WHY THE SUPREME COURT SHOULD RULE QUICKLY TO AMEND SCR 3.130 (8.2)

 

By LawReader Senior Editor Stan Billingsley                             May 4, 2011

U.S. District Judge Danny Reeves recently interpreted SCR 3.130 (8.2) to prohibit speech by lawyers that is “true but reckless”.  This ruling dramatically affects all Kentucky lawyers and judges and merits swift review by the Kentucky Supreme Court.

 Judge Reeves ruled that the Federal Courts do not have subject matter jurisdiction of state Bar Association rules. This ruling of the U.S. District Court appears to conflict with U.S. Supreme Court rulings and numerous other rulings where the Federal Courts have assumed jurisdiction over unconstitutional bar rules.

Judge Reeves’ interpretation does not limit prohibited statements to a pending trial or hearing, and includes letters or statements made by lawyers concerning legislative or executive branch bodies as well as judicial officers or public legal officers, which were made after the final ruling.

U.S. District Judge Danny Reeves ruling will almost certainly be appealed to the Sixth Circuit Court of Appeals, but that may take several years.   In the meantime the free speech of lawyers is subject to the total control of the KBA Bar Counsel.

The Kentucky Supreme Court should in our opinion immediately review the SCR interpreted by Judge Reeves.   The Kentucky Supreme Court wrote SCR 3.130 (8.2) and they can rewrite it to limit the broad and vague application it now has been granted.

The Kentucky Supreme Court adopted SCR 3.130 (8.2) in January 1990.  This SCR has now been interpreted by the KBA Bar Counsel to limit any writing or speech of a lawyer concerning a judge or public legal officer, which can be construed to be “reckless”.  

The rule was intended to apply to “false” statements by lawyers which challenged the “integrity” or “qualifications for office” of a judicial officer.   The current application of the rule has been extended to include a letter by former State Senator John M. Berry Jr. to the Legislative Ethics Commission.    Berry’s letter has not been found by the KBA to be “false” and they do not cite any allegation that Berry challenged the “integrity” or “qualifications for officer” of any judicial officer.  Nevertheless the KBA obtained a sanction against Sen. Berry for his letter to the Legislative Ethics Commission and now the Federal Court has ruled that they have no jurisdiction to review the constitutionality of the rule.

The rule does not contain any definition for the word “reckless”, and in practice it appears to be applied as any statement which offends anyone.   We suggest that this ruling prohibits the constitutional right of lawyers to “petition their government for a redress of their grievances”.

Judge Reeves decision in the John M. Berry Jr. /ACLU case against the KBA, held that there is no jurisdiction in the Federal Courts for a Section 1983 Civil Rights action challenging the constitutionality of this limitation on free speech.   Judge Reeves’ writes that there is a compelling state interest to regulate the free speech of lawyers.  

The author has written all members of the Supreme Court and submitted a request that the Court reconsider that rule, and amend it to limit its interpretation by the KBA Bar Counsel’s office as authority for the restriction of free speech by lawyers.  (See proposal by Retired Judge Billingsley to the Ky. Supreme Court below.)

The intent of the Rule is to limit outbursts by lawyers during trials which interfere with the deliberations or which attempt to intimidate the trial judge or influence the outcome of the pending proceedings.   We would suggest that it was never intended to prohibit a lawyer from writing a letter stating his opinions about a legal ruling after the ruling was final.

A Kentucky state stature has created a standard which prohibits “any person” from  being held in contempt for any statement or writing made outside “the presence of the court or judge in the courthouse during the sitting of the court.”  The current interpretation of the SCR is not limited to pending cases or attempts to influence a pending case.  The State Stature is much more narrowly drawn and appears to solve the problem of a pending case not being interfered with.

The statute states: “KRS 432.240  No contempt for criticism out of court – No court or judge shall proceed by process of contempt or impose a fine against any person who animadverts upon or examines into the proceedings or conduct of such court or judge, by words spoken or writing published, not in the presence of the court or judge in the courthouse during the sitting of the court.”

   One distinguished jurist recently said that he saw no reason for the judiciary to be applying this rule to administrative hearings conducted by the Executive or Legislative Branches.  We also find troubling the language in SCR 3.130 (8.2) which allows it to be applied to “public legal officers”.  That term is not defined in the SCR and may be applied to comments about administrative hearing officers, investigators, prosecutors, police officers, bailiffs, etc.   We emphasize that this means that a lawyer can never make a “true but reckless” statement about the conduct of a member of the protected class.

We would suggest that there is some urgency for the Supreme Court to review the existing language of SCR 3.130 (8.2).  We are told that amendments to Supreme Court Rules are only considered about every two years.  We hope that the Supreme Court will recognize the draconian effect of this rule after Judge Reeves Federal Ruling issued on April 12, 2011.

Another consideration which supports a quick review of this rule is the fact that from time to time challenges to Bar rules are successful.  We recall one Federal suit against the Judicial Conduct Commission in which the Federal Court in Louisville awarded costs and attorney fees to the successful party of about $20,000.   It is rumored that one case which has not been finalized may result in an award against the judicial budget of some $300,000 in costs and attorney fees.

While it is not clear what effect a rules amendment would have on the pending case of John M. Berry Jr. and the ACLU against the KBA and Bar Counsel, if Berry and the ACLU are successful, and considering that an appeal to the Sixth Circuit is likely to be necessary, the resulting award against the judicial budget could easily exceed the rumored award of $300,000 in another case.

The Supreme Court has the power to amend the rule which is on appeal to the Sixth Circuit, and such an amendment might reduce the exposure of the judicial budget. 

The Supreme Court has great power to influence the conduct of the Bar Counsel, and if they chose to do so, could “encourage” a dismissal of the charges against John M. Berry Jr. regarding his letter to the Legislative Ethics Commission.

We certainly hope that this urgent situation results in consideration by the Kentucky Supreme Court long before the usual two years.

We have sent the following request to the Kentucky Supreme Court requesting an amendment to SCR 3.130 (8.2):

                                                                                                                                                     REQUEST FOR AMENDMENT OF SCR 3.130 (8.2)
 

This submission respectfully requests the court to consider the amendment of SCR 3.130 (8.2). The Kentucky Supreme Court in 1990 adopted SCR 3.130. (8.2).  the Court has the authority to amend this rule.

We would opine that the ABA originally drafted 8.2 as a “guideline” and the ABA language was adopted by the Ky. Supreme Court virtually without change. 

This rule as recently applied by the KBA Inquiry Commission in the John M. Berry Jr. case, cited this rule to support their issuance of a Warning Letter to John M. Berry, Jr. without ever giving him a due process hearing, without ever revealing all the evidence against him and in doing so took close to two years.  Under this broad application of the rule, no attorney may write or speak about a court or hearing officer ruling without subjecting themselves to ethics sanctions by the KBA.

 The KBA Inquiry Commission has never to our knowledge explained what statement in Berry’s letter to the Legislative Ethics Commission was “false”, or what statements in his letter questioned the “integrity” or “qualifications for office” of a member of the protected class. 

 Their procedure allowed them to find Berry had violated SCR 3.130 (8.2), to issue a formal Warning Letter, and then dismissing the case thereby denying Berry the right to appeal to the Board of Governors and the Supreme Court.

The proposed amendments to SCR 3.130 (8.2) preserve the ability of the KBA to sanction those attorneys who disrupt an ongoing trial, or attempt to influence the outcome of a pending case.

As applied in the Berry case, the hearing of the Legislative Ethics Commission was final before Berry wrote his letter to the LEC. He did not interrupt a hearing, and his letter was not delivered until after the hearing committee issued a formal ruling, therefore he did not attempt to influence the outcome of a pending case.   His letter was not profane, and made no threats. Yet the Inquiry Commission after almost two years of proceedings found he had violated SCR 3.130 (8.2).

Berry and the ACLU filed a federal civil rights action in U.S. District Court.  The trial judge opined that under the Kentucky rule that lawyers could be sanctioned for “true but reckless” statements.  That would appear to conflict with the U.S. and Ky. constitution.  Judge Reeves concluded that  his court had no jurisdiction to hear a claim dealing with a Bar Rule.

We concede that Federal Court rulings allow limitations on free speech in situations where there is a compelling state interest to do so.  But we suggest that statements made out of the court, after the conclusion of the trial, and which are “true” should be excepted from the reach of SCR 3.130(8.2).  (The Berry letter is attached as an Exhibit.)

The fact that the attorney has no right to appeal in Berry’s case demonstrates that this issue will not come before the Ky. Supreme Court as a “case or controversy” but the court may at anytime amend their own SCR. 

 Had Berry had the right to appeal the ruling of the Inquiry Commission, this case might have taken a much different course.

By submission of this request for the Kentucky Supreme Court to consider amendment of SCR 3.130(8.2) we do not challenge the “integrity” or “qualifications for office” of  any officer of the  KBA, the Inquiry Commission, or U.S. District Judge Danny Reeves.  We merely request a review of how the language of the current rule can be interpreted so broadly that it may infringe on Free Speech rights. 

The Kentucky Supreme Court adopted this rule, and they can amend it.

 

THE CURRENT RULE:

 

SCR 3.130(8.2) Judicial and legal officials

 

      (a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.

      (b) A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct.

HISTORY: Adopted by Order 89-1, eff. 1-1-90 

(No definitions are provided for Current Rule.)

 

                                           AUTHORITY FOR AMENDMENT

    We suggest that SCR 3.130 (8.2) violates Section 8 of the Ky. Constitution. which grants free speech rights to all citizens and specifically forbids  “any branch of government” from making a law “to restrain the right thereof”.

                                                 KENTUCKY CONSTITUTION

Section 8 – Kentucky ConstitutionFREEDOM OF SPEECH AND OF THE PRESS.

“Printing presses shall be free to every person who undertakes to examine the proceedings of the General Assembly or any branch of government, and no law shall ever be made to restrain the right thereof. Every person may freely and fully speak, write and print on any subject, being responsible for the abuse of that liberty.” Text as Ratified on: August 3, 1891, and revised September 28, 1891. – History: Not yet amended.

Section 1 – Kentucky Constitution

“Rights of life, liberty, worship, pursuit of safety and happiness, Free Speech, acquiring and protecting property, peaceable assembly, redress of grievances, bearing arms.”

 

 

THE PROPOSED AMENDMENTS TO SCR 3.130 (8.2):

 

      SCR 3.130 (8.2) Judicial and legal officials

     (a) A lawyer shall not make a statement that the lawyer knows to be false, (Amendment #1- DELETE: “or with reckless disregard as to its truth or falsity”.) concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.

     Amendment #2 – Add this new phrase based on the current language of KRS 432.240:

     “It shall not be a violation of this Supreme Court Rule for any attorney to animadvert upon or examine into the proceedings or conduct of such court or judge, by words spoken or writing published, not in the presence of the court or judge in the courthouse, or not in the presence of the adjudicatory officer or public legal officer, during the sitting of the court.”

 

     Amendment #3 Add this section:

     

      “No sanction shall be made under this Rule which is not supported by substantial evidence.    

       No sanction shall be made under this rule which does not include a finding of facts which specifically references: (1) the statements alleged to have been “false” and (2) the supporting evidence therefore, and (3) the statements which are alleged to have concerned a “lack of integrity” or “qualifications for office” of the protected official.  All findings of the Inquiry Commission may be appealed to the Board of  Governors and the Supreme Court.”                                                

                                                              EXPLANATION

The language deleted in Amendment #1 removes the basis for a finding by U.S. District Judge Danny Reeves, that under SCR 3.130 (8.2) a Kentucky lawyer may be sanctioned for “true but reckless” statements.  The current language allows the conclusion that constitutionally protected language which is true, can still be the basis for an ethics sanction.

 We would suggest that the Court has a state interest in regulating the false statements of lawyers, and in regulating their conduct in the court room or conduct which may be an attempt to influence the outcome of a pending trial.  We submit that Ky. Constitution Section 

The language in proposed Amendment #2 above is taken from a current statute which applies to all citizens.

See: KRS 432.240  No contempt for criticism out of court – which states:

“No court or judge shall proceed by process of contempt or impose a fine against any person who animadverts upon or examines into the proceedings or conduct of such court or judge, by words spoken or writing published, not in the presence of the court or judge in the courthouse during the sitting of the court.”

Amendment #3 deals with the situation as found in the John M. Berry case where it has never been explained what statement, in Berry’s letter to the Legislative Ethics Commission, was “false”.   This proposed amendment would place a specific burden on the KBA to show what statement was “false” and the supporting evidence for that conclusion.

 It has never been explained how Berry questioned the “integrity” or “qualifications for office”.   A copy of the Berry letter is attached. 

It appears in the Berry ethics case that he was sanctioned for merely saying the Legislative Ethics Commission misinterpreted the law.  We submit that opining that another has made a mistake of law, does not “falsely” question their “integrity” or “qualifications for office”.

 

DEFINITION

   Merriam-Webster Dictionary Definition: “Animadvert” – to pay attention to,  to censure

PROPOSED DEFINITIONS:

    “Adjudicatory officer“  -  Hearing officer or Trial Commissioner in an administrative hearing before the Judicial, Executive or Legislative branch of government, who is authorized to conduct hearings and issue findings of fact.

   “Public legal officer“   -  Same as “Adjudicatory officer” above.

 

 

The Berry letter which was found to be “inappropriate” by the Inquiry Commission and resulted in a non-appealable ethics warning letter being placed in the attorneys personnel file.

THE BERRY LETTER:

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Oct. 5, 2007

Kentucky Legislative Ethics Commission 22 Mill Creek Park Frankfort, Ky. 40601

Dear Chairman Troutman and Commission Members:

As you know, my brother Wendell, and I attempted to attend your meeting on August 14, 2007. Before commencing the preliminary inquiry relative to the complaint filed against Senator David L. Williams, we were asked to leave along with other members of the public, the media and the complainant, Richard Beliles, on behalf of Common Cause of Kentucky. The Inquiry was conducted entirely behind closed doors with the exception of Senator Williams who was allowed to be present throughout the preliminary inquiry. The exclusion of the pubic (sp) and the media was enough to arouse suspicion, but the exclusion of the complainant (except for a brief appearance as a witness) coupled with the inclusion of the alleged violator throughout the proceeding gave cause for some to speculate that the deck was stacked and the Senator would be exonerated. I was not, and am not, willing to go that far, but I do believe that your Order entered July 29, 2007 that exonerated him, was contrary to the undisputed evidence that was presented.

It is very unlikely that a legislator would ever come before the Commission and confess guilt. it is almost as unlikely that witnesses consisting of legislative staff, lobbyists, or others who have a special interest in the public policy decisions which are influenced by the legislator would take a chance of alienating by testifying, in his presence, to anything except their high regard for him. Your Order implies that the absence of such testimony warrants the finding that there is no probable cause to believe that there was any wrongdoing, or even the appearance of it, and, therefore, no adjudicatory proceeding would be in order. I do not agree with your conclusion and I believe that the evidence filed with the complaint, with the other facts you found by the order, clearly indicate that what was going on was unethical and a violation of the statutes which your are charged to enforce.

I looked first at the letter written by Senator Williams which was an invitation to all of the invitees to participate in a joint venture to raise money to finance the campaigns of Republican candidates for the State Senate. The letter itself depicts the capitol dome with the senator’s name and high office printed underneath. Across the capitol dome are the words, “Senate Majority Event”. The letter stresses the importance of Senator Williams in the conduct of Senate business and the personal importance to him of the invitee’s cooperating in this effort to elect Republican candidates to the Senate. The purpose of the solicitation is to maintain and grow the Senate Republican majority which is necessary to keep Senator Williams in the position of President and therefore, well positioned to attend to the business of the invitees. The letter is signed by Senator Williams and underneath his signature the invitees are once again reminded that he is the Senate President.

The letter, although not an exact copy of senate stationary, is set up so as to appear to be his letterhead and he repeatedly speaks of himself as the Senate President. Anyone aware of the importance of public policy decisions to fund-raisers would be aware also of the extent to which the power and influence of Senator Williams could affect their interests and, therefore, of the importance of having his goodwill. To ignore the invitation would be risky business for them. All of this is clearly contrary to, or in violation of, or questionable under, the follows:

KRS 6.606 Purpose of Code

The proper operation of democratic government requires that a public official be independent and impartial; that government policy and decisions be made through the established processes of government; that a public official not use public office to obtain private benefits; that a public official avoid action which creates the appearance of using public office to obtain a benefit; and that the public have confidence in the integrity of its government and public officials.

KRS 6.731 General Standards of conduct; penalties

A legislator, by himself or through others, shall not intentionally:

(1) Use or attempt to use his influence as a member of the General Assembly in any matter which involves a substantial conflict between his personal interest and his duties in the public interest. Violation of this subsection is a Class A misdemeanor; ……

(3) Use or attempt to use his official position to secure or create privileges, exemptions, advantages, or treatment for himself or others in direct contravention of the public interest at large. Violation of this subsection is a Class A misdemeanor. …..

(5) Use public funds, time, or personnel for partisan political campaign activity, unless the use is:

(a) Authorized by law, or

(b) properly incidental or another activity required or authorized by law, such as elections to constitutional or party offices within the General Assembly. Violation of this subsection is a Class A misdemeanor.

(6) Use of his official legislative stationery, or a facsimile thereof, to solicit a vote or a contribution for his or another person’s campaign for election or reelection to public office, or use the great seal of the Commonwealth on his campaign stationery or campaign literature. For purposes of this subsection, “official legislative stationery” means the stationery used by a legislature on a day-to-day basis for correspondence related to his duties as a member of the General Assembly. Violation of this subsection is ethical misconduct.

KRS 6.767 Prohibition against acceptance of campaign contributions from legislative agents penalty

A member of the General Assembly, candidate for the General Assembly, or his campaign committee shall not accept campaign contributions from a legislative agent. Violation of this provision is ethical misconduct.

OLEC 06-03 OPINION

1. A member of the General Assembly may not ask or direct a lobbyist to solicit campaign contributions for a political party or a legislative campaign.

A careful reading of the letter which Senator Williams sent to the invitees leads but to one conclusion, which is that the most powerful member of the Kentucky State Senate, representing himself personally and the Majority Caucus, was putting the arm on people, who have a vital special interest in public policy decisions, for campaign contributions, and that he was doing so in order to maintain the majority and to keep himself in his position as President. If the letter is then read in the context of the above statues, it is just as clear that his conduct violates those statutes.

This conclusion is reenforced by all of the things that occurred between the time that the letter was written and the luncheon on May 23rd. The material distributed at the luncheon is especially offensive in that it solicits contributions to the senate political caucus, which will finance the campaigns of individual senators. It further recommends that, in addition to the $2,000 per person ticket of admission to the fundraiser, invitees should contribute a minimum of $5,000. And it further suggests that attendees can achieve much greater benefit, including seat at the head table with the featured speaker and Senate President David L. Williams, for $50,000.

In all of these documents, from the letter of invitation to the fact sheet and the benefit sheet, Senator Williams is prominently featured. he was the featured speaker at the event at which the information was given to all guess including the lobbyists. This episode as a whole constitutes a blatant misuse of power in order to obtain large contributions from lobbyists and others with a big stake in government programs and projects. It is not clear how the Commission could have justified Senator Williams conduct and dismissed the complaint. There is no question that he as well as his official position and influence were being used for the benefit and advantage of the senate candidates and himself.

There were approximately seven grounds cited by you in your order to support your exoneration of Senator Williams. None of these grounds either standing alone or collectively warrant the result. How many complainants could be expected to have firsthand knowledge of violations? Mr. Beliles did have first-hand knowledge of the documents that clearly set forth the plan and the motive behind it. They were presented to your and admitted as evidence. What value is it to know that an alleged violator made a telephone call verbally requesting an opinion, without all of the facts and asking only one very limited and irrelevant question? When did the hiring of go-betweens to carry out an illegal plan in order that the planners and organizers “could get away from it” become a justification for anything? Is it further mitigating if the people you hire know little or nothing about the law? The implications here are obvious, but in the opinion of the Commission, appear to be sufficient to establish nothing less than the best of intentions. If the lobbyists question the legality of what is being done, you solve the problem by simply instructing them to make their checks payable to the party and not to the caucus. If all else fails, but the Senator was at the time in a hurry, then he is exonerated on the basis of the legal proposition that “haste makes waste”.

If the law as it stand is inadequate to allow you in this case to find any violation, ethical misconduct, impropriety, or even the appearance of it, then the law needs to be changed and I hope that you would be instrumental in attempting to get that done.

Very truly yours,

(s) John M. Berry Jr.

JMBjr:mc

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