses at federal district and appeals courts, groups including the National Rifle Association and Gun Owners Foundation back the effort by New Jersey gun owners to legalize gun possession outside the home.
“The Second Amendment guarantees the right to carry weapons for the purpose of self-defense — not just for self-defense within the home, but for self-defense, period,” the NRA argues in its brief to the high court.
New Jersey law enforcement groups defend the state’s requirement that citizens prove a “justifiable need” to carry handguns outside the home, whether openly or concealed from view. In their brief, they claim the law “qualifies as a presumptively lawful, longstanding regulation that does not burden conduct within the scope of the Second Amendment’s guarantee.”

statement by Attorney General Holder on Sentencing Commission’s Vote to Approve Reductions in Sentencing Guidelines for Nonviolent Drug Offenders

Friday, April 11th, 2014

Department of Justice
Office of Public Affairs
FOR IMMEDIATE RELEASE
Thursday, April 10, 2014

WASHINGTON—U.S. Attorney General Eric Holder—who testified before the U.S. Sentencing Commission last month in support of a proposal to reduce the federal sentencing guidelines for low-level, nonviolent drug offenders—released the following statement Thursday in response to the Commission voting to formally adopt those changes:

“This action by the U.S. Sentencing Commission represents a milestone in our effort to reshape the criminal justice system’s approach to dealing with drug offenders. This reduction in the federal sentencing guidelines, while modest, sends a strong message about the need to reserve the harshest penalties for the most serious criminals. At a time when prison and detention costs consume nearly a third of the Justice Department’s budget, it simply makes sense to explore alternatives to incarceration and renew our emphasis on treatment and prevention.

“It is now time for Congress to pick up the baton and advance legislation that would take further steps to reduce our overburdened prison system. Proposals like the bipartisan Smarter Sentencing Act would enhance the fairness of our criminal justice system while empowering law enforcement to focus limited resources on the most serious threats to public safety. I look forward to continuing to work with lawmakers on both sides of the aisle on these types of common-sense reforms.”

8th Cir. axes $900K verdict because lawyer told personal law school sex-harassment story at closing

Friday, April 11th, 2014

Trials & Litigation

Posted Apr 7, 2014 4:10 PM CDT
By Martha Neil

A $900,000 jury award in an employment discrimination case, including $600,000 in punitive damages, has been reversed by a federal appeals court because a lawyer for the plaintiff during closing arguments told jurors that as a law student, she was sexually harassed by a professor.

The anecdote by attorney Brooke Timmer improperly helped vouch for the claims made by her client, Mindy Gilster, held the St. Louis-based 8th U.S. District Court of Appeal in its Friday opinion (PDF).

Saying that “the size of the damage award, while not beyond the bounds of rationality, suggests that counsel’s comment had a prejudicial effect,” the appellate panel ruled that a new trial would be required to remedy the unfair remarks by Timmer in the Northern District of Iowa case.

“Counsel’s vouching and sympathy-arousing personal experience were directly aimed at enhancing these damages,” the appeals court said. “Given the jury’s decision to award Gilster $40,000 for past emotional distress, $200,000 for future emotional distress, and $600,000 punitive damages, we cannot say that this improper argument did not accomplish the purpose which it was clearly intended to accomplish, namely, the enhancement of damages.”

Gilster sued her former supervisor and employer, the Sioux City branch of Primebank, in 2010, alleging that her supervisor spoke to her and touched her inappropriately. Although he was reprimanded by the bank when she complained in 2009, Gilster was fired after she filed with the Iowa Civil Rights Commission in 2011, the Des Moines Register recounts.

In her closing argument in the 2012 federal district court trial, Timmer praised her client for being courageous enough to complain and said she herself had been sexually harassed by a professor when she was a third-year law student at Drake University but had not spoken up. Although opposing counsel objected to her argument, the trial judge overruled, later admitting that this had been a mistake but finding that the defense had not been unduly prejudiced.

“I had been a student bar association president for the last year, and I was well respected and liked by my peers. I had a great relationship with the dean of the law school because of my role as president,” Timmer told the jury in Gilster’s case. However, “I refused to stand up for myself. It takes great strength and fearlessness to make a complaint against your supervisor.”

Timmer told the Des Moines Register she expects to seek en banc review of the appellate ruling by the full 8th Circuit.

She also said Drake’s law school had reached out to her in 2012 after hearing of the sexual harassment claim she made in a closing argument (Timmer said she had done so in more than one case, but no longer uses the anecdote). However, the newspaper article doesn’t explain what resolution, if any, resulted.

EDITORIAL COMMENT BY LAWREADER SENIOR EDITOR STAN BILLINGSLEY re: RESIGNATION OF ERIC DETERS

Thursday, April 10th, 2014

The decision by attorney Eric Deters to resign from the retire from practice of law in Kentucky after a five year battle with the KBA , may be the basis for some in the KBA to rejoice. Yes they are finally rid of Eric.

The KBA spent $400,000 to try to sanction Senator Berry for politely saying that “ some believe the refusal of the Legislative Ethics committee to allow members of the public to sit in on the ethics trial of Senator David Williams and by allowing Senator Williams to be present”. Some of this cost was covered by the KBA liability insurance…but this is not without consequence since this expenditure will likely increase the cost of malpractice insurance for all attorneys.

The KBA cited a rule which says that attorneys may be sanctioned if they criticize a judge or “public legal officer” (no definition is given for the term “public legal officer” by questioning their competence or efficacy. This rule applies to false statements but also applies to “truthful but reckless” statements about a judge or public legal officer. Ohio and Arkansas have repealed a similar rule. But Kentucky still has a rule that allows any attorney to be sanctioned for making a truthful criticism of a judge or “public legal officer”. The Kentucky Supreme Court, by adoption of this rule, means that the people who know the most about the conduct of judges and public legal officers face sanctions if they express their opinions in public…EVEN IF THE STATEMENTS ARE TRUTHFUL! The Sixth Circuit Court of Appeals did not strike down the rule applied against Senator Berry….they just said it was improperly applied to his fact situation. So if you are an attorney you are still prohibited in Kentucky from making truthful comments criticizing a judge or public legal officer.

The KBA have made it impossible for Deter’s (in his mind ) to continue to practice law in Kentucky. We are unaware of any ethics violation by Deters that warranted the penalty of permanent disbarment.

We will watch closely to see if the KBA will even permit Deters to resign. Attorneys are required to join the KBA and they cannot withdraw from the KBA if a current ethics charge is pending, without the permission of the KBA. We understand that Deters has only one issue before the KBA, and that is whether or not he should be reinstated after serving out his periods of sanction. His resignation should make that issue before the Fitness and Character Committee moot.

Today some attorneys may rejoice about Deter’s resignation, but they should realize that not everyone agrees with them. One prominent attorney in Frankfort, has expressed the opinion that lawyers whose office is above the fourth floor are treated more favorably by the KBA than small firm lawyers, and those whose offices are below the fourth floor.

SCOKY Retreats Further From Open And Obvious Hazard Doctrine In Premises Cases

Wednesday, April 9th, 2014

By David Kramer | dkramer@dbllaw.com

In its recently published 4-3 opinion in Shelton v. Kentucky Easter Seals Society, Inc., 413 S.W.3d 901 (Ky. 2013), the Kentucky Supreme Court expanded on its prior decision in Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010), limiting the “open and obvious hazard doctrine,” and held that a personal injury claim brought by a hospital visitor who tripped on hospital equipment wiring next to her husband’s bed while tending to him should not have been dismissed by summary judgment. The Fayette Circuit Court court had dismissed the claim, and the Court of Appeals affirmed the dismissal, after determining that the hazard posed by the wires was open and obvious to the visitor.

The Supreme Court majority noted that the visitor was an invitee (rather than a licensee) to whom the hospital owed a duty of reasonable care to eliminate or warn of unreasonable risks of harm on the premises. The Court referred back to its prior limitation on the open and obvious doctrine in McIntosh and held that the issue was no longer one of whether there was a duty on the part of the premises owner but rather one of whether the duty was breached. The Court noted that in McIntosh it had adopted the approach of the Restatement (Second) of Torts Section 343(a) and that of a growing number of American jurisdictions in generally permitting juries to assess the comparative fault of the parties in premises liability cases.

The Court explained that a family member tending to a hospitalized patient might reasonably be distracted from the existence of an obvious hazard on the premises, or might determine that the need to tend to the patient outweighs exposure to the hazard. The Court concluded that there was a genuine issue of material fact whether the hospital fulfilled its duty of reasonable care, thereby precluding summary judgment. Specifically, the Court held that the record of the case was inadequate for it to determine whether there were any safer alternative solutions available to the hospital to the placement of the exposed wiring, whether any warnings were provided, or whether other precautions could have been taken to make the premises safer.

It is interesting to note that the Court suggested the hospital might still be entitled to summary judgment upon remand after those additional issues are addressed. Generally in these cases, if an appellate court finds that a motion for summary judgment was well grounded, the appellate court notes that the burden shifts to the plaintiff, and then considers whether the plaintiff had an adequte opportunity for discovery before the trial court granted summary judgment. If so, it usually does not reverse a properly supported summary judgment. Review of the case docket in Shelton on CourtNet suggests that summary judgment was entered relatively early in the case, though some discovery had been conducted. However, the Supreme Court did not ascribe the reversal in Shelton to an inadequate opportunity for discovery by the plaintiff.

In conclusion, this decision and the Court’s other recent rulings in this area are likely to result in more premises liability claims reaching the jury for determinations of apportionment of fault between the plaintiff and the premises owner.
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SCOKY Retreats Further From Open And Obvious Hazard Doctrine In Premises Cases
Ostrich-like Attorney Reprimanded
COAKY Holds That Injuries Intentionally Caused By A Third Party Are “Accidental” For Purpose Of Uninsured Motorist Coverage

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© 2014 Dressman Benzinger LaVelle psc

MCCutcheon Lays Groundwork for Ruination of Democracy

Wednesday, April 9th, 2014

Posted: 04/07/2014 6:12 pm EDT Updated: 04/07/2014 6:59 pm EDT
SUPREME COURT MCCUTCHEON

More:
Supreme Court McCutcheon v. Fec Citizens United Campaign Finance Laws Campaign Finance

With its decision in McCutcheon v. FEC, the U.S. Supreme Court struck down a campaign finance law for the seventh time since Chief Justice John Roberts joined the Court in 2005. His vision of money in politics regulation is dangerous for our democracy. If the past is any indication, it could get even worse in years to come.

Since 2005, the Court has slowly dismantled campaign finance regulations, striking down a state contribution limit, blocking efforts to regulate sham issue ads, prohibiting candidates from raising more money when facing wealthy self-financing candidates, lifting the ban on corporations and unions spending money in elections, invalidating part of a public financing program, and reaffirming its position in Citizens United that outside spending cannot corrupt elected officials. As Justice Stephen Breyer said in his dissent, “Taken together with Citi­zens United… , today’s decision eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.”

Breyer’s concern is not unwarranted. Under the now-defunct aggregate limits, an individual could contribute “only” $123,200 to candidates, parties, and PACs per election cycle. After McCutcheon, that number rises to $3.6 million. This change will undoubtedly lead to more money flowing directly into the coffers of the candidates and parties.

Although the outcome of McCutcheon was not entirely unexpected, the breadth of the ruling and its potential impact upon future cases was surprising. With McCutcheon, the Supreme Court laid the groundwork for eliminating the remaining “remnant” of our campaign finance laws in two specific ways.

First, the Court doubled down on its insistence in Citizens United that the definition of “corruption” only extends to quid pro quo transactions — political contributions for official action, otherwise known as bribery. “Ingratiation and access are not corruption,” the Court wrote. “They embody a central feature of democracy — that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be respon­sive to those concerns.” In other words, not only can the government not try to prevent special relationships from forming as a result of political contributions, but such relationships are to be applauded.

This vision of democracy is absurd. Until the Citizens United decision four years ago, the Court understood corruption to mean “a subversion of the political process” through which our elected representatives are encouraged “to act contrary to their obligations of office by the prospect of financial gain…” So, Congress and the states could put reasonable limits on campaign contributions to prevent elected officials from being unduly influenced by the wishes of their richest supporters.

Now, under the Roberts Court’s doctrine, even the basic contribution limits — which prevent individual donors from giving more than $5,200 to any candidate for federal office — are at risk as impermissible government efforts to regulate “influence” and “access.”

Even more bizarrely, the Court conflates “donors” with “constituents,” suggesting it is constitutionally important for a candidate to be responsive to the concerns of donors — even those who cannot vote for them. McCutcheon wasn’t about “constituents” supporting candidates they could potentially vote for. It was about an outsider spending money to support many candidates he couldn’t vote for. In fact, under the old aggregate limit, Shaun McCutcheon could have contributed the maximum amount to the three candidates for which he would be constituent (the president, one House member, and one senator two out of three election cycles) with plenty of room to spare.

The Court couched its decision in terms of constituents because to say the reality — outsiders should be permitted to contribute more than $123,200 per election cycle — is to refute it. Certainly everybody should be allowed to voice their views regarding political candidates, including those outside their respective districts. But the public is rightly concerned that our elections and government processes may be corrupted when $123,200 is somehow not enough to do so.

Second, and even worse, the McCutcheon ruling could ultimately lead to the justices striking down contribution limits altogether. The Court hinted that it may change how these limits are reviewed in future cases, making it much more difficult to defend such limits from constitutional challenges, particularly when coupled with the Court’s narrow definition of corruption. That would give a handful of the super wealthy — who can afford to give piles of cash directly to lawmakers — unprecedented power.

When the Supreme Court decided Citizens United in 2010, campaign finance advocates were comforted by the case’s silver lining — the Court upholding robust disclosure provisions. But with McCutcheon there is no such lining. Only more storm clouds on the horizon. At this point, it’s become clear that a change is needed if campaign finance laws are going to survive.

The McCutcheon plurality was undoubtedly correct when it said, “There is no right more basic in our democracy than the right to participate in electing our political leaders.” But we need a democracy that works for everyone, not just those who can pay the admission fee.

David Earley serves as counsel in the Democracy Program at the Brennan Center for Justice at NYU School of Law.

Supreme Court Ruling on Workplace Harassment — Courts are limiting actions against franchise owners

Wednesday, April 9th, 2014

Erin Matson

by Erin Matson, Editor at Large, RH Reality Check

April 8, 2014 – 4:01 pm

More than three million lower-level supervisors exercise significant control over the daily working lives of more than 17 million low-wage workers, according to the report.

More than three million lower-level supervisors exercise significant control over the daily working lives of more than 17 million low-wage workers, according to the report. (Diner Waitress via Shutterstock)

One day in Wyoming, a McDonald’s shift supervisor picked up a crew member from school. According to reports, instead of driving her to work as he had promised, Jacob Wayne Peterson, 21, told Megan McCafferty, 15, that she didn’t need to go to work, offered her marijuana, and sexually assaulted her. Last August, the U.S. Court of Appeals for the Tenth Circuit found the franchisee operating the restaurant could not be held liable, following the Supreme Court’s June decision in Vance v. Ball State University.

In essence, the Supreme Court overruled previous guidance from the Equal Employment Opportunity Commission (EEOC) that had held employers liable for harassment by supervisors, defined as someone who directs daily work activities or who hires, fires, or determines pay or promotion. The ruling redefined supervisors to include only the latter group. Today, employers are held liable for harassment by those lower-level supervisors who direct daily work activities under a stricter standard that requires victims to prove that the employer was negligent.

A new report from the National Women’s Law Center, Reality Check: Seventeen Million Reasons Low Wage Workers Need Strong Protections from Harassment, outlines the scope of this issue and offers potential solutions. “The Vance decision is disconnected from the day-to-day reality of the workplace,” it says, “and makes it harder for victims at the hands of lower-level supervisor to have their day in court.”

Noting that the issue mostly affects the low-wage workforce, in which women are disproportionately represented, the report cites more than three million lower-level supervisors exercising significant control over the daily working lives of more than 17 million low-wage workers. As part of the report, the National Women’s Law Center conducted an informal survey of seven organizations advocating for workers in ten low-wage industries; it found that lower-level supervisors were used in all of them. Further, the organizations unanimously reported that such supervisors were able to assign tasks or give permission for breaks.

According to the report, the lack of justice Megan McCafferty’s found in the courts is but one example of how the Vance decision is making it harder for victims of workplace harassment to have their day in court. Picking up from a suggestion in Justice Ruth Bader Ginsburg’s dissenting opinion, the group urges Congress to pass the Fair Employment Protection Act (HR 4227 and S 1223) to correct the narrow definition of a supervisor created by the Supreme Court decision.

IThe report also calls for the EEOC to “take steps to ensure that employers do not mislabel their workers in efforts to avoid workplace liability.”

Like this story? Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Follow Erin Matson on twitter: @erintothemax

Press Release Announcing Eric Deters Retirement From the Practice of Law In Kentucky

Tuesday, April 8th, 2014

April 8, 2014

I have retired effective today from the practice of law in Kentucky. I want to stress I have no intention of retiring in Ohio and while I’m personally retiring, the law office where I have practiced and will practice in Ohio, have handled and will remain handling Kentucky cases. Kentucky lawyers will handle Kentucky cases.

The reason I have retired is that I quite simply no longer want to practice law in a state where its governing body, the KBA, is on a continuous mission to “get” me. I have fought them for 5 years. During this 5 years, I think I have defeated over 50 baseless bar complaints, but have been found guilty of four and served two 60-day suspensions.

However, Bar Counsel has the power to object to the automatic reinstatement and force me to go through hell to be reinstated. They have done this to me twice. I have served twelve months of suspension for only four months ordered by the Kentucky Supreme Court based on this rule. It is preposterous. And I can’t stop them from using this rule in the future. I filed a federal challenge to it, but I’m tired of trying to fight them in court where they have immunity. My enemies include Kentucky Bar Counsel. Therefore, any enemy can file what they want against me with Bar Counsel and I’m left spending time and energy fighting it. I’m just done with it. I apologize to my Kentucky clients, but they are in good hands with lawyers in this office. All of my Kentucky cases are already being handled by another lawyer in the office.

I am blessed that I don’t need to practice law in Kentucky and I have decided that no matter how many times I fight them and win, I’m bound to lose in the end. When I consider the stress, time and effort to fight them balanced against retirement, retirement makes the most sense.

The KBA and Bar Counsel does not like, appreciate or want a lawyer with my anti-lawyer, anti-establishment style. I fought the Bar and the Bar won.

Deadline to Register to Vote in May 20th Primary Election is April 21, 2014

Tuesday, April 8th, 2014

Secretary of State
Deadline to Register to Vote in May 20th Primary Election is April 21, 2014
Press Release Date: Monday, April 07, 2014
Contact Information: Lynn Sowards Zellen, lynn.zellen@ky.gov
Bradford Queen, bradford.queen@ky.gov
(502) 564-3490

Secretary of State Alison Lundergan Grimes reminds eligible Kentuckians that the deadline to register to vote in the upcoming May 20 Primary Election is Monday, April 21.

County clerks’ offices throughout Kentucky will accept voter registration cards until the close of business on that date. Mail-in voter registration applications must be postmarked by April 21.
Grimes also reminds Kentuckians of several important voting laws:

• To be eligible to vote, you must:
o Be a U.S. citizen,
o Be a Kentucky resident for at least 28 days before Election day,
o Be at least 18 years old by the date of the next general election,
o Not be a convicted felon, or if convicted of a felony offense, must have obtained a restoration of civil rights,
o Not have been adjudged “mentally incompetent,” and
o Not claim the right to vote anywhere outside Kentucky.
• Minors who are 17 years old but will be 18 years old on or before the General Election on November 4, 2014, are eligible to register and vote in the upcoming Primary; however, they are not eligible to vote in special elections until they are 18 years old.
• Voters who have recently moved need to update their voter registration information by no later than April 21, 2014. Pursuant to KRS 116.025(6), individuals who move from one county to another county while the voter registration books are open and fail to update their registration information before the voter registration books close are not permitted to vote in the Primary.
• Changes in party affiliation for the 2014 Primary Election were due by December 31, 2013. Voters who changed their party affiliation after that date are not eligible to vote in partisan races in the Primary, although they may vote on nonpartisan races on the May Primary ballot. Voters who changed their party affiliation after December 31, 2013, may still vote for their candidate(s) of choice in the November General Election.
• Under the Secretary of State’s recently established Address Confidentiality Program, victims of domestic violence and sexual assault can register and update their registration while keeping their names and addresses out of publicly available voter records.

“The future of Kentucky and our nation depend on all eligible voters participating in the process,” said Grimes. “Registering to vote is the first step in being a part of the 2014 elections, and I hope that as many Kentuckians as are able will make their voices heard.”

You can check your current registration status on the Voter Information Center, https://cdcbp.ky.gov/VICWeb/index.jsp. To obtain a registration card or for more information about registering to vote, visit www.elect.ky.gov or contact your county clerk or the State Board of Elections at (502) 573-7100. To learn more about the Address Confidentiality Program, visit www.sos.ky.gov.

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Kentucky Human Rights Commission calls for nominations for the 2014 KY Civil Rights Hall of Fame

Tuesday, April 8th, 2014

Commission on Human Rights
Kentucky Human Rights Commission calls for nominations for the 2014 KY Civil Rights Hall of Fame
Press Release Date: Monday, April 07, 2014
Contact Information: Commission Headquarters
1.800.292.5566
Victoria Stephens
Mobile: 502.641.0760

April 7, 2014, Louisville, KY – The Kentucky Commission on Human Rights is pleased to announce the call for nominations to its Kentucky Civil Rights Hall of Fame 2014 inductions. The commission will accept nominations from the public beginning Tuesday, April 15. The nomination deadline is July 15, 2014.

The induction ceremony is tentatively scheduled for October 2014. The date and location will be announced as soon as possible.

The nomination form may be found on the Kentucky Commission on Human Rights website at www.kchr.ky.gov. For more information, call Cynthia Fox at 502.782.9726.

The Kentucky Civil Rights Hall of Fame was established in 2000 to recognize brave men and women who have been leaders in the struggle for equality and justice in the Commonwealth of Kentucky. Inductees have worked to end discrimination in several areas.

As examples, they have fought for desegregation of schools and public accommodations; they have pushed for civil rights legislation and equal opportunity in education, employment and housing; and, they have given of their time, resources, and service toward efforts that challenged and changed old, unjust philosophies and systems.

The Kentucky Civil Rights Hall of Fame is designed to raise public awareness about human rights issues and to foster an environment for discussion and education regarding Kentucky civil rights history and ongoing challenges.

After the inaugural 2000 event, inductions were held again in 2001, 2003, 2005, 2007, 2010 and 2012.

Most of the induction ceremonies have occurred in Louisville. However, in 2005, the event was held in Frankfort at Kentucky State University, at Northern Kentucky University in Highland Heights in September 2007, and at the Lyric Theatre in Lexington in 2012.

Since the inaugural event, 132 people have been inducted into the Kentucky Civil Rights Hall of Fame; 22 in 2000, 16 in 2001, 14 in 2003, 14 in 2005, 21 in 2007, 31 in 2010, and 14 in 2012.

The Kentucky Commission on Human Rights is the state government authority that enforces the Kentucky Civil Rights Act, and, through its affiliation with the U.S. Equal Employment Opportunity Commission and the U.S. Dept. of Housing and Urban Development, enforces federal civil rights laws.

The Kentucky Civil Rights Act makes it illegal to discriminate against people in the areas of employment, financial transactions, housing and public accommodations. Discrimination is prohibited in these areas based on race, color, religion, national origin, gender, and disability. In employment, discrimination is further prohibited on the basis of age (40-years and over) and on the basis of tobacco-smoking status. In housing, discrimination is further prohibited based on familial status, which protects people with children in the household under the age of 18-years old, and it protects women who are pregnant. It is also a violation of the law to retaliate against a person for complaining of discrimination to the commission.

For more information, contact the commission at 1.800.292.5566. For details about civil rights and commission activities, visit the website at www.kchr.ky.gov

For news about civil rights and information pertaining to protected classes, visit the Kentucky Commission on Human Rights Facebook and Twitter sites. Directly link to the sites from the commission website address listed above.

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Starrett: Too many people in prison

Sunday, April 6th, 2014

Published 9:35 am, Sunday, April 6, 2014

MCCOMB, Miss. (AP) — A Mississippi federal judge is praising the Legislature’s passing a bill to reform the state’s criminal justice system.

U.S. District Judge Keith Starrett said he agrees with Mississippi Supreme Court Chief Justice Bill Waller Jr., who called the legislation the most important reform in 100 years. Mississippi Gov. Phil Bryant signed the bill this past week.

The law is modeled on criminal-justice changes made in recent years in several states.

Starrett said the law is heavy with re-entry efforts, which he compared to the way doctors gather information to diagnose a patient’s illness and figure out the best treatment for it.

The Enterprise-Journal reports (http://bit.ly/1sgAbtD ) Starrett spoke to a McComb civic club this past week.

“What we’re doing is not working. We’re locking up too many people and we’re not doing anything with them when they’re there. From a human standpoint, it’s just not the right thing to do.

“Most of the people in prisons are not bad people. They just made bad choices,” Starrett said.

Starrett started Mississippi’s first drug court as a circuit judge. He started a similar effort, a “judge-supervised re-entry program,” at the federal level in 2005.

“Re-entry begins at sentencing,” said Starrett. “I try as best I can to mete out recommendations to direct that person’s time in prison to what the person needs that will help him turn his life around.”

He said these programs must put more of their time and money into the worst of the worst because they need the most help.

“Those are the ones who are dangerous to your community and likely to re-offend,” he said.

Starrett said many large companies will not employ felons, but many smaller businesses will. The federal government offers employers nearly $5,000 in tax credits if they hire a former prisoner, but Starrett believes many businesses don’t know about the law.

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Information from: Enterprise-Journal, http://www.enterprise-journal.co

Part 1: Michael O’Connell – Allowing His Prosecutors to Run for Judge; Leveling the ‘playing field’ or attempting to ‘pack the court’ by Michael Stevens

Sunday, April 6th, 2014

Posted on April 5, 2014 by Michael Stevens • 0 Comments

Oconnell

Following the heated debate for the Jefferson County Attorney race, I thought as a public service I would post some prior stories which were the subject of much of the attack against Michael O’Connell to help the public understand the issues.

The charges by his challenger Karen Faulkner are based upon news stories in the Courier-Journal with some hard hitting remarks by local Jefferson County attorneys on the propriety of the incumbent Michael O’Connell’s actions in office. Political rhetoric, sound bites, and responses that the allegations are absurd do not make the accusations go away; nor do the words remove the verity of the volleys.

Here is an earlier story (Nov. 27, 2013) by Courier-Journal reporter Andrew Wolfson who is known for his independent, no holds barred stories. I have only extracted portions, and the link to the entire news story may required a Courier-Journal subscription:

Jefferson County prosecutor allows assistants to run against judges without resigning to create ‘more level playing field’

Jefferson County Attorney Mike O’Connell, who has tangled with district judges, is changing his office policy to allow his assistants to run for judicial seats without resigning first, saying he wants to create “a more level playing field.”

Reversing a longtime requirement that prosefcutors quit to run, O’Connell said last week in an email to his staff that his goal is “strengthening the pool of possible qualified candidates.”

But immediate past Chief District Judge Sean Delahanty said he thinks O’Connell is trying to “intimidate” judges into ruling in the prosecution’s favor by suggesting they may face opposition from a prosecutor if they don’t.

Delahanty also said judges resent O’Connell’s claim that there needs to be “a more level playing field” in the court.

Louisville defense lawyer Steve Romines called O’Connell’s reasoning for the policy change “offensive” and likened his attempt to put more prosecutors on the bench to President Franklin D. Roosevelt’s effort to “pack” the Supreme Court in 1937 with supporters of his New Deal legislation.

* * *

The Fayette County attorney and the Jefferson County public defender’s office require assistants to resign before running for judge. Jefferson and Fayette commonwealth’s attorneys must resign or take a leave of absence.

“It takes 100 percent of your time to be an effective prosecutor and 100 percent of your time to run a campaign,” Jefferson Commonwealth’s Attorney Tom Wine said. “It would be very difficult for someone to do both.”

O’Connell adopted a resign-to-run policy after the 2008 judicial elections in which two of his assistants ran against each other and a third ran against a sitting judge, which he said created “a pretty difficult and somewhat contentious time.”

* * *

O’Connell and Jefferson district judges have clashed over several matters, including how they handle motions to suppress in drunken-driving cases.

O’Connell received a private admonition from the bar in June for sending a harshly worded letter to district judges in last winter urging them to stop what he called “disingenuous maneuvering by defense lawyers in DUI and other cases.” Judges complained the letter was threatening and may have violated the rule on one-sided contacts with the court. O’Connell said he had done nothing wrong and would appeal.

Delahanty said in an interview that O’Connell is taking losses in court too personally.

“It is sort of like a coach who says to his team after a loss that the referees cheated us,” Delahanty said.

Legal Experts React to Supreme Court’s Campaign-Finance Ruling

Thursday, April 3rd, 2014

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campaign finance
Citizens United
McCutcheon v. Federal Election Commission
political contributions
Shaun McCutcheon
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The case was brought by Alabama businessman Shaun McCutcheon, pictured here leaving the Supreme Court in October 2013 after the justices heard oral arguments in the case
Reuters

Wednesday’s 5-4 ruling on political contributions in McCutcheon v. Federal Election Commission is considered by some legal experts to be a companion to the court’s 2010 ruling, called Citizens United v. Federal Election Commission.

The earlier decision threw out limits on what any individual can give to federal candidates over a two-year election cycle. Wednesday’s majority opinion, by Chief Justice John Roberts, said those caps infringe on free-speech rights and are not justified by a governmental interest in combating political corruption. Justice Stephen Breyer‘s dissent, joined by the rest of the liberal wing, said the aggregate cap fights corruption.

Here’s some early reaction from legal experts.

Floyd Abrams, First Amendment lawyer, partner at Cahill, Gordon & Reindel LLP:

I don’t think it’s surprising. The notion that you can impose contribution limits with respect to a certain number of candidates but no more simply doesn’t make a whole lot of sense. [The challenge represented] a raid against the strong First Amendment interests [of voters], and the court had what I believe was little option but to strike the statute down.

The majority’s definition of corruption focuses on a quid-pro-quo arrangement: money for votes on legislation. [Defining] corruption is always difficult, but I agree with the [plurality's] decision to deliberately choose a narrow definition so as to interfere less with the very strong First Amendment right to participate within the political process.

Heather Gerken, election-law expert, law professor at Yale University:

The opinion is going to cause a sea change in campaign finance. There are great benefits to having judges shielded from politics, but it’s imperative that they understand how politics work when they issue decisions like this one. The Court’s decision reflects a profound naiveté about the way money moves through the party system, and we are going to bear the costs of this mistaken view for a long time.

Bradley Smith, former Federal Election Commissioner, law professor at Capital University:

I think that there’s an obvious common sense to the court’s opinion. If 18 individual $2,600 dollar contributions don’t have a corrupting effect, it’s hard to see how the 19th one will. The dissent tries to get around this by putting out wildly misleading hypotheticals that do little than to underscore, once again, how little Justice Breyer really understands about campaign finance.

Robert Weissman, president, Public Citizen:

This is a devastating blow to our democratic system, and will go down along with Citizens United as one of the worst in the history of Supreme court jurisprudence. It’s really a decision for plutocrat rights. It means a person can write a single check for $5.9 million. [There are] only a few hundred people in the country who might plausibly do that and they’re going to expect something in return.

Nate Persily, election-law expert, law professor at Stanford University:

This is what we expected. The Court seems a little naive when it discards the argument that individuals and parties will find a way to redirect money once these aggregate limits are lifted. Indeed, that is the whole experience of strategic decision-making by actors in the campaign finance system since [passage of the Federal Election Campaign Act of 1971].

. . .

[T]he big question is whether this portends knocking out the individual contribution limits at some point soon. My guess is that there are 5 votes to do this if you searched their heart of hearts, but that would truly convert the system to the wild west.

. . .

Also, the discussion in the first few pages deifining corruption is a big deal. Many of us wondered whether [language in Citizens United] on this would eventually become a holding. I think it is fair to say it is now clearly part of the law here. Quid pro quo corruption is almost impossible to demonstrate. Political scientists have been trying to do so for 30 years.

David Bossie, president, Citizens United:

Building on the Citizens United Supreme Court ruling the justices reinstated the First Amendment for all Americans . . . By taking a stand against the Federal Election Commission they ensured our First Amendment rights will not be further trampled by the government bureaucrats.

Miles Rapoport, president, Common Cause:

Today’s decision . . . is Citizens United round two, further opening the floodgates for the nation’s wealthiest few to drown out the voices of the rest of us . . . The court has reversed nearly 40 years of its own precedents, laid out a welcome mat for corruption, and turned its back on the lessons learned from the Watergate scandal. This decision once again demonstrates the court majority’s ignorance of the real world of American politics, the one in which big money buys big returns.

Rick Pildes, election law expert, law professor at NYU:

The inevitable sky-is-falling reactions that will surely greet this 5-4 decision in many quarters are likely to be wrong. First, the decision is likely to have less real-world consequence than envisioned in the various fantasy scenarios being conjured up about new floodgates that will now suddenly open. Even if we assume all the players in the financing system (parties, donors, candidates) are self-interested actors, their self-interest runs counter to many of these scenarios; they are unlikely to do many of the things on the parade-of-horribles lists being drawn up. Whatever one thinks of the decision as a legal matter, I am not convinced it will make a dramatic difference on the ground.

Even more importantly, to the extent any changes do occur, they will likely be in directions that make democratic governance work better, rather than less well. That’s because such changes are most likely to empower the most centralizing forces in our political system – in particular, the political parties. That is much better than empowering all the forces of political fragmentation that have become so powerful in recent decades, such as SuperPacs and other “outside” groups. As much as Americans have a “plague on both their houses” attitude toward the political parties, strong parties – and strong party leaders who care about the party brand and have the leverage to press members of their caucuses to agree to compromises – are necessary to make the legislative process function effectively. Our campaign-finance laws for too long have encouraged the centripetal, fragmenting forces in American democracy. As long as we have privately financed elections, the best the law can do is to encourage the flow of money in one direction rather than another. To the extent the decision encourages more money to flow to the parties, that would enhance the power of the single entities that have the strongest incentive to appeal to the broadest electorate.

Bob Bauer, leading election lawyer, Partner at Perkins Coie LLP, former White House counsel to President Obama:

One of the more remarkable features of the Roberts opinion is the strong defense of the role of political parties. As it relates to campaign finance, this position is expressed in the view that party leaders, when acting for the party and its candidates, do not engage in conduct that gives rise presumptively to actual quid pro quo corruption or its appearance. The chief and those joining him in his opinion would limit that form of corruption to fundraising by candidates for their own personal benefit. This is a significant portion of the opinion with potential implications for other provisions of the federal campaign finance laws.

Rick Hasen, election law expert, law professor at the University of California, Irvine, writing at Slate:

Today, once again, the government lost a campaign finance case, McCutcheon v. FEC. And while it could have lost in somewhat worse ways, this opinion is pretty awful, portending a raft of new First Amendment attacks on soft money and even on the basic rules limiting how much individuals can give candidates for office.

NEW KY. STATE HIGHWAY MAP AVAILABLE

Thursday, April 3rd, 2014

Transportation Cabinet
2014 Kentucky Official Highway Map now available
Press Release Date: Wednesday, April 02, 2014

Celebrates unique features that prove ‘There’s Only One’ Kentucky

FRANKFORT, Ky. (April 2, 2014) – It’s a sure sign of spring! The 2014 Kentucky Official Highway Map is now available across the Commonwealth at rest areas, welcome centers, local convention and tourism offices and all Kentucky State Parks.

As always, the new map contains a wealth of information for motorists. At the same time, its theme of Kentucky uniqueness – “There’s Only One” – highlights the beauty, natural attractions and hidden gems found only in Kentucky.

While sites such as Churchill Downs and Mammoth Cave draw visitors from around the world, the 2014 map also points out some of the state’s lesser known treasures.

For nature and wildlife lovers, Kentucky offers a host of attractions.

The Sloughs Wildlife Management Area near Henderson, in Western Kentucky, is home to the largest Great Blue Heron rookery in the Commonwealth. Distinguished by its large cypress trees and swamps, the area attracts migrating birds like a magnet. And with observation platforms for wildlife viewing open year round, it’s perfect for a daytrip.

At Old Friends Retirement Home – the “old friends” being thoroughbred horses , visitors can get up close and personal with retired stars of racing such as Breeders Cup Champion Gulch, Eclipse-award winner Sunshine Forever and the “losingest” horse in the history of the Sport of Kings, Zippy Chippy. The farm is outside Georgetown, in central Kentucky.

Animals of the cold-blooded type more to your liking? The Kentucky Reptile Zoo, at Slade in eastern Kentucky, features an 18-foot python and a multitude of other types of snakes. While at Slade, visit the Turtle Tracks area, where tortoises and aquatic turtles can be seen.

If you’re looking for something less animal-oriented, Yew Dell Gardens, at Crestwood in northern Kentucky, is a Preservation Project of the Garden Conservancy. It also is on the National Register of Historic Places. With many tour options, Yew Dell is a favorite among garden enthusiasts.

The Blue Heron Mining Community, set along the banks of the Big South Fork River in Southeastern Kentucky, offers visitors a look back in time when the area was home to the Blue Heron mines, which operated from 1937 to 1962. Once home to hundreds of people, the isolated community now is a National Park Site.

“The Official Kentucky Highway Map is certainly a great aid for planning a trip and finding your way, but it’s also much more,” Gov. Steve Beshear said. “Our highway map is part of our effort to make a good first impression on the many thousands of people who will visit and travel our Commonwealth in 2014. Helping visitors discover our dazzling hidden gems is just one of the ways we hope to make a great impression.”

The highway map, published annually by the Kentucky Transportation Cabinet, is packed with information for the traveling public. The 2014 map reflects many system improvements, such as a completed U.S. 27 bypass around Cynthiana; an extension of the south Elizabethtown Bypass, KY 3005, that now connects to the Western Kentucky Parkway at a newly constructed interchange; a new alignment and bridge over the Tennessee River in Paducah that carries all U.S. 60 traffic; and a new section of a bypass that completes U.S. 27 around Albany.

Federally sanctioned bicycle routes are listed on the map along with symbols to indicate limited access parkways and divided highways.

Fifteen inset maps detail Lexington, downtown Lexington, the Louisville area, downtown Louisville, Bowling Green, Owensboro, Henderson, Hopkinsville, Paducah, Elizabethtown-Radcliff, Northern Kentucky, Covington-Newport, downtown Frankfort, Richmond-Berea and Ashland.

The cover of the map features a horse and its rider taking a break near a Wranglers Campground trail in the Land Between the Lakes National Recreation Area, in far Western Kentucky. The back of the map features information about Kentucky traffic laws, seat belt safety and the state’s “No DUI” app, available for free download.

A personal message from Gov. Beshear tells travelers about improvements underway in the Louisville area as a result of the Ohio River Bridges Project. The project includes new crossings in downtown Louisville and eastern Jefferson County, plus a drastically improved Kennedy Interchange, where Interstates 64, 65 and 71 meet in Louisville.

In addition, construction will soon start on two bridges in Western Kentucky across Lake Barkley and Kentucky Lake – jewels of the tourism-rich Western Waterland Region.

“The cabinet takes pride in the quality of the Official Kentucky Highway Map,” Transportation Secretary Mike Hancock said. “We believe it is an invaluable resource for all motorists but especially for visitors.”

“Some of the most beautiful scenery in America can be found along the highways and rural roads all across Kentucky,” Tourism, Arts and Heritage Secretary Bob Stewart said. “The 2014 highway map is an essential travel tool for travelers to get them safely to their destinations and to inform them about the multitude of unique places they can visit along the way.”

The map features multiple legends identifying every type of street and highway, including bicycle routes and scenic byways. They also pinpoint Kentucky State Parks and Resort Parks, colleges and universities, airports and river ports, hospitals, welcome centers and rest areas, special points of interest and Kentucky State Police posts.

To view or download an electronic version of the Official State Highway Map, county maps or city maps, visit www.transportation.ky.gov/maps/pages/default.aspx.

Watergate’s lasting legacy is to legal ethics reform, says John Dean

Wednesday, April 2nd, 2014

Posted Mar 31, 2014 8:35 AM CDT
By Victor Li

The Lawyers of Watergate

Click to view the The Lawyers of Watergate gallery now.

“How in God’s name could so many lawyers get involved in something like this?”

That was the question former White House counsel John Dean wrestled with during his 1973 testimony before the U.S. Senate committee as he blew the whistle on President Richard Nixon and his administration for crimes relating to the Watergate break-in. It’s a question that he continues to wrestle with today, as he said during the plenary session at ABA Techshow on Saturday.

During his speech, Dean reminisced and even joked about his career working for Nixon—a tenure that began in 1970 at the age of 31 and ended when he was dismissed in 1973. Dean, who is writing another book about the Watergate scandal, said he listened to thousands of hours of Nixon’s tapes, including hundreds he suggested no one else had listened to or cataloged. He claimed to know more about Watergate today than when he was living it.

While history remembers the scandal for the way it brought down Nixon’s presidency, Dean argued that Watergate’s most enduring legacy has been bringing about ethical reform in the legal profession.

In many ways, Watergate was a lawyers’ scandal. By Dean’s count, 21 lawyers (including himself) were ensnared by it. Nixon himself had been once a practicing attorney. Dean noted that lawyers implicated in Watergate were either ignorant of the law or brazenly ignored it. Because of this, Dean stated, the American Bar Association made the decision to modify its model rules so that students would be required to take legal ethics in law school, would have to pass a special ethics examination before they could practice law, and would have to take mandatory ethics CLEs in order to keep their licenses.
image

Photo of John Dean at ABA Techshow 2014 by Bob Stefko.

“There were two dozen post-Watergate reforms involving things like campaign finance, special prosecutions and what not,” said Dean. “Those are all gone now. But the professional bar has insisted that ethics requirements remain at the forefront of the profession. It’s refreshing to see that.”

Dean also spoke of ambiguities in the law which hamstrung him when he served as White House counsel. For instance, Nixon believed Dean represented him personally, his staff and the office of the presidency. “It’s clear today that the White House counsel represents the office of President,” Dean said.

He also said there had been a culture within the White House of not caring what the law said, pointing out that high-ranking Nixon aide John Ehrlichman never bothered getting any legal advice when he created the “plumbers,” a secret group that fixed information leaks by any means necessary, including break-ins and other illegal activities. In fact, Dean said, Nixon himself seemed unbothered by the law. He recalled that when he warned Nixon that one of his aides had perjured himself, Nixon offhandedly remarked that perjury was tough to prove.

Dean, who framed the Watergate burglary as a tech crime, noted the administration had planned other such “hackings” beforehand. Among the examples he cited were the Huston Plan, a proposed 1970 plan that would have authorized surreptitious break-ins and eavesdropping of left-wing radicals and anti-war demonstrators, as well as a false-flag operation that would have involved firebombing the Brookings Institute so that White House operatives disguised as firefighters could steal sensitive files. Dean said he helped put the kibosh on both plans, so as a result, he was out of the loop when Watergate occurred.

Dean’s talk included several light moments and plenty of justification for his actions. He noted that he took his punishment for his actions and even had warm memories of Nixon, despite what happened. “I thought we had to be accountable, and that was somewhat naïve of me,” admits Dean. “Ultimately, I thought everyone would do the right thing. But they decided the right thing was to make me the scapegoat. Without the taping system in place, I’m not sure history would have turned out the way it did.”

He also warned that the parameters of presidential power when it comes to national security remain murky, and pointed to the recent NSA surveillance revelations as proof that the lessons of Watergate continue to be unlearned.

“Technology changes,” Dean said, “but I have not noticed significant changes in human nature. What happened then happens just as easily today.”

For lawyers, though, the lessons seem to have stuck.

Related article:

ABA Journal: “The Lawyers of Watergate: How a ‘3rd-Rate Burglary’ Provoked New Standards for Lawyer Ethics”

Attorney General Jack Conway today announced that his office is again helping to train police and prosecutors about the effective prosecution of DUI cases involving drugs. A regional seminar is being held April 2 through April 4 at the Radisson Hotel in Covington, Ky.

Wednesday, April 2nd, 2014

Office of the Attorney General
Attorney General Conway Announces Regional DUI Training for Police & Prosecutors
Press Release Date: Tuesday, April 01, 2014
Contact Information: Daniel Kemp
Deputy Communications Director
502-696-5659 (office)

Attorney General Jack Conway today announced that his office is again helping to train police and prosecutors about the effective prosecution of DUI cases involving drugs. A regional seminar is being held April 2 through April 4 at the Radisson Hotel in Covington, Ky.

The training is coordinated through the Office of the Attorney General’s Traffic Safety Resource Prosecutor Program. The goal of the training is to create a team building approach in the detection, apprehension, and prosecution of drivers impaired by illicit and prescription drugs.

“Data from the National Highway Traffic Safety Administration shows that roughly one in eight weekend, nighttime drivers tested positive for illicit drugs,” General Conway said. “Additionally, of the drivers who were killed in motor vehicle crashes nationally, one in three tested positive for drugs. Our regional DUI trainings provide police officers and prosecutors with the tools they need to effectively enforce our DUI laws so they can better protect the citizens of our Commonwealth.”

Entitled “Prosecuting the Drugged Driver,” the training is funded through the Kentucky Office of Highway Safety with grant funds provided by the National Highway Traffic Safety Administration (NHTSA). Assistance for this training has been provided by the Kentucky Office of Highway Safety and the Kentucky State Police.

This is the second regional training within the Commonwealth to focus on the growing problem of drivers impaired by illicit and prescription drugs. Previously, trainings focused on prosecuting drivers impaired by alcohol have been offered in Bowling Green, Prestonsburg, Covington, Louisville, and Lexington.

“The Kentucky Transportation Cabinet, and our Office of Highway Safety, look forward to continuing a very effective partnership with the Office of the Attorney General to provide funding in support of the Commonwealth’s Traffic Safety Resource Prosecutor Program,” said Transportation Secretary Mike Hancock, who is Gov. Steve Beshear’s designated representative for highway safety. “The Office of the Attorney General has done an exceptional job in conducting training workshops and coordinating training opportunities for both law enforcement and prosecutors throughout the state. It is not only our responsibility, it is a priority of this administration to provide all highway safety professionals with the tools and resources they need to save and protect lives on our highways.”

Representatives of the organization Mothers Against Drunk Driving (MADD) also plan to attend the training.

“MADD strongly supports the Traffic Safety Resource Prosecutor Program and commends the Office of the Attorney General for implementing this program,” said Rosalind Donald, a Kentucky MADD victim advocate. “We are grateful to be invited to participate in the training and hope to shed light on the long-lasting effects that drunk-driving crashes create for victims and survivors. Drunk driving is a serious crime. Trainings such as these help ensure that the criminal justice system addresses DUI charges consistently and effectively, ultimately helping protect society from needless death and injury.”

The training is presented under the direction of the American Prosecutors Research Institute’s (APRI) National Traffic Law Center and is open to the media.

You can follow Attorney General Conway on Twitter @kyoag, visit the Attorney General’s Facebook page or view videos on our YouTube channel.