Archive for August, 2014

Judge Strikes Down New Texas Abortion Restrictions

Saturday, August 30th, 2014

Law Would Have Required Clinics to Qualify as ‘Ambulatory Surgical Centers’

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    Updated Aug. 29, 2014 6:52 p.m. ET
    AUSTIN, Texas—A federal judge on Friday blocked a portion of a new state law set to take effect Monday that would have required abortion clinics to qualify as “ambulatory surgical centers,” a rule that could have shuttered many clinics in the state.

    U.S. District Judge Lee Yeakel, who was appointed by former President George W. Bush, ruled that the surgery-center requirement places “an unconstitutional undue burden on women throughout Texas and must be enjoined.”

    The suit was filed by the New York-based Center for Reproductive Rights on behalf of abortion providers in the state.

    The judge also ruled that an abortion clinic in El Paso and another one in McAllen could be excused from the admitting-privileges requirement, concluding that the requirement, when combined with the surgery-center rule, imposes an undue burden on women in those parts of the state.

    Nancy Northup, the Center’s president and chief executive, said the ruling made clear “that rights protected by the U.S. Constitution may not be denied through laws that make them impossible to exercise.”

    The Texas Attorney General’s Office, which defended the law, said it would appeal the ruling. “The State disagrees with the court’s ruling and will seek immediate relief,” said a spokeswoman for the office.

    The suit is the latest challenge to the abortion law, which was enacted last year and includes other provisions that have already taken effect, including a restriction on abortions after 20 weeks of pregnancy and a requirement that abortion doctors have admitting privileges at nearby hospitals.

    Last year, ruling in a separate suit, Judge Yeakel struck down the Texas law’s admitting-privileges requirement. That ruling was later overturned by the Fifth U.S. Circuit Court of Appeals, which upheld the law in March. The Fifth Circuit ruling is on appeal.

    The admitting-privileges rule has already forced half of the state’s abortion clinics to shut their doors, leaving swaths of the sprawling state without any abortion providers.

    Abortions-rights groups say that many poorer women, particularly in South Texas along the Mexican border, don’t have the resources to travel to abortion clinics and have been forced to resort to unsafe alternatives. They say the real intent of the Texas law was to effectively deny many their rights to an abortion under the Supreme Court’s landmark Roe v. Wade decision.

    More clinic closures are expected if abortion providers must also qualify as ambulatory surgical centers. Currently, only seven clinics, located in the state’s five biggest cities, qualify as surgery centers.

    But supporters of the law say it will improve women’s health by imposing more rigorous quality-control standards on clinics.

    “The ambulatory-surgical-center rule requires providers to have more emergency accommodations in place than they currently have in the event something goes wrong,” said Emily Horne, a legislative associate with Texas Right to Life. “The new law makes clinics safer for women.”

    Write to Nathan Koppel at

    Betty A. Springate sworn in as district judge for Anderson, Shelby and Spencer counties

    Thursday, August 28th, 2014


    Press Release Date: Friday, August 01, 2014
    Contact Information: Leigh Anne Hiatt, APR
    Public Information Officer
    502-573-2350, x 50031

    Judge Springate

    FRANKFORT, Ky. — Betty A. Springate, an attorney from Lawrenceburg, has been sworn in to fill the vacant District Court judgeship for Anderson, Shelby and Spencer counties. The seat represents the 53rd Judicial District, Division 1. The vacancy was created when Judge Linda S. Armstrong resigned March 16, 2014.

    District Judge Donna G. Dutton swore in Judge Springate on June 30. Judge Dutton serves in the 53rd Judicial District, Division 2.

    Judge Springate’s legal career includes positions as general counsel for the Kentucky Labor Cabinet and administrative law judge for the Kentucky Workforce Development Cabinet. She also served as assistant county attorney and county attorney for Anderson County. She retired nearly two years ago and currently serves on the Anderson County board of the United Way.

    She earned a juris doctor from the University of Baltimore School of Law after completing a bachelor’s degree from the University of Kentucky and a master’s degree in education from the University of Louisville.

    Judge Springate and her husband, Jerry L. Springate, who is also an attorney, have a son and a daughter, Jay and Scarlett.

    Judge Springate will not be on the ballot in the November general election and will serve only until the new judge elected in November takes the bench in January 2015.

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

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

    District Court
    District Court judges handle juvenile matters, city and county ordinances, misdemeanors, violations, traffic offenses, probate of wills, arraignments, felony probable cause hearings, small claims involving $2,500 or less, civil cases involving $5,000 or less, voluntary and involuntary mental commitments and cases relating to domestic violence and abuse.

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

    DA Not Obliged to Pay for Subpoenaed Documents

    Thursday, August 28th, 2014

         DALLAS (CN) – A Texas bank cannot force a district attorney’s office to compensate it for producing over 38,000 pages of subpoenaed account records, a Texas appeals court ruled.
    Preston State Bank was served with a subpoena in October 2009 asking for documents from two of its account holders. After the Dallas-based bank complied with the request, it asked about reimbursement, only to be told it is not entitled to recover costs for a criminal grand jury subpoena.
    Preston sued Collin County District Attorney Greg Willis in 2010, claiming his office’s refusal to reimburse it for the documents amounts to an unconstitutional taking of property for public use under both the state and federal constitutions.
    According to the trial court, the bank “nobly complied with the grand jury subpoena so as not to delay the prompt and efficient administration of justice and agreed to take its arguments to court to settle.”
    Texas later intervened in the suit to defend the section of the Texas Finance Code that purportedly exempts the government from reimbursing the production of private records for a government subpoena.
    In January 2012, the trial court denied the bank’s motion for summary judgment and granted Willis and the state’s cross-motion for summary judgment.
    A three-judge panel with the 5th District Court of Appeals affirmed the ruling on Tuesday, agreeing that there was no unconstitutional taking.
    Writing for the court, Justice David L. Bridges cited the U.S. Supreme Court’s ruling in Hurtado v. U.S. in 1973 that said “the Fifth Amendment does not require the government pay for the performance of a public duty it is already owed.”
    In that case, the court rejected potential witnesses having a right to reimbursement for expenses incurred in testifying.
    “The bank concedes the government may subpoena records,” Bridges’ 16-page opinion stated. “The bank also concedes that it has a duty to comply with the subpoena. The point of contention between the bank and appellees is whether a party must fulfill that duty without compensation. The United States Supreme Court has concluded that it must.”
    Bridges disagreed with the bank’s argument that the extension of Hurtado for document production by federal appellate courts happened before Congress enacted a law in 1978 requiring reimbursement to banks for complying with financial records requests “made by a government authority.”
    “But the fact that Congress has provided for compensation does not alter the constitutional analysis,” the opinion stated. “Whether or not the legislature has chosen to provide reimbursement, there is no constitutional taking.”
    Bridges ruled for Willis and the state in spite of disagreeing with the trial court’s conclusion that a “taking” had taken place, just not an “unreasonable taking.”
    “But when there is any taking, the bank argues, whether reasonable or unreasonable, the government must pay compensation,” he wrote. “UnderHurtado, however, there is no taking. No compensation is required by either the state or the federal Constitution.
    Although the trial court erred by concluding that a ‘taking’ occurred, that error did not cause the rendition of an improper judgment, because the judgment did not require any compensation for the alleged ‘taking,’” Bridges wrote.
    He also agreed that it was within the trial court’s discretion to deny both sides’ motions for attorney’s fees.
    Preston State Bank did not immediately respond to a request for comment Wednesday evening. 

    Education and Workforce Development Cabinet New report shows employment, earnings for graduates of Kentucky’s public four-year universities

    Thursday, August 28th, 2014


    Press Release Date: Tuesday, August 05, 2014
    Contact Information:

    FRANKFORT, Ky. (Aug. 5, 2014) — A report released today from the Kentucky Center for Education and Workforce Statistics (KCEWS) on the Commonwealth’s eight public four-year universities shows that students from Kentucky were more likely to stay in the state to work than students from out-of-state. It also indicates that people who complete postgraduate degrees are less likely to remain in Kentucky to work than people with undergraduate degrees.


    More than 80 percent of the Kentucky students who graduated with a bachelor’s degree from one of the Commonwealth’s public universities were working in Kentucky a year later, compared to less than 30 percent of the out-of-state students, according to the 2014 Kentucky Postsecondary Feedback Report.


    The report provides in-depth data by institution about which degrees are pursued and the employment of graduates, as well as information about students who go on to pursue advanced degrees, average wages for various degree categories, and some insights into what happens to students who leave without a credential and do not continue their education elsewhere.


    The report includes Eastern Kentucky University, Kentucky State University, Morehead State University, Murray State University, Northern Kentucky University, Western Kentucky University, the University of Louisville and the University of Kentucky. It does not include associate’s degrees from the Kentucky Community and Technical College System or degrees from independent colleges in Kentucky.


    “This is the first report of its type in the nation that takes a deep look into what happens to our graduates after they leave college. The reports provide critical information for students and parents to help them make decisions about what they want to study,” said KCEWS Executive Director Charles McGrew, Ph.D.


    “Employment and earnings shouldn’t be the only factor when people decide what or where to study, but given the current economic climate, it is much better to know before you choose than to be surprised after graduation,” he said.


    Council on Postsecondary Education President Bob King said, “This is a comprehensive report with key takeaways that can help campuses improve programs and services to students, while assisting students and families with making informed college decisions. The findings are telling us that the majority of our graduates are employed in Kentucky, confirming a solid return on the state’s investment in higher education.”



    More than 80 percent of the students who completed an associate’s degree and nearly 75 percent of those who completed a bachelor’s degree from one of the public universities were identified as working in Kentucky five years after graduation. However, about 61 percent of graduate degree earners, such as those with a master’s degree or doctorate degree, were employed in Kentucky after five years. For professional degrees such as those in medicine or law, 65 percent were working in the state after five years.


    “National data suggests that wages in other states are typically higher and we know people with higher levels of education on average tend to be mobile. In many ways this report tells us as much about Kentucky’s economic opportunities for our college graduates as it does about the universities themselves,” McGrew said.


    King said that the report will also be beneficial to employers and policymakers as they gain a greater understanding of the characteristics of graduates, transfer students and those who leave college.


    The report shows that students who completed an associate’s or bachelor’s degree in a health or science, technology, engineering and math (STEM) related field earned more in general five and 10 years after graduation than most other majors. People who receive an associate’s degree in health earned more on average than people who earned bachelor’s degrees in other types of fields. However, health and many STEM areas are selective admission programs and many have caps that control the number of students who can be selected.


    Data from the report comes from the Kentucky Longitudinal Data System. Employment information is limited to people who work in Kentucky because it comes from the state Unemployment Insurance System.


    “We estimate that the employment data covers 90 percent of the people who are employed in the state; however, we currently have no data on students who work in other states. I am confident most of the students who are not identified as working in Kentucky are still working – they are just working somewhere else,” McGrew said.


    In 2011-12, the total enrollment at Kentucky’s eight public universities was 84,998. The combined number of students who received undergraduate and postgraduate degrees for that year was 14,289.  


    STEM graduates from the public research universities – which include the University of Kentucky and the University of Louisville – were the most likely to continue their education from any of the public programs, with more than 28 percent moving directly into graduate school, according to the report.


     “When comparing associate’s degree earnings to earnings from graduates with a bachelor’s degree in the same field, more education in general translates into more income, which is what most people would expect to see,” said McGrew.


    The report also includes a snapshot of what happens to students who leave without completing a degree or transferring to another college. The majority are found working a year later. Three fourths of the in-state students who left in 2012 were found working in Kentucky a year later.


    “On average, though, their wages were close to what someone would make working full-time at minimum wage which is about $15,000 per year. While this may seem low, this is still considerably more than high school graduates who do not attend college at all earn, so the impact of having at least some college is apparent. Still, the wages are far behind those earned by the average person who completed a degree from the same institution,” McGrew said.


    To view this report, visit


    KCEWS collects and provides information about education and workforce at all levels to better inform policymaking statewide. It maintains the Kentucky Longitudinal Data System which securely links information from the Kentucky Department of Education (KDE), the Council on Postsecondary Education (CPE), the Education Professional Standards Board (EPSB), the Kentucky Higher Education Assistance Authority, and the Kentucky Education and Workforce Development Cabinet. For more information, go to


    The Judicial System’s Blessing Of Police Use Of Excessive Force Makes It Nearly Impossible To Hold Bad Cops Accountable

    Thursday, August 28th, 2014

    from the the-courts-have-cops’-backs,-but-who-has-yours? dept

    It’s not just the thin blue line insulating bad cops from accountability, it’s the entire judicial system. From lower-level judges treating statements from police with amazing amounts of credulity even in the face of past misconduct or contradictory recordings to the nation’s top court, the judiciary branch, giving police officers built-in defenses that far exceed those available to the public.

    An op-ed by Edwin Chemerinsky (lawyer and Dean of Law at the University of California, Irvine)notes that recent decisions by the Supreme Court have put even more distance between bad cops and accountability. Earlier this year, the nation’s top court essentially gave police officers permission to open fire on anyone deemed a threat and not stop firing until they determined the threat to be neutralized.

    A suspect that led police on a 100-mph chase met his end when police officers fired 15 bullets in his vehicle, killing him and his passenger. Although other methods may have ended this chase without resulting in the suspect’s death, the Supreme Court found nothing about this use of force was “excessive.”

    The Supreme Court reversed the decision of the Court of Appeals for the Sixth Circuit and ruled unanimously in favor of the police. Justice Samuel A. Alito Jr. said that the driver’s conduct posed a “grave public safety risk” and that the police were justified in shooting at the car to stop it. The court said it “stands to reason that, if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended.”

    While the police have access to a wide variety of tactics and less-lethal weapons when dealing with “public safety risks,” there’s really no need for them to use anything but their guns. (Which they do… with gusto.) The Supreme Court’s decision turns any perceived threats to “public safety” (practically speaking, “officer safety“) into blank checks for excessive force.

    Federal courts aren’t much better than the Supreme Court when it comes to prosecuting excessive force. Amanda Taub at Vox, writing about the ongoing investigation into Ferguson police officer Darren Wilson’s killing of unarmed resident Mike Brown, notes that while officers can find themselves facing both local and federal charges, Officer Wilson’s chances of walking away from this situation intact are still very high.

    Simple murder is not a federal offense, but it is a federal crime for a police officer to deprive someone of his rights under the Constitution. If a victim dies, the perpetrator can be sentenced to life in prison or even the death penalty. That means the DOJ could prosecute Wilson under federal law for violating Brown’s civil rights, if the evidence supports that charge.

    Federal civil rights prosecutions are rare, though, and convictions are even rarer. Astudy from Syracuse University’s TRAC program found that between 1986 and 2003, fewer than 2 percent of civil rights matters referred to the DOJ were ever prosecuted. Out of 43,331 referrals, 690 were actually prosecuted — and of those, 423 resulted in a conviction.

    If pursuing criminal charges seems futile, Wilson could still face a civil lawsuit, with only a slightly greater chance of success. This, too, can be traced back to the Supreme Court.

    When there is not absolute immunity, police officers are still protected by “qualified immunity” when sued for monetary damages. The Supreme Court, in an opinion by Justice Antonin Scalia in 2011, ruled that a government officer can be held liable only if “every reasonable official” would have known that his conduct was unlawful. For example, the officer who shot Michael Brown can be held liable only if every reasonable officer would have known that the shooting constituted the use of excessive force and was not self-defense.

    We already know the Ferguson Police Dept. believes Wilson’s actions to be defensible. Statements released by the department claim that Mike Brown got into an altercation with Officer Wilson and tried to grab his gun. It has also claimed that Officer Wilson suffered injuries from Wilson’s attack (although it has released no photos or medical information to back up these claims). The courts have repeatedly shown that officers claiming to fear for their safety are fully justified in deploying deadly force. In the absence of any start-to-finish recordings of the incident, it becomes the police department’s word against the words of Mike Brown’s legal representatives. And the department will have some form of immunity as well as “officer safety” to deploy in its defense.

    With all of this in play, it seems unlikely that there will be a satisfactory resolution to the Ferguson situation. And, despite all appearances otherwise, Officer Wilson may truly be justified in his shooting of Mike Brown. But the legal roadblocks erected by every level of the judicial system makes it extremely difficult to combat the use of excessive force. Even when the system comes together to punish officer wrongdoing, it’s rarely the officer that bears the burden. Whether it’s a settlement or a prison sentence, it’s still the public footing the bill.

    Judges’ rulings take away workers’ rights

    Wednesday, August 27th, 2014

    august 27 2014tags: , , , , 


    If there ever is a year that proves the importance of judges’ rulings to workers’ rights, 2014 is it. That’s because the jurists in black robes spent much of the year taking rights away.

    From the U.S. Supreme Court down to the Los Angeles Superior Court, judges issued rulings that stripped workers of what they had won over the years through collective bargaining, lobbying, or both.

    And those two courts’ rulings are actually part of a larger Right Wing campaign to destroy workers’ rights by killing or crippling unions – something the judges involved didn’t say.

    The High Court opened the door to thousands of “free riders,” and possibly tens of thousands of union defections, in its Harris vs. Quinn decision. There the justices said that home health care providers paid by the state, whose salaries and benefits were set by the state and whose contract was negotiated by the state with the union a majority of the providers selected, were not really public workers.

    That’s because the providers actually worked for a second “employer” – the elderly or disabled individuals they care for. Because of that, they’re only “partially public” workers, Supreme Court Justice Samuel Alito wrote for the 5-man GOP-nominated court majority, and thus “free rider” workers who didn’t want to join the union, but who still get benefits of its contract and its protection in their grievances, didn’t have to pay one red cent for the services.

    Alito’s ruling prompted Justice Elena Kagan, leading the dissenters, to forecast a mass exodus, on economic grounds, of workers from public employee unions. Why, she reasoned, should they pay for union services when, under Alito’s dictum, they can get them for free?

    In Los Angeles, teachers’ tenure, at least in California, fell victim to Superior Court Judge Rolf Treu. He ruled the state’s teacher tenure laws violated the California constitution’s requirement of equal protection of the law – in this case the law mandating a quality education to all students.

    The case was ostensibly brought by a small group of middle-school students who said the tenure laws saddled them with incompetent and unqualified teachers and violated their rights. But if was funded by Right Wing anti-union lawyers and groups. Treu sided with the Right Wingers. Their allies promptly launched a second such case, in New York, and a ballot initiative in Missouri.

    Treu’s ruling “stoops to pitting students against their teachers. The other side wanted a headline that reads: ‘Students win, teachers lose.’ This is a sad day for public education,” said AFT President Randi Weingarten. Treu is right that poor and minority students often fall behind others, added Weingarten, a New York City teacher whose union represents mostly teachers and staff in major cities. But Treu’s ruling didn’t explain why, she added.

    Treu “argues, as we do, that no one should tolerate bad teachers in the classroom. He is right on that. In focusing on these teachers who make up a fraction of the workforce, he strips the hundreds of thousands of teachers who are doing a good job of any right to a voice.”

    The two decisions were among a raft of key rulings on workers’ rights. Others included:

    Whistleblower protection. The justices ruled 9-0 in late June that a public worker cannot be fired for whistleblowing by testifying – truthfully – about fraud before a grand jury and in a trial. In Lane vs. Franks, an Alabama community college president had fired the whistleblower, Edward Lane. The National Education Association helped Lane’s case. The High Court backed Lane, but said employers still retained some residual rights to fire whistleblowers in order to maintain discipline and order in the workplace.

    The win in Lawson vs. FMR was the second pro-whistleblower ruling by the justices. On March 27, in a 6-3 vote, Justice Ruth Bader Ginsburg ruled that firms – and specifically mutual funds and the subcontractors, such as lawyers, that serve them – could not retaliate against workers who report fraud.

    “The mischief to which Congress was responding” is the Sarbanes-Oxley law curbing mutual funds’ abuses “shelters employees of private contractors and subcontractors, just as it shelters employees of the public company served by the contractors and subcontractors,” Ginsburg said. “The mutual funds themselves are public companies that have no employees. Hence, if the whistle is to be blown on fraud detrimental to mutual fund investors, the whistleblowing employee must be on another company’s payroll, most likely, the payroll of the mutual fund’s investment adviser or manager.”

    Ruled Obama exceeded his authority

    NLRB hamstrung? The justices ruled that President Obama exceeded his powers when made three “recess appointments” to the NLRB in 2012. The Senate was in pro-forma sessions at the time – one senator would come in every three days, gavel a session to order and then adjourn it, usually within seconds – to prevent Obama from naming appointees to key jobs in the interim. The justices said the Senate was right, not Obama. That left 120 NLRB cases where the “recess appointees” voted up for grabs. Left unsaid by the justices: Obama had to make the recess appointments because Senate Republican filibusters had blocked all his regular NLRB nominees, as the GOP wants to bring the NLRB – and labor law enforcement – to a dead halt.

    ESOP trustees must be prudent – and held responsible – when they invest workers’ money in company stock. That’s what the Supreme Court ruled in late June in Fifth Third Bancorp vs. Dudenhoeffer. The Labor Department went to bat for workers in the ESOPs. Until the ruling, DOL said, ESOP trustees could act under a presumption that investing in their own firm’s stock was OK, regardless of the risks involved. But Fifth Third invested workers’ ESOP money in its own stock even though the trustees knew the bank had millions of dollars tied up in subprime mortgages. When they collapsed, so did the stock, and so did the ESOP’s assets.

    “When the savings and assets of hardworking Americans are at stake, trustees need to be able to demonstrate that they’ve acted responsibly. Getting rid of the presumption will put an end to shielding trustees from liability in companies like Lehman Brothers, where the ESOP lost all its value when the company collapsed; and in Fifth Third, where the trustees purchased company stock despite knowing the risk associated with the company’s exposure to subprime mortgages,” DOL said.

    There’s a similar case making its way through the California courts. The California Court of Appeals sent the case involving CalPERS and stock and bond rating agencies back down for a new trial. It said the lower courts erred by throwing CalPERS’ suit out the first time.

    “Quite simply, CalPERS provided sufficient evidence to make a prima facie showing that the representations embodied in the ratings reflect not just professional opinions regarding an event in the future such as the likelihood of default, but also regarding a past or existing fact-namely, the then-current composition and quality of the product,” the California judges wrote.

    “The rating agencies were deeply involved in the very creation of the product,” special investment vehicles (SIVs) that “by nature, are ‘perpetual financing vehicles’ designed to ‘continuously roll paper.’ ” The bond rating agencies, such as Moody’s, must “continuously monitor” the SIVs – and anything else they invest CalPERS’ pensioners money in. They did, but didn’t tell CalPERS that the SIVs were about to flop – or get out of them. That means CalPERS can sue to hold the rating agencies responsible, the judges said.

    If you’re going to bring a racketeering case against your boss, you’d better show you got hurt, not an economic theory saying you could get hurt. That’s what the 11th U.S. Circuit Court of Appeals in Atlanta decided on March 14 in a case pitting Melissa Simpson and Sabrina Roberts against their employer, the Sanderson Farms poultry processing company in Georgia. The two workers alleged Sanderson violated federal racketeering laws by driving wages of all workers at the plant – which is non-union – down by hiring 300 undocumented workers through falsely concocting legal papers for them. The total workforce is 1,500.

    The Sanderson case is the second anti-racketeering case out of Georgia alleging an employer broke the law by importing undocumented workers and falsifying their papers. The catch in this one, the judges said, was that Simpson and Roberts had to prove their wages suffered because of the hiring of the undocumented workers – and they didn’t. Simpson got a 34 percent raise over two years, and Roberts got 36 percent after one. The two said their wages, and the wage of Sanderson workers as a class, would have risen even more if the firm hadn’t conspired to hire the undocumented. The judges said they didn’t prove it.

    Will the Supreme Court decide whether judge-found facts can be used to increase a federal sentence?

    Wednesday, August 27th, 2014


    Last May I noted a recent cert. petition challenging the use of judge-found facts to increase a federal sentence. (The Supreme Court has already said that it is unconstitutional for statutes to rely on judge-found facts to justify a longer sentence; the new question is whether it is also unconstitutional for common-law rules like appellate reasonableness review to do the same thing. I first blogged about the case here.)

    I thought I’d post with a short update about the petition. Two amicus briefs were filed in support of the petition — one from the Cato Institute and Rutherford Institute, and one from Professor Douglas Berman, known to all of the blogosphere for his tireless work at Sentencing Law and Policy. The Court asked the government for a response, which is posted here. And the defendants filed a reply. It is distributed for conference at the end of September.

    Looking at the petition and the amicus briefs, I was struck by something: Different people are concerned about different types of judge-found facts. Some are most concerned about facts that are made legally dispositive (emphasized by the cert. petition). Some are most concerned about facts about the offense, as opposed to facts about the offender (noted at the end of the Cato brief). Some are most concerned about facts on which the jury acquitted, as opposed to those that were simply never charged (emphasized by the Berman brief).

    So far as I can tell, these defendants’ case lies at the center of all three concerns. So if the Court is indeed interested in deciding whether appellate common-law rules are subject to the same constraints as statutory law — as Justices Scalia and Thomas have argued — the case seems like the right vehicle.

    That said, it may well be that the other members of the Court do not think that such sentencing is a problem, or do not care. And the government’s response also claims that the case is a bad vehicle because none of the defendants can show that their sentences were deemed reasonable only because of the judge-found facts:

    Even if as-applied challenges were theoretically available, no such claim could succeed on the facts of this case. Cf. Rita, 551 U.S. at 373-374 (Scalia, J., concurring in part and concurring in the judgment) (disavowing any claim of an as-applied Sixth Amendment violation where the petitioner could not demonstrate that his sentence would have been unreasonable absent a judge-found fact). Petitioner Jones could not establish that, without the district court’s finding, his 180-month sentence would be unreasonable, given his status as a career offender and his resulting advisory Guidelines range of 324 to 405 months of imprisonment. See pp. 4-5, supra. Petitioner Ball also could not establish that his sentence was unreasonable, in light of the seriousness of his crime of conviction, the quantity of drugs that he personally distributed, and his long history of drug dealing. See p. 5, supra. Similarly, petitioner Thurston could not meet the unreasonableness standard, in light of his long criminal history and numerous arrests for drug offenses and violent crimes. See p. 5, supra. This case presents a particularly weak case for a claim that petitioners’ sentences were substantively unreasonable because the district court varied downwards from the applicable Guidelines range and imposed below-range sentences.

    Yet here is the reply:

    Petitioners do not claim to have led blameless lives: they were, after all, convicted of isolated street-level sales of crack cocaine. But in painting this case as a purportedly poor vehicle for review, the Government’s statement of facts principally mirrors its conspiracy theory, which the jury unanimously rejected.

    It claims that Petitioners were members of a “loosely-knit gang” and “engaged in acts of violence against rival gangs.” Ball, it contends, was “one of its leaders.” Next it devotes virtually a full page to spelling out the underlying charges. Only then does it concede that a jury (after an eight month trial) acquitted them of everything except Ball’s single count of distributing crack cocaine and Thurston’s and Jones’ two counts of distributing crack. Even then, it fails to disclose the amounts: for Ball, 11 grams, for Thurston and Jones, 2 grams or less.

    The Government’s lengthy characterization of Petitioners and the charges brought is a smokescreen to limit reasoned discussion of the Question Presented. One might look to Thurston, whose sentence fell in the middle of Petitioners’ sentences. He received 194 months’ imprisonment for a conviction that normally yields a-33 month term, and for which no one similarly situated during the post-Booker era received more than 51 months incarceration. Moreover, the Government’s extravagant claims made here about him were never found by a jury, apart from having sold a miniscule amount of crack.

    …As for Ball, he was never charged with possessing a weapon when he made his crack sale and no evidence to the contrary was presented below. Nothing else the Government says here about him (or Jones) was proved to a jury, either, aside from the street-level sale.

    For what it’s worth, I find it particularly relevant that the D.C. Circuit opinion under review did not adopt the government’s approach to avoiding the question, and instead squarely announced that “Whatever the merits of Justice Scalia’s argument, it is not the law.”

    Here’s more coverage by Tony Mauro. And finally, in the spirit of full disclosure: I have discussed some of these issues with several of the lawyers involved in the case, but of course these views are entirely my own.

    Secretary Grimes Announces Upcoming Candidate Filing Deadline

    Wednesday, August 27th, 2014


    Press Release Date: Tuesday, July 29, 2014
    Contact Information: Lynn Sowards Zellen,
    Bradford Queen,
    (502) 564-3490

    Independent, political organization and political group candidates running for most offices in Kentucky must file their petitions of nomination and pay the filing fee by August 12, 2014. The paperwork must be received by the filing official by 4 p.m. prevailing local time.

    “I encourage all interested individuals to complete their filings as soon as possible to allow time to address any problems with their paperwork,” said Secretary of State Alison Lundergan Grimes.

    Independent, political organization and political group candidates for many offices were required to file a statement-of-candidacy form no later than April 1, 2014, to be qualified. That prerequisite does not apply to candidates for federal offices, nonpartisan offices, and mayor or legislative body of cities of the second to sixth classes that conduct partisan elections.

    “The Secretary of State’s office and our county clerks are ready to assist all potential candidates with questions they may have,” said Grimes. “We hope to see continued interest in serving Kentuckians in public office.”

    Following the August 12 filing deadline, public drawings for ballot position will be held in the filing officials’ offices at 2 p.m. on August 14.

    # # #


    Tuesday, August 26th, 2014

    Judge Julie Reinhardt-Ward, Campbell County Circuit Court, is accepting resumes for an attorney position.  The deadline to send a resume is August 30, 2014.

    Resumes can be sent directly to me at  The salary has increased to $33,100.00 per year, plus benefits.

    I am seeking a qualified applicant who is interesting in filling the position for two years or longer.  Starting date is September 15, 2014.


    Pennsylvania Court — Unconstitutional mandatory minimum sentences invalidated even if they predated Alleyne

    Friday, August 22nd, 2014

    Filed under: Criminal Law by Contributor @ August 21, 2014

    When it was decided in 2013, the legal community knew that Alleyne v. United States would have a large impact on criminal trials throughout the country. Alleyne made mandatory minimum sentences elements of the crime that must be submitted to juries rather than decided upon by judges during sentencing. The only question of Alleyne was when we would see it start to take effect in the rest of the country. The answer, as it turns out, is now.

    In Commonwealth v. Newman, 2014 Pa.Super. 178, the defendant challenged the constitutionality of a Pennsylvania mandatory minimum sentence after he had been arrested for and found guilty of selling drugs. The Commonwealth had sought to invoke a mandatory minimum because a firearm had been found “approximately six to eight feet” from the drugs. During sentencing, which occurred prior to the decision of Alleyne, a mandatory minimum was imposed. Newman appealed his sentence.

    The Superior Court vacated the sentence, finding that Alleyne made the current mandatory minimum sentencing practice in Pennsylvania unconstitutional. In this case, the element of whether the gun was “in close proximity” to the drugs would have to be submitted to the jury. Most importantly, the Court also found that Alleyne applied retroactively to Newman’s case. The importance of the retroactivity is that people who were sentenced to mandatory minimum sentences in the past can get relief even if the sentence was imposed prior to the decision in Alleyne.

    Kentucky Supreme Court discusses Plea Bargain system, and acknowledges that attorneys cannot ethically waive their (11.42) liability to their client in a Plea Bargain.

    Friday, August 22nd, 2014


    Aug. 21, 2014

    (the following LawReader synopsis is available for our subscribers.  Every Ky. appellate decision is summarized and published on LawReader each week.)

    Click to Read Full Text

















    “Ours is for the most part a system of pleas, not a system of trials[.]” 1 is the Plea bargaining is “not some adjuncto the criminal justice system; it criminal justice system.”

    The pervasiveness of plea bargain agreements in the Courts of the Commonwealth cannot be overstated. Today, we deal with the ethical ramifications of one aspect of this “horse trading between prosecutor and defense counsel.

    “The United States Attorneys for the Eastern and Western Districts of Kentucky (United States) have moved this Court to review the merits of Kentucky Bar Association (KBA) Ethics Opinion E-435, an ethics advisory opinion, which finds the use of ineffective-assistance-of-counsel (IAC) waivers in plea agreements violates our Rules of Professional Conduct.

    We agree with the KBA that the use of IAC waivers in plea bargain agreements (1) creates a non-waivable conflict of interest between the defendant and his attorney, (2) operates effectively to limit the attorney’s liability for malpractice, and (3) induces, by the prosecutor’s insertion of the waiver into plea agreements, an ethical breach by defense counsel.

    Consequently, we hold that E-435 accurately states our ethical rules.



    Thursday, August 21st, 2014

    After an 18-year fight, Virginia Gaither has finally won justice for her grandson, a special education student who was tortured and murdered after Kentucky State Police used him to make a drug buy despite his identity being compromised.

    In a unanimous opinion, the Kentucky Supreme Court Thursday reinstated most of a $168,729 award to her that had been thrown out by lower courts.

    Justice Daniel Venters, writing for the court, said that in “what might be fairly described as the height of imprudence,” Detective Danny Burton and other detectives decided to use 18-year-old LeBron Gaither to make another buy on July 17, 1996, after he appeared as a witness before two grand juries and his cover was blown.

    Although the state is immune from liability for discretionary acts by police and other employees, the court said in a 6-0 opinion that it is well-known in law enforcement circles that a compromised informant must not be exposed to the danger of a buy-bust operation.

    LawReader users can read this decision which is posted on their front page along with 41 other decisions issued on August 21, 2014


    Making laws challenge-proof

    Thursday, August 21st, 2014

    Posted: Wednesday, Aug. 20, 2014

    Here’s an unreasonable solution to unreasonably bad legislation: If an N.C. lawmaker votes for a bill that is subsequently rejected by the courts, that lawmaker must help pay for resources that went into defending the flawed law.

    Absurd? Well, yes. But no more so than the latest legislative gem from N.C. Republicans – a provision in the state budget that fast-tracks all constitutional challenges of state laws directly to a three-judge panel appointed by the chief justice of the state Supreme Court.

    The law, which takes effect in September, will bypass pesky Superior Court judges, who keep rudely reminding Republicans that the Constitution matters when it comes to lawmaking. Republicans say the problem isn’t the laws, it’s the judges. A panel, they say, will keep activists from “judge shopping” – or finding a Superior Court judge who might issue a favorable ruling.

    Of course, this new law is judge shopping to the extreme: Challenges to state law will now leap straight to a panel selected by the Republican judges who control the state Supreme Court.

    The North Carolina State Bar and the N.C. Administrative Office of the Courts oppose the provision, which is the first of its kind in the country. There’s a reason for that: The law deprives plaintiffs the full appeals process they’re entitled to. That includes Superior Court judges issuing stays on legislation being implemented until matters are legally settled.

    All of which means that this law, too, can be added to the list of constitutionally flawed measures passed by N.C. Republicans in recent sessions. This year alone, federal judges struck down an N.C. law that would allow a “Choose Life” license plate, but not a pro-choice plate, as well as a provision in an N.C. law that required doctors to narrate ultrasound images for women seeking abortions.

    Also this year, Superior Court Judge Howard Manning rebuked legislators for an “unlawful taking” of Asheville’s water system, and Superior Court Judge Robert Hobgood had enough concerns with the legislature’s school voucher plan that he temporarily blocked it. The Supreme Court lifted that stay, but Hobgood will make a final decision on vouchers this week.

    We’re not sure why Republicans continue to hold their hands over the legal flame like this. It could be that controlling the legislature and governor’s mansion has left them with the illusion that no one, not even judges, should be able to tell them no. It could be they think there’s no harm in tossing a bad bill up against the wall and seeing what sticks.

    But there is harm. Passing flawed legislation wastes time and resources, and this most recent law shows an additional disregard for the role the courts play in lawmaking. Here’s a better – and even reasonable – idea: If some of the laws you pass are getting held up in court, don’t try to silence judges. Write better laws.

    Read more here:


    The Alabama legislature must respond to tort liability expansion

    Thursday, August 21st, 2014

    August 21, 2014
    By Richard Garrett

    Last Friday, the Alabama Supreme Court denied a rehearing in the case of Wyeth v. Weeks. This let stand a holding that name-brand drug manufacturers can be held liable for alleged misrepresentations or failures to warn in regard to generic drugs that they did not manufacture or distribute. The Court’s reasoning is shared by a very small minority of courts, both federal and state. To quote Justice Murdock in his dissent:

    This court continues to stand alone as the only appellate court in the country to hold that a brand-name manufacturer may be responsible for injuries caused to a party who ingests a generic drug that the name-brand manufacturer did not manufacture or sell. According to Wyeth, over 90 cases (a figure that includes trial courts) have been decided in 25 states, including every state that borders Alabama, the federal circuit court that encompasses Alabama, and all six federal courts of appeals to have considered the issue. With the exception of two or three federal district court decisions…all of them disagree with the position taken by this court.

    As Justice Murdock points out, being in a tiny minority does not necessarily mean you are  wrong, but it should certainly cause you to question your position.

    Although the majority does not agree, this opinion is a radical change in Alabama tort law.  Historically, Alabama and most states have required a relationship (buyer and seller, for example) in order for a duty to attach, whether for products liability or claims of misrepresentation/failure to warn.

    This holding says that a manufacturer can be liable to a plaintiff, with whom it has had no relationship, for a competitor’s products for ten, twenty, thirty years or more after it may have quit manufacturing or selling the drug itself. Common sense tells you that there is no conceivable way that manufacturers can project, provide for and (most likely) insure against such open-ended risk. The Legislature needs to study this issue and consider correcting the problem through legislation clarifying that Alabama tort law does not provide for this type of expansive liability.

    There are numerous reasons why a court is not the proper forum to address such complex policy issues. An appellate court makes a decision based on the facts of one case and in Wyeth, the facts before the Court were very limited. A federal court certified the case to the Alabama Supreme Court before any discovery had been done. Legislatures, unlike courts, are uniquely positioned to analyze the myriad complexities and consequences-many of them unintended-of such a change in the law.

    Why should Alabama citizens be concerned about a complex, convoluted and esoteric area of Alabama tort law? There are two simple reasons. One, if decisions like this one are allowed to stand, drug manufacturers will probably have to divert resources from research and development to protect against future liability. This will mean fewer life-saving and life-improving drugs in the future. Two, to help defray liability, all brand-name drugs will become more expensive. This is directly counter to past policy decisions of the Alabama Legislature to help with the rising cost of pharmaceuticals by passing laws that require pharmacists to dispense generic equivalent drugs in certain cases.

    The Mercatus Center ranks Alabama’s “lawsuit climate” as 47th worst in the country. Decisions like the one in Wyeth will only further that notion and may give pause to businesses that wish to relocate here. Now that the Legislature knows that the Court won’t do its own damage control, it’s time to act.

    Richard Garrett is a senior fellow with the Alabama Policy Institute (API). API is an independent non-partisan, non-profit research and education organization dedicated to the preservation of free markets, limited government and strong families.


    Kentucky’s troubled public employee pension system to get $23 million from Bank of America settlement

    Thursday, August 21st, 2014



    jcheves@herald-leader.comAugust 21, 2014

    Kentucky State Employees Pension system receives $23 million from Bank of America’s $16.65 billion national settlement with the federal government over accusations that the bank improperly dumped “toxic” mortgage-backed securities on the market, helping fuel the economic recession of 2008.

    KRS executive director Bill Thielen confirmed the sum Thursday morning.

    Kentucky Attorney General Jack Conway is scheduled to attend a 9 a.m. news conference in Washington, D.C., with U.S. Attorney General Eric Holder to announce a “historic recovery” for KRS, Conway’s office said early Thursday. Conway will share details of the recovery during an 11 a.m. conference call with Kentucky news media.

    KRS provides pensions and health-care benefits for state and local government retirees.

    The system provides pension and health care benefits for 340,626 present and future retirees from state and local governments. Some experts consider it the weakest state retirement system in the country. It faces $17 billion in unfunded liabilities due largely to inadequate state payments for most of the last 15 years, starting in Gov. Paul Patton’s administration. Some nonprofit agencies have sued for the right to exit the system.


    The ne Texas two-step: Texas Supreme Court articulates evidence spoliation framework

    Wednesday, August 20th, 2014

    Spoliation of evidence has, for some time, remained an important topic relating to the discovery of electronically stored information. Many companies continue to struggle with the burden and expense of various retention requirements in the era of “big data.” However, a recent Texas Supreme Court decision may bring clarity to companies concerned about their preservation obligations. On July 3, the Texas Supreme Court articulated a complete analytical framework to guide Texas courts in evaluating arguments regarding the spoliation of evidence. Brookshire Brothers, Ltd. v. Aldridge, No. 10-0846, 2014 Tex. LEXIS 562, 2014 WL 2994435 (Tex. July 3, 2014). The decision brings clarity to Texas law, though not without a few points of uncertainty.
    Case Background

    The Texas Supreme Court’s 6–3 holding in Brookshire Brothers arises in the context of a routine slip-and-fall premises liability case. Plaintiff Jerry Aldridge slipped and fell on a liquid substance at a Brookshire Brothers grocery store. Aldridge notified Brookshire Brothers immediately after his fall, but he did not know the full extent of his injuries until days later. Upon Aldridge’s return to the store, he complained of increased pain, so Brookshire Brothers documented the incident and preserved an eight-minute segment of video tape recorded on store security cameras at the time of the fall. The video clip began just before Aldridge entered the store and concluded shortly after he fell and left. Because the store’s cameras recorded video in a continuous loop, footage from the remainder of the day was automatically recorded over, approximately 30 days after the incident. Aldridge argued that the unpreserved portion of the video could have shown the source of the substance on the floor, whether additional employees may have seen the substance, or the effort necessary to clean up the substance following the incident.

    Along with allowing the jury to hear evidence bearing on whether Brookshire Brothers spoliated the video, the trial court submitted a spoliation instruction to the jury and also permitted the jury to decide whether spoliation occurred during its deliberations on the merits of the lawsuit.

    Ultimately, the jury found for Aldridge and awarded more than $1 million in damages. The court of appeals affirmed the trial court’s judgment on the verdict, holding that the trial court did not abuse its discretion in admitting evidence of spoliation or allowing the spoliation instruction. However, the Texas Supreme Court ultimately reversed the court of appeals’ judgment and remanded the case for a new trial, holding that the trial court abused its discretion in allowing the jury to hear evidence regarding spoliation and in submitting a spoliation instruction.

    The New Texas Framework

    The Texas Supreme Court set out to clarify the common law rules that govern spoliation of evidence in Texas and held that spoliation analysis involves a two-step judicial process:

    1. The trial court—rather than the jury—must determine, as a question of law, whether the party spoliated evidence.
    2. If spoliation occurred, the court must then assess an appropriate remedy.

    Under step one, the Texas Supreme Court found that in order to avoid unfair prejudice, and in a substantial departure from prior practice, the trial judge, outside the presence of the jury, must determine whether spoliation has occurred. And, if spoliation is found, the trial judge must decide the appropriate sanction. The court reasoned that spoliation is an evidentiary issue and not a separate cause of action, and because evidentiary issues are resolved by the trial court and not the jury, it is inappropriate to present spoliation issues to the jury for resolution.Brookshire Bros. 2014 Tex. LEXIS 562, *20-21 (citing Trevino v. Ortega, 969 S.W.2d 950, 954 (Tex. 1998)). The court also noted that while a trial court may hold an evidentiary hearing to assist the court in resolving spoliation issues, such a hearing may not take place in the presence of the jury. The court emphasized that the jury should focus on the merits of a case rather than on evidentiary issues. Id. at *22.

    In determining whether spoliation occurred, the court found that the trial court must find that the spoliating party had a duty to reasonably preserve evidence and the party intentionally or negligently breached that duty by failing to do so. Id. at *22. In assessing whether a party had a duty to reasonably preserve evidence, the court pointed to the standard articulated in Wal-Mart Stores v. Johnson. In that case, the Texas Supreme Court noted that “[s]uch a duty arises only when a party knows or reasonably should know that there is a substantial chance that a claim will be filed and that evidence in its possession or control will be material and relevant to that claim.” Brookshire Bros. 2014 Tex. LEXIS 562 at *22 (quoting Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 722 (Tex. 2003)). The “substantial chance of litigation” arises when “litigation is more than merely an abstract possibility or unwarranted fear.” Id. (quoting National Tank Co. v. Brotherton, 851 S.W.2d 193, 204 (Tex. 1993)). Once a duty is established, the party alleging spoliation must show that the other party breached that duty by failing to exercise reasonable care in preserving the evidence. Id. at *23.

    If a trial court finds that a party did not spoliate evidence under this standard, the inquiry ends. Upon a finding of spoliation, however, the trial court must turn to step two. Under step two, the court concluded that “the trial court has broad discretion to impose a remedy.”Brookshire Bros., 2014 Tex. LEXIS 562 at *24-25; see also Tex. R. Civ. P.215.2 (permitting a variety of sanctions while an action is pending), 215.3. In addition to the remedies available in the Texas Rules of Civil Procedure, the trial court also has discretion to craft other remedies, including the submission of a spoliation instruction to the jury. Id. at *25. The Texas Supreme Court noted, however, that spoliation is essentially a particularized form of discovery abuse and that any remedy must have a direct relationship to the act of spoliation it is meant to cure. The court provided several key considerations for trial courts weighing the culpability of the spoliating party and the prejudice to the nonspoliating party:

    • “[T]he relevance of the spoliated evidence to key issues in the case,”
    • “[T]he harmful effect of the evidence on the spoliating party’s case (or, conversely, whether the evidence would have been helpful to the nonspoliating party’s case),” and
    • “[W]hether the spoliated evidence was cumulative of other competent evidence that may be used instead of the spoliated evidence.”

    Id. at *26 (citing Trevino, 969 S.W.2d at 958 (Baker, J., concurring)). In adopting the criteria, the court noted that these factors had proved workable and were aligned with tests used in federal courts. Id. at *27.

    The court did note that the imposition of a spoliation instruction as a remedy, “among the harshest sanctions a trial court may utilize to remedy an act of spoliation,” should be taken cautiously. Brookshire Bros., 2014 Tex. LEXIS 562 at *30. In general, “a party must intentionally spoliate evidence in order for a spoliation instruction to constitute an appropriate remedy.” Id. at *31. But, even when a party intentionally spoliates evidence, the spoliation instruction may be imposed only when a less severe remedy would be insufficient to reduce the prejudice caused by the spoliation. The court also carved out an exception for certain cases where only negligence is found. This negligence exception, which the court called a “narrow caveat,” allows a trial court to impose a spoliation instruction “in the rare circumstance” when the spoliating party’s negligence “irreparably prevents the nonspoliating party from having any meaningful opportunity to present a claim or defense.” Id. at *38 (citing Wal-Mart Stores, 106 S.W.3d at 721).

    How Texas Law Differs from Fifth Circuit Jurisprudence and that of Other Circuits

    Under the Brookshire Brothers framework, courts can provide a spoliation instruction: (i) when a spoliating party acted with the specific intent of concealing discoverable evidence, and (ii) when a party has negligently failed to preserve information and that negligent failure has irreparably deprived the nonspoliating party of any meaningful ability to present a claim or defense. An open question remains as to how trial courts and the courts of appeals will interpret and apply the language governing the latter circumstance, deemed the “negligence exception.” While the Texas Supreme Court’s opinion states that the exception applies only in certain “rare” situations, parties claiming that spoliation has occurred will most certainly point to the negligence exception as opening the door to a broader application of spoliation instructions. In any event, the negligence exception is generally a departure from prevailing federal law.

    Under Fifth Circuit jurisprudence, “the severe sanctions of granting default judgment, striking pleadings, or giving adverse inference instructions may not be imposed unless there is evidence of ‘bad faith.’”Rimkus Consulting Grp., Inc. v. Camarata, 688 F. Supp. 2d 598, 614 (S.D. Tex. 2010). Mere negligence is not enough to warrant an instruction on spoliation. Id. Other circuits employ similar approaches and have held that negligence is insufficient for an adverse inference instruction. The Seventh, Eighth, Tenth, Eleventh, and D.C. Circuits have held that bad faith is required for an adverse inference instruction. Rimkus, 688 F. Supp. 2d at 614. The Third Circuit balances the degree of fault and prejudice. Id. at 615. In contrast, the First, Second, Fourth, Sixth, and Ninth Circuits have adopted an approach similar to the Brookshire Brothers framework and have held that bad faith is not essential to imposing severe sanctions if there is severe prejudice, although the cases often emphasize the presence of bad faith. Id. at 614; see also Brookshire Bros., 2014 Tex. LEXIS 562 at *38 (citing Silvestri v. General Motors Corp., 271 F.3d 583, 594 (4th Cir. 2001) in support of the newly articulated negligence exception); Beaven v. U.S. Dept. of Justice, 622 F.3d 540, 553-54 (6th Cir. 2010) (noting that negligent destruction of evidence can satisfy the requirements for the imposition of a spoliation instruction); Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 108 (2d Cir. 2002) (same).

    Upcoming Changes to the Federal Rules

    The varying approaches of the federal circuit courts of appeals will more than likely be replaced by a revision to the Federal Rules of Civil Procedure, at least insofar as electronically stored information is concerned. In May 2014, the Committee on Rules of Practice and Procedure approved changes to Federal Rule of Civil Procedure 37(e).See Judicial Conference Committee on Rules of Practice and Procedure Agenda Book for May 29–30, 2014 Meeting, at 318 (2014). Proposed Rule 37(e) states:

    “Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court may:

    1. upon finding prejudice to another party from loss of the information, order measures no greater than necessary to cure the prejudice; or
    2. only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation:
    1. presume that the lost information was unfavorable to the party;
    2. instruct the jury that it may or must presume the information was unfavorable to the party; or dismiss the action or enter a default judgment.”

    Id. This new rule, which must still be approved by the Judicial Conference, the U.S. Supreme Court, and Congress, supplants the existing Rule 37(e). In promulgating proposed Rule 37(e), the Committee noted that the federal circuits “have established significantly different standards for imposing sanctions or curative measures on parties who fail to preserve electronically stored information. These developments have caused litigants to expend excessive effort and money on preservation in order to avoid the risk of severe sanctions if a court finds they did not do enough.” Id.

    Proposed Rule 37(e) limits the trial court’s ability to impose severe sanctions on a party to only those circumstances in which the court finds that the party “acted with the intent to deprive another party of the information’s use in the litigation.” This standard is akin to the bad faith approach employed in the Fifth, Seventh, Eighth, Tenth, Eleventh, and D.C. Circuits. Notably, the proposed rule recognizes that “reasonable steps” to preserve electronically stored information suffice to satisfy a party’s preservation obligations. Indeed, the rule does not require perfection. Rather, the Committee Note that accompanies the rule states that “the routine, good-faith operation of an electronic information system would be a relevant factor for the court to consider in evaluating whether a party failed to take reasonable steps to preserve lost information, although the prospect of litigation may call for reasonable steps to preserve information by intervening in that routine operation.” Id. at 320.

    Under the proposed Rule 37(e), a court may instruct the jury that it may or must presume the information was unfavorable to a spoliating party only if the party acted with the intent to deprive another party of the information’s use in the litigation. This standard could differ from theBrookshire Brothers approach, which allows a spoliation instruction to be given both if the spoliating party acted intentionally or if the spoliating party’s negligence irreparably prevents the nonspoliating party from having any meaningful opportunity to present a claim or defense.

    Practical Implications and Takeaways

    There are several important practice points that litigants and their attorneys should consider in light of the Texas Supreme Court’s ruling. While the Brookshire Brothers decision has brought substantial clarity to Texas law, a business operating both in Texas and other states should be cognizant that the law of those other states as well as federal law may govern a subsequent dispute. It is, therefore, not sufficient to look solely to the Brookshire Brothers opinion for guidance on the consequences of evidence spoliation.

    Moreover, taking steps to preserve data and articulating those steps in the form of a retention policy and litigation hold program will help a company argue that a spoliation instruction is unwarranted. Companies should take care to issue litigation hold notices when appropriate, and companies should formulate reasonable policies to facilitate the preservation of evidence. While the negligent failure to preserve data can still subject a party to court-ordered penalties, reasonable data preservation procedures can help protect a company from more severe sanctions. However, under the Brookshire Brothers decision, a Texas trial court may impose a spoliation instruction when a nonspoliating party has been “irreparably deprived of any meaningful ability to present a claim or defense” under the negligence exception. It is difficult to predict whether a court will find the lost or destroyed evidence so crucial to the other parties’ case that a severe sanction, such as a spoliation instruction, is justified. Only time will tell how Texas trial courts will interpret the breadth of the negligence exception under the court’s new framework.

    California State Bar’s Institutional Memory is Failing….It forgets a Speaker Named Earl Warren

    Tuesday, August 19th, 2014



    State Bar’s Institutional Memory Is Failing; It Forgets a Speaker Named Earl Warren




    The State Bar has announced that U.S. Supreme Court Justice Antonin Scalia will be a speaker at its convention next month in San Diego, advising on its website: “Anthony Kennedy, the keynote speaker at the 2010 Annual Meeting, was the only other U.S. Supreme Court justice to make an appearance at the meeting.”


    It’s puzzling how the State Bar could be overlooking the appearance at its convention of the chief justice of the United States and seven of the associate justices.

    As this column recited on Sept. 3, 2008, in reaction to a lackluster line-up of speakers at the State Bar’s upcoming conclave:

    “In 1963, the State Bar honored Earl Warren in connection with the 10th anniversary of his appointment as U.S. chief justice. All of the federal high court’s associate justices were there for the five-day event except John Harlan, who was said to have had a prior commitment. All seven members of the California Supreme Court were present. Warren and California Chief Justice Phil Gibson both addressed a…dinner meeting.”

    And that Sept. 25 address in San Francisco by the chief justice was indeed a major one, coming at a time when the “Warren Court” was under a broad attack for “judicial activism” and “expansionism.”

    On a narrower scale, but sparking widespread attention, the far-right John Birch Society, and groups of like mind, were clamoring for Warren’s impeachment.

    Warren, who was governor of California when appointed to his judicial post by President Dwight Eisenhower in 1953, noted in his speech that he had not previously spoken before any bar association during his tenure as chief justice. But the invitation extended by State Bar President William P. Gray (later a U.S. District Court judge) was “so intriguing,” he related, that he could not resist accepting.

    The opportunity was probably more enticing than intriguing. A beleaguered chief justice could hardly call a press conference to respond to charges of a largely political nature. Warren needed an appropriate forum in which to counter the increasingly fierce assaults on the court—and him personally—and to portray the high court’s recent decisions as being reflective of the normal progression of law rather than a series of radical departures from settled law.

    What Gray offered Warren was an occasion for presenting his defense to the people of the nation—through the inevitable press accounts of his address—while speaking before an audience in his home state comprised nearly entirely of lawyers and judges (whose registration badges gained them the right of admission). The forum was one that was dignified; it was non-political; it was one where the audience was bound to be supportive…and Warren was, in fact, warmly received.

    The Los Angeles Times’ Sept. 26 issue reports that Warren “made no direct reference to specific attacks on the court or to the John Birch Society campaign to impeach him,” observing that he “spoke without rancor, but with a fervent appeal for appreciation of the court’s true function.”

    The full text of Warren’s address appears in the Sept. 27 issue of the Metropolitan News. It includes this passage:

    “This has been an interesting decade on the Court. The years have been challenging, and I need hardly tell you, they have been controversial. However, it is not the Court that has made them controversial—it is the times in which we are living. The landmark cases that came to us were charged with great emotion. But the same can be said in varying degrees of almost all the decades of our national life.



    The chief justice good-naturedly accepts a pamphlet from a woman holding an “Impeach Earl Warren” sign. She was one of about a dozen picketers outside San Francisco’s Masonic Auditorium to which Warren had come to deliver his address.


    “Since the Court came into existence almost 175 years ago, there have been few eras in which it has not been the center of intense controversy….”

    Warren points out in the speech that decisions of the Supreme Court “from the late thirties to the early forties were as highly controversial as any in our history,” yet are “now shorn of their emotion and are a part of the settled jurisprudence of the Nation.”

    Warren depicts the court as being misperceived in various ways. He scoffs at rumors of discord among the members, insisting:

    “I could count on the fingers of my hands—possibly one hand—all the times that there has been even a flare of temperament in the conference room, and those have always subsided in a matter of minutes. I can truthfully say to you what Mr. Justice Holmes said 50 years ago. His words were, ‘We are very quiet there, but it is the quiet of a storm center as we all know.’

    “But there have been people on the outside who, for reasons of their own, have enlarged upon an occasional sharp retort in Court or a few caustic sentences in a dissenting opinion to build imaginary feuds that never existed.”

    Warren relates that when the landmark school desegregation decision came down in 1954 in Brown v. Board of Education, “the Clerk of our Court for weeks was beset by scores of requests for copies of ‘the dissenting opinion.’ ” He remarks:

    “When told that there was no dissenting opinion, many of them demanded to know by whose orders the dissenting opinion had been abolished. Others, believing that there must be a dissenting opinion, threatened to have him investigated for suppressing it.

    “I am not surprised that people would have such an idea because the wildest speculations were in the press while those cases were under submission. Only a few days before the opinions were handed down, one prominent columnist on ‘unimpeachable authority’ wrote that the Court was bitterly divided four to four, and that both sides were making life miserable for me because I could not make up my mind. But the fact was that I wrote the opinions, and they were unanimous.”

    Warren acknowledges that during the 1936 term, only two of the 160 cases the court decided dealt with civil rights, while 54 out of the 120 decisions handed down during the 1960-61 term were in that field, remarking:

    “This disparity is the cause of conjecture on the part of many people. They wonder why only a little over 1 per cent of our decisions were in this area 25 years ago while almost 50 per cent are in this area now. Many of them say, ‘Don’t you think we are moving too fast in this area?’ as though the Court could regulate the speed with which such cases come to it.

    “There are many people, and I fear some lawyers, who believe that whenever the Court disapproves of some facet of American life, it reaches out and decides the question in accordance with its desires. I am sure many people do believe this to be true because they often say. ‘I do not disagree with your opinion, but do you believe this it a good time to decide such controversial questions?’ Such a question, of course, entirely misconceives the function of the Supreme Court and the limitation of its jurisdiction to actual cases and controversies.”

    An Associated Press account says:

    “Warren, whitehaired but spry at 75, has been a familiar figure during the State Bar convention. He has dropped in on actions, hailed old friends and talked over old times with people he knew in his long career here.

    “Warren drew a standing ovation when, unannounced, he strode into the State Bar [Conference of Delegates] meeting—in between debate on state’s rights and civil rights issues that touched on Supreme Court decisions.

    “‘I couldn’t resist the temptation to at least come and say hello,’ he told the 476 delegates.”

    Other members of the Supreme Court mingled with the lawyers. An AP photo shows Justice Tom C. Clark pouring coffee for San Francisco Deputy City Attorney Agnes O’Brien Smith (who later served as presiding judge of the San Francisco Municipal Court). Standing beside him at a breakfast meeting of the women’s division of the State Bar are Justices Hugo L. Black and Potter Stewart, with Justice Arthur Goldberg seated.

    Warren and Black were among those who attended a speech by then-California Supreme Court Justice Matthew Tobriner, according to a MetNews report.

    The California Judges Association, then known as the Conference of California Judges, used to hold its meetings in tandem with the State Bar convention (now referred to as the “annual meeting.”) Justices Clark and William Brennan addressed the conference that year—as Justice William Douglas had in 1949.

    That was not the only time a member of the U.S. Supreme Court, other than Kennedy and Scalia, addressed a State Bar convention in California. Justice Robert H. Jackson delivered the Morrison lecture on Aug. 23, 1951.

    Entitled “Advocacy Before the United States Supreme Court,” it is published in the Fall, 1951, issue of the Cornell Law Quarterly.

    So, prior to Kennedy’s address in 2010, at least two members of the U.S. Supreme Court spoke at a State Bar of California convention, and at least seven others made appearances there.

    Perhaps there were others. It could not responsibly be said that there weren’t others without looking through State Bar records from 1927 on.

    MEA CULPAS—While on the subject of gaffes in statements about history, a “Snippets” item in this newspaper awhile back referred to Court of Appeal Presiding Justice Joan Dempsey Klein of this district’s Div. Three as “the first female presiding justice in the state.” Klein has many distinctions, but that isn’t one of them.

    That distinction belongs to Annette Abbott Adams, appointed by Gov. Culbert Olson on March 30, 1942, to head the Third District Court of Appeals in Sacramento. An Associated Press dispatch that day quotes Olson as terming her “one of America’s outstanding women lawyers.”

    The appointment rendered her not only the first woman presiding justice in the state, but the first female member of the appellate bench in California.

    Though little remembered today, she attained national prominence in her time, even being mentioned as a possible vice presidential nominee.

    She was also the first woman in the United States to serve as a federal prosecutor, nominated by President Woodrow Wilson on Sept. 28, 1914, as assistant U.S. district attorney for the Northern District of California. She had worked to stir support among women for Wilson’s candidacy in 1912 (the first year women could vote in a presidential election), serving as president of the Women’s State Democratic Club.

    Adams gained international attention in connection with her wartime prosecution of Franz Bopp, the German consul general in San Francisco, along with four of his underlings, for violations of the Neutrality Act and the Sherman Antitrust Act. Bopp had plans for an expedition against Canada and to dynamite U.S. ships carrying ammunition to allies.

    The April 4, 1916, edition of the Aukland (New Zealand) Star observes that Adams “is recognised as the most astute female representative in the United States from a point of view of jurisprudence.” The article reports that a demurrer was sustained to the indictment owing to lack of specificity, continuing:

    “Undaunted by the victory of the defendants, Mrs. Adams, Uncle Sam’s only woman prosecutor, worked all night on plans for a new line of attack, and plugged up the holes in the quashed indictment….”

    It was presented to the grand jury, which approved it.

    Convictions came on Jan. 10, 1917.

    A Jan. 13 editorial in The Daily Inter Lake, a Montana newspaper, comments:

    “While the ‘silent picketing’ of the white house by suffragists tends to lessen the faith of many in the ability of women to exercise good judgment and ability in case trust is placed in them it is more than off-set by the accomplishment of a woman—Mrs. Annette A. Adams in the Franz Bopp case, which is now of international importance.

    “….According to the press dispatches a large part of the strength of the government’s case was due largely to her excellent work. It was she who opened the case, and who represented the government when the verdict was announced.

    “This year sees many women in high official positions throughout the country, and Mrs. Adams’ success is assuring.”

    A Jan. 18, 1914, article in the Fort Wayne Sentinel says that Adams “has achieved unusual distinction by the brilliancy of her work for the government” in the case. It reflects:



    First female presiding justice in California


    “She was entrusted with the important duty of making the opening argument for the prosecution in the closing hours of the famous heaving. The effective manner in which she performed the task won her the hearty compliments of her brothers in the legal profession. The spectacle of a woman asking the conviction of titled men was one of the outstanding features of the trial.”

    Another first for a person of her gender came on July 25, 1918 when U.S. District Judge William C. Van Fleet of the Northern District of California made a recess appointment of her as United States district attorney, on an interim basis. Van Fleet is quoted in the next day’s issue of the San Francisco Chronicle as saying:

    “I shall acquiesce in the suggestion that she be appointed to this post with entire satisfaction to myself that the work of the office will be performed to the very greatest degree of efficiency.”

    Wilson sent her nomination to the Senate on Feb. 27, 1919, and she was confirmed a few days later.

    In 1920, U.S. Attorney General A. Mitchell Palmer—architect of the “Palmer Raids,” aimed at mass arrests and deportation of alien radicals, and a candidate that year for the Democratic nomination for president (which he did not receive)—asked Wilson to appoint Adams as an assistant U.S. attorney general. The president obliged on May 29 of that year; on June 4, 1920, she was confirmed by the Senate, becoming the first woman to attain the post. In fact, that was the highest federal post held by a woman in the history of the nation.

    Adams attended the 1920 Democratic National Convention, which took place in San Francisco from June 28-July 6. She was there to rally support for Palmer’s long-shot presidential bid…and her own far-longer-shot bid, backed by women’s organizations, for the vice presidential nomination.

    A June 16 International News Service dispatch from San Francisco begins:

    “Will the Democratic vice president nomination go to a woman? This query was agitating not alone the feminine advance guard to the national convention here but was also being seriously discussed by the male contingent.

    “One well defined vice presidential boom for a woman is well under way and two other names of women prominent in the party are mentioned in connection with the proposal to place a lady close to, if not, actually in the While House.

    “The boom is for Mrs. Annette A, Adams of San Francisco….

    “Her availability as a candidate is being enthusiastically boosted by several Pacific Coast women’s clubs and endorsement to the boom has been given by a number of women leaders who have arrived here to attend the convention. Mrs. Adams today had not decided to become an active candidate for the nomination.”

    The Washington Post’s issue of June 20 carries a photo of Adams and reports that she “is being discussed by Democratic women as a possible candidate for the Vice Presidency….”

    The Boston Post, on that same day, includes an article that asks:

    “Are we going to have a woman for Vice-President if the Democratic ticket wins?

    “Just what will happen if Assistant United States Attorney-General Annette Abbott Adams is nominated and elected ‘right hand woman’ to our next President?

    “Will she set the fashions at the Capital for the women all over the country? And will they be feminine or masculine styles? Will she be willing to take orders from the ‘mere man’ in the Presidential chair? Will she give up all womanly interests and bury her sex under her career?”

    The newspaper notes that those who know Adams credit her with being a “brilliant lawyer and a charming woman,” as a “prosecutor feared by criminals and respected by the opposition,” and “a good cook.”

    The May 30, 1920, edition of the San Francisco Chronicle tells of Adams having recently been admitted to practice before the United States Supreme Court (actually, the previous March). Moving for her admission was U.S. Rep. John E. Raker, D-Northern California (in whose law office she had practiced), and administering the oath was Chief Justice Edward L. White. The admission fee was $10. When asked by the clerk to pay, the article recounts, she found she had only $7 in her handbag. She stepped into the office of White’s secretary and returned with the balance of the fee. Adams carried cash in her stockings.

    Adams was also the first woman to sit on the California Supreme Court—though by assignment, in 1950, participating in one case.

    She served as presiding justice until her resignation, effective Nov. 30, 1952. Her age was 75.

    Death came on Oct. 26, 1956.

    All persons mentioned above are deceased…with the possible exception of the unidentified woman holding the picket sign.

    Electronic case filing now available in Fayette County

    Tuesday, August 19th, 2014

    Media invited to eFiling news conference Wednesday in Lexington

    Electronic case filing now available in Fayette County


    FRANKFORT, Ky., Aug. 18, 2014 – Attorneys may now file Fayette County civil cases electronically since the Administrative Office of the Courts recently launched its eFiling program there. Media are invited to learn about the program at a news conference at 10 a.m. EDT Wednesday, Aug. 20, in the multipurpose room of the Robert F. Stephens Circuit Courthouse in Lexington.


    Speakers at the news conference will be Chief Justice of Kentucky John D. Minton Jr., Fayette County Chief Circuit Court Judge Thomas L. Clark, Fayette County Chief District Court Judge Megan Lake Thornton, Fayette County Circuit Court Clerk Vincent Riggs and Fayette County Sheriff Kathy H. Witt. Media may have the opportunity to get photos and video of a case being filed electronically. AOC Public Information Specialist Jamie Neal will be the on-site contact for media.


    Since the AOC began offering eFiling in Fayette County on Aug. 11, 10 cases have been filed electronically. Any Kentucky attorney handling a Fayette County civil case may file electronically if they have completed eFiling training.


    The AOC is training attorneys throughout Kentucky on how to use eFiling. Sessions are being offered in Fayette and Franklin counties and previously took place in Boone, Campbell and Kenton counties. There will have been 14 training sessions in Fayette County by Wednesday, with eight more scheduled to take place by Aug. 26. In Fayette County alone, there are 2,520 attorneys who are eligible to attend training.


    Fayette County is the sixth of 18 pilot sites for the eFiling program. The other pilot counties accepting cases through eFiling are Boone, Campbell, Franklin, Gallatin and Kenton. Only civil cases in Circuit Court and District Court may be filed during the pilot stage. The program will be extended to criminal cases this fall. The AOC expects to have eFiling available in all 120 Kentucky counties by the end of 2015.



    The AOC introduced eFiling to Kentucky state courts on Dec. 16, 2013, when it accepted the first electronic case filing at its test site in the Franklin County Office of Circuit Court Clerk. Franklin County was the proof-of-concept site, which means that limited functions were tested there before the full eFiling program was rolled out in the pilot phase. The site initially processed only civil cases filed in Circuit Court.


    eFiling is part of the Judicial Branch’s comprehensive, multiyear eCourt program. The goal is to update Kentucky’s aging court technology to meet the demands on the court system and enable the courts to stay current with the mainstream of law and commerce.


    The eCourt program will also upgrade the court system’s technology infrastructure (hardware and software), replace its case management systems for the trial and appellate courts, and acquire a document management system that will electronically store and index court documents.


    The Judicial Branch cleared a major hurdle on its eCourt program in March 2013 when it received legislative approval to issue bonds to fund a new case management system. Resolving the funding issue jump-started the eFiling process and made it possible to begin the proof-of-concept testing in Franklin County by the end of 2013.


    This eFiling milestone followed quickly on the heels of another major court technology rollout. In March 2013, the AOC launched CourtNet 2.0, which replaced the outdated CourtNet application and provides real-time, online access to Kentucky court case information.


    Administrative Office of the Courts

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


    Electronic case filing now available in Fayette County

    Monday, August 18th, 2014


    Media invited to eFiling news conference Wednesday in Lexington

    Electronic case filing now available in Fayette County


    FRANKFORT, Ky., Aug. 18, 2014 – Attorneys may now file Fayette County civil cases electronically since the Administrative Office of the Courts recently launched its eFiling program there. Media are invited to learn about the program at a news conference at 10 a.m. EDT Wednesday, Aug. 20, in the multipurpose room of the Robert F. Stephens Circuit Courthouse in Lexington.


    Speakers at the news conference will be Chief Justice of Kentucky John D. Minton Jr., Fayette County Chief Circuit Court Judge Thomas L. Clark, Fayette County Chief District Court Judge Megan Lake Thornton, Fayette County Circuit Court Clerk Vincent Riggs and Fayette County Sheriff Kathy H. Witt. Media may have the opportunity to get photos and video of a case being filed electronically. AOC Public Information Specialist Jamie Neal will be the on-site contact for media.


    Since the AOC began offering eFiling in Fayette County on Aug. 11, 10 cases have been filed electronically. Any Kentucky attorney handling a Fayette County civil case may file electronically if they have completed eFiling training.


    The AOC is training attorneys throughout Kentucky on how to use eFiling. Sessions are being offered in Fayette and Franklin counties and previously took place in Boone, Campbell and Kenton counties. There will have been 14 training sessions in Fayette County by Wednesday, with eight more scheduled to take place by Aug. 26. In Fayette County alone, there are 2,520 attorneys who are eligible to attend training.


    Fayette County is the sixth of 18 pilot sites for the eFiling program. The other pilot counties accepting cases through eFiling are Boone, Campbell, Franklin, Gallatin and Kenton. Only civil cases in Circuit Court and District Court may be filed during the pilot stage. The program will be extended to criminal cases this fall. The AOC expects to have eFiling available in all 120 Kentucky counties by the end of 2015.



    The AOC introduced eFiling to Kentucky state courts on Dec. 16, 2013, when it accepted the first electronic case filing at its test site in the Franklin County Office of Circuit Court Clerk. Franklin County was the proof-of-concept site, which means that limited functions were tested there before the full eFiling program was rolled out in the pilot phase. The site initially processed only civil cases filed in Circuit Court.


    eFiling is part of the Judicial Branch’s comprehensive, multiyear eCourt program. The goal is to update Kentucky’s aging court technology to meet the demands on the court system and enable the courts to stay current with the mainstream of law and commerce.


    The eCourt program will also upgrade the court system’s technology infrastructure (hardware and software), replace its case management systems for the trial and appellate courts, and acquire a document management system that will electronically store and index court documents.


    The Judicial Branch cleared a major hurdle on its eCourt program in March 2013 when it received legislative approval to issue bonds to fund a new case management system. Resolving the funding issue jump-started the eFiling process and made it possible to begin the proof-of-concept testing in Franklin County by the end of 2013.


    This eFiling milestone followed quickly on the heels of another major court technology rollout. In March 2013, the AOC launched CourtNet 2.0, which replaced the outdated CourtNet application and provides real-time, online access to Kentucky court case information.


    Administrative Office of the Courts

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



    Monday, August 18th, 2014


    Conservatives shouldn’t look to courts to fix political problems.

    By  – 8.18.14r


    Wikimedia Commonsr

    I’m old enough to remember the “Impeach Earl Warren” bumper stickers. They were produced by the hard-right John Birch Society, and most people thought them kooky. Still, they reflected the way many conservatives felt about the then-Chief Justice of the Supreme Court 50 years ago, and the federal bench generally. The courts had expanded the rights of alleged criminals, struck down voting barriers and mandated school busing, and all this went down hard with conservatives.

    Times have certainly changed. Now it’s conservatives who look to the courts to fix our political problems. Last month the District of Columbia Circuit Court of Appeals struck down a crucial portion of the Affordable Care Act (“Obamacare”), and if that decision sticks it’s going to increase drastically the premiums people have to pay. That in turn would lead to tremendous pressure to repeal the law, and that’s just what conservatives want. The decision itself was a well-reasoned analysis of a poorly drafted law, but the case was brought by conservative activists who sought to torpedo a law they opposed.

    Count me as one conservative who doesn’t buy it. Courts should not be asked to resolve political issues, and for two reasons conservatives should know this. First, the strategy is self-defeating, since judges will likely be nominated by Democratic presidents for the foreseeable future. Conservatives might seem to enjoy an advantage today, since Republican presidents have nominated judges to the bench for 20 of the last 33 years, including five of the current members of the Supreme Court. But that’s not how we should expect presidential elections to be decided over the next 33 years.

    Second, using courts to advance political ends subverts the rule of law. Rich, free countries enjoy a robust rule of law and Third World departures from it have left people impoverished and their liberties circumscribed. What the rule of law requires is a barrier between the judicial and the political, and this in turn requires a judiciary with enough political sense to recognize when it is being asked to decide a political question. When, as in Venezuela, a deeply partisan Justice Department prosecutes only conservatives, and this for the most technical of offences, courts are called upon to blow the whistle. And when, as in America, political activists turn to the courts to advance political goals, courts should hesitate before being drawn into the dispute. That was what John Roberts meant when, during his confirmation hearings, he described the ideal judge as an apolitical umpire.

    Today the enemies of the rule of law include conservatives who would cheer a court that overturns the precedents they find troubling, on abortion, same-sex marriage, affirmative action, and so on. Politically, this isn’t about to happen. What is more likely is a Supreme Court overturning the decisions to which liberals object, such as Hobby Lobby, when their side enjoys a majority on the Supreme Court, as it will before long. The Supreme Court does not consider itself bound by its prior decisions, and has veered about so freely that one might even wonder whether American constitutional law deserves the appellation “law.” After all, should Justice Scalia fall under a bus, we’d have a brand new kind of constitutional law. If you can call it that.

    The person who had it right was John Roberts, in the 2012 Obamacare decision. Political issues should be decided by the voters, he ruled, and not by the courts.