KY. SUP. CT. REFUSED TO ALLOW FILING OF AMICUS BRIEF SEEKING TO UPHOLD JUDICIAL IMMUNITY DOCTRINE –
The following brief was submitted by retired Judge Stan Billingsley in behalf of all judicial officials. The KBA sought the disbarrment of Judge Joseph Bamberger and the Sup. Ct. upheld the disbarment. Bamberger elected not to file an apeal of the disbarment ruling by the KBA Board of Governors which did not address the judicial immunity defense of Bamberger. At the time Bamberger had an opportunity to file an appeal the Supreme Court Rules required the defendant attorney to post a 100% surety of the “cost and expense” bill imposed by the Bar Counsel. No appeal could be filed until the $18,800 was paid. In November the Supreme Court repealed that Supreme Court Rule but Bamberger’s appeal time had tolled. Judge Billingsley acting on his own, tendered an Amicus brief discussing only the issue of the Judicial Immunity Doctrine. The Supreme Court in the exercise of their discretion refused to consider the Amicus Brief, and they upheld the KBA Board of Governors disbarment reccomendation.
Billingsley sought the support of the Judicial Conduct Commission to intervene and support the Judicial Immunity Doctrine, but the JCC refused.
The Supreme Court did not explain why they refused to consider the Judicial Immunity Doctrine. It is suggested that the ruling of the Board of Governor’s and the lack of action by the Supreme Court have established a precedent that any judge can now be santioned by the KBA for issuing any decision which the KBA finds “shocking”. Billingsley argues that any judge who issues any ruling in the future, which is disfavored by the KBA, may likewise be subject to “ethical” santions based only on their official rulings. For more than 200 years, the Immunity of Judges for all their official rulings has been well established. That doctrine has arguably been repealed by the Supreme Court’s failure to consider this doctrine.
KENTUCKY SUPREME COURT
KBA FILE NO. 13985
|KENTUCKY BAR ASSOCIATION COMPLAINANT|
|JOSEPH BAMBERGER RESPONDENT|
AND BRIEF OF RETIRED JUDGE STAN
AS AMICUS CURIAE
IN SUPPORT OF RESPONDENT
IT PLEASE THE COURT:
Appearing as a Amicus Curiae,
Judge Stan Billingsley (Retired) hereby petitions this Honorable Court to
permit the filing of the following Amicus Curiae Brief.
I hereby certify that a true and
correct copy of this petition and brief
was properly addressed to the Hon. Linda Gosnell, KBA Chief Bar Counsel, at 514 W. Main Street, Frankfort
KY 40601-1812 and to the Disciplinary Clerk, of the Kentucky Bar Association
at 514 W. Main Street Frankfort KY
40601-1812, and the Hon. Susan D.
Phillips Phillips, Parker Orberson, 716 W Main St Ste 300, Louisville, Ky. 40202,
Trial Commissioner of the KBA in this action, and the Hon. Jerry J. Cox,
Attorney for the Respondent, 115 Richmond St,
PO Box 1350, Mt Vernon, KY 40456-1350,
with proper postage affixed, and mailed by placing same in the U.S.
Mail, on July 12, 2011.
314 7th. St.
THE COURT IN ALLOWING THIS AMICUS CURIAE BRIEF TO BE CONSIDERED
OF RETIRED JUDGE
The author of this tendered amicus curie brief, alleges interest and standing
on the basis that if the Judicial Immunity Doctrine is voided, then all rulings
of any sitting or retired judges will thereafter be subject to hindsight review
by the KBA. The author is a retired
Under the argument advanced in this case by the KBA, it is claimed that
the KBA has the jurisdiction to review any ruling of any judge without
If the precedent sought by the KBA is upheld in this case then the
jurisdictional authority of the KBA will
be so broadly expanded then the justification for the existence of the Judicial
Conduct Commission will be voided. this
case warrants a declaratory ruling by the Ky. Supreme Court regarding the jurisdiction
of the JCC versus the KBA.
Our research has found no precedent of any other state ever granting the
right to review the judicial rulings of a judge, made within his jurisdiction,
by a State Bar Association.
The author of this brief has no financial interest in the underlying
case, does not represent any party in this case, and has not sought or received
approval of either party to this action to tender this brief. If the KBA and Bar Counsel is upheld, and if
they elect to conduct a review of all
rulings made by the author during his 23 years on the bench, then the author
will be subject to severe financial implications in defending himself.
AUTHORITY OF THE
KENTUCKY SUPREME COURT TO
GRANT DISCRETIONARY REVIEW OF THIS
UNDER SCR 3.370 (9)
The Supreme Court may exercise
discretionary authority under SCR 3.370 (9), to consider the issues in this
case even if the complainant or respondent fail to file an appeal.
SCR 3.370 Procedure before the Board and
“(9) The Court may, within ninety (90) days of the filing with the Court of
the Trial Commissioner’s report as provided by 3.360(4), or of the Board’s
decision, notify Bar Counsel and Respondent that it will review the
decision…., the Court shall enter such orders or opinion as it deems
appropriate on the entire record.” (emphasis added by author)
If the Ky. Supreme Court does not
agree to review this action as permitted under Section (9), then the findings
of the Board of Governors will be automatically adopted by rule SCR 3.370 – (10). Section (10) which holds that:
If no notice of review is filed by either one of the parties, or the Court
under paragraph nine (9) of this rule, the Court shall enter an order adopting
the decision of the Board or the Trial Commissioner, whichever the case may be,
relating to all matters.”
There is an important jurisdictional question raised by the attempt of
the KBA to discipline a judge for acts
taken by the judge in his jurisdiction without the referral by the Judicial
Conduct Commission. Until now, the Doctrine of Judicial Immunity has protected
a judge from claims involving decisions he has made within his jurisdiction.
The Supreme Court’s action in this
case will establish an important precedent regarding the jurisdiction of the
Judicial Conduct Commission versus the jurisdiction of the KBA.
The Bar Counsel has filed a report with the
Disciplinary Clerk requiring the respondent judge to post a surety in the
amount of approximately $18,500 in order to have the right to file an
This high surety violates Section 115 of the
Kentucky Constitution which states that all appeals shall be
“inexpensive”. This high surety imposed unilaterally by the Bar
Counsel may well prevent the respondent judge from filing an appeal.
In such a case,
important questions of law affecting the jurisdiction of the Judicial
Conduct Commission, and rights of all sitting and all retired judges will be
automatically decided in favor of the KBA, and against the interest of the
Judicial Conduct Commission, and of the
judiciary, by repealing the Doctrine of Judicial Immunity.
That makes the tendered Amicus brief highly
important to the JCC and the Judiciary.
AMICUS CURIAE BRIEF BY JUDGE STAN BILLINGSLEY (RETIRED)
IT PLEASE THE COURT:
THE KENTUCKY SUPREME COURT SHOULD GRANT
DISCRETIONARY REVIEW OF THIS
CASE UNDER SCR 3.370
There are three reasons why the
Supreme Court should exercise discretionary authority granted to the court
under SCR 3.370, to consider the issues in this case.
The costs claimed by the Bar Counsel’s office, which must be posted by
the respondent are in violation of Section 115 of the Kentucky
Constitution. The actions of the Bar
Counsel’s office, in unilaterally setting a high cost bill, denies due process
to the respondent.
There is an important jurisdictional question raised by the attempt of
the KBA to discipline a judge for acts
taken by the judge in his jurisdiction. This action by the KBA violates the
Judicial Immunity Doctrine. If the
Supreme Court does not review this jurisdictional issue, then there will be
established a precedent which will void the Doctrine of Judicial Immunity.
3. The Supreme Court’s action in
this case will establish an important precedent regarding the jurisdiction of
the Judicial Conduct Commission versus the jurisdiction of the KBA.
SECTION 115 – RIGHT TO INEXPENSIVE APPEAL
It is possible that neither the respondent
judge nor the KBA will file an appeal with the Supreme court in this action. Even though Section 115 of the Kentucky
Constitution states that all appeals shall be “inexpensive”. The SCR
rules permit the Bar Counsel to unilaterally determine the costs of the
discipline proceeding, and report said costs to the Disciplinary Clerk.
The respondent in a discipline action must
deposit a surety with the Disciplinary Clerk in the amount unilaterally claimed
by the Bar Counsel’s office in order to have the right to appeal the findings
of the Board of Governors to the Supreme Court.
As the rule is worded if there is no surety posted there is no appeal.
report of the Bar Counsel’s office regarding costs in this case will require
the respondent to post a surety of some $18,500. This does not appear to be “inexpensive”
and operates as an unconstitutional restriction on the right to appeal that is
granted by the Kentucky Constitution.
THE RESPONDENT OR THE KBA FAIL TO FILE AN APPEAL, THE SUPREME COURT RETAINS THE JURDICTION TO
“REVIEW” THE FINDINGS OF THE BOARD OF GOVERNORS.
A review of SCR 3.370 grants the
Supreme Court the discretion to review a finding of the Board of Governors even
in the absence of an appeal by the respondent or by the KBA.
” SCR 3.370 Procedure before the
Board and the Court
(9) The Court may,
within ninety (90) days of the filing with the Court of the Trial
Commissioner’s report as provided by 3.360(4), or of the Board’s decision,
notify Bar Counsel and Respondent that it will review the decision. If the
Court so acts, Bar Counsel and Respondent may each file briefs within thirty
(30) days, with no right to file reply briefs unless by order of the Court,
whereupon the case shall stand submitted. Thereafter, the Court shall enter
such orders or opinion as it deems appropriate on the entire record.” (emphasis added by author)
We respectfully submit that an
important jurisdictional issue and constitutional question is presented by this
case, and that a failure of the Supreme Court to review the findings of the
Board of Governors will have the effect of voiding the Judicial Immunity
Doctrine, and will destroy the justification for the existence of the Judicial
THE JURISDICTIONAL QUESTION
In the ethics investigation of retired Judge Joseph Bamberger, the KBA
investigation seeks to expand the jurisdiction of the KBA to review and review Judges
past decisions for ethics review.
The Trial Commissioner in his Brief
to the Board of Governors opined that the KBA had jurisdiction to review a
judicial officials acts even without a referral by the JCC.
Current rules grant jurisdiction to the Judicial Conduct Commission to
examine the ethical conduct of judicial officials. The rules permit the JCC to make referrals to
the KBA if the JCC determines that additional review is appropriate by the KBA.
The end result sought by the KBA is to expand their jurisdiction to
review the judicial rulings of a judicial officer, and to inflict sanctions
including disbarment if they disagree with the judge’s rulings.
First we note that this attempted review of Judge Bamberger’s rulings
violate SCR 4.029.
See: SCR 4.020 Jurisdiction (of the JCC which says):
“(2) Any erroneous decision made
in good faith shall not be subject to the jurisdiction of the Commission. ”
We would ask the Court to consider why the Judicial Conduct Commission
is denied the right to review erroneous
rulings of a judge, and why the KBA should be granted such a right? (Such a right
is claimed in this action by the KBA.)
We suggest that this Supreme Court Rule 4.020 is solidly based in the Judicial
Immunity Doctrine explained in Collins v. Brown, No.
2007-CA-000847-MR (Ky. App. 2/26/2010) (Ky. App., 2010)”. (This
is an unpublished decision but it cites several Kentucky and U.S. Supreme Court
decisions which uphold the Doctrine of Judicial Immunity.)
” First, as to the judicial
defendants, Judge Wise and former Chief Justice Lambert, the trial court
properly found them to have been shielded by absolute judicial immunity. The doctrine of judicial immunity is
well-settled under federal and common law and predates the adoption of the
current Constitution of
Kentucky. See Pierson v. Ray,
386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1977); Vaughn v. Webb, 911 S.W.2d 273 (Ky. App. 1995). So long as the
judge has jurisdiction over the subject matter of the cause before him, he is
entitled to immunity. Id. There is no question in this case that Judge Wise
and former Chief Justice Lambert acted within their jurisdiction at all times
pertinent to the matters raised in Wes’s complaint. Thus, they are clearly
entitled to immunity from civil complaints stemming from their judicial acts.”
(emphasis added by author)
function of absolute immunity in the performance of judicial duties is not to
shield members of the judiciary from liability for their own misconduct, but
rather “to protect their offices from the deterrent effect of suit(s) alleging
improper motives where there has been no more than a mistake or a disagreement
on the part of the complaining party with the decision made.” Yanero v. Davis, 65 S.W.3d 510, 518 (Ky. 2001.”
“[i]t has been repeatedly held by
this court in a long line of decisions that a judicial officer is not subject
to civil suit when in the performance of his judicial duties and within his
jurisdiction, although his ruling may be the result of mistake of law, error of
judgment, or malice, or be done corruptly.” Yanero v. Davis, 65 S.W.3d 510, 518 (Ky. 2001.”
We suggest that a KBA discipline proceeding is a “civil”
proceeding. SCR 3.300 and SCR 3.330 both
describe discipline proceedings in terms of a civil action.
“SCR 3.300 Rights of respondent against whom a charge has been files
…”The Respondent shall have
all the rights secured to a party by the Rules of Civil Procedure …”
“SCR 3.330 Order of proceedings and burden of proof
burden of proof shall rest upon the Association in a disciplinary proceeding,
and the facts must be proven by a preponderance of the evidence. ..”
We respectfully suggest that the discipline process is a civil
proceeding and thus falls within the protective walls of the Judicial Immunity
|In Vaughn v. Webb, 911 S.W.2d 273 (Ky. App.,
1995) it was held:
“The acts of Judge Ray, exercised
within his jurisdiction, were judicial acts, not administrative acts and
Judge Ray is entitled to the protection of judicial immunity.
Under federal law, a judge is immune
from personal liability for judicial acts if at the time he acted, regardless
of whether he acted in error, maliciously, or in excess of his authority, he
had jurisdiction over the subject matter before him. Pierson v. Ray,
386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1977)…”
|In Baker v.
(Governor) Fletcher, 204
S.W.3d 589 (Ky., 2006) it was
“See Stump v. Sparkman, 435 U.S.
349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978), for the best recitation of the rule
granting judicial immunity and the reasons underlying
its desirability. For Kentucky cases recognizing judicial immunity
in the Commonwealth see Henry v. Wilson, 249 Ky. 589, 61 S.W.2d 305
(1933), and Vaughn v. Webb, 911 S.W.2d 273 (Ky.App.1995) (“a judge is
immune from personal liability for judicial
acts if at the time he acted, regardless of whether he acted in error,…”
“And such a view is also consistent
with the immunity afforded to judges, which immunizes judges from suit
for ANY judicial act, which is
defined as any act that is of the nature normally performed by a judge and one
in which the parties dealt with the judge in his official capacity.” (emphasis added by Billingsley)
The question of judicial immunity was properly raised by Judge Bamberger
in his brief to the Board of Governors.
The Supreme Court will have an opportunity to review the findings of the
Trial Commissioner and the Board of Governors against Judge Bamberger. If the
court sanctions Judge Bamberger for a ruling he made that was within his
jurisdiction, then they will be writing new law which negates the Doctrine of Judicial Immunity and will dangerously expand
the jurisdiction of the KBA.
Such a ruling would destroy the
theory behind the existence of the Judicial Conduct Commission. Such a ruling
would grant the KBA jurisdiction to file a civil action seeking sanctions of
judges who were acting in their judicial function.
Bamberger made rulings which the KBA claims he should have examined more
closely. The Bar Counsel argues that the
respondent judge made bad rulings based largely on the reputation of the
attorneys and experts who appeared before him.
This argument is nothing less than a head on attack on the Judicial
Immunity Doctrine, as it challenges the judges reasoning for making a
Nowhere does the KBA argue that Bamberger did not have the jurisdiction
to make every ruling he made. They argue
about his reasoning and his wisdom, but they do not present facts contesting his
jurisdiction to rule on the issues before him.
It is not enough that some decisions turned out bad. It is not enough that the non-judge lawyers
in the KBA believe they would have done things differently had they been the
No evidence was presented against Judge Bamberger by the KBA to support
the proposition that he acted “with evil or improper intent to aid the
plaintiff’s lawyers misconduct”.
No evidence was presented that Bamberger was even aware of the
plaintiff’s lawyers misconduct until after he had retired. Therefore the KBA has failed to provide a
preponderance of evidence to justify their findings against Judge Bamberger.
Testimony in the two criminal trials against Gallion and Cunningham alleged
that Gallion and Cunningham, lied to
Judge Bamberger about material elements as to their actions. This effort to misinform Judge Bamberger on
the law and facts is admitted by the Trial Commissioner in her brief as having
occurred in Judge Bamberger’s case.
The Trial Commissioner admits in her
brief that “there is no doubt that Gallion lied to the respondent (Judge
Bamberger), as did Chesley and others.” (See page 9 of KBA brief.)
Judge William Graham acting as Trial
Commissioner for the KBA in their ethics case against attorney Stan Chesley,
“Chesley himself bamboozled Judge
Bamberger with his often non-sensical answers to the Judges queries about
One must ask; “if Judge Bamberger was in-on-the-deal…why was it
necessary for the plaintiff’s lawyers to lie to him about material elements?”
More importantly, if the KBA can sanction a judicial ruling anytime they
disagree with the results, the Doctrine of Judicial Immunity will be thereby
voided. We note that there is no
statute of limitations applying to the KBA which will prevent the KBA from
reviewing the rulings of any sitting or retired judges over their entire
The KBA bar counsel argues that Bamberger relied on a case citation
presented to him by one of the plaintiff’s attorneys that was no longer good
law (See KBA brief page 11). We suggest
if that is a basis for ethical sanctions then all judges may at some time in
their career be brought up on charges.
This argument by the KBA Bar Counsel would justify a sanction against
any Judge who incorrectly interpreted the law. If such a theory is sustained by
the Supreme Court, then any judge who is ever overruled by a higher court on
appeal, will be subject to an ethics sanction by the KBA. But it also means
that the KBA has assumed the jurisdiction to make their own evaluation of a
judge’s rulings on any issue that ever came before the judge.
Such a conclusion would result in harassment of all judges and could be
used to justify absolute control of the Judiciary by the KBA, and would destroy
the Doctrine of Judicial Immunity.
FACTS CITED BY
TRIAL COMMISSIONER AND BAR COUNSEL
FOR THEIR RECOMMENDED
DISCIPLINE OF JUDGE BAMBERGER.
The KBA argues for punishment of Judge Bamberger because he “had not
reviewed any accounting whatsoever and had never even seen the Settlement
Agreement.” We suggest that the record clearly shows that Bamberger was
correctly advised that the plaintiffs had executed signed settlement agreements
by all 440 plaintiffs regarding the initial award and again received 440 signed
settlement agreements on the distribution of the second amount of funds awarded
to them. He was never informed that the
plaintiff’s lawyer had secured contingent fee contracts with their clients.
If the plaintiff and the defendant
in a civil case all agree to a settlement, it is not uncommon for a judge not
to conduct an accounting. Judge
Bamberger only awarded attorney fees
after the 440 plaintiff’s expressed their satisfaction with the amount
they received. It was not a situation where the attorney fees were awarded and
the claimants received what was remaining.
Will a judge now be required to review all settlements by calling in all
plaintiffs and defendants to his court room and conducing a hearing on each
settlement with each plaintiff and defendant? Attorneys representing the plaintiffs
appeared before Judge Bamberger. Is a
client not bound by the actions of his own lawyer?
Does a signed settlement agreement submitted by a plaintiff or defendant
have no legal consequences if the party later changes their mind? Will this now be a new ethical requirement in
all civil cases and criminal cases? If
so, we predict there will never be another settlement approved by a trial
judge. Why would any judge in the future risk being sanctioned by the KBA by
approving a settlement?
The overriding fact in this case admitted by the KBA, is that the
attorneys lied to Judge Bamberger, and he is now to be punished by the KBA for
exercising his protected judicial
The original plaintiff’s surely
have some burden to put the court on notice that they are unhappy with a
settlement. They could have done this by
not signing the settlement. They had the right to file an appeal of any ruling
of Judge Bamberger, but none did so.
We would suggest that as far as the
Judge’s duties are concerned, the plaintiffs in this case waived any duty of
the judge to personally inquire of each plaintiff of his satisfaction.
The original plaintiff’s should be
equitably estopped from claiming a foul when their own signed releases were
relied upon by the court. They set on their rights for years and never appealed
any decision made by Judge Bamberger.
Only after the original plaintiffs
discovered that their own attorneys had not been candid with them, did they
turn their attention to Judge Bamberger.
There appeal rights had tolled, and the only way they could proceed and
keep their claims alive, was to attack the trial judges’ integrity.
If the attorneys have improperly obtained the signed settlements, than
that is a completely different issue. Attorneys do not enjoy the protection of
the Judicial Immunity Doctrine. If the attorneys committed a fraud or committed
malpractice, or violated the Code of Professional Conduct, how does that
implicate the judge? The best answer to this question given by the KBA is that
the judge should have known better. This is clear hindsight review.
The KBA argues in their brief (Page 13) that “to believe his
(Bamberger’s) testimony that he signed whatever orders the attorneys give him
because he trusted them and had no knowledge or suspicion of impropriety is to
believe he had little cognitive ability” … “he was dazzled by and enamored with
a group of powerful men…”
Is ” lack of cognitive ability” a new standard for ethics sanctions? May
not a trial judge weigh the credibility of highly successful lawyers who are
nationally recognized for their prior work, when they advise him on issues of
law and fact?
The KBA brief includes many conclusions which merely speculate on what
Judge Bamberger was thinking when he signed court orders. Will the Supreme
Court tolerate such speculation as to a Judge’s thoughts? I would submit that the colorful and
deprecating language, and unsupported speculation as to another persons’
thoughts, as used by the Bar Counsel in their brief, would be thrown out of
almost any real trial court under the Rules of Evidence.
BAMBERGERS’S SERVICE ON THE BOARD OF THE FUND FOR HEALTY
LIVING CHARITABLE TRUST
One of the essential elements of
this case which was picked up by the media, and which was played to the hilt by
the Bar Counsel was that six months after Bamberger retired he accepted a
position on the board of the Healthy Living Charitable Trust. The Judicial Conduct Code clearly
permits even a sitting judge to sit on the board of a charitable
4- Section …4C(3) permitting service by a judge with organizations devoted to
the improvement of the law, the legal system or the administration of justice
and with educational, religious, charitable,
fraternal or civic organizations not conducted for profit….
(3) A judge may serve as an officer, director, trustee or
non-legal advisor of an organization or governmental agency devoted to the
improvement of the law, the legal system or the administration of justice or of
an educational, religious, charitable,
fraternal or civic organization not conducted for profit,…”
The record reveals that Judge Bamberger, before accepting this
position obtained ethics opinions from two lawyers which suggested that it was
not an ethical violation for Bamberger to serve as a board member. At the time
he became a Board member of the trust, he had retired from office and had no
judicial control over the operation of the Trust.
The Bar Counsel has conveniently ignored the fact that the Healthy
Living Charitable Trust was a suggestion made by Stanley Chesley after all of
Bamberger’s orders concerning attorney fee awards were signed. The Bar Counsel suggests that a Cy Pres trust
is itself evidence of improper conduct.
In fact there is a great deal of precedent
in class action cases for such trusts to be set up to dispose of class action
funds left over after all plaintiff’s have received their fair share. Further
the Bar Counsel demonstrates their mindset against Judge Bamberger by stating
in their brief that the Charitable Trust was “secret”. This argument suggests,
without any proof, that the trust funds were improperly handled.
Nationally recognized Class Action expert Stan Chesley and a respected
mediator have supported the appropriateness of the cy pres trust option. Only after Judge Bamberger’s retirement were
questions raised which might have supported a different ruling by respondent.
The KBA Bar Counsel brief suggests
that Bamberger was “dazzled” by these experts. (What judge wouldn’t be? Bamberger made his last ruling in this case
in January 2004. His conduct is now
measured by events and revelations made years after his rulings were made.
The charitable trust was approved by the IRS, and was apparently audited
by the U.S. Attorney’s office. After the funds were seized by the order of
Judge Wehr and Judge Crittenden, there was over a million dollars more in the
trust then were initially placed in the trust, even after the payment of the
trustees salaries and expenses, and after an award by the trust of over a
million dollars to other charitable organizations.
The Bar Counsel dramatically implies that the board of trustees were
highly paid, but their salaries were in line with salaries paid in other
charitable trusts. The IRS had no problem with the fees paid to the trustees,
but the Bar Counsel does a parody of the actor Claude Rains as Police Captain
Louis Renault in the l942 movie Casablanca, who was “shocked…shocked I tell
you!” to find that gambling was going on in his jurisdiction.
What research has the KBA done to
support the conclusion that the Charitable Trust trustees were overly paid? We
find no examples of proper salaries for trustees being introduced by the KBA.
THE LINGERING ISSUE OF AGGREGATE SETTLEMENT VERSUS CLASS
One of the main arguments made by the Bar Counsel is that the settlement
was an “aggregate” settlement as opposed to a “class action settlement”. If the
settlement was an aggregate settlement then the 440 Fen Phen plaintiffs in the
class action should receive all of the money left over after the payment of
attorney fees and court costs.
On the other hand if the settlement
was properly classified as a “class action settlement” then each of the 440
plaintiffs where only entitled to a settlement which fairly compensated them
for their true loss. Judge Bamberger
ruled that the settlement was a class action settlement, and this resulted in
excess funds being left after all the 440 plaintiff’s had been paid according
to the facts of their individual claims.
The issue of whether or not the
settlement was an “aggregate” settlement or a “class action settlement” is
currently on review by the Sixth Circuit and possibly by the Kentucky Supreme
Court. The KBA and the Board of
Governors have ignored this continuing but highly important issue.
Gallion and Cunningham and Chesley all argue that there is a document
which is part of the settlement which answers this question. This document is
identified as “the settlement letter of 5-1-01″.
This document allegedly defines the status of “settling claimants”.
Judge Bamberger is faulted by the KBA for his judicial interpretation of
this issue. The KBA seeks sanctions against the Judge based on their guess on
how the Kentucky Supreme Court will rule on this issue in the plaintiff’s civil
case now on appeal.
The finding of the Kentucky Court
of Appeals held that the type of settlement was a jury question.
Date: 2/3/2011 ABBOTT V. GALLION, CUNNINGHAM AND MILLS
Quotes from the Ct. of Appeals
“…it was represented to the Court (i.e.
to Judge Bamberger) during the June 27, 2002, hearing regarding that Seven
Million Five Hundred Thousand Dollars ($7,500,000.00) that all clients had or
would agree to the balance of funds going to charity. It is now clear from the
paper discovery produced that same was not true, and none of the clients were
advised of the magnitude of the funds being transferred.”
” Judge Bamberger was not made aware
of the fee contracts,…” (i.e. the contingent fee contracts originally obtained
” Abbott points out that GMC (Gallion Mills and Cunningham) gave it no
notice of the true amount of fees it was taking, or that it had asked Bamberger
to approve fees in excess of the contingent fee contracts it had executed.”
” This is an independent action that
is not the result of a modification or vacation of Bamberger’s orders in the Guard
action.” (i.e. the Court is saying the plaintiff’s represented by Angela
Ford did not seek to set aside any orders of Judge Bamberger.)
” In response to Abbott’s motion for
partial summary judgment, the seventeen-page affidavit of Hon. Kenneth R.
Feinberg, a practicing attorney and an expert in mass tort litigation, was
submitted in the Boone County civil case heard by Judge Wehr.
affidavit concluded the settlement entered in the Guard action was
“reasonable” and the “side letter” agreement supported the conclusion that the
$200,000,000.00 paid by AHP was not intended to compensate only the 431
plaintiffs, but was also intended “to provide for other payments, including
potential claims or (sic) other Phen-Fen (sic) users, subrogation claim
holders, and other unforeseen claims.”
Feinberg went on to state:
“There was nothing out of the
ordinary in the Boone Circuit Court approving the use of approximately twenty
million dollars from Guard for cy pres purposes or in approving
the formation of a charitable foundation,
the Kentucky Fund for Healthy Living, Inc. (Kentucky Fund), to administer the cy
pres funds. I am aware that certain of the plaintiffs’ attorneys were
appointed by the Court to serve as directors of the Kentucky Fund.
In my opinion, there was no conflict
of interest or impropriety whatever in those appointments. The plaintiffs’
attorneys were in an excellent position to understand the purposes of the fund
and to carry out the intent of the Court that approved the establishment of the
In my opinion, the case was handled
properly and ethically. I have seen nothing that credibly suggests any
misconduct by the attorneys or any inappropriate action by the judge who
presided over the case. It appears that the instant action against the
plaintiffs’ attorneys in Guard (AKA the Fen Phen case) is based on
nothing more than misinformation or lack of understanding of the procedures
involved in class action or common fund or aggregate mass tort settlement.”
Feinberg’s affidavit was sufficient
to create genuine issues of material fact such as:
…whether the entire settlement,
minus fees and expenses, was to be split between the 431 settling claimants;
whether the settling complainants were fairly and adequately compensated;
whether KFHL was funded with money that should have been distributed to the
settling claimants or was funded with excess funds for which the plaintiff’s
consent to its ultimate use was not required; and, whether GMC and Chesley were
obligated to indemnify AHP for additional claimants who might come forward
after the settlement had been dispersed. The foregoing questions of fact
justified going forward with trial. Steelvest, 807 S.W.2d at 480-82; See
also, Chalothorn v. Meade, 15 S.W.3d 391 (Ky. App. 1999).”
The Court of Appeals ruled, ” We agree that creation of a cy pres trust
is a valid option under the appropriate circumstances.”
According to the Court of Appeals, the
Charitable Trust approved by Judge Bamberger was a valid option for him to
consider. This ruling of the Court of Appeals was not mentioned in the Bar Counsel’s
Counsel stated in their brief re: the Charitable Trust:
Bamberger) allowed the attorneys to keep another twenty million dollars of
settlement funds …” (i.e. by setting
up the charitable trust.)
money was not kept by Gallion, Mills or Cunningham. This argument by the Bar Counsel simply
misstates the facts on this issue. This exaggeration is just one of many in the
Trial Commissioner’s brief. The
$20,000,000 did not go to GMC, it went to a legally formed charitable trust. All funds from this trust were recovered.
The Kentucky Court of Appeals concluded, ” Therefore, reversal is
necessary. Because we have determined partial summary judgment was
Upon trial it is possible that a judgment
may be entered declaring the settlement to have been a “class action”
settlement and not an “aggregate” settlement, and if that occurs, then every
claim brought by the Bar Counsel against Judge Bamberger’s rulings will be cast
in quite a different light.
We submit that the Supreme Court must view
Judge Bamberger’s rulings in light of the law, and not just the rhetoric of the
Bar Counsel. We have not discovered one instance in the Bar Counsel’s brief
which supports their conclusion that Bamberger ever acted outside of his
judicial function in making any ruling. Therefore there is a strong argument
that Judge Bamberger should be protected by the Doctrine of Judicial Immunity
This material issue demonstrates that the action by the KBA against
Judge Bamberger is based on the Bar Counsel’s interpretation of the meaning of
said document as opposed to Judge Bamberger’s interpretation of the meaning of
Ruling on conflicting legal issues
is clearly within a judges jurisdiction and is protected by the Doctrine of
If this position is sustained in favor of the KBA, then any ruling of
any judge can be subjected to ethics prosecution if the KBA disagrees with the
trial court’s findings. Is the Bar Counsel the proper person to rule on
questions such as this before they are decided by the appellate courts?
The record of the Bamberger proceedings reveal testimony of Kenneth R.
Feinberg. Feinberg is a nationally recognized expert on class action settlements
and the evaluation of claims in class actions. He is the man that President
George W. Bush appointed to oversee the evaluation of compensation for the
victims of the Sept. 11 terroristic attack upon the New York World Trade
Center. Feinberg also handled the evaluation of the claims of the 440
plaintiffs in the Kentucky Fen Phen case and he states under oath:
“I have read and considered the
assertion in the Plaintiff’s memorandum supporting their motion for summary
judgment that Exhibit 3 to the settlement agreement is a “smoking gun” that
“proves” that all of the $200,000,000 was intended to compensate only 431
claimants, many of whom are involved in the instant litigation against their
former attorneys. In my opinion that assertion is simply a naive
misunderstanding or misinterpretation of the language in the settlement
agreement and the purpose it served in memorializing the settlement.”
(Footnote on Kenneth Feinberg:
Kenneth Feinberg – Feinberg was appointed Special Master of the U.S. government’s September
11th Victim Compensation Fund and currently serves as the Special Master
for TARP Executive Compensation, popularly called the “pay czar.” Additionally,
Feinberg currently serves as the government-appointed administrator of the BP
Deepwater Horizon Disaster Victim Compensation Fund.
In the first criminal trial of Gallion, Cunningham and Mills, before
Judge Bertlesman, the court ruled the settlement was a “class action
settlement”, not an “aggregate” settlement. No weight is given by the KBA
to this ruling of a U.S. District Judge. If a Federal judge found it to be a “class
action” type settlement it is reasonable to justify Judge Bamberger’s identical
finding on this issue. The KBA dismisses
the very real and legitimate issue regarding what type of settlement was made
between the diet drug manufacturer and the plaintiff’s.
In the second criminal trial, Judge
Danny Reeves refused to allow testimony on this subject and instructed the jury
that it was an “aggregate” settlement. That ruling is on appeal to the Sixth
Circuit Court of Appeals. The KBA
argument ignores the possibility that the Sixth Circuit Court of Appeals may
find that Judge Bertlesman was correct and that Judge Reeves was wrong on this
Judge Wehr, the Boone Circuit Court
Judge who handled the Angela Ford case against the Plaintiff’s original lawyers,
granted a summary judgment apparently finding it was an “aggregate
settlement”. That summary judgment was set aside by the Ky. Court of
Appeals. The Court of Appeals found that the type of settlement was a jury
question and could not be decided by a summary judgment ruling as it was in the
purview of the jury to rule on the facts. That very issue is currently on
appeal to the Kentucky Supreme Court in the civil suit.
A denial of judicial immunity to Judge Bamberger will put every judge in
Kentucky under the threat of KBA discipline sanctions if they acted on
representations made by the attorneys or parties who appeared before them.
If any judge is overruled by a
higher court will he now be subject to an ethics prosecution because he ruled
incorrectly on the law or made some other kind of mistake?
THE FEE JUDGE BAMBERGER AWARDED TO
PLAINTIFF’S ATTORNEYS WAS WITHIN GUIDELINES ESTABLISHED BY THE COURT OF APPEALS
In Shelton v. Simpson, 441
S.W.2d 421 Ct. of Appeals, May 23, 1969, the court upheld a fee of 50% in a
Kentucky class action which had 400 plaintiffs. In that decision the Court of
Appeals set aside the trial judges fee award of 25%, and restored the 50% fee
claimed by the class action attorney. Bamberger
awarded an attorneys fee of 48%. Bamberger’s fee award was clearly made with
WHAT JURISDICTION SHOULD THE KBA HAVE OVER JUDGES
We would suggest that the Judicial Immunity Doctrine can co-exist with
the KBA discipline process. In Hardesty the Supreme Court (in dicta)
suggested that there were instances where the KBA could proceed without a
referral by the JCC. One reasonable interpretation of that dicta is to
recognize the right of the KBA to proceed immediately against a Judge who has been
convicted of a criminal offense. A criminal offense is not a judicial function
and therefore is not protected by the judicial immunity doctrine.
However, the JCC should retain the
right in any case against a judge, to make a finding as to whether or not the
actions of the defendant judge “was an action within his judicial function” and
therefore entitled to the judicial immunity defense.
If the JCC finds that a judges’ complained of conduct was done within
the role of a judge (i.e. signing orders, holding hearings, etc.) he should be
entitled to judicial immunity and no discipline action could be taken by the
KBA without a finding by the JCC that the judge was acting outside of his
official duties. (We again point out that KBA discipline actions are defined as
On the other hand, if the JCC issues a finding of fact that the
complained of actions of the judge were not judicial acts, then the judge
should not be protected by judicial immunity.
The JCC by making a referral to the KBA is essence is saying that the
conduct of the judge was not protected by judicial immunity. The JCC is
authorized by Supreme Court Rules to refer a judge to the KBA for consideration
of sanctions or disbarment. No such
referral was made by the JCC in the case involving Judge Bamberger.
The KBA never explains why the
Supreme Court Rule granting jurisdiction to the JCC to make a discipline
referral to the KBA should be ignored.
The KBA in essence argues that they
do not have any limits on their jurisdiction to consider a discipline action,
and therefore they claim that the Supreme Court Rule regarding “referrals” by
the JCC is without any meaning.
The purpose of the JCC is to provide a body with knowledge of judicial
functions. The JCC membership includes a Court of Appeals judge, a Circuit
Judge and a District Judge, a representative of the Bar Association and two
citizen members. They are presumed to have an understanding of the type of
special problems and duties of judges.
If the KBA is allowed carte blanche to determine the proper duties of
judges and to rule on whether actions taken by a judge are within his judicial
function, then there really will be no reason to continue the existence of the
OF THE JCC AND KBA
The question of the jurisdiction of
the JCC and KBA was raised by Judge Bamberger in his brief to the Board of
Governors. Bamberger asserted that “Section 121 (of the Kentucky Constitution)
fixes original jurisdiction for judicial discipline exclusively in the (Judicial
The JCC did not refer
Judge Bamberger to the KBA “for possible suspension or disbarment…”
We have yet to see any proof that Judge
Bamberger by signing certain orders was acting “outside of his judicial
function“. This point distinguishes every argument raised by the KBA Bar
Counsel in their brief to the Board of Governors and to the Trial Commissioner.
The Bar Counsel has argued that Judge Bamberger was dazzled by the legal
arguments of highly respected experts in the class action practices, and
therefore he should be sanctioned with permanent disbarment. This sets a
dangerous precedent for any judge who has ever made a ruling based on
conflicting facts or conflicting legal issues.
If this novel theory of jurisdiction over judge’s rulings by the Kentucky
Bar Association is upheld, then every judge will henceforth be subject to
hindsight review by the Bar Counsel.
We further submit that the practice of the Bar Counsel in being allowed
to unilaterally set the appeal surety of a judge or lawyer as a prerequisite
for the right to appeal to the Supreme Court is unconstitutional.
We submit the Supreme Court should clarify the jurisdiction of the JCC
and the KBA and uphold the Doctrine of Judicial Immunity. And further, the Court should amend the SCR’s
to permit the filing of inexpensive
Judge Stan Billingsley
314 7th. St.
Carrollton, Ky. 41008