Archive for June, 2014

Supreme Court Toughens Business Process Patent Test

Friday, June 20th, 2014

Unanimous ruling says that an “abstract idea” isn’t patent-eligible just because computers are used to apply it.
In what some legal experts are calling a landmark decision that could make it harder to obtain and uphold business process patents, the US Supreme Court on Thursday unanimously rejected patents on abstract ideas implemented on a computer.

The high court’s specific ruling applied to US patents held by Australian company Alice Corp. on a method for mitigating “settlement risk” on financial transactions. In its Supreme Court brief, the company argued that its method is patent-eligible because it involves “shadow records” updated in real time that “require a substantial and meaningful role for the computer.”

Kentucky Attorneys Are Not Required To Maintain Malpractice Insurance

Friday, June 20th, 2014

By LawReader Senior Editor Stan Billingsley June 20, 2014
Several years ago an effort was announced to require all Kentucky attorneys to maintain legal malpractice insurance. Last week Andrew Wolfson of the Courier Journal wrote that attorneys are not required to maintain malpractice insurance, and are not required to notify their clients that they don’t have insurance.
We spoke to several Bar officials and insurance company reps at this weeks state bar convention in Covington. They all confirmed that the efforts to mandate insurance coverage was not actually adopted, and at present no such insurance coverage is required.
While we suggest that such insurance is a great benefit to the attorney and to his clients, the Supreme Court Rules do not require that attorneys maintain insurance.

same sex marriage ruling

Thursday, June 19th, 2014

When the Supreme Court ruled last year in United States v. Windsor that Section 3 of the federal Defense of Marriage Act was unconstitutional, it announced that its “opinion and its holding are confined” to those couples “joined in same-sex marriages made lawful by the State.” Because the definition and regulation of marriage has almost exclusively been within the province of the States, the Court noted repeatedly, it violated equal protection for the federal government not to give the same recognition to same-sex marriages sanctioned by a particular state that it gave to heterosexual marriages. On that reasoning, States that choose a different policy judgment about marriage, one that would preserve marriage as an institution between one man and one woman, should remain free to do so.
So why has there been a steady stream of lower court decisions in the year since Windsor was decided that have rejected that reasoning and the Court’s explicit statement that the holding in Windsor was confined to same-sex marriages made lawful in a particular State? Justice Scalia’s dissenting opinion provides some insight (and, quite frankly, much ammunition for lower courts bent on redefining marriage). The majority of the Court, led by Justice Kennedy, will let the other shoe drop—holding that the Constitution requires every state to redefine marriage to encompass same-sex relationships—if it thinks it can get away with it.
There are several encouraging signs that lead me to be cautiously optimistic that the Court will not take such a radical step, and that the dozen or so lower courts that have boldly anticipated otherwise will be overruled. First, the Supreme Court itself already addressed the identical question more than forty years ago, in the case of Baker v. Nelson, which held in a summary disposition that a challenge to a state’s one-man/one-woman definition of marriage did not even raise a substantial federal constitutional question. However much the lower courts try to write that decision out of the books, it remains binding precedent, and the Supreme Court has been unbelievably clear about how lower courts are to treat such precedent: “the lower courts are bound by summary decisions by this Court ‘until such time as the Court informs (them) that (they) are not.’”
Second, when the federal district court in Utah struck down Utah’s marriage law a few days before Christmas last December, and the State’s request for a stay was denied by both the district court and the court of appeals, the Supreme Court unanimously issued a stay, blocking the district court’s judgment. It is quite rare for the Supreme Court to issue a stay when both lower courts have refused to do so, and the standard that it applies is whether the state had demonstrated a likelihood of success on the merits. The stay issued by the Supreme Court in the Utah case therefore outweighs all of the district court decisions that have recent invalidate state marriage laws combined.
Third, Justice Kennedy’s own opinion in Windsor offers powerful defenses of true marriage, defenses upon which States who adhere to the long-standing view should be able to rely. “For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization,” Justice Kennedy wrote. This understanding has for centuries “been deemed both necessary and fundamental” to the institution’s purpose, he added. As long as men and women remain uniquely capable of begetting children from their sexual union, the State has a perfectly legitimate—indeed, compelling—interest in fostering the institution that, throughout history, has proved most conducive to the welfare of the children that result and, hence, to civil society as well. A large majority of States continue to adhere to this common-sense understanding of marriage, rooted as it is in basic biology. It would be an extraordinary exercise of raw political power for the Court to negate the considered judgments of such a large portion of the nation.
Fourth, Justice Kennedy himself authored the dissenting opinion in the parallel case decided last June addressing the constitutionality of California’s Proposition 8, which was a state constitutional provision like those in Utah, Virginia, and elsewhere currently making their way to the high court. The majority in the case held that the proponents of Proposition 8 did not have standing to take the case up on appeal when the Attorney General of the state refused to do so. Justice Kennedy dissenting, expressing his view that initiative proponents did have standing and that the Court should have considered the merits of the constitutional challenge. Two of the Justices who voted to deny standing (Justices Ginsburg and Kagan) are widely believed to be strong supporters of finding a right to same-sex marriage in the Constitution. If Justice Kennedy was really prepared to be the fifth vote striking down Proposition 8 (and therefore the marriage laws of more than 30 other states), does anyone really believe that one or the other of those two Justices would not have found a way to recognize standing by the Prop. 8 proponents so that the case would have become the Roe v. Wade of same-sex marriage?
Which brings me to my final reason for being cautiously optimistic. We are now more than forty years past the Supreme Court’s decision “legalizing” abortion on demand as a constitutional right, and it remains one of the two or three most controversial decisions ever rendered by the Court. It has infected our politics for decades, in races from the Presidency down to dog catcher. It has politicized the judicial nomination and confirmation process in a way that threatens our very institutions of government. It is hard to imagine that the Court is keen on opening up another similarly-contentious front in the culture wars. Much better to let this issue be settled by the give and take of the political process. Indeed, less than two months ago, Justice Kennedy weighed in on the importance of letting the political process decide controversial social issues. In upholding Michigan’s ban on race-based affirmative action, he wrote for the Court’s majority: “This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it. There is no authority in the Constitution of the United States or in this Court’s precedents for the Judiciary to set aside Michigan laws that commit this policy determination to the voters … Deliberative debate on sensitive issues such as racial preferences all too often may shade into rancor. But that does not justify removing certain court-determined issues from the voters’ reach. Democracy does not presume that some subjects are either too divisive or too profound for public debate.” Substitute “same-sex marriage” for “racial preferences” in that passage, and you can see why I am cautiously optimistic that the Court in general, and Justice Kennedy in particular, will not invent a new constitutional right and pretend that the Constitution already settled back in 1868 when the Fourteenth Amendment was adopted the contentious policy debate in which we find ourselves about the very definition and purpose of marriage.
The March for Marriage is designed to keep the Court on notice that the American people do not want such basic policy judgments taken away from them, lest, as Abraham Lincoln warned a century and a half ago, we cease to be our own rulers, having to that extent practically resigned out Government into the hands of the Supreme Court. The “other shoe” that the Court will hear from the thousands of people marching on the Supreme Court is not the other shoe Justice Scalia predicted of the Court constitutionalizing same-sex marriage, but the soles of the millions of Americans who have voted over the past decade to reaffirm the basic truth about marriage and the benefits it provides to parents, to society, and especially to children.
• Dr. Eastman is the Henry Salvatori Professor of Law & Community Service at Chapman University’s Fowler School of Law (though the views expressed here are his own), the founding director of the Claremont Institute’s Center for Constitutional Jurisprudence, and Chairman of the Board of the National Organization for Marriage.
This Op-Ed was submitted as part of a Special Section from The Washington Times Advocacy Department.

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Judge Denies Challenge to Law on Police Lawsuits

Thursday, June 19th, 2014

NEW YORK June 19, 2014 (AP)
By TOM McELROY Associated Press
Associated Press
A judge on Wednesday denied a legal challenge by two police unions to a New York City law that eases the way for racial profiling claims.

“Local Law 71 does not prevent police officers from continuing to stop, question, and frisk while utilizing their training and experience,” wrote state Supreme Court Justice Anil Singh. “The law only seeks to deter the use of attributes such as race as the sole basis for an investigatory stop which is antithetical to our constitution and values,” Singh wrote.

The 2013 law relaxes some legal standards for claims that the stop and frisk tactic or other police techniques were used in a discriminatory way. The measure reflected concerns about the New York Police Department’s use of the stop and frisk tactic and its extensive surveillance of Muslims disclosed in stories by The Associated Press.

The Patrolmen’s Benevolent Association and the Sergeants Benevolent Association wanted the law struck down. They said it intruded on state criminal law and that it had a troublingly vague definition of profiling: using race or certain other characteristics “as the determinative factor” in policing.

The unions also contended the law could entangle them in lawsuits over elusive questions about what they were thinking when stopping someone.

The city argued that the law is valid and valuable.

The council passed the law last summer over then-Mayor Michael Bloomberg’s veto. Bloomberg vehemently defended both the surveillance and stop and frisk as legal and vital public safety tools, and he said the anti-profiling law would make it more difficult for police to do their jobs.

He sued the City Council, as did the PBA.

Mayor Bill de Blasio dropped Bloomberg’s suit, saying there was “absolutely no contradiction in protecting the public safety of New Yorkers and respecting their civil liberties.” He also has abandoned the city’s appeal of a federal court order demanding changes to the NYPD’s use of stop and frisk.

“We are pleased with the Court’s decision,” a spokesman for the city’s law department said on Wednesday.

PBA president Patrick J. Lynch disagreed with the judge’s decision, saying the union plans to appeal.

“This law sends an extremely bad message to our police officers who will see themselves in legal crosshairs with every arrest they make,” Lynch said in a statement. “Potentially, this bad law can have a very serious impact on public safety.”

Messages seeking comment from the Sergeants Benevolent Association were not immediately returned.

Communities United for Police Reform praised the ruling.

“New Yorkers know that it should be unlawful for police to target them solely based on who they are — whether race, religion, sexual orientation, gender identity, disability, housing or immigration status — and today the court confirmed it,” spokesperson Joo-Hyun Kang said in a statement.

Justice Scalia, Religion, and the Failure of Legal Reasoning

Thursday, June 19th, 2014

Edward H. Levi Distinguished Service Professor of Law, University of Chicago

Posted: 06/17/2014 12:18 pm EDT Updated: 06/17/2014 1:59 pm EDT
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One of my former law professors, Harry Kalven, liked to say that “law is the process of choosing among competing analogies.” At its core, legal reasoning is about trying to find insight, or logic, or common sense by comparing different situations and then striving to identify the most important similarities and differences. Analogies open some doors and close others. They shape and direct the analysis.

For example, if it is settled that obscenity is not protected by the First Amendment, then what other types of speech are also not protected by the First Amendment? Are depictions of violence protected by the First Amendment? Are depictions of cruelty to animals protected by the First Amendment? Is opera protected by the First Amendment?

To answer these questions, legal reasoning demands that we begin by asking why obscenity is not protected by the First Amendment and then trying to figure out whether these other forms of speech are similar or different from obscenity in these respects. To do this well requires not only knowledge, but insight, creativity, subtlety, and rigor. Because this is the essence of legal reasoning, a critical question is always whether we are starting the inquiry with the best and most helpful analogy.

As a lawyer and law professor, I pay a lot of attention to this skill of reasoning by analogy. It is, indeed, at the core of what I try to convey to my students. Ordinarily, Supreme Court opinions do this quite well. After all, the justices and their law clerks are quite adept at legal reasoning, and this is usually apparent in the Court’s opinions. I might agree or disagree with the way they engage in the analogical process in any particular opinion, but I can almost always see what and why they are doing and I can respect the way they go about the inquiry, even if I would reach a different conclusion.

Strangely, two Supreme Court opinions this year contain what I can only describe as surprisingly inept examples of legal reasoning. This is baffling, because I know the law clerks who assist the justices in writing their opinions would never themselves make such gaffes. But there they are, clear as day.

The first of these confabulations was in Chief Justice Roberts’ opinion in McCuthcheon v. Federal Elections Commission, which held unconstitutional a federal law that limited the total amount that individuals could contribute to candidates for political office. I’ve already written about how Chief Justice Roberts bollixed up his analysis of free speech law in McCutcheon, so rather than repeat all that here I’ll simply provide a link to that earlier piece.

The second example surfaced on Monday in Elmbrook School District v. John Doe. In that case, a federal court of appeals held that a public school district’s decision to hold high school graduations in a church violated the Establishment Clause of the First Amendment. That clause provides that government “shall make no law respecting an establishment of religion.” The school district sought review by the Supreme Court, but the justices declined to hear the case.

There was nothing unusual in that. In any given year, the justices agree to hear approximately one percent of all the cases that seek Supreme Court review. The decision not to hear a case is not a decision on the merits, but it leaves the lower court’s decision in place. It takes the vote of four justices for the Court to hear a case. In Elmbrook School District, Justice Antonin Scalia, joined by Justice Clarence Thomas, took the unusual step of writing an opinion dissenting from the Court’s decision not to hear the case.

What caught my attention about Justice Scalia’s dissenting opinion was not the core of his argument — that the lower court was wrong in its understanding of the Establishment Clause, but the exceedingly odd way in which he framed the issue. At the outset of his opinion, Justice Scalia began by noting that some people, perhaps many, “are offended by public displays of religion.” He then said that he “can understand that attitude” because it parallels his own attitude “toward the playing in public of rock music or Stravinsky.” Moreover, he noted, he is “especially annoyed when the intrusion upon my inner peace occurs while I am part of a captive audience, as on a municipal bus or in the waiting room of a public agency.” But, he added, the government cannot constitutionally protect his “aversion” to being exposed to such unpleasantness “because of the First Amendment.” To support this proposition, he cited two Supreme Court decisions that had, indeed, held that the government cannot constitutionally prohibit private speakers from having their say in public merely because their speech offends others.

What makes this discussion odd is that none of this has anything to do with the issue in Elmbrook School District, which involved not speech by private individuals, but speech (or, rather, religious activity) by the government itself. It is true, of course, that the government ordinarily cannot suppress speech by individuals because the message conveyed offends others. This is so not only for rock music and Stravinsky, but also for flag burning, a Nazi march, and religious expression. The government cannot constitutionally forbid a speaker from handing out religious leaflets because his message offends others. But that has absolutely nothing to do with the issue in Elmbrook School District, which involved not speech by private individuals, but speech by the government itself. The analogy drawn by Scalia is flat out wrong.

Justice Scalia then compounds the problem by observing that some “of this Court’s cases,” decisions of which he clearly disapproves, “have allowed the aversion to religious displays” to lead the Court to hold that the First Amendment sometimes prohibits “religious displays” in “public facilities” and “public ceremonies” – “despite the fact that the First Amendment explicitly favors religion” but is “agnostic” about other types of expression.

To be perfectly candid, this borders on incoherence. What Justice Scalia seems to be saying is that because the First Amendment guarantees “the free exercise of religion,” the government should itself be free to engage in “the free exercise of religion.” This is wrong on multiple counts. First, the Free Exercise Clause guarantees individuals the right to practice their religion. It does not give the government the right to practice its religion — or even to have one. This is elemental.

Second, although the First Amendment “explicitly favors religion” in the sense that it guarantees “the free exercise of religion,” it does not “favor” religion when the speaker is the government. To the contrary, the First Amendment explicitly restricts the government with respect to religion, by providing that government “shall make no law respecting the establishment of religion.” The Constitution gives the government broad power to take positions in all sorts of ways, but the one thing it explicitly forbids the government to do is to take positions on religion that constitute acts “respecting the establishment of religion.” Thus, the First Amendment does not “favor” religious expression by the government, it specifically and unambiguously constrains it.

Third, Justice Scalia suggests that the reason the Court has interpreted the Establishment Clause to limit religious expression by the government is because some people have an “aversion to religious displays,” analogous to his aversion to rock music and Stravinsky. But this completely misunderstands the essence of the Establishment Clause, which is not about protecting people from what they might see as the “unpleasantness” of religious expression, but about keeping the government neutral in the realm of religion, because the Framers understood that non-neutrality by the government would prove divisive and destructive of the very notion of “We the People.” It was for that reason, and not to protect people against the unpleasantness of listening to what they might deem offensive religious expression, that the Framers, in Thomas Jefferson’s words, erected a “wall of separation” between state and church.

What is really going on here is that Justice Scalia wants to tear down that wall. As he has made clear in recent opinions, he thinks it’s just fine for the government to endorse Christianity. That, however, was not the understanding of the Framers of our Constitution, and it has never been the Supreme Court’s understanding of the First Amendment. But his passion for that conclusion, and his “aversion” to the opposing view, have clearly clouded his legal reasoning in a way that is both surprising and disappointing.
Supreme Court Religion and Politics RELIGIÓN First Amendment Establishment Clause Freedom of Religion Antonin Scalia

Northern Kentucky Democrats hope to pick up seats in 2014 after dwindling support in region

Thursday, June 19th, 2014

06/17/2014 03:53 PM

by Pure Politics

The Democratic Party in the Northern Kentucky counties of Boone, Kenton and Campbell counties has seen their numbers plummet in the past three decades. But they are hopeful the 2014 election cycle will reverse the trend.

Prior to the 1980’s, the party dominated the local political scene as well as Congressional and state House and Senate seats. Now, the party is almost non-existent in Boone County and struggling in both Kenton and Campbell Counties.

The reasons for the change are numerous. Democratic officials say the areas significant population increase over the past 30 plus years has brought in a population with deep Republican roots.

Those changing demographics have lead to some big Republican pick ups in recent elections, even increased support of more tea party leaning candidates like 4th district Congressman Thomas Massie, and Republican primary candidate Matt Bevin who lost to Kentucky U.S. Senator Mitch McConnell in May saw a lot of support from the region.

state acquires nearly 1,000 acres for public use in Henry County

Thursday, June 19th, 2014

Department acquires nearly 1,000 acres for public use in Henry County
Press Release Date: Monday, June 16, 2014
Contact Information: Dave Baker
1-800-858-1549, ext. 4454

FRANKFORT, Ky. – The Kentucky River Wildlife Management Area just grew by more than a third in size.

On June 2, the Kentucky Department of Fish and Wildlife Resources completed its 18-month-long effort to acquire the 926-acre property of Stephen Boone in Henry County. It is located along KY 389 about three miles north of Gratz.

“What a tremendous property and outstanding opportunity for hunters and anglers alike,” said Kentucky Fish and Wildlife Commissioner Gregory Johnson. “With more than a half-mile of Kentucky River frontage, 686 acres of woodlands and about 130 acres of lakes and ponds, this is not only an impressive addition to the Kentucky River Wildlife Management Area (WMA), it is precisely the kind of place where memories are made.”

A stunning feature is the area’s 110-acre oxbow lake, home to an active bald eagle’s nest. The property also features a 15-acre man-made lake and 2-acre pond for additional fishing opportunities.

At its quarterly meeting on June 6, the Kentucky Fish and Wildlife Commission unanimously voted to name the oxbow as Lake Benjy Kinman. This is in recognition of the well-known fisheries biologist and former Fisheries Division director who retired as the department’s deputy commissioner in February, after 38 years of service.

The commission originally authorized the project at its December 2012 meeting, prior to Kinman’s retirement.

The addition of the new tract brings Kentucky River WMA to 3,555 acres. The department used Federal Wildlife Restoration funds to make the $3,185,440 purchase. It used the value in two department-owned tracts as a 30 percent match toward the federal funds. No Fish and Game Fund money was used.

“We will proceed immediately with getting the area ready for use by hunters and anglers,” said Wildlife Division Assistant Director Chris Garland. “We need to mark boundaries, prepare parking areas and install signage and gates. Our plan is to open the area to small game, fall turkey and deer archery seasons … probably in time for August squirrel season.”

The Fisheries Division is actively sampling the lakes as well. Boat use on the oxbow will be limited to idle-speed only. But access to the smaller water bodies is walk-up only. They will be limited to canoes, kayaks and other small boats powered by no more than trolling motors.

The department will formally open and dedicate the area in mid-August.

A landmark privacy ruling – 11TH. CIRCUIT CT. OF APPEALS

Thursday, June 19th, 2014

Jun 19 2014 12:01 am

A federal appeals court in Atlanta last week handed down a ruling that, if eventually affirmed by the Supreme Court, will greatly strengthen individual privacy rights by limiting government intrusions, such as bulk collection of telephone records by the National Security Agency (NSA).

The 11th Circuit Court of Appeals held that the Fourth Amendment prohibition against “unreasonable searches and seizures” applies to records held by providers of cell phone services that identify the geographic location where each cell phone call is made.

The opinion by Judge David Sentelle very carefully positioned this finding to be at variance with decisions in two other circuit courts on similar issues, virtually guaranteeing Supreme Court review. The opinion thus opens the door to a welcome and much needed debate before the Supreme Court on the reach of the Fourth Amendment in protecting individual privacy.

It gives the court an opportunity to overturn or greatly modify the current legal basis for limiting privacy, the 1979 decision in Smith vs. Maryland that records of telephone calls are not covered by the Fourth Amendment because telephone subscribers have no “reasonable expectation” that such records are private property.

That case provides the legal underpinning for laws, such as the Patriot Act, that allow the U.S. Department of Justice and local law enforcement authorities to obtain a person’s telephone call records, bank records and other personal transaction records without having to persuade a judge that there is “probable cause” to believe a law has been broken.

The NSA and the secret Foreign Intelligence Surveillance Court have relied on Smith vs. Maryland and the Patriot Act to justify the bulk collection of American telephone call records on the possibility that some records might eventually be needed in a terrorism investigation.

The NSA’s overreach represents just one facet of the privacy problems created today by technology that was not available for general use when Smith was decided. Another is described by what has been called the “mosaic theory” of privacy, in which bits of information that might be readily available in public can be put together to create a picture of a person’s life in which recognized privacy rights are violated.

For example, in 2012 the Supreme Court, in U.S. vs. Jones, held that the Fourth Amendment was violated when law enforcement officers put a GPS device on a car and left it there for 28 days without court permission.

The court rejected the argument that because the car could be seen any time it was on the street, the driver had no reasonable expectation of privacy. In a concurring opinion, Justice Sonia Sotomayor noted that such “monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.”

In his opinion in U.S. vs. Quartavious Davis, Judge Sentelle cited the Jones case in support of a finding that cell phone tracking information creates a mosaic picture that is an invasion of privacy unless carried out with permission of a court, as required by the Fourth Amendment.

Quartavious Davis was a member of a robbery gang whose conviction turned on eyewitness identification and testimony by other members of the gang. Judge Sentelle upheld his conviction but found that law enforcement should have gone to court to track his cell phone use.

Now it is up the Supreme Court to address the critical question Judge Sentelle raised regarding Fourth Amendment privacy protections.


Tuesday, June 17th, 2014

Please see the following two legal job postings:

1. Small but exceptionally active Covington litigation practice seeks experienced administrative assistant for full-time position. Preferred candidate will have ability to multi-task, work independently or with minimal direction, and handle a high volume of telephone, calendaring, and file-related tasks. Job duties may include minimal bookkeeping and accounting tasks.

Areas of litigation practice include domestic/family law, injury claims, and commercial disputes, along with transactional work in bankruptcy and estate law. Knowledge of or experience in one or more areas is preferred, but not strictly required.

Salary and benefits are commensurate with experience and education, and competitive to Northern Kentucky market. Interested candidates should submit full resume with references and a cover letter detailing experiences of note in prior employment to, using the subject title “RESUME: AEJR248.”

2. Small but exceptionally active Covington litigation practice seeks experienced paralegal for full-time position. Preferred candidate will have ability to multi-task, work independently or with minimal direction, and provide support through all stages of litigation. Job duties may include direct client contact where needed, and drafting of correspondence, basic pleadings, and inter-office memoranda.

Areas of litigation practice include domestic/family law, consumer disputes, injury claims, and business disputes, along with transactional work in bankruptcy and estate law. Experience in one or more areas is highly preferred, but not strictly required.

Salary and benefits are commensurate with experience and education, and competitive to Northern Kentucky market. Interested candidates should submit full resume with references and a cover letter detailing experiences of note in prior employment to, using the subject title “RESUME: AEJR248.”

The U.S. Supreme Court ruled on Monday that an anti-abortion group can challenge an Ohio law that bars people from making false statements about political candidates during a campaign.

Tuesday, June 17th, 2014

upreme Court allows constitutional challenge of Ohio law barring campaign lies

By SAM HANANEL Associated Press
Last Updated: June 16, 2014 – 4:36 pm


Campaigns (399)

WASHINGTON — The Supreme Court ruled unanimously on Monday that an anti-abortion group can challenge an Ohio law that bars people from making false statements about political candidates during a campaign.

The decision raises serious doubts about whether the law — and similar measures in more than a dozen other states — can survive amid complaints that they violate free speech rights.

The high court said the Susan B. Anthony List does not have to wait until it is prosecuted under the law to claim its First Amendment rights have been infringed. The court did not directly rule on the constitutionality of the law, but the decision sends the case back to a lower court to consider the question.

Writing for the court, Justice Clarence Thomas said the existence of the law already has a chilling effect on political speech because people and interest groups have reason to believe their statements may be censured.

Both liberal and conservative groups have criticized the law, saying it stifles the wide-open debate crucial during elections, including negative speech that may sometimes twist the facts. Even Ohio attorney general Mike DeWine declined to defend the law in court, citing constitutional concerns. He sent his deputies to argue for the state instead.

The case began during the 2010 election when the Susan B. Anthony List, planned to put up billboards ads attacking then-Rep. Steve Driehaus. The ads accused Driehaus of supporting taxpayer-funded abortion because he supported President Barack Obama’s new health care law. Driehaus, a Democrat who opposes abortion, claimed the ads misrepresented the true facts and therefore violated the false speech law.

After Driehaus filed a formal complaint, the billboard owner feared legal action and declined to post the ads. The Ohio Elections Commission found probable cause that the ads violated the law, but Driehaus later dropped the case after losing his re-election bid.

When the Susan B. Anthony List challenged the state law as unconstitutional, a federal judge said the group didn’t have the right to sue because the case was withdrawn and it hadn’t suffered actual harm. The 6th U.S. Circuit Court of Appeals in Cincinnati agreed.

In reversing the lower courts, Thomas said the Susan B. Anthony List intends to make the same statements in future elections. That means the speech will remain prohibited under the Ohio false statement law.

“There is every reason to think that similar speech in the future will result in similar proceedings, notwithstanding SBA’s belief in the truth of its allegations,” Thomas said.

Thomas said the threat of commission proceedings is like arrest or prosecution in that it “may give rise to harm sufficient to justify pre-enforcement review.”

Susan B. Anthony List President Marjorie Dannenfelser said the group would move quickly to try to have the law tossed out.

“The truth or falsity of political speech should be judged by voters, not government bureaucrats,” she said.

The group already plans to put up similar billboard ads in opposition to Democratic U.S. senators in Arkansas, Louisiana and North Carolina; those states have similar laws banning false campaign speech.

DeWine spokesman Dan Tierney described the high court ruling as “unanimous and significant.”

“As the matter now proceeds in the lower courts, the Ohio Attorney General’s Office has a duty and will continue to defend the constitutionality of the statute.” Tierney said. “Attorney General DeWine will also continue to make the courts aware of his significant First Amendment concerns on this issue.”

Other states with similar laws include Alaska, Colorado, Florida, Massachusetts, Michigan, Minnesota, Montana, North Dakota, Oregon, Tennessee, Utah, West Virginia and Wisconsin.

Bill Gates recently gave a speech at a High School about eleven things they did not and will not learn in school.

Tuesday, June 17th, 2014

~ Bill Gates ~
This should be posted in every school or kid’s bedroom.
Love him or hate him , he sure hits the nail on the head with this!

Bill Gates recently gave a speech at a High School about
eleven things they did not and will not learn in school.
He talks about how feel-good, politically correct teachings
created a generation of kids with no concept of reality and
how this concept set them up for failure in the real world.

Description: Description: []
Rule 1: Life is not fair – get used to it!
Rule 2: The world doesn’t care about your self-esteem.
The world will expect you to accomplish something
BEFORE you feel good about yourself.
Rule 3: You will NOT make $60,000 a year right out of high school.
You won’t be a vice-president with a car phone until you earn both.
Rule 4: If you think your teacher is tough, wait till you get a boss.
Rule 5: Flipping burgers is not beneath your dignity.
Your Grandparents had a different word for burger flipping:
They called it opportunity.
Rule 6: If you mess up, it’s not your parents’ fault,
so don’t whine about your mistakes, learn from them.
Rule 7: Before you were born, your parents weren’t as boring
as they are now. They got that way from paying your bills,
cleaning your clothes and listening to you
talk about how cool you thought you were:
So before you save the rain forest
from the parasites of your parent’s generation,
try delousing the closet in your own room.
Rule 8: Your school may have done away with winners and losers,
but life HAS NOT. In some schools, they have abolished failing grades
and they’ll give you as MANY TIMES as you want to get the right answer.
*This doesn’t bear the slightest resemblance to ANYTHING in real life.
Rule 9: Life is not divided into semesters.
You don’t get summers off and very few employers
are interested in helping you FIND YOURSELF.
(Do that on your own time.)
Rule 10: Television is NOT real life.
In real life, people actually have to leave the coffee shop and go to jobs.
Rule 11: Be nice to nerds.
Chances are you’ll end up working for one.

Judicial Branch implements new expungement certification process

Tuesday, June 17th, 2014

Posted on February 6, 2014 by Michael Stevens •

FRANKFORT, Ky., Feb. 5, 2014 – Beginning Jan. 1, 2014, state law requires every petition for expungement in Kentucky to include a certificate of eligibility for expungement. Under KRS 431.079, individuals who wish to have their criminal records expunged must complete the expungement certification process to determine if they are eligible for expungement. The certification provides judges and prosecutors with the most current and complete information available on a individual’s record.
KRS 431.079 is the enactment of Senate Bill 78, which was passed during the regular session of the 2013 General Assembly.
The Kentucky State Police are overseeing this process in conjunction with the Administrative Office of the Courts. Under the new law, both agencies must run criminal record reports on the person petitioning for the expungement. The KSP will then certify the eligibility of the expungement request.
Individuals can request certification through the AOC by registering online, by U.S. mail or in-person at the AOC Records Unit drive-thru window at 1001 Vandalay Drive in Frankfort. The certification costs $40 and the process takes up to 60 days.
Those who obtain an expungement certification may then file a petition for expungement with the Office of Circuit Court Clerk in the county where the original charge was filed. The petition must be filed before the certification expires in 30 days.
Under the new process, judges will receive an expungement certification packet along with each petition for expungement. The certification ensures that judges can take into account an individual’s most up-to-date and comprehensive record information when determining whether to grant an expungement.
Individuals can visit the Kentucky Court of Justice website at to learn more about the expungement certification process. The site provides a list of frequently asked questions and describes the steps to submit a request online, in-person or by U.S. mail. The benefits for those applying electronically include email notifications throughout the process, the ability to check on the status of the certification online and the ability to download the certification packet as soon as it becomes available.

Steps to Obtain an Expungement Certification
Online Requests
1. Register at the registration site. An email account is required and will be verified during registration.
2. Complete the online request form.
3. Submit $40 payment. (Accepted forms of payment: American Express, Discover, MasterCard and Visa credit cards and most debit cards.)
4. Check your email for notification when the certification packet is available online.
5. Log in to the registration site to download the certification packet.
6. File the certification documents and the proper expungement petition with the Office of Circuit Court Clerk in the county where the original charge was filed.
In-Person Requests
You may request an expungement certification in-person at the drive-thru window at:
Administrative Office of the Courts
1001 Vandalay Drive
Frankfort, KY 40601
Drive-thru hours are 8 a.m. – 4 p.m. Monday – Friday (except state holidays).
1. Request a paper copy of the Expungement Certification Request Form if you have not already completed the form online.
2. Complete the form.
3. Submit $40 payment. (Accepted forms of payment: American Express, Discover, MasterCard and Visa credit cards and most debit cards; check or money order made payable to Kentucky State Treasurer; cash payment in exact amount.)
4. You will receive your certification packet by U.S. mail at the address you provided.
5. File the certification documents and the proper expungement petition with the Office of Circuit Court Clerk in the county where the original charge was filed.
Mail-Service Requests
1. Download the Expungement Certification Request Form.
2. Complete the form.
3. Provide the $40 payment by check or money order made payable to Kentucky State Treasurer.
4. Mail the completed form and payment to:
Records Unit
Administrative Office of the Courts
1001 Vandalay Drive
Frankfort, KY 40601
5. You will receive your certification packet by U.S. mail at the address you provided.
6. File the certification documents and the proper expungement petition with the Office of Circuit Court Clerk in the county where the original charge was filed.


Monday, June 16th, 2014

WASHINGTON — The Supreme Court agreed Monday to consider a classic free speech conundrum for the 21st century: When do threatening comments made on social media sites such as Facebook cross the line into criminal activity?

Two lower federal courts ruled that Anthony Elonis crossed that line in 2010 when he mused on his Facebook page about killing his wife and others, including an FBI agent who was investigating his actions.

“Did you know that it’s illegal for me to say I want to kill my wife?” he wrote in one of many posts. “It’s illegal. It’s indirect criminal contempt. It’s one of the only sentences that I’m not allowed to say.”

The lengthy diatribe copied nearly word-for-word a satirical sketch by The Whitest Kids U’ Know comedy troupe, concluding with Elonis’ own summation: “Art is about pushing limits. I’m willing to go to jail for my constitutional rights. Are you?”

In seeking the high court’s review of his conviction, Elonis’ attorneys contend he never intended actual violence. What the justices have to decide is whether that matters, as long as a “reasonable person” would feel threatened.

The court’s precedent for such cases is now 11 years old. In 2003, the Supreme Court ruled in Virginia v. Black that a state law equating cross-burning with intimidation went too far, reasoning that not all cross-burning was meant as a threat. Justice Clarence Thomas, the lone black jurist, dissented.

Since then, lower state and federal courts have split on what constitutes a threat — the perpetrator’s subjective intent to threaten, or anyone else’s objective interpretation. Most but not all courts have agreed it’s the latter standard, used to convict Elonis.

The Supreme Court has refused to get involved in such disputes. Last year, for instance, it denied a petition from a man convicted of threatening on YouTube to kill the judge in his child custody case.

The new case dates back to 2010, when Elonis’ wife left him after a seven-year marriage and took their two children. Apparently despondent at age 27, he lost his job at an Allentown, Pa., amusement park and began a series of dark postings, often in the form of rap lyrics. In his Facebook profile, he said the rants were therapeutic and disclaimed any “true threat.”

Elonis’ wife wasn’t amused. She obtained a “protection from abuse” order against him, which only led to more rants directed at more people. He was arrested that December and eventually given a 44-month sentence plus three years’ supervised release. He finished his prison term in February.

The federal law that tripped up Elonis states: “Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.” Many states have similar statutes.

Elonis’ attorneys say the “reasonable person” standard should not be used because members of a broad social media audience who don’t know the author might misinterpret his words or guess incorrectly at his intentions.

“The issue is growing in importance as communication online by e-mail and social media has become commonplace,” Elonis’ petition for Supreme Court review says. “Modern media allow personal reflections intended for a small audience (or no audience) to be viewed widely by people who are unfamiliar with the context in which the statements were made and thus who may interpret the statements much differently than the speakers intended.”

The Justice Department, which wants the appeals court’s ruling to stand, notes that the federal law is aimed at preventing not only real violence but the fear and disruption induced by perceived threats.

The current Supreme Court has been a strong defender of free speech rights, going so far as to permit distasteful protests at military funerals and online videos depicting animal torture.

But it also has drawn lines, ruling this term against the free speech rights of a previously convicted military protester and opponents of then President George W. Bush who were moved from their protest site by the Secret Service.


Friday, June 13th, 2014

UPDATE: Local Training Opportunities for e-Filing Available Through July

Justice Michelle M. Keller would like to remind Northern Kentucky Bar members to take advantage of local training opportunities for eFiling. Training is offered at no charge with 2.0 CLE credit hours approved.

eFiling is now available for limited case types in Boone and Campbell counties.

Kenton and Gallatin counties will join the project in July.

New trainings have been scheduled, and you may register online at:

A guest (secretary, paralegal, or legal assistant) is welcome to attend with a KBA member, but attorneys MUST attend eFiling training in order to receive credentials to file.

eFiling Training Information:

Who: Northern Kentucky Attorneys and a guest.

What: eFiling Training & 2.0 hours CLE

Where: Campbell County Fiscal Court &

Kenton Circuit Court Multipurpose Room

When: Numerous days are available. See registration website for details.

How: You may register by choosing your preferred training session at:

Questions: eMail:

Phone: 800-928-2350 ext 50169


Julie L. Jones
NKBA Executive Director

OHIO SUPREME COURT No decision yet on hearing process for traffic cameras

Thursday, June 12th, 2014

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Toledo has been using red-light cameras since 2001. Toledo has been using red-light cameras since 2001.
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COLUMBUS — Toledo’s traffic enforcement cameras may survive, but a ruling from the Ohio Supreme Court striking down the program’s administrative hearing process would have “untold consequences” across the state, the city argued today.

But a lawyer for a Kentucky man challenging the process countered that the city has unconstitutionally carved out an exception for itself to sidestep the jurisdiction of Toledo Municipal Court in deciding guilt or innocence when it comes to these civil violations.

The high court did not immediately rule, and, based on their questions, appeared divided.

This marks the second time that the highest court has considered the constitutionality of such cameras. It previously upheld such programs generally as an extension of cities’ home rule authority and found they do not conflict with state law.

But this is the first time it has heard the argument raised by Bradley L. Walker that the program unconstitutionally usurps the authority of the municipal court to hear motorists’ challenges to traffic citations. Appeals to administrative hearing decisions go instead to Lucas County Common Pleas Court, as do other administrative code violations.

Mr. Walker paid the $120 fine for the ticket he received in 2009, but then filed his lawsuit.

“Walker has alleged they have my money under this unconstitutional ordinance, and I want it back,” said Mr. Walker’s Fremont attorney, Andrew R. Mayle.

The city contends that the camera-related offenses are different from criminal violations and that it has authority to frame an administrative process under its home-rule authority. In addition to a common pleas court appeal, motorists can still file a separate action in municipal court to challenge a city’s action.

Adam Loukx, the city’s law director, told the court that the cameras will survive.

But a decision striking down the city’s right to pursue an administrative hearing process to process citations would “have untold consequences and establish a very negative precedent around the state.”

Although the court previously upheld the constitutionality of such cameras, one of the justices who has since joined the court, Justice William O‘‍Neill, suggested that decision created “the legal fancy that traffic violations are civil violations.”

Justice Paul Pfeifer suggested such an administrative hearing process could turn common pleas courts into traffic courts, although Mr. Loukx said he knows of only a handful of appeals that have been filed.

In addition to the courts, automatic red light and speed enforcement faces challenges in the halls of the Statehouse, where bills have been introduced to either regulate or all but ban their use. A bill is expected to be considered when lawmakers return to Columbus this fall.

Cities like Cleveland, Columbus, and Dayton were also watching today’s arguments, knowing that their own similar programs could face the same fate if Toledo’s pioneering program is struck down.

Programs differ from city to city, but they generally treat violations captured by a camera as civil violations that carry a fine that is split by the city and the private company operating the cameras. Toledo’s operator, Redflex Traffic Systems, stood at the city’s side today in arguing the case.

Unlike a criminal violation, the citations do not assess points against a driver’s license and motorists’ insurance companies are not notified.

A pair of bills awaits lawmakers when they return to the Statehouse in late September, spurred on by the argument that the cameras have become more about generating revenue for cities and less about safety.

One would outright ban cameras for red-light enforcement and permit their use for speed enforcement only in 20 mph school zones, and only then when a police office is present to witness the violation.

Another would allow the use of cameras only when a police office is present, something camera cities contend would negate the benefits of such a program in the first place.

Former Justice Andrew Douglas sat at the table with the attorneys for the city and Redflex before the bench. Only one of the current justices, Justice Pfeifer, was on the bench when he served.


U.S. Supreme Court avoids case on retroactive life sentences for juvenile murderers

Tuesday, June 10th, 2014


The U.S. Supreme Court won’t hear an appeal over whether juveniles imprisoned for life before a 2012 law change can seek new sentences, a decision that will not affect the fate of a former Phillipsburg teen guilty of a 2006 murder in Easton.

Hundreds of inmates in Pennsylvania are serving mandatory life sentences for murders committed when they were minors.

A 2012 Supreme Court decision gave trial judges discretion over whether or not to sentence juveniles to life terms. But the high court did not say whether the law should be applied retroactively to as many as 2,000 juvenile lifers in prison across the country.

States have since split on the question.

The Pennsylvania Supreme Court rejected the idea in a 4-3 vote that affects several hundred juvenile lifers in state prisons. In his concurring opinion, Chief Justice Ronald Castille criticized the high court for not dealing with the glaring retroactivity issue.

The Philadelphia-based Juvenile Law Center appealed, but the U.S. Supreme Court declined today to hear the case. Similar cases are still moving through the courts, including one filed in federal court in Philadelphia.

“We still feel like this is an issue that will need to be resolved by the U.S. Supreme Court at some point,” staff attorney Emily C. Keller said. “There are many cases in the pipeline, and many states considering this issue.”

The issue will not affect Qu’eed Batts’ life sentence for the murder of 16-year-old Clarence “C.J.” Edwards.

Batts was 14 when he killed Edwards and wounded Corey Hilario in 2006 in Easton. Batts’ appeals were still pending when the U.S. Supreme Court made its decision in 2012, meaning the ruling applied to him.

Northampton County Judge Michael Koury re-sentenced Batts last month but maintained the life-without-parole sentence.


Tuesday, June 10th, 2014

By Stan Billingsley

This morning I received the following e-mail from an internet scammer. It presented itself as a request from my long time friend Wilbur Zevely (and co-author of our DUI book). In the e-mail “ Wilbur Zevely” requested a loan of $2,650 which he needed to get home from the Ukraine…the message alleges he was robbed. I would be glad to loan Wilbur $2,650 but prudence suggested that I call him to see if he really had been robbed.
As soon as he answered the phone he said “NO I HAVE NOT BEEN ROBBED!” apparently a lot of his friends had received the same e-mail.
Let this be a warning that scammers are out there and be careful. The scam message read:
Good Day!

How are you doing ? Am stuck in Simferopol (UKRAINE) right now, i was on a short trip. Unfortunately i was robbed at the park of the hotel where i lodged, all my cash, cc and phone all gone, please my flight leaves soon.

if you could loan me ($2,650),I will refund the money back to you as soon as i return and let me know if you need my details(Full names/location) to effect a transfer.

I promise to refund it back once i get home, write to me so I can let you know how to remit..

Wilbur M. Zevely”

Supreme court sides with Obama over migrant visas

Monday, June 9th, 2014

Supreme court sides with Obama over migrant visas

Children of migrants who age out of the system still have to go to the back of the line at 21, justices rule

Associated Press in Washington, Monday 9 June 2014 12.58 EDT
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american flag, statue of liberty immigration DREAM The current rules do not let children who age out of the system qualify for visas. Photograph: Lucas Jackson/Reuters

The supreme court says migrant children who waited for years with their parents to obtain visas still have to go to the back of the line when they turn 21.

The justices on Monday sided with the Obama administration in ruling that immigration laws do not let children who age out of the system qualify for visas.

The case involved Rosalina Cuellar de Osorio, a Salvadoran immigrant who was in line for a visa along with her 13-year-old son. But after years of waiting, her son turned 21 and government officials said he no longer qualified as an eligible child. He was placed at the back of the line, resulting in a wait of several more years.

The family lost a challenge in federal district court, but the ninth US circuit court of appeals reversed that decision.

In other rulings on Monday:
Court sides with state over toxic tap water

The justices said group of homeowners in North Carolina can’t sue a company that contaminated their drinking water because a state deadline has lapsed.

The justices ruled 7-2 on Monday that state law strictly bars any lawsuit brought more than 10 years after the contamination — even if residents did not realize their water was polluted until years later.

The high court reversed a lower court ruling that said federal environmental laws should allow the lawsuit against electronics manufacturer CTS Corp. to proceed.

The decision is a setback for the families of thousands of former North Carolina-based Marines suing the federal government in a similar case for exposing them to contaminated drinking water at Camp Lejeune. The government is relying on the same state law to avoid liability.
Lets stand tobacco ruling

The court turned away appeals from cigarette manufacturers of more than $70 million in court judgments to Florida smokers.

The justices did not comment Monday in rejecting the companies’ complaints.

R.J. Reynolds Tobacco Co., Philip Morris USA Inc. and Lorillard Tobacco Co. wanted the court to review cases in which smokers won large damage awards without having to prove that the companies sold a defective and dangerous product or hid the risks of smoking.

Those cases all relied on a Florida court ruling that allows individual smokers or their surviving relatives to use jury findings in an earlier large class-action lawsuit, even though the verdict in that earlier case was overturned. Each plaintiff still has to show addiction to cigarettes, and resulting death or illness.
Decides scope of bankruptcy authority

The justices said bankruptcy courts have limited authority to rule on disputes outside the traditional bankruptcy process.

The justices ruled unanimously Monday that a Washington state bankruptcy court did not exceed its powers when it considered a lawsuit claiming the Bellingham Insurance Agency had wrongfully transferred assets to the another insurance company shortly before declaring bankruptcy.

Lower courts had upheld the bankruptcy court action. The 9th U.S. Circuit Court of Appeals found the bankruptcy judge was simply making recommendations that were later approved by a federal judge and that all parties had consented to the proceeding.

The high court agreed that a bankruptcy court can rule on non-bankruptcy matters as long as a federal district court reviews those findings.
Lets standBP claims payments

The court said BP must continue paying claims from a fund established after the 2010 Gulf of Mexico oil spill while the company appeals terms of its settlement with some businesses.

The justices on Monday let stand without comment lower court refusals to halt payments while BP appeals the rulings that businesses don’t have to prove they were directly harmed by the spill to collect money.

It was another setback for BP’s contention that the claims administrator is misinterpreting its agreement with many businesses.

The 5th Circuit and a district court have ruled that BP agreed in March 2012 to pay such claims without requiring strict proof that the 2010 spill caused losses.

The claims fund was set up after a BP well off the Louisiana coast blew out in April 2010 and spewed oil into the Gulf for nearly three months.

The Supreme Court of Kentucky will convene June 11-12 in Frankfort to hear oral arguments

Monday, June 9th, 2014

FRANKFORT, Ky. — The Supreme Court of Kentucky will convene June 11-12 in Frankfort to hear oral arguments in cases that originated in Christian, Crittenden, Fayette and Jefferson counties. Proceedings are open to the public and will take place in the Supreme Court Courtroom on the second floor of the state Capitol at 700 Capitol Ave. in Frankfort.

The public may also observe oral arguments via the Supreme Court live stream on the Kentucky Court of Justice website. Oral arguments are available online as they occur in real time and are not available as archives.

The Supreme Court is the state court of last resort and the final interpreter of Kentucky law. Seven justices (bios) sit on the Supreme Court and all seven justices rule on appeals that come before the court. The justices are elected from seven appellate districts and serve eight-year terms. A chief justice, chosen for a four-year term by fellow justices, is the administrative head of the state’s court system and is responsible for its operation. The Supreme Court may order a ruling or opinion to be published, which means that the ruling becomes the case law governing all similar cases in the future in Kentucky.



View Case Briefs (PDF – 64.59KB)

Summary: “Criminal Law. Second-Degree Rape-10 years. Issues include whether a defendant has the burden to prove his lack of knowledge of a victim’s incapacity to consent, the defense included in KRS 510.030.”

Discretionary Review granted 11-13-2013
Crittenden Circuit Court, Judge C. Rene Williams

Attorney for Appellant: V. Gene Lewter
Attorney for Appellee: Perry Thomas Ryan




View Case Briefs (PDF – 64.59KB)

Summary: “Employment Law. Defamation. Qualified Privilege. Issues include whether an employee’s testimony that his co-workers’ defamatory allegations are false is sufficient to create a jury question on abuse of the qualified privilege.”

Discretionary Review granted 10-16-2013
Jefferson Circuit Court, Judge Judith E. McDonald-Burkman

Attorney for Appellant Toler: Philip Clyde Kimball
Attorneys for Appellees Sud-Chemie, Inc., Et Al.: Oliver Barrett Rutherford, James U. Smith, III and Robert Matthew Colone
Attorney for Appellant Sud-Chemie, Inc.: Oliver Barrett Rutherford and James U. Smith, III
Attorney for Appellee Toler: Philip Clyde Kimball


View Case Briefs (PDF – 64.59KB)

Summary: “Criminal Law. Evidence Law. Issues include how the decision in Davis v. U.S., 131 S.Ct. 2419 (2011) applies to a motion to suppress evidence found during a vehicle search conducted pursuant to a defendant’s arrest.”

Discretionary Review granted 11-13-2013
Jefferson Circuit Court, Judge Mary M. Shaw

Attorneys for Appellant: Bruce P. Hackett and Daniel T. Goyette
Attorney for Appellee: Dorislee J. Gilbert



View Case Briefs (PDF – 64.59KB)

Summary: “Evidence Law. Jury Instructions. Medical Malpractice. Informed Consent. KRS 304.40-320(2). Issue is whether a jury instruction on informed consent in a medical negligence action must contain the duty enumerated in KRS 304.40-320(2).”

Discretionary Review granted 12-11-2013
Fayette Circuit Court, Judge Pamela Goodwine

Attorney for Appellant: Joe C. Savage
Attorneys for Appellee: Bradley A. Case and Stephen Joseph Mattingly


View Case Briefs (PDF – 64.59KB)

Summary: “Juvenile Law. Informal Adjustment. Issues include what are the proper steps a district court must undertake when giving a juvenile an informal adjustment; and whether a juvenile is entitled to certain due process rights when a court revokes an informal adjustment?”

Discretionary Review granted 10-16-2013
Christian Circuit Court, Judge John L. Atkins

Attorney for Appellant: Renee Sara Vandenwallbake
Attorneys for Appellee: Patricia Lynn Pryor and Jeanne Deborah Anderson

Note: Justice Keller is recused.

Allocations on the Merits in Workers’ Compensation Awards

Saturday, June 7th, 2014

Lien Resolution Services, Garretson Resolution Group

The Allocation is the Thing:
Allocations on the Merits in Workers’ Compensation Awards

On June 3, 2014, the Centers for Medicare and Medicaid Services (“CMS”) released version 2.2 of its CMS WCMSA Reference Guide dated May 29, 2014 (the “Guide”). While the Guide contains multiple updates and revisions (primarily with respect to medical payment records), the most critical update lies in Section 4.1.4 (Hearing on the Merits of the Case). CMS has identified that where parties identify which proceeds of the workers’ compensation (“WC”) award represent non-medical damages as compared to medical damages, and that allocation is approved by a court or other adjudicator (e.g., a state WC board or commission) on the merits, then CMS will accept that allocation. Sophisticated and diligent parties can now use this as a means to further limit related exposure on the MSA issue while the traditional WCMSA report (which only calculates medical expenses) no longer represents best practices in the Medicare Secondary Payer (“MSP”) compliance context.

On June 3, 2014, the Centers for Medicare and Medicaid Services (“CMS”) released version 2.2 of its CMS WCMSA Reference Guide dated May 29, 2014 (the “Guide”). Since its first release in March 2013, the Guide has become the one source of the truth in the Workers’ Compensation Medicare Set-Aside (“WCMSA”) world. The Guide consolidates all previous guidance from CMS about WCMSAs in one place, and then updates the Guide periodically as CMS guidance changes. Version 2.2 represents the fourth published version of the Guide. Over the past fifteen months, the workers’ compensation (“WC”) community has learned that the Guide is the place to read not only what CMS expects from parties resolving WC claims involving Medicare interests but also what steps CMS directs parties to take to properly consider its interests in remaining a secondary payer post-settlement.

Garretson Resolution Group (“GRG”) has always believed that when it comes to Medicare Set-Asides (“MSAs”), settlement values drive MSA obligations, not vice versa. Instead of what a claimant is anticipated to incur for future injury-related care, otherwise covered by Medicare, what really matters is how many dollars are available within the gross award to pay for those future medical expenses. For years, we have spoken about how parties could minimize MSA obligations if they were able to identify those proceeds payable for non-medical expenses versus those payable for medicals. Then, by funding the MSA for the amount earmarked for medicals, parties could adhere and comply fully with any MSA obligation imposed by the Medicare Secondary Payer (“MSP”) provisions. In version 2.2 of the Guide, CMS validates that methodology.

Hearings on the Merits of the Case

In Section 4.1.4, CMS discusses Hearings on the Merits of the Case. There, it says:

“When a state WC judge approves a WC settlement after a hearing on the merits, Medicare generally will accept the terms of the settlement, unless the settlement does not adequately address Medicare’s interests. If Medicare’s interests were not reasonably considered, Medicare will refuse to pay for services related to the WC injury (and otherwise reimbursable by Medicare) until such expenses have exhausted the dollar amount of the entire WC settlement. Medicare also will assert a recovery claim if appropriate.
• If a court or other adjudicator of the merits (e.g., a state WC board or commission) specifically designates funds to a portion of a settlement that is not related to medical services (e.g., lost wages), then Medicare will accept that designation.” (emphasis added)

Section 4.1.4, specifically the bullet portion of the statement, represents a significant development for all parties attempting to resolve a WC claim while trying to minimize its exposure on the WCMSA issue.

The allocation concept is not a new one, either for CMS, the judiciary or GRG. CMS’ own policy manual has addressed the concept of judicial allocations on the merits for years, though that has been limited to the conditional payment context.[1] The MSP body of case law that has developed over the past 20 years has also recognized the value, when determining the scope of CMS’ recovery rights, in identifying that portion of an award for non-medicals versus that portion for medicals.[2] As CMS has moved forward in recent years to provide greater clarity around how to address its future interest, including the allocation concept as part of the discussion only makes sense. For our part, GRG has been speaking about and applying allocation concepts to MSA issues for close to a decade.

The addition of Section 4.1.4 to the Guide may fundamentally change how parties resolve WC claims. Historically, when an employer or carrier received an MSA report from its trusted vendor containing an exceedingly high figure for the MSA, the parties were, most likely, stuck. Thinking that the entire amount of the MSA would need to be funded as part of any WC settlement and being advised that they must “consider and protect Medicare’s interest”, the parties would not close future medicals. Instead, they would close the indemnity portion of the WC claim and leave medicals open.

While that remains an option, CMS has now provided an available and compliant alternative for those interested in closing medicals and keeping the file closed. Instead of the MSA figure driving the potential amount needed to complete a settlement, parties can now agree on a settlement figure, then calculate that portion of the award for medicals versus non-medicals. When such analysis is conducted pre-settlement, one can understand with clarity how a potential settlement value affects the MSA obligation which results.

It is important to note that the Guide does not address nor does Section 4.1.4 change any currently existing reporting obligations linked to MMSEA Section 111 mandatory insurer reporting. [3]

In the Guide, CMS has now provided the WC community critical guidance about WCMSAs. Sophisticated and diligent parties will be sure to incorporate the allocation concept into every WC situation that needs to be resolved. Based on this new CMS guidance, a simple MSA report is no longer sufficient as that has the potential to lead to parties overfunding a WCMSA (increasing parties’ exposure on the issue in turn). Instead, to be compliant, any WCMSA guidance provided to parties attempting to resolve a WC claim should contain both an analysis of future cost of care needs going forward as well as an analysis of the non-medical component to the claim (using state specific WC statutes to identify factors such as disability rating, body part, number of weeks allowed and dollars per week).

GRG will continue to monitor this rapidly developing area closely and provide updates as warranted. In the meantime, please reach out to John Cattie, our MSA subject matter expert, with questions or concerns about this and other MSA issues by calling (704) 594-1778 or emailing him at

[1] See CMS MSP Manual, Chapter 7, Section 50.4.4 (Designations in Settlements). There, CMS advises, “The only situation in which Medicare recognizes allocations … to nonmedical losses is when payment is based on a court order on the merits of the case. If the court or other adjudicator of the merits specifically designate amounts that are for payment … not related to medical services, Medicare will accept the Court’s designation.”

[2] See, for example, Zinman v. Shalala, 67 F.3d 841, 846 (9th Cir. 1995) and Benson v. Sebelius, 2011 U.S. Dist. LEXIS 30438 (Decided March 24, 2011) (“…if a settlement covers both medical and nonmedical costs, CMS’s reimbursement may be apportioned so as to reach only the portion of the settlement allocated to cover medical costs.”).

[3] Pursuant to Section 6.5.1, Chapter III of the MMSEA Section 111 User Guide: ““No medicals”—If medicals are claimed and/or released, the settlement, judgment, award, or other payment must be reported regardless of any allocation made by the parties or a determination by the court.
• The CMS is not bound by any allocation made by the parties even where a court has approved such an allocation. The CMS does normally defer to an allocation made through a jury verdict or after a hearing on the merits. However, this issue is relevant to whether or not CMS has a recovery claim with respect to a particular settlement, judgment, award, or other payment and does not affect the RRE’s obligation to report.