Archive for the ‘Uncategorized’ Category

Can the Supreme Court rescue drowning homeowners?

Friday, April 3rd, 2015


By Noah Feldman, Bloomberg NewsBloomberg

Critics of the Supreme Court’s conservative wing like to say it’s instinctively pro-business. The justices on Tuesday tested that proposition in a fascinating case about whether bankruptcy law instructs judges to void liens on underwater properties. On one side lie the interests of Bank of America, which is the petitioner and doesn’t want the loans to be “stripped off,” that is, voided. On the other side is the plain statutory text, which says they should be. The poetic twist is that, in a very similar 1992 case, the Supreme Court ignored the plain text and held in favor of the banks — over the forceful dissent of one Justice Antonin Scalia.

The facts of the case are simple, and reflect a common situation post-2008. In each of two consolidated cases, a debtor had two mortgage liens on a property, one subordinated to the other. The property lost so much value that the debt on the first mortgage was greater than the value of the house — in common terms, the house was underwater. Given that this was so, the second, subordinated lien, owned by Bank of America, was completely underwater. When filing for bankruptcy, the debtor asked that the second lien be eliminated under the federal Bankruptcy Code.

Supreme Court on Obama coal pollution rule: ‘game over’ if costs not assessed

Friday, April 3rd, 2015

  • Justices concerned about costs of Obama administration’s new standards
  • Industry groups and 21 states challenge regulations on power plants

Coal-burning power stations, such as the Jim Bridger Power Plant in Wyoming, are at the centre of a case currently before the US supreme court about new pollution regulations. Photograph: Jim Urquhart/Reuters/Corbis

Reuters in Washington

Wednesday 25 March 2015 14.11 EDTLast modified on Wednesday 25 March 201516.35 EDT

The US supreme court’s conservative majority on Wednesday signalled hostility towards the Obama administration’s refusal to consider costs before regulating emissions of mercury and other hazardous pollutants mainly from coal-fired power plants.

Obama unveils historic rules to reduce coal pollution by 30%

Conservative justice Anthony Kennedy, based on questions he asked during a 90-minute oral argument, could be a possible swing vote on the nine-justice court, with its four liberals appearing to back the US Environmental Protection Agency’s rationale for the regulation.

The case marks the latest legal test to President Barack Obama’s environmental agenda to reach the high court. Industry groups and 21 states led by Michigan challenged the rule, announced in 2012 and due to go into effect this year.

The conservatives, including Kennedy, asked questions that indicated they were concerned it was not enough that the agency implicitly considered costs when issuing standards for specific pollution sources.

Under the section of the Clean Air Act in question, the agency can regulate power plants for mercury and other toxic pollutants if it deems it “appropriate and necessary”. The provision does not explicitly state whether the EPA was required to include costs in making its decision, and the administration decided it did not have to.

At one point, Kennedy told the Obama administration lawyer Donald Verrilli “the game is over” if the government did not consider costs at the early stage of rule-making. But earlier in the hearing, Kennedy seemed to be open to the idea that the EPA considered costs at a later stage in the regulatory process when it decided what specific standards to impose.

Chief Justice John Roberts indicated it was not enough for the agency to say it implicitly considered costs if there is no evidence that it did so. Roberts also suggested he was troubled by the disparity between the costs and benefits of the regulation, saying it was a “red flag”.


The challengers say the costs are $9.6bn a year but the benefits are worth only a few million dollars.

The government says it did not quantify some of the benefits, but says they could be worth billions of dollars, including a reduction in mercury poisoning, which can lead to developmental delays and abnormalities in children.

Liberal justice Stephen Breyer appeared eager to find a middle ground in which the court could acknowledge the EPA did consider costs at some point.

The way the law is structured, the agency can categorise different pollution sources based in part on how burdensome the standard would be, which gives the government “the ability to take into account at least serious cost problems”, Breyer said.

The challengers appealed after an appeals court upheld the regulation in June 2014.

Companies opposing the rule include Peabody Energy Corp, the country’s largest coal producer. Exelon Corp, the biggest US nuclear power plant operator, is among several power companies supporting the rule.

A ruling is due by the end of June.



Friday, April 3rd, 2015


Elena Ruth Sassower

Judicial independence is predicated on “good faith” decision-making.  It was never intended to include “bad-faith” decision-making, where a judge knowingly and deliberately disregards the facts and law of a case.  This is properly the subject of disciplinary review, irrespective of whether it is correctable on appeal.  And egregious error is also misconduct, since its nature and/or magnitude presuppose that a judge acted wilfully, or that he is incompetent.

How can you make any assessment of how judicial misconduct mechanisms are working unless you reach out to the victims of judicial misconduct who have used them? — Elena Ruth Sassower

Reprinted by permission of  The Long Term View, Massachusetts School of Law, Vol. 4, No. 1, 1997, pp. 90-97.  See original article [PDF].  Note:  Publication of this critique does not constitute an endorsement of the Center for Judicial Accountability about particular cases.

The most serious misconduct by judges is that which is the least likely to subject them to discipline. It is not what they do in their private lives, off the bench, but what they do on the bench in the course of litigation. The obvious image is the judge who runs his courtroom as if he owns it, who looks down from his elevated bench and treats litigants and their attorneys in an imperious and abusive fashion. But even where a judge is, as he is supposed to be, patient and dignified in his demeanor, every court appearance, just like every written motion, involves a judge ruling on a procedural or substantive aspect of a case. And there are judges who, while presenting a veneer of fairness, are intellectually dishonest. They make rulings and decisions which are not only a gross abuse of discretion, but which knowingly and deliberately disregard “clear and controlling law” and obliterate, distort, or fabricate the facts in the record to do so.

Why would a judge be intellectually dishonest? He may be motivated by undisclosed bias due to personal or political interest. Judicial selection processes are politically controlled and closed, frequently giving us judges who are better connected than they are qualified. And once on the bench, these judges reward their friends and punish their enemies. Although ethical codes require judges to disclose facts bearing upon their impartiality, they don’t always do so. They sit on cases in which they have undisclosed relationships with parties, their attorneys, or have interests in the outcome, and do so deliberately because they wish to advantage either one side over another or sometimes themselves.

They exercise their wide discretion in that side’s favor. That’s the side for whom deadlines are flexible and for whom procedural standards and evidentiary rules don’t apply. A common thread running through judicial misconduct cases is litigation misconduct by the favored side. Meanwhile, the other side struggles to meet inflexible deadlines and has its worthy motions denied. In extreme cases, a judicial process predicated on standards of conduct, elementary legal principles, rules of evidence, simply ceases to exist.

Intellectual Dishonesty

Every case has many facts, any of which may be inadvertently “misstated” in judicial decisions. But judicial misconduct is not about innocent “misstatement” of facts, and certainly not about peripheral facts. It involves a judge’s knowing and deliberate misrepresentation of the material facts on which the case pivots. These facts determine the applicable law. If the applicable law doesn’t allow the judge to do what he wants to do, he’s going to have to change the material facts so that the law doesn’t apply. When judges don’t want to put themselves on record as dishonestly reciting facts, they just render decisions without reasons or factual findings.

The prevalence of intellectually dishonest decisions is described by Northwestern Law Professor Anthony D’Amato in “The Ultimate Injustice: When the Court Misstates the Facts” [1]. He shows how judges at different levels of the state and federal systems manipulate the facts and the law to make a case turn out the way they want it to. It quotes from a speech by Hofstra Law Professor Monroe Freedman to a conference of federal judges:

Frankly, I have had more than enough of judicial opinions that bear no relationship whatsoever to the cases that have been filed and argued before the judges. I am talking about judicial opinions that falsify the facts of the cases that have been argued, judicial opinions that make disingenuous use or omission of material authorities, judicial opinions that cover up these things with no-publication and no-citation rules.

Afterward, when Professor Freedman sat down, a judge sitting next to him turned to him and said, “You don’t know the half of it.”


Friday, April 3rd, 2015


by  Hon. Michael Dowling

Another argument to consider…. (Please take a go at polishing the foregoing) The “one bite at the apple rule” should have been applied to Gallion as a consequence of the near acquittal of Gallion in the first trial that was fair.   Gallion’s life Vis a Vis the just administration of justice in the federal court system leaves one to wonder. Is it really like “pulling teeth” to get a just decision in appellate review in a federal criminal appeal.

The Judgment at Nuremberg has this scenario.

“ Haywood visits Janning in his cell. Janning affirms that Haywood’s decision was just, but asks him to believe that he and the other defendant judges never desired the mass murder of innocents. Judge Haywood replies, “Herr Janning, it came to that the first time you sentenced a man to death you knew to be innocent.” Haywood departs; a title card informs the audience that, of 99 Nuremberg defendants sentenced to prison terms, none were still serving their sentences as of the film’s 1961 release. “Gallion asks the Court. Has it really come to this?

The undersigned counsel knows that the denial in this case is a complete miscarriage of justice. It is a  “white wash” to avoid the undoing of over a 1000 docket entries and thousands of DOJ man hours prosecuting and destroying  Gallion’s life and  personal assets. Now all Gallion has is his life and he want to keep it.  The notation by Helmers of $50 million for Charity made on the Settlement document during Mediation coupled with Schaefer’s Interview ( that the US had and failed to disclose to the Defense) of a discussion of monies being placed in a Charity during Mediation in the presence of all the AHP attorneys supports a finding that Gallion is INNOCENT of the charge that the $200 million settlement was only for 440 claimants  as Gallion testified in both criminal trials.

“Gallion next argues that the prosecution improperly withheld investigatory materials that it received from the KBA. To prevail on his claim, Gallion must show that the prosecution withheld exculpatory or impeachment evidence and that the suppression resulted in prejudice. See Bell v. Howes, 703 F.3d 848, 853 (6th Cir. 2012). Reasonable jurists would not debate the district court’s rejection of this claim because Gallion failed to identify specific materials that should have been disclosed and explain how the suppressed materials would have affected the outcome of his trial.”


Gallion’s Application in bold type  says the following:

 Vol.18A Tr.106)

Q. Now, Professor Erichson, in your opinion upon review of all of the information that you have done, in this aggregate settlement that you have described of $220 million for 440 clients, would there be excess funds?

A. No. There is $200 million. That’s the amount that the lawyers have to work with. If the plaintiffs’ lawyers have to do the allocation themselves, then they take that money, they divide it up, they allocate it among their clients. APPLICATION P.10


Only after Gallion and Cunningham were convicted did they learn that during the trial, the U.S. Attorney was aware of, and had access to, documents in the possession of the Kentucky Bar Association (“KBA”) that demonstrated that the KBA was seeking disbarment of Chesley by accusing Chesley of the very conduct that he had denied at trial and had information that was inculpatory with regard to Chesley. Kentucky Supreme Court Order, dated May 14, 2007. Exhibit B in Gallion’s Petition less than 28 USC 2255.

“The OBC is hereby authorized to release to the FBI and its counsel the documents, evidence and information that it has gathered or collected in connection with ANY DISCIPLINE MATTER arising out of the Darla Guard, et al., or Jonetta Moore, et al., v A.H. Robbins, et al., Case No. 98‐CI‐795.”

On April 10, 2006 the Kentucky Supreme Court entered the following Order.

“Upon request of the United States Attorney for the Eastern District of Kentucky directed to the Judicial Conduct Commission for access to the records of the Commission pertaining to Joseph F. Bamberger” the Kentucky Supreme Court in an Order dated April 10, 2006 waived the” confidentiality of papers and information relating to the Commission’s investigation of Joseph F. Bamberger” in favor of the United State Attorney.

Government Response to Gallion’s Motion to Vacate, p. 16. (GALLION’S APPLICATION)  “Gallion is wrong. The United States was not provided with any other witness statement, impeaching, or exculpatory material by the KBA. Nor, did the United States have the legal means to obtain such information.”


The court states on page 15 of the Memorandum Opinion and Order that there is no for support for the inference that the Government had information that should have been disclosed to Gallion. APPLICATION PP. 14, 15

 David Schafer’s Interview in 2005 with the Judicial Conduct Commission “JCC” was part of Judge Bamberger’s KBA file.

“Mr. Schaefer related the following: “Schaefer recalled that during the mediation sessions (2001), there was talk by some of the plaintiffs’ attorneys of the establishment of a charitable fund to receive any leftover monies as part of the settlement. Although he could not remember exactly which attorneys participated in this discussion, Schaefer believed that Pierce Hamblin, David Helmers, Shirley Cunningham, William Gallion and Stanley Chesley were present, and along with Schaefer’s two co‐counsel”. (D.E. 343‐346) APPLICATION P. 15

At trial on Direct Schaefer testified he did not remember Indemnification being discussed at the May 9 Settlement Hearing. He only recalled telling Judge Bamberger that the total amount of the Settlement was $200 million. (D.E. 294; Vol. 16A Tr.32, 33)

Judge Bamberger testified that in an off the record discussion at the May 9, 2001 hearing where the Settlement was approved he was advised in presence of Mr. Schaefer that indemnification was unlimited.( D.E. 294; Vol 15A, Tr. 82-84; Vol 25A Tr. 52). APPLICATION P.15


“The ultimate injustice is when the court misstates the facts.”

Anthony D’Amato is professor of law at Northwestern University and the author of over 20 books and 110 articles.  The latter include: •”The Ultimate Injustice: When the Court Misstates the Facts,” Cardozo Law Review, Vol. 11: 1313 (1990).



U.S. Supreme Court Revives Pregnancy Discrimination Act Claim

Friday, April 3rd, 2015


On March 25, 2015, the U.S. Supreme Court issued a ruling overturning a lower court’s decision dismissing a woman’s Pregnancy Discrimination Act (“PDA”) case and remanded the case for further proceedings. By overturning the Fourth Circuit’s decision to reject that UPS driver’s pregnancy discrimination claim today, the Supreme Court has resuscitated the question of whether, and in what circumstances, PDA requires employers who provide accommodations to non-pregnant employees with work limitations to also provide accommodations to pregnant employees who are “similar in their ability or inability to work.”

When she became pregnant, the former UPS driver, Peggy Young, was placed on a lifting restriction. Young’s request for light duty was denied by UPS however, because it only provided accommodations to three categories of workers: those who had been injured on the job, those who lost their Department of Transportation certification, and those who had a disability as defined by the Americans with Disabilities Act. UPS explained that its policy was pregnancy neutral. Young sued UPS under a section of the PDA however, which requires employers to treat pregnant employees the same as others “similar in their ability or inability to work.” Young claims that because UPS offered light duty accommodations to employees who were similarly situated (but not pregnant), it must offer her the same accommodation.

The U.S. District Court for the District of Maryland granted summary judgment to UPS after deciding that UPS’ decision to deny Young light duty work during her pregnancy turned on “gender neutral criteria” and that there was no direct evidence of discrimination on the basis of sex. The U.S. Court of Appeals for the Fourth Circuit affirmed the lower court’s decision and found that UPS’ policy was facially neutral because accommodating some employees, but not others was “not direct evidence of pregnancy-based discrimination.”

On March 25, 2015, the United States Supreme Court rejected the reasoning of the lower court with a 6-3 vote in Young’s favor. On behalf of the majority, Justice Stephen Breyer wrote that the lower court is required to decide if UPS had “legitimate, nondiscriminatory, nonpretextual justification for treating employees differently.”  Breyer added that there is a “genuine dispute as to whether UPS provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished from Young’s.” Courts across the nation will now have to re-examine Young’s case with a more positive view of the pregnancy discrimination claim.

Regardless of the Fourth Circuit’s forthcoming ruling as to whether and to what extent an employer is legally required to accommodate pregnant employees under the PDA, employers should consider providing workplace accommodations to pregnant employees for a multitude of reasons. Importantly, since the Fourth Circuit’s decision – and even before the Supreme Court’s Opinion was issued today – the Equal Employment Opportunity Commission (“EEOC”) updated guidance to employers clarifying that employers should accommodate women in Young’s situation. Even the Supreme Court recognized that in “2008, Congress expanded the definition of ‘disability’ under the ADA to make clear that ‘physical or mental impairment[s] that substantially limi[t]’ an individual’s ability to lift, stand, or bend are ADA-covered disabilities.” While expressing no view regarding the recent statutory changes, the Supreme Court also recognized that as interpreted by the EEOC, the new statutory definition would require employers to accommodate employees whose temporary lifting restrictions originated off the job. Interestingly, UPS has changed its policy, and now says it will try to accommodate pregnant workers. Finally, employers must recognize that pregnancy discrimination claims are sure to abound as the topic has grabbed the national spotlight, and it will likely continue to do so for some time


Friday, April 3rd, 2015


March 26, 2015  AT 10:34 AM


A truly stunning debasement of the U.S. justice system just occurred through the joint efforts of the Obama Justice Department and a meek and frightened Obama-appointed federal judge, Edgardo Ramos, all in order to protect an extremist neocon front group from scrutiny and accountability. The details are crucial for understanding the magnitude of the abuse here.

At the center of it is an anti-Iranian group calling itself “United Against Nuclear Iran” (UANI), which is very likely a front for some combination of the Israeli and U.S. intelligence services. When launched, NBC described its mission as waging “economic and psychological warfare” against Iran. The group was founded and is run and guided by a roster of U.S., Israeli and British neocon extremists such as Joe Lieberman, former Bush Homeland Security adviser (and current CNN “analyst”) Fran Townsend, former CIA Director James Woolsey, and former Mossad Director Meir Dagan. One of its key advisers is Olli Heinonen, who just co-authored Washington Post Op-Ed with former Bush CIA/NSA Director Michael Hayden arguing that Washington is being too soft on Tehran.

This group of neocon extremists was literally just immunized by a federal court from the rule of law. That was based on the claim — advocated by the Obama DOJ and accepted by Judge Ramos — that subjecting them to litigation for their actions would risk disclosure of vital “state secrets.” The court’s ruling was based on assertions made through completely secret proceedings between the court and the U.S. government, with everyone else — including the lawyers for the parties — kept in the dark.

In May 2013, UANI launched a “name and shame” campaign designed to publicly identify — and malign — any individuals or entities enabling trade with Iran. One of the accused was the shipping company of Greek billionaire Victor Restis, who vehemently denies the accusation. He hired an American law firm and sued UANI for defamation in a New York federal court, claiming the “name and shame” campaign destroyed his reputation.

Up until that point, there was nothing unusual about any of this: just a garden-variety defamation case brought in court by someone who claims that public statements made about him are damaging and false. That happens every day. But then something quite extraordinary happened: In September of last year, the U.S. government, which was not a party, formally intervened in the lawsuit, and demanded that the court refuse to hear Restis’s claims and instead dismiss the lawsuit against UANI before it could even start, on the ground that allowing the case to proceed would damage national security.

When the DOJ intervened in this case and asserted the “state secrets privilege,” it confounded almost everyone. The New York Times’s Matt Apuzzo noted at the time that “the group is not affiliated with the government, and lists no government contracts on its tax forms. The government has cited no precedent for using the so­-called state­ secrets privilege to quash a private lawsuit that does not focus on government activity.” He quoted the ACLU’s Ben Wizner as saying: “I have never seen anything like this.” Reuters’s Allison Frankel labeled the DOJ’s involvement a “mystery” and said “the government’s brief is maddeningly opaque about its interest in a private libel case.”

Usually, when the U.S. government asserts the “state secrets privilege,” it is because they are a party to the lawsuit, being sued for their own allegedly illegal acts (such as torture or warrantless surveillance), and they claim that national security would be harmed if they are forced to defend themselves. In rare cases, they do intervene and assert the privilege in lawsuits between private parties, but only where the subject of the litigation is a government program and one of the parties is a government contractor involved in that program — such as when torture victims sued a Boeing subsidiary, Jeppesen, for its role in providing airplanes for the rendition program and the Obama DOJ insisted (successfully) that the case not go forward, and the victim of U.S. torture was thus told that he could not even have a day in court.

But in this case, there is no apparent U.S. government conduct at issue in the lawsuit. At least based on what they claim about themselves, UANI is just “a not-for-profit, non-partisan, advocacy group” that seeks to “educate” the public about the dangers of Iran’s nuclear program. Why would such a group like this even possess “state secrets”? It would be illegal to give them such material. Or could it be that the CIA or some other U.S. government agency has created and controls the group, which would be a form of government-disseminated propaganda, which happens to be illegal?

What else could explain the basis for the U.S. government’s argument that allowing UANI to be sued would risk the disclosure of vital “state secrets” besides a desire to cover up something quite untoward if not illegal? What “state secrets” could possibly be disclosed by suing a nice, little “not-for-profit, non-partisan, advocacy group”?

We don’t know the answers to those questions, nor do the lawyers for the plaintiffs whose lawsuit the DOJ wants dismissed. That’s because, beyond the bizarre DOJ intervention itself, the extreme secrecy that shaped the judicial proceedings is hard to overstate. Usually, when the U.S. government asserts the “state secrets privilege,” at least some information is made public about what they are claiming: which official or department is invoking the privilege, the general nature of the secrets allegedly at risk, the reasons why allowing the claims to be adjudicated would risk disclosure, etc. Some redacted version of the affidavit from the government official making the secrecy claim is made part of the case.

Here, virtually everything has been hidden, even from the plaintiffs’ lawyers. Not only did the U.S. government provide no clue as to what the supposedly endangered “state secrets” are, but they concealed even the identity of the agency making the claim: was it the CIA, the Treasury Department, the State Department, some combination? Nothing is known about any of this, not even who is making the secrecy claim.

Instead, the DOJ’s arguments about why “secrecy” compels dismissal of the entire lawsuit were made in a brief that only Judge Ramos (and not even the parties) gets to read, but even more amazingly, were elaborated on in secret meetings by DOJ lawyers in the judge’s chambers with nobody else present. Were recordings or transcripts of these meetings made? Is there any record of what the U.S. government whispered in the ear of the judge to scare him into believing that National Security Would Be Harmed™ if he allowed the case to proceed? Nobody knows. The whole process is veiled in total secrecy, labeled a “judicial proceeding” but containing none of the transparency, safeguards or adversarial process that characterizes minimally fair courts.

This sham worked. This week, Judge Ramos issued his ruling dismissing the entire lawsuit (see below). As a result of the DOJ’s protection, UANI cannot be sued. Among other things, it means this group of neocon extremists now has a license to defame anyone they want. They can destroy your reputation with false accusations in a highly public campaign, and when you sue them for it, the DOJ will come in and whisper in the judge’s ear that national security will be damaged if — like everyone else in the world — UANI must answer in a court of law for their conduct. And subservient judicial officials like Judge Ramos will obey the U.S. government’s dictates and dismiss your lawsuit before it begins, without your having any idea why that even happened.

Worse, in his written ruling, the judge expressly acknowledges that dismissal of the entire lawsuit at the start on secrecy grounds is what he calls a “harsh sanction,” and also acknowledges that “it is particularly so in this case because Plaintiffs not only do not get their day in court, but cannot be told why” (emphasis added). But he does it anyway, in a perfunctory 18-page opinion that does little other than re-state some basic legal principles, and then just concludes that everything the government whispered in his ear should be accepted. Just read for yourself what Judge Ramos said in defending his dismissal to see how wildly disparate it is from everything we’re propagandized to believe about the U.S. justice system:

Billion-dollar OxyContin verdict rests on disputed missed deadline

Friday, April 3rd, 2015


Associated PressMarch 26, 2015 Updated 2 hours ago


What does it cost to miss a deadline? For the company that makes the prescription painkiller OxyContin, the answer could be more than $1 billion.

Kentucky is suing Purdue Pharma on claims that the company misrepresented its prescription painkiller, resulting in a wave of addiction and increased medical costs across the state. But before the trial can start, both sides must file “admissions” so the court could determine a set of facts that are not in dispute.

Kentucky officials filed theirs, which included claims that Purdue Pharma lied about the addictiveness of the drug to doctors, who then overprescribed it to an unwitting population of poor people in Eastern Kentucky.

When Purdue Pharma did not respond, Pike Circuit Judge Steven Combs ruled those claims were admissible in court. That cleared the way for the state to potentially win the lawsuit, with the only question being how much Purdue Pharma would have to pay.

“I always thought if we ever got it to a court of law a billion dollars wouldn’t touch it,” said Kentucky House Speaker Greg Stumbo, whose office filed the lawsuit when he was state attorney general.

Combs’ decision surprised company officials. When the state filed its claims in 2007, Purdue Pharma had 45 days to respond. But in the middle of that window, Purdue Pharma moved the case to federal court, which put the state-court action on hold.

More than five years later, the federal court sent the case back to state court at the request of the Kentucky attorney general’s office.

Attorney General Jack Conway’s office argues that meant the clock re-started on the original deadline for Purdue Pharma to respond to the state’s request that it admit or deny damaging conduct.

However, Purdue Pharma contends that the original deadlines died when the case was transferred to federal court and that the state should have had to serve new requests for admissions on the company. On Thursday, the two sides made oral arguments to the state Supreme Court on the issue.

Purdue Pharma wants the high court to issue an order that would in effect strike down the admissions of liability Combs accepted.

Purdue Pharma said a co-defendant in the case, Abbott Labs, also missed the deadline yet the court allowed that company to file a response anyway. And they said if the case moves forward like this, the company won’t be able to adequately defend itself and won’t be able to get information from Kentucky officials about the state’s role in the epidemic of prescription painkiller abuse.

“The commonwealth is going to be able to use (these admissions) as a sword and as a shield to keep us from finding the information that we need to develop a full record,” attorney Daniel Danford said.

Danford argued that Combs’ ruling was incorrect and that letting it stand would cause irreparable damage to the company.

On the other hand, striking down Combs’ order would just put the case back on its original path and not hurt the state, Danford said.

Conway’s office contends the state lawsuit was suspended when it was transferred to federal court, then re-started when it came back. That’s the way courts have handled cases like this going back 50 years, and making an exception for Purdue Pharma will result in a flood of similar requests from other litigants who miss deadlines, the state contends.

“Purdue Pharma could care less about the merits of this case,” Assistant Attorney General Mitchel Denham said. “They are a multi-billion-dollar company here asking this court for special accommodations and to change the rules because they did not follow the clear and simple rules.”

Conway’s office also argues that the company would have adequate appeal remedies if the high court upholds the decision to let the admissions of liability be used against the company.

And the state argues it already has been harmed by how much time Purdue Pharma kept the case alive in federal court. One key witness died, for instance.

The company and three officers pleaded guilty in federal court in Virginia in 2007 to making misleading claims about the addiction potential of OxyContin. A judge ordered a fine of more than $630 million.

Kentucky had joined other states in an action against Purdue Pharma, but the company offered the state only a little more than $500,000 to settle.

The state rejected the settlement and joined Pike County in a lawsuit against the company.

Conway said the county settled its complaint for about $4 million. The state has a stronger case, however, he said.

Conway said Thursday that the company is trying to escape the consequences of fueling a deadly epidemic of drug abuse.

“We’re just holding their feet to the fire,” he said.

OxyContin is the brand name for oxycodone, an opioid that the FDA approved for alleviating chronic pain in 1995. It was designed as a pill to release a steady flow of painkiller over 12 hours.

Drug abusers quickly learned to crush the pill, however, releasing a rush of the drug all at once.

The company won approval of a tamper-resistant version of the pill in 2010 and said it has taken extraordinary measures to combat drug abuse.

Staff writer Bill Estep contributed to this story.
Read more here:

Kentucky Voir Dire Rule Process

Friday, April 3rd, 2015


By David Kramer

In a May 2014 post we discussed the case of Oro-Jimenez v. Com. 412 S.W.3d 174 (Ky. 2013), in which the Kentucky Supreme Court held, under a palpable error review standard, that the voir dire process used in Jefferson County, which does not follow the method prescribed by Kentucky court rules and administrative procedures, did not warrant reversal in the absence of a showing of prejudice. That voir dire process is also used in civil cases in Jefferson County.


More recently, in St. Clair v. Com., 451 S.W.3d 597 (Ky. 2014), a capital murder case, the Supreme Court held that the defendant had failed to preserve for review any error relating to the noncompliant Jefferson County process where his counsel stated a preference for that method and the defendant himself apparently agreed to it.


St. Clair also reiterated the proper procedure for preserving for review a trial court’s denial of a challenge for cause of a potential juror. Unless the party who made the challenge uses a peremptory challenge on the juror whose challenge for cause was denied, and then designates an alternate juror on whom that party would have used a peremptory challenge if the for-cause challenge had been sustained, the issue is not preserved for appeal. See also Grubb v. Norton Hosps., Inc., 401 S.W.3d 483 (Ky. 2013); Gabbard v. Com., 297 S.W.3d 844 (Ky. 2009).


David Kramer is a Partner in the law firm of Dressman Benzinger LaVelle, with offices in Cincinnati, Ohio, Crestview Hills, Kentucky, and Louisville, Kentucky

U.S. Supreme Court Rules Borrowers May Rescind Residential Mortgage Loans by Written Notice

Friday, April 3rd, 2015


By  Adam Brandon

Rogers Towers – Florida Banking Law Contact

The Truth in Lending Act (“TILA”) requires lenders to make certain disclosures to borrowers before the parties close on a residential mortgage. TILA also affords borrowers the right to rescind a mortgage for any reason for three days after the transaction. Furthermore, if a lender fails to make the disclosures that TILA requires, then the borrower may rescind the transaction within three years or until the sale of the secured property, whichever comes first.

On January 23, 2015, the U.S. Supreme Court issued a significant opinion that clarifies how a borrower may exercise the right to rescind. Previously, many federal courts required a borrower seeking rescission to file a declaratory judgment action. If the borrower failed to file suit within three years, the borrower lost the right to rescind forever. However, in Jesinoski v. Countrywide Home Loans, the Supreme Court ruled that the plain text of TILA only requires a borrower to provide timely written notice of rescission to the lender.

In this case, Larry and Cheryl Jesinoski refinanced the mortgage on their Minnesota home by borrowing $611,000.00 from Countrywide Home Loans, Inc. (now part of Bank of America). The couple then used the funds to pay off multiple consumer debts. Exactly three years later, the Jesinoskis sent “all interested parties” a letter stating that they never received the required TILA notices and were rescinding the mortgage. Denying that it failed to comply with TILA, Countrywide refused to recognize the validity of the Jesinoskis’ rescission notice. One year later, the couple sued Countrywide seeking a court-ordered declaration of rescission as well as monetary damages.

Since the Jesinoskis filed their lawsuit four years after the original transaction, Countrywide claimed the borrowers were outside of the three-year window to rescind the mortgage. Countrywide further argued that rescission was a judicial remedy that could only be obtained through a court order. In other words, the Jesinoskis could not unilaterally void their mortgage with a mere letter. Relying upon prior precedent, both the district court and the Eighth Circuit Court of Appeals sided with Countryside.

In a unanimous opinion, the Supreme Court reversed the Eighth Circuit.  Justice Antonin Scalia noted that 15 U.S.C. § 1635(a) specifically provides that a borrower “shall have the right to rescind… by notifying the creditor… of his intention to do so.” Countrywide argued that § 1635(a) only applied to cases where both parties agreed that the lender failed to provide the truth-in-lending disclosures at closing. However, Justice Scalia countered that TILA does not distinguish between disputed and undisputed rescissions. The Court also noted that TILA eliminates the common-law rule that a borrower must tender the proceeds received in a transaction before rescission may occur. In other words, a mortgage is canceled the moment the borrower notifies the lender in writing of the rescission.

Some fear that the Jesinoski opinion permits borrowers to frivolously rescind mortgages. However, lenders may take some steps to protect their legal rights:

  • Lenders should document their compliance with TILA and request that borrowers acknowledge in writing that they received the lender’s truth-in-lender disclosures at closing.
  • Upon receipt of a written rescission notice, lenders must decide whether to contest the rescission. If the lender agrees that it failed to comply with TILA, then the borrower must return all payments and the lender must terminate its security interest. The Jesinsoki ruling, however, does not indicate what will happen if the borrower cannot return the principal.  This is likely to be an area of future litigation.
  • If the lender objects to the validity of a rescission notice, then the lender should send a letter to the borrower that details its compliance with TILA’s disclosure requirements. At that point, either the lender or the borrower may file a declaratory judgment action to determine the validity of the rescission.  Alternatively, the lender may file a foreclosure action with the recognition that the borrower will likely raise rescission as an affirmative defense.

While many questions remain unanswered, Jesinoski makes clear that borrowers preserve their recession rights simply by providing writing notice to the lender. Even if a borrower submits a baseless rescission notice, a lender must take prompt action to preserve its legal rights.

Ruling restricts court power to intervene in interrogations

Thursday, April 2nd, 2015



Associated PressApril 2, 2015 Updated 3 hours ago

LOUISVILLE, KY. — Kentucky’s Supreme Court on Thursday restricted the authority of courts to intervene in police interrogations, ruling in a case dealing with the questioning of a man during an investigation into his mother’s slaying.

In his majority opinion, Chief Justice John D. Minton Jr. wrote that courts “are not vested with general jurisdiction” over criminal matters until prosecution begins. An exception is the authority of judges to issue search warrants, he said.

The case focused on whether a state criminal procedure rule gives judges the authority to intervene in police interrogations of suspects.

“The investigation of crimes is a function of the executive branch; and before prosecution of the accused reaches the courts, courts lack general jurisdiction to intercede via (the criminal procedure rule) in the investigation of the accused,” Minton wrote.

Prosecution begins in the court system through such means as a criminal citation, arrest warrant, criminal summons or grand jury indictment, he said.

The ruling stems from a case in which Samuel Terrell was taken into custody by police investigators wanting to question him about his mother’s slaying. A circuit judge — at the request of Terrell’s father — halted the questioning until Terrell was allowed access to a public defender.

The judge’s order was upheld by the state Court of Appeals, but the Supreme Court vacated the circuit court’s order in Thursday’s ruling.

With its opinion, the state’s high court retreated from a ruling in a prior case that held courts had the authority to interrupt police interrogations and to mandate an accused’s access to an attorney at the request of a “benevolent third party.”

Minton said an accused person has the right to an attorney during an interrogation, and said the criminal procedure rule guarantees that attorneys be given access to their clients in custody. But the rule is not “a vehicle for the appointment of an attorney or interference by the judicial branch in pre-prosecution criminal investigations,” the chief justice wrote.

“It could be accurately described as a visitation rule that prevents an attorney from being barred from meeting with the attorney’s client,” he said. “The rule does not … foist counsel on the individual in custody.”

Minton wrote that the constitutional right to counsel is a personal right.

“So the individual in custody retains control and may wish to refuse the attorney and continue talking with police,” he said.

Minton was joined by justices Lisabeth Hughes Abramson, Bill Cunningham, Mary Noble, Daniel Venters and David Allen Barber.

The ruling drew a dissent from Justice Michelle Keller. She maintained the circuit court had jurisdiction in the Terrell case, which she said negated the separation of powers argument. She said the case also delves into a primary function of the courts — to ensure individual rights aren’t violated.

“If the court cannot intervene to protect a constitutional right at this most critical stage, then the right has no meaning,” she wrote.

Did Forty-Seven Senators Violate the Logan Act In Writing IRAN Leaders During U.S. Negotiations?

Saturday, March 21st, 2015

Logan Act

From Wikipedia, the free encyclopedia

Logan Act

Long title An Act for the punishment of certain Crimes therein specified.
Enacted by the 5th United States Congress


Statutes at Large Stat. 613


U.S.C. sections created 18 U.S.C. § 953

Legislative history

  • Introduced in the House by Roger Griswold (FCT)on December 26, 1798[1]
  • Passed the House on January 17, 1799 (58–36)
  • Passed the Senate on January 25, 1799 (18–2)
  • Signed into law by President John Adams on January 30, 1799

United States Supreme Court cases

United States v. Curtiss-Wright Export Corp.

The Logan Act (1 Stat. 61318 U.S.C. § 953, enacted January 30, 1799) is a United States federal law that forbids unauthorized citizens from negotiating with foreign governments having a dispute with the U.S. It was intended to prevent the undermining of the government’s position.[2]

The Act was passed following George Logan‘s unauthorized negotiations with France in 1798, and was signed into law by President John Adams on January 30, 1799. The Act was last amended in 1994, and violation of the Logan Act is a felony.




In 1798, amid tensions between the U.S. and France, President Adams sent three envoys to France to negotiate. Negotiations were unsuccessful. Dr. George Logan of Pennsylvania, a state legislator andpacifist, in 1798 engaged in semi-negotiations with France as a private citizen during the Quasi-War.[2][3]

Kevin Kearney, writing in the Emory Law Journal, described Dr. Logan’s activities in France:

Upon his arrival in Paris, he met with various French officials, including Talleyrand. During these meetings, he identified himself as a private citizen, discussed matters of general interest to the French, and told his audience that anti-French sentiment was prevalent in the United States. Logan’s conversation with Merlin de Douai, who occupied the highest political office in the French republic, was typical. Logan stated that he did not intend to explain the American government’s position, nor to criticize that of France. Instead, he suggested ways in which France could improve relations with the United States, to the benefit of both countries. He also told Merlin that pro-British propagandists in the United States were portraying the French as corrupt and anxious for war, and were stating that any friend of French principles necessarily was an enemy of the United States. Within days of Logan’s last meeting, the French took steps to relieve the tensions between the two nations; they lifted the trade embargo then in place, and released American seamen held captive in French jails. Even so, it seems that Logan’s actions were not the primary cause of the Directory’s actions; instead, Logan had merely provided convenient timing for the implementation of a decision that had already been made.[4]

Despite the apparent success of Logan’s mission, his activities aroused the opposition of the Federalist Party in Congress, who were resentful of the praise showered on Logan by oppositional Democratic-Republican newspapers. Secretary of State Timothy Pickering, also of Pennsylvania, responded by suggesting that Congress “act to curb the temerity and impudence of individuals affecting to interfere in public affairs between France and the United States.” The result was that Rep. Roger Griswold introduced the Logan Act. [5] It was pushed through by the Federalist majority in Congress by votes of 58–36 in the House, and 18–2 in the Senate.[4]

Subsequently, Logan himself was appointed and then elected as a Democratic-Republican to the United States Senate from Pennsylvania, and served from July 13, 1801, to March 3, 1807. He was unsuccessful in getting the Logan Act repealed. Despite the Logan Act, he went to England in 1810 on a private diplomatic mission as an emissary of peace in the period before the outbreak of the War of 1812, but was not successful.


§ 953. Private correspondence with foreign governments.

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

This section shall not abridge the right of a citizen to apply himself, or his agent, to any foreign government, or the agents thereof, for redress of any injury which he may have sustained from such government or any of its agents or subjects.

1 Stat. 613, January 30, 1799, codified at 18 U.S.C. § 953 (2004).

Constitutional authority for foreign relations[edit]

Article II, Section 2, Clause 2 of the United States Constitution includes the ‘Treaty Clause,’ which empowers the President of the United States to propose and chiefly negotiate agreements, which must be confirmed by the Senate, between the United States and other countries, which become treaties between the United States and other countries after the advice and consent of a supermajority of the United States Senate.

[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur…

In United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936), Justice Sutherland, writing for the Court, observed,

“[T]he President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. As Marshall said in his great argument of March 7, 1800, in the House of Representatives, ‘The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.’

Accusations of violations[edit]

In general, the Act is intended to prohibit unauthorized American citizens from interfering in disputes or controversies between the United States and foreign governments. Although attempts have been made to repeal the Act, it remains law and at least a potential sanction to be used against anyone who without authority interferes in the foreign relations of the United States.

Washington has threatened to use the Act to stop Americans from negotiating with foreign governments. For example, in February 1941 Under Secretary of State Sumner Welles told the press that former President Herbert Hoover might be a target for prosecution because of his negotiations with European nations over sending food relief.[6]

The only actual indictment under the Logan Act was one that occurred in 1803 when a grand jury indicted Francis Flournoy, a Kentucky farmer, who had written an article in the Frankfort Guardian of Freedom under the pen name of “A Western American.” In the article, Flournoy advocated a separate nation in the western part of the United States that would ally with France. The United States Attorney for Kentucky, an Adams appointee and brother-in-law of Chief Justice John Marshall, went no further than procuring the indictment of Flournoy. The purchase of the Louisiana Territory later that year appeared to cause the separatism issue to become moot.[2][7]

During the 1968 presidential election, Nixon supporter Anna Chennault, told the South Vietnamese government that Nixon would give them a better deal if they waited.[8][9]

In 1975, Senators John Sparkman and George McGovern were accused of violating the Logan Act when they traveled to Cuba and met with officials there. In considering that case, the U.S. Department of State concluded:

The clear intent of this provision [Logan Act] is to prohibit unauthorized persons from intervening in disputes between the United States and foreign governments. Nothing in section 953 [Logan Act], however, would appear to restrict members of the Congress from engaging in discussions with foreign officials in pursuance of their legislative duties under the Constitution. In the case of Senators McGovern and Sparkman the executive branch, although it did not in any way encourage the Senators to go to Cuba, was fully informed of the nature and purpose of their visit, and had validated their passports for travel to that country.

Senator McGovern’s report of his discussions with Cuban officials states: “I made it clear that I had no authority to negotiate on behalf of the United States — that I had come to listen and learn…” (Cuban Realities: May 1975, 94th Cong., 1st Sess., August 1975). Senator Sparkman’s contacts with Cuban officials were conducted on a similar basis. The specific issues raised by the Senators (e.g., the Southern Airways caseLuis Tiant’s desire to have his parents visit the United States) would, in any event, appear to fall within the second paragraph of Section 953.

Accordingly, the Department does not consider the activities of Senators Sparkman and McGovern to be inconsistent with the stipulations of Section 953.[10]

In 1984, President Ronald Reagan stated that the activities of the Reverend Jesse Jackson, who had traveled to Cuba and Nicaragua that year and had returned with several Cuban political prisoners seeking asylum in the United States, may have violated the Logan Act; but Jackson was never indicted.[2]

In 1987 and 1988, President Reagan was furious at what he felt to be House Speaker Jim Wright‘s “intrusion” into the negotiations between Nicaragua‘s Sandinista government and the Contras for a cease-fire in the long civil war. The National Security Councilconsidered using the Logan Act to muzzle Wright, but nothing ever came of it.

In June 2007, Representative Steve King introduced legislation that would prohibit then-Speaker of the House Nancy Pelosi from drawing on Federal funds to travel to foreign states which the U.S. deems to sponsor terrorism. King claimed that Pelosi’s dialogue with the Syrian government violated the Logan Act.[11] The amendment was not adopted.

In March 2015, 47 Republican senators sent a letter to the Iranian government regarding President Barack Obama‘s attempts to broker a nuclear arms agreement between Iran and six major powers (P5+1).[12][13] The letter warns Iran of the limitations of President Obama’s term in office and constitutional powers – noting that anything done without the advice and consent of the Senate could be undone by the next President. This prompted some commentators to suggest that the letter may have violated the Logan Act.[9][14][15][16] A petition on the White House‘s We The People website had accumulated signatures from over 300,000 people requesting the Obama administration to prosecute the 47 senators under the Logan Act.[3]


There has been little judicial discussion of the constitutionality of the Logan Act.

The Southern District of New York in Waldron v. British Petroleum Co., 231 F. Supp. 72 (S.D.N.Y. 1964), mentioned in passing that the Act was likely unconstitutional due to the vagueness of the terms “defeat” and “measures,” but did not rule on the question.

In 2006, the U.S. House Committee on Standards of Official Conduct warned departing members of the terms of the Act in an official Memorandum. The Committee commented in the Memorandum that the Act, “…has never been the basis of a prosecution, and this Committee has publicly questioned its constitutionality… Members should be aware, however, that the law remains on the books.”[17]

Proposed revisions[edit]

The chair of the House Judiciary Committee in the 109th Congress, F. James Sensenbrenner of Wisconsin, proposed a comprehensive revision and modernization of the federal criminal code in 2006. The bill, H.R. 6253, was not enacted into law. What is noteworthy is that the Logan Act was significantly revamped in the proposed legislation to prohibit only knowingly false statements made under oath. The section revising the Logan Act was proposed to read as follows:

Sec. 923. False statements influencing foreign government — Whoever, in relation to any dispute or controversy between a foreign government and the United States, knowingly makes any untrue statement, either orally or in writing, under oath before any person authorized and empowered to administer oaths, which the affiant has knowledge or reason to believe will, or may be used to influence the measures or conduct of any foreign government, or of any officer or agent of any foreign government, to the injury of the United States, or with a view or intent to influence any measure of or action by the United States or any department or agency thereof, to the injury of the United States, shall be imprisoned not more than ten years.[18]

See also[edit]



Friday, March 20th, 2015

March 20, 2015

In case you hadn’t been following the story, there’s quite a dispute in Alabama between state and federal judges.

The spat began with a January 2015 federal court ruling that struck down Alabama’s same-sex marriage bans as violating the U.S. Constitution.  After a couple of unsuccessful attempts to stay the ruling, the U.S. Supreme Court itself refused to stay the ruling (more on that in this post) – but not before Chief Justice of the Alabama Supreme Court Roy Moore issued an order instructing the state’s probate judges to refuse to comply with the federal court’s order.

That dispute continues today, with federal judges insisting that state judges comply with their rulings, and Alabama state judges – the state supreme court, specifically – countering that the same-sex marriage ban is perfectly constitutional.

Of course, there’s a case that’s directly on point in resolving this dispute, one that is coincidentally celebrating its 199th anniversary today: Martin v. Hunter’s Lessee.

The 1816 ruling should be familiar to law students as one of the major pillars of federal court jurisdiction and authority, in that it explicitly held that the U.S. Supreme Court is the nation’s ultimate authority on interpreting federal law, superseding all state court interpretations thereof.

The dispute in the case arose over competing claims to land owned by Lord Fairfax, a British loyalist during the Revolutionary War.  Virginia seized the land from Fairfax during the war and transferred it to David Hunter.  After the war, however, the U.S. entered into a treaty with Great Britain, and one of the provisions thereof guaranteed the protection of lands owned by loyalists such as Fairfax.

Subsequently, Thomas Martin, Fairfax’s nephew and heir to the land after Fairfax died in 1781, sued to recover the confiscated land in Virginia state court.  Martin won at the trial court level, but on appeal to the Virginia Court of Appeals (then the state’s highest court), Martin lost, with the court ruling that Hunter was the legal owner of the land.

Upon further appeal, the U.S. Supreme Court reversed the Virginia high court’s decision, finding that the tract of land rightfully belonged to Martin pursuant to the treaty.

However, the Virginia Court of Appeals refused to respect the Supreme Court’s ruling.  It further held once again that Hunter was the proper owner of the tract and that the U.S. Supreme Court had no authority to review and overturn its decisions.  Specifically, the Virginia court stated that state courts had the ultimate authority to interpret federal laws as they applied solely to state law concerns in state court.

The U.S. Supreme Court once again heard the appeal from the Virginia court’s ruling, and once again reversed it.  The Court held that the Judiciary Act of 1789, authorized by Article III of the Constitution, expressly allows the Supreme Court to review decisions of state courts, and that the Supreme Court had the final say on all interpretations of federal law.

And that decision has stood for nearly 200 years as a pillar of authority for the Supreme Court.  Without it, not only would we no longer have numerous landmark Court decisions (including Brown v. Board of Education and Miranda v. Arizona), but every individual state would conceivably have its own version of the U.S. Constitution based on two centuries’ worth of state court interpretations.

In spite of Martin’s long established character as one of the most fundamental foundations of federal legal authority, we are today witnessing a state court system that is attempting to flout this authority.

There is, nevertheless, little doubt that Alabama will ultimately prove unsuccessful in its efforts to evade federal authority on the issue (assuming, of course, that the U.S. Supreme Court rules as expected in its forthcoming same-sex marriage decision).  And this inevitability is due to the principles first laid out in Martin.

- See more at:

Rogue Alabama Chief Justice has no legal rationale

Thursday, March 19th, 2015

March 18, 2015 1:01 AM


Nancy Marcus

Alabama Supreme Court Chief Justice Roy Moore’s unauthorized, so-called “administrative order” to state officials instructing them to deny same-sex couples marriage licenses, in defiance of a federal court order (and Supreme Court order), continues to inspire vigilante behavior weeks later.

The continuing chaos from Moore’s “order” has been described by Moore’s colleague, Justice Michael Bolin, as the legal equivalent of a three-ring circus. Some state officials continue to cite Moore’s “order” as authority to refuse marriage licenses and, more recently, to deny adoptions, while others have returned to court seeking clarification of what should be settled law. In the meantime, ethics charges have, appropriately, been filed against Moore. This is not his first ethical fiasco; Moore was previously removed from the bench for disobeying a federal court order.

Although Moore has his defenders, there is nothing admirable about a state Supreme Court justice defying the rule of law. Court-watchers should not be blindsided by the rhetoric spouted by Moore defenders and followers. The law, quite simply, is not on his side.

Moore has failed to cite any legal authority allowing a unilateral “administrative order” in contravention of a federal judge’s order. Moore’s “order” was procedurally out of bounds – not connected with a case in his court, not agreed to by the Alabama Supreme Court and not authorized by Alabama procedural laws governing administrative orders.

Even if Moore had such authority, his justifications fail on the merits.

First, Moore attempts to hang his vigilante hat on misguided notions of state powers. For example, he has maintained in recent interviews that “there is no law right now that overcomes the Alabama Constitution,” calling the federal court orders a “federal intrusion into state sovereignty.” In a brazen display of disrespect toward the U.S. Supreme Court, he even warned that he would not follow a Supreme Court mandate ordering same-sex marriages.

Such a stubborn state-supremacist stance blatantly conflicts with basic constitutional principles. The U.S. Constitution’s Supremacy Clause and Fourteenth Amendment provide that state laws may not violate the federal Constitution and must protect all citizens equally. The Supreme Court spelled out in the school desegregation case Cooper vs. Aaron that states, including “the officers or agents by whom (the state’s) powers are exerted,” must comply with Supreme Court decisions even if they disagree with them.

Second, Moore has contended that Judge Callie V. Granade “does not have power over anything other than what’s before her court.” Moore’s defenders have elaborated upon this in two ways. Some argue that a federal court injunction may provide only relief to those specific plaintiffs who brought the case, not statewide relief. Others argue that injunctions bind only those defendants explicitly named.

Both contentions are wrong under long-established rules of law.

Federal rules governing injunctions explicitly allow orders directed at both the named defendant state officials and those acting in participation with them. Such broad injunctions are also explicitly allowed under the Declaratory Judgment Act. The Supreme Court and lower federal courts have commonly issued broad injunctions against unconstitutional laws. Ensuring that a federal court may “invalidate” an unconstitutional law in each of its applications is the whole point of such constitutional challenges. Even Justices Antonin Scalia and Clarence Thomas, while dissenting from the Supreme Court’s order allowing same-sex marriages in Alabama to proceed, recognized the customary practice of enjoining laws ruled unconstitutional; they argued only that courts should exercise discretion to “stay” those injunctions pending appellate review.

Thus, the valid federal injunction stopping enforcement of Alabama’s same-sex marriage ban validly extends to the state officials charged with issuing marriage licenses.

Moore similarly cannot justify limiting legal protections only to those plaintiffs who brought the case in the first place.

Failing to protect everyone equally within a federal court’s jurisdiction from unconstitutional state laws would create a serious Equal Protection problem. Although injunctive relief is limited to cases where plaintiffs establish the likelihood of ongoing harm, under that standard, the ongoing actions by Moore and other Alabama officials who continue to harm Alabama citizens by disobeying the federal orders establish the need for a broad injunction.

By thumbing his nose at federal court orders, Moore and his followers call to mind George Wallace standing in the schoolhouse door, blocking access of black schoolchildren to the equal protection of the law in violation of federal orders. The Constitution did not tolerate unequal protection last century, nor does it this century.

Moore would rather these constitutional principles not govern his actions, but they must. The United States Constitution, not the whims of Roy Moore, is the supreme law of this land.

This Ain’t Your Daddy’s Markman Hearing – What deference should Ct of Appeals give to U.S.District Court?

Thursday, March 19th, 2015

James Day and Andy Nguyen, The Recorder

March 18, 2015    | 0 Comments

The U.S. Supreme Court in January issued its opinion in Teva Pharmaceuticals USA Inc. v. Sandoz,13-854, which changed the level of deference the Federal Circuit must show to district court claim construction orders—in part.

For more than two decades, the U.S. Court of Appeals for the Federal Circuit has reviewed claim construction on a de novo basis; in other words, as a pure question of law without showing any deference to the district court. The de novo review standard resulted in a high rate of reversal by the Federal Circuit in claim construction decisions. This caused uncertainty, and the existing standard had been under attack even before being explicitly confirmed in Cybor Corp. v. FAS Technologies, 138 F.3d 1448 (1998).

The New Criteria

With the issuance of the Teva decision, the Supreme Court has changed that standard. The Federal Circuit must now review factual findings underlying a claim construction order for clear error, giving deference to district court judges, though the Federal Circuit will still review the interpretation of patent claim terms itself de novo even if that interpretation is based on the underlying findings of fact. Whether or not the new standard brings more predictability to patent litigation or changes the reversal rate of the Federal Circuit, one thing seems likely: We will be seeing more expert testimony—and the associated expense—in claim construction proceedings than we did under the old standard.

It will be even more critical now for litigants to retain and work with experienced patent litigation counsel to select highly qualified experts who not only have the right credentials and experience to opine on claim construction-specific issues, but who can also clearly and persuasively testify, if permitted, before a district court judge. It will also generally be in the patent owner’s interest to develop a factual record in the district court to make an appeal of those findings less likely to be successful under the clear error standard.

What the Supreme Court Changed

Since the decision in Markman v. Westview Instruments, 517 U.S. 370 (1996), federal district courts have been tasked with interpreting the meaning of terms in patent claims. Until now, those district court claim construction opinions were reviewed de novo by the Federal Circuit. The standard applied to claim constructions based exclusively on the intrinsic evidence, like the patent at issue and its prosecution history. It also applied to any factual conclusions drawn from extrinsic evidence, like expert testimony and dictionary definitions. Under this non-deferential standard, the Federal Circuit has reversed an unusually high percentage of the claim construction orders it has reviewed—sometimes estimated at 50 percent or more.

In the closely watched Teva Pharmaceuticals case, the Supreme Court was asked to change the standard of review to require the Federal Circuit to show deference to factual findings of the district courts. And it did. In a 7-2 decision, the court held that factual findings underpinning a claim construction must be reviewed for “clear error” on appeal.

In other words, the appellate court should accept factual findings of the district courts, unless the appellate court finds they are unsupported by substantial evidence.

How ‘Teva’ will Impact Patent Litigation

It is too soon to tell if the Supreme Court’s ruling will have any impact on the outcome of more than a few cases that turn on disputed expert testimony. As the Supreme Court confirmed in Teva, “When the district court reviews only evidence intrinsic to the patent (the patent claims and specifications, along with the patent’s prosecution history), the judge’s determination will amount solely to a determination of law, and the Court of Appeals will review that construction de novo.”

In other cases, where there are “subsidiary facts” in dispute, the district courts “will need to make subsidiary factual findings” based on the extrinsic evidence. It is “this subsidiary fact-finding [that] must be reviewed for clear error on appeal.” But even in cases where the district court resolves factual disputes, the judge “will then interpret the patent claim in light of the facts as he has found them,” and this “ultimate interpretation is a legal conclusion” subject to de novo review.

There is ample room in the new standard for the Federal Circuit to review most claim construction decisions largely, if not entirely, under the same de novo standard that has applied for years.

Whether or not the Teva decision will have any real impact at the appellate court level, it is likely to change the way litigants present their claim construction arguments and the way district court judges support their claim construction orders. Under the old standard, there was limited benefit to making a strong presentation of extrinsic evidence because even if it was convincing, any factual findings the district judge might make would be reviewed de novo by the Federal Circuit. The Federal Circuit takes the view that extrinsic evidence is “less significant” than the intrinsic record. Phillips v. AWH Corp., 415 F. 3d 1303 (2005).

In light of Teva, a claim construction order based solely on intrinsic evidence will be more easily reversed than a decision with specific factual underpinnings. Litigants are now incentivized to submit more extrinsic evidence, even in cases where they would not have under the old standard, and hope the district judge will use it to craft a favorable opinion with plenty of citations to underlying facts that must be reviewed with deference by the appellate court. There is a greater prospect for each claim construction dispute to become a “battle of the experts,” and there is at least the potential for other extrinsic evidence, like dictionary definitions, to take on greater importance.

All of this will likely lead to more frequent and more involved evidentiary hearings in connection with claim construction proceedings. Indeed, while live expert testimony is uncommon in claim construction proceedings under the old standard, the Teva decision makes live testimony more likely so the district judge can weigh competing evidence, assess credibility and make specific factual findings. Going forward, patent litigants should focus more energy on retaining experts who are qualified to offer testimony in support of specific claim construction positions but who are also effective, credible witnesses.

Why the Supreme Court Changed the Standard

The Teva case presents a situation where disputed extrinsic evidence proved to be dispositive, making it an example of a case where the change in standard may well alter the ultimate result. The main dispute in Teva concerned the meaning of the term “molecular weight” as it appeared in Teva Pharmaceutical’s asserted patent claim.

Sandoz, the defendant, argued the claim was indefinite because the term “molecular weight,” as used in the patent claim, could refer to any one of three different potential measures of molecular weight. The parties presented competing expert testimony on this point, and the district court accepted the testimony of Teva’s, finding the patent sufficiently definite and valid. On appeal, the Federal Circuit conducted de novo review of the lower court’s decision. It implicitly rejected Teva’s expert testimony, finding the term “molecular weight” indefinite.

The Supreme Court vacated the Federal Circuit’s judgment based primarily on Federal Rule of Civil Procedure 52(a)(6), which states a court of appeals “must not … set aside” a district court’s “[f]indings of fact” unless they are “clearly erroneous.” Continuing a theme that has developed over the past decade, the court decided there is no reason patents should be treated differently than other legal documents like contracts and deeds, indicating that, in general, patent law is not exempted from the basic procedures established for all other civil litigation.

According to the Supreme Court, Rule 52 sets out a “clear command.” And, although it ruled in Markman that claim construction poses a question of law for a judge, that did not imply or create an exception to Rule 52 regarding underlying factual disputes. The court also determined that precedent and practical considerations favored clear error review.

In Practice articles inform readers on developments in substantive law. Contact James Cronin with submissions or questions at

Jim Day is a partner in Farella Braun + Martel’s Intellectual property litigation department. He has 16 years of experience in state and federal courts litigating intellectual property and complex commercial disputes for Internet and other high technology companies. Andy Nguyen is a senior associate in Farella Braun + Martel’s intellectual property litigation department. His practice focuses on representing high technology clients in patent infringement litigation.

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What A Fishy Case Tells Us About How The Supreme Court Views Criminal Law

Tuesday, March 17th, 2015

Tuesday, March 17, 2015

The Supreme Court’s recent decision on the scope of a criminal anti-shredding law in Yates v. United States, 135 S. Ct. 1074 (2014), caught headlines in legal and mainstream publications for its unusual fact pattern. In short, a fisherman was accused of destroying fish that he had caught and stored that fell below the minimum length allowed. The odd twist in this story is that he was convicted under a law that was enacted in the face of widespread financial misconduct and often only applies to the destruction of information recording instances of corporate crime. The Justices ultimately gave the financial fraud law a narrow reading, but only in a split decision where no opinion garnered more than four votes.

If you look beyond the headlines and the immediate ruling, the Court’s forty-three page decision, split across plurality, concurring, and dissenting opinions, provides important guideposts about where the Justices see the current state of criminal law.

The Facts: Fishes And SOX

The dispute in Yates originated in 2007 when Officer John Jones of the Florida Fish and Wildlife Conservation Commission boarded a commercial fishing boat captained by John Yates operating in the Gulf of Mexico.  Officer Jones noticed that some caught Red Grouper aboard the vessel appeared shorter than the twenty-inch minimum length permitted by federal regulations. As every lawyer knows, in 2007, commercial fishing vessels such as Mr. Yates’ were required to release “immediately with a minimum of harm” all Red Grouper shorter than the twenty-inch minimum proscribed in 50 C.F.R. § 622.37(d)(2)(ii) (2007).  Officer Jones identified seventy-two fish that fell below the length proscribed in the Code of Federal Regulations but, notably, all seventy-two were within two inches of the minimum length. The officer issued a citation for the offense and instructed Yates and his crew members to leave the offending fish segregated until their ship returned to port.

When the ship returned to port several days later, several of the cold fish had mysteriously grown in length, leading Officer Jones to question the crew members about why the clearly deceased fish had grown. One of them eventually spilled the beans: Yates had instructed his crew to toss the fish that were initially measured by Officer Jones and replace them with new, longer fish.

Almost three years later, Yates was indicted and eventually convicted for violating 18 U.S.C. § 2232(a) and 18 U.S.C. § 1519. The parties agreed that the former statute – a nearly seventy-year-old provision that bars the knowing destruction of property to prevent seizure by government – applied to Yates. Section 1519 was more controversial and its application to Yates became the basis for the case that reached the Supreme Court.

Section 1519 of Title 18 the U.S. Code was enacted as part of the Sarbanes-Oxley Act of 2002, 116 Stat. 745, in light of revelations that Enron’s auditors, Arthur Andersen, had regularly destroyed incriminating evidence that could have implicate both its client and the audit company itself. Section 1519 proscribes that:

Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.

In short, the statute makes it a felony to modify or altogether destroy “any record, document, or tangible object” with the intent to obstruct an investigation or the administration of any matter within the jurisdiction of a federal agency.

Yates was eventually convicted of violating both § 2232(a) and § 1519 and sentenced to thirty days in prison followed by three year of supervised release.

Ohio Supreme Court weighs ex-inmate’s unlawful imprisonment suit

Thursday, March 12th, 2015


Filed on March 12, 2015 by Associated Press


Dale Johnston was sent to death row in 1984 for a double homicide he didn’t commit.

He’s spent the years since his 1990 release trying to get back the life he lost.

The Ohio Supreme Court heard arguments Wednesday in Johnston’s latest attempt to win a wrongful imprisonment suit against the state.

Now 81, Johnston described his years under a death sentence as “hell on earth.”

“Death row’s the most horrible place anybody could be,” he said in a recent interview at his home in Grove City in suburban Columbus. “Especially when you know they’re wanting to kill you for something you didn’t do.”

The case dates to 1982, after parts of the dismembered bodies of his stepdaughter, Annette Cooper Johnston, and her boyfriend, Todd Schultz, were discovered in a cornfield a few days after they went missing.

Johnston was indicted the following year, and in 1984, a three-judge panel in Hocking County, based in part on testimony by a hypnotized witness, convicted Johnston of the killings and sentenced him to death on the theory he’d been having an affair with his stepdaughter and killed both in a jealous rage.

An appeals court overturned the conviction and ordered a new trial, but a judge refused to allow the hypnotized witness’ testimony and other evidence and the case was dismissed.

In 2008, two men confessed to the crime, with one saying he killed the couple and the other that he helped dispose of the bodies.

Three years ago, a Franklin County judge declared Johnston innocent, allowing him to seek compensation from the state, but an appeals court reversed the ruling.

Arguing a series of technicalities, the state says because Johnston failed in an earlier attempt to prove wrongful imprisonment, he isn’t eligible to try again.

“Johnston already unsuccessfully brought a wrongful imprisonment action arising out of his criminal convictions,” Debra Gorrell, an assistant attorney general, argued in a court filing last year. “This case seeks a do-over.”

Johnston’s attorney said with the real killer in prison, the state’s arguments help perpetuate a “monstrous inequity.”

Finding that Johnston was wrongfully imprisoned “is necessary to preserve the reputation for justice that the Ohio courts have elsewhere earned,” attorney Todd Long said in a 2014 court filing.

Some justices seemed skeptical of the state’s efforts to fight Johnston, given the judge’s 2012 ruling in his favor.

“Why didn’t the state just suck it up and say, ‘Look, the prosecution of this thing was dead wrong. The investigation of it was wrong. It was a mess. It was a miscarriage of justice for Mr. Johnston’?” asked Justice Paul Pfeifer.

Stephen Carney, Ohio deputy solicitor, emphasized the state’s position that the 2003 law under which Johnston sued doesn’t apply to cases before it took effect.

Johnston worked in construction and later as a handyman, and he now lives quietly in a neat home with his wife, Roberta, on a 2-acre plot where he still puts in a large garden each year.

Ohio courts have awarded hundreds of thousands of dollars in the past in similar cases.

“If I am able to get everything that the state says I’m allowed to have, that’s still an insult when you figure what I lost,” Johnston said.

Innocence is not enough to get you out of prison.

Wednesday, March 11th, 2015


By Lara Bazelon


Innocence Network

In May, the Innocence Network will hold its annual conference at a glitzy Hilton in Orlando, Florida. Lawyers, students, and activists from all over the country who work to overturn wrongful convictions will gather to do all the regular conference-like things: attend panel discussions, listen to inspirational talks from boldface speakers, network, and socialize. There is also a part of the Innocence Network Conference that is unique and wonderful. Every year, it brings together scores of wrongfully convicted men and women, offering a variety of programs geared toward their specific needs and celebrating their freedom.

The most dramatic moment of the conference comes after a dinner in the hotel’s ballroom, when each exonerated man and woman is invited up to the stage. One by one, they come forward. They are male, female, black, white, Latino, Asian, and Native American. Some are still young and strong, others walk slowly and with assistance. They hail from the Deep South, the Midwest, the Rockies, the East and West coasts, from big cities and tiny rural communities. As their names are called, so are the number of years they served behind bars: five, eight, 13, 18, 28, 34, 39. Collectively, it adds up to centuries.

Slowly, the stage begins to fill, first one row, then another, then another. When every last exoneree has taken his or her place, scores of them are standing shoulder to shoulder, a dizzying tableau of faces and stolen lives. The weight of the collective injustice is heart-stopping. Then the music starts and the exonerees sing and dance together. The hope and joy in the room is deeply moving.

. Bloodsworth was the first American sentenced to death row who was exonerated by DNA fingerprinting.

But here is a dirty little secret about the exonerated, some of whom were on death row, some just days away from execution. They were able to prove that they were wrongfully convicted, yet very, very few could show that they were actually innocent. They were—they are—innocent, but in our legal system, that all-important fact is largely beside the point.

A wrongful conviction stems from a fundamental breakdown in the legal process—what the uninitiated like to call a “technical error.” Prosecutors buried crucial evidence, witnesses lied, police coerced false confessions, defense attorneys performed so poorly that they basically failed to advocate at all. These “technical” breakdowns matter because they violate the Constitution, which guarantees all criminal defendants the right to be free from police and prosecutorial abuses, to have access to favorable evidence in the state’s possession, and to have a defense attorney who will fight for their cause.

If you are a wrongfully convicted man or woman in this country, it is extremely difficult—if not outright impossible—to win your case by advancing the simple argument that you are innocent. Sounds crazy, right? But it’s true. The Supreme Court has repeatedly declined to hold that the federal Constitution allows for so-called freestanding claims of innocence, that is, the right to be let out of prison simply because you didn’t do it, without any other “technical” violation to back up your argument. In the United States, the inmate who raises a compelling case of innocence after a constitutionally proper trial may well be doomed.

This judicial perversion started with the Supreme Court’s 1993 decision in Herrera v. Collins, a textbook example of bad facts making bad law. Leonel Torres Herrera was charged with shooting Officer David Rucker in 1981 and leaving him to die beside his patrol car in a pool of blood. Also left at the crime scene was Herrera’s Social Security card. Officer Enrique Carrisalez and his partner saw Herrera’s car speeding away and gave chase. Herrera pulled over, and when Carrisalez approached, Herrera shot him in the chest. Carrisalez died less than two weeks later.

The state tried the Carrisalez case first, and evidence introduced against Herrera was overwhelming. Carrisalez’s partner testified that Herrera was the shooter, as did the victim himself in the days before he died. The license plate of the killer’s car matched that of Herrera’s girlfriend; when Herrera was arrested, he had the car keys in his pocket. He also had a handwritten letter in which he apologized for the killings. A jury convicted Herrera of capital murder, he was sentenced to death. After the verdict, Herrera pleaded guilty to killing Rucker.

“With any luck, we shall avoid ever having to face this embarrassing question again.”

Antonin Scalia

Nine years later, Herrera petitioned the Supreme Court to overturn both convictions. Because so many years had passed and because Herrera had been convicted in state court, he had to use a legal vehicle called habeas corpus, a centuries-old, last-ditch remedy that allows prisoners to argue that their imprisonment violates the federal Constitution. Because there is a strong presumption that the criminal justice system functioned correctly in the first instance, only a fraction of these claims succeed.

Herrera argued that he should be among the lucky few because newly discovered evidence proved his innocence. The evidence consisted of three sworn statements. One was written by a lawyer for Herrera’s dead brother, Raul, claiming that Raul confessed to him that he had killed Rucker and Carrisalez. The second, signed by a former cellmate of Raul’s, claimed the same thing. The third, signed by Raul’s son, claimed that he had witnessed his father shoot both officers.

By no stretch of the imagination could these biased affidavits—which conveniently blamed the murders on a dead man—prove Herrera’s innocence of the Carrisalez and Rucker murders, the latter of which he flat out admitted to committing. Herrera’s innocence claim, quite simply, was a farce. And yet it was this claim that the Supreme Court chose to review when deciding a profoundly important question: whether anyinmate with newly discovered evidence of innocence could argue that his conviction had been obtained in violation of the constitutional guarantees of due process and protection against cruel and unusual punishment.

Did Wisconsin Bar Counsel Overprosecute An Attorney?

Wednesday, March 11th, 2015

Tuesday, March 10, 2015

By Legal Profession Prof


A five-month suspension has been ordered by the Wisconsin Supreme Court for client-related misconduct in several matters.

One in particular may be of interest

On June 13, 2011, Attorney McClure sent an electronic response via a “legalmatch” website to M.K., J.K.’s mother, saying that Attorney McClure was a respected former prosecutor with 20 years of private practice criminal defense experience and that Attorney McClure could help J.K.  Attorney McClure told M.K. that he offered “a free consultation, convenient evening and weekend appointments and a simple up front flat fee.”  Attorney McClure went on to tell M.K., “The total fee that I would charge for this case is $2,500, pending more information from you.  The entire fee payment is due when I take your case.  Standard flat fee for domestic violence and felony child abuse charge.”

On June 16, 2011, M.K. hired Attorney McClure to represent her son and paid Attorney McClure a flat fee of $2,500, which Attorney McClure deposited directly into his business account.  There is no documentary evidence of a written fee agreement between Attorney McClure and M.K. and/or J.K.  J.K. obtained successor counsel, whose appearance was entered on September 8, 2011.

There were violations involving another client solicited through “legalmatch.”

After finding multiple violation, the referee made this unusual observation

But something is unusual.  Why are there so many separate Counts charged here?  It appears that Complainant decided to include in its Complaint every possible wrong it could find.  While that is its right, it still causes the Referee to wonder why this happened in a case where the attorney of over 33 years here in Wisconsin had never had any prior discipline and no client or medical provider lost any funds and OLR knew of the personal hardships which impacted that attorney during the period of misconduct.  OLR has not challenged Respondent’s assertion of him having many, many serious personal issues affecting him during the time period of the misconduct.  It appears to the referee from the case record that the reason for Complainant bringing so many Counts was/is to create, for the Sanction portion of the proceeding, an impression that a great wrong has occurred because of the number of findings of misconduct and, therefore, a major and significant penalty should be imposed.

The danger with that approach is that the prosecutor then is forever encouraged to overcharge in cases where there is clear wrong-doing on one or a few Counts in order to argue for and obtain the imposition of ever more severe sanctions.  Here the Respondent acknowledged his wrongdoing as can be seen by the stipulation that was received into the case record.  But when all is said and done the Respondent still is seen to have committed acts of misconduct in the areas of his Trust Account, his fee agreement/communication document and dishonesty.  Saying the foregoing is in no way an effort to diminish the misconduct that occurred.  But did Respondent’s conduct warrant a complaint with 21 separate Counts?  A schoolyard metaphor would be that piling on was occurring by youngsters during the recess.

. . . .

In this case it appears that the prosecutor has filed an unreasonable and excessive number of Counts, not because it could meet its burden, but in order to coerce and unfairly impact that portion of the proceedings that addresses sanctions.  The referee doesn’t know what should be the exact number of Counts in this case, but 21 would appear clearly excessive and intended to influence the sanctions that should be imposed.

Respondent is a very good, but not a perfect, man and attorney.  On balance in his 33-plus years as a lawyer he has labored hard and brought great credit to the legal profession.  . . .  That said, however, it is also clear that he has violated . . . the Supreme Court Rules that regulate all attorneys in this State.  The public must be protected from misconduct by an attorney that causes resources to be converted and diminishes respect for the rule of law.  While respondent’s misconduct was real and over a substantial period of time, it is mitigated by his very positive and exemplary 33 year career as a practicing lawyer, his actions taken to correct the consequences of his misconduct, and by the great number of personal struggles that confronted and motivated him as he lost his moral compass during the very period when the misconduct occurred.  . . .  As a 59 year old man with no prior lawyer misconduct, he is seeking an opportunity to be sanctioned fairly and appropriately.

The court

With respect to the appropriate level of discipline, upon careful review of the matter, we conclude that a five-month suspension is appropriate.  As the referee pointed out, Attorney McClure’s law practice now spans more than 34 years and he has no prior disciplinary history.  It is also significant to reiterate that no clients or medical providers lost any funds, and that Attorney McClure fully cooperated with the OLR and entered into a stipulation whereby he admitted virtually all the facts alleged in the complaint.  We also find it significant that the referee, who was in the best position to judge witness credibility, found Attorney McClure to be genuinely remorseful.  In addition, the OLR does not dispute the fact that Attorney McClure was faced with a multitude of personal problems during the time period at issue in this case.

(Mike Frisch)


How the US Supreme Court Has Treasonously Destroyed America’s Democratic Republic

Sunday, March 8th, 2015


By Joachim Hagopian


Global Research, March 08, 2015

This presentation will focus on how our Big Government in general and the US Supreme Court in particular have undermined and destroyed America’s onetime democratic republic. The judicial branch of the American government consisting of the federal district courts, the circuit courts of appeal and the Supreme Court in tandem with the prosecutorial legal arm of the executive branch the Justice Department represent the United States of America’s federal judicial system that’s supposed to operate above the fray of petty politics and polarized partisanship. All these federal judges appointed by the US president who presides over the executive branch are then formally approved of by the legislative branch US Congress. Unlike these two branches, federal judges enjoy permanent tenure with a fixed income for life to ostensibly reinforce the notion of bipartisan impartiality in constitutional interpretation of both legislative laws passed and executive orders and decisions made.

By design this checks and balances system compliments of our Founding Fathers has always been intended to act as a safeguard against the federal government’s potential tyranny and oppression. This article will show how during the first few years of the twenty-first century the Supreme Court has led the way in giving license to all three branches of government to be seriously compromised, corrupted and treasonously usurped by powerful self-interests that no longer represent, much less care about the well-being of the American people that they have sworn oaths to protect.

All three branches take a similar oath to the one below for both members of Congress. Keep in mind they all must swear to follow their oath throughout their tenure in office under penalty of law.

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United  States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and  that I will well and faithfully discharge the duties of the office on which I am about to enter:

So  help me God.

The specific federal law prohibiting violation of the above oath is worded as follows:

Federal law regulating oath of office by government officials is divided into four parts along with an executive order which further defines the law for purposes of enforcement. 5 U.S.C. 3331, provides the text of the actual oath of office members of Congress are required to take before assuming office. 5 U.S.C. 3333 requires members of Congress sign an affidavit that they have taken the oath of office required by 5 U.S.C. 3331 and have not or will not violate that oath of  office during their tenure of office as defined by the third part of the law, 5 U.S.C. 7311 which explicitly makes it a federal criminal offense (and a violation of oath of office) for anyone  employed in the United States Government (including members of Congress) to “advocate the  overthrow of our constitutional form of government”. The fourth federal law, 18 U.S.C. 1918 provides penalties for violation of oath office described in 5 U.S.C. 7311 which include: (1)  removal from office and; (2) confinement or a fine.

Agents operating in high levels at all three branches of our government have repeatedly engaged in treasonous acts as traitors in violation of Article 3 of the US Constitution, the same Constitution they all swore to preserve, defend, uphold, protect and honor. In the face of the growing tyranny and dismantling of our Constitution since 9/11, their proven disloyal actions have regularly violated their sworn allegiance to the nation, the Constitution and the American people. Since all members of the three branches of government must take an oath of allegiance that many then subsequently fail to comply with, clearly violating the aforementioned codified federal law, and since we do have the legal teeth, it’s high time to finally hold those who have been disloyal to our Constitution fully accountable.

Back in December 2000 the Supreme Court clearly usurped its own authority one month after the democratically elected Al Gore had won both the popular and electoral vote had all the votes per the Florida Supreme Court been allowed to rightfully continue to be counted. But in an unprecedented move that transgressed beyond its role and boundaries, for the first time in US history, the Supreme Court decided a presidential election by interfering where it had no legal authority to unilaterally halt that recount and prematurely proclaim the actual election loser George W. Bush the winner.

The subsequent untold damage done to the world by eight years of the diabolical Bush-Cheney regime that stole a second term in office with yet another fraudulent 2004 electionset into irreversible motion the Zionist neocon takeover responsible for the most heinous crimes of the ages – the inside 9/11 job, the lies promoting the immoral bloody wars in the Middle East and North Africa still raging out of control under Obama today. The sheer loss of life and utter horror willfully inflicted on so many nations and people none of whom ever posed a real threat to the United States is unforgiveable. That fateful, turn-of-the-century decision by the US Supreme Court to interfere in the 2000 election may just go down among the all-time most destructive and devastating court decisions in recorded human history.

The next major actions unveiling the court’s true partisan colors arose over the ongoing, perennially unsettled issue of illegal gerrymandering of congressional redistricting to unfairly gain House seats. Back in 2003 the then Republican House majority leader Tom Delay’s blatant machinations in Texas stacking GOP seats in Congress finally arrived at the Supreme Court for deliberation in 2006. But because the Supreme Court justices were deadlocked along partisan lines, ultimately they refused to intervene. Though both political parties are guilty of grappling to gain unfair advantage, the GOP’s gerrymandering power grab helped enable the Republican Party to capture of the Houses of Representatives. The highest court’s ineffectual response to this ongoing redrawing of political boundaries based on changing demographics within the states ensured that Republicans outnumbered Democrats in Congress. Whatever efforts the court has attempted in finally resolving this longstanding, hot button issue have invariably failed. Devising a fair and objective standard by which to remap congressional districts has proven ever elusive.

So the partisan battle wages on. The latest development surfaced this week when the Supreme Court heard arguments from both sides. The case involves Arizona’s commissionvoted by the state’s voters in 2000 to begin handling redistricting duties that stripped the GOP controlled state legislature from its power to divvy up districts. Not surprisingly, the majority of conservative/GOP judges in the Supreme Court all line up favoring the status quo’s literal interpretation that the Founding Fathers stipulated the responsibility lie with the state “legislature” while the liberal/Democrat justices prefer the more loosely applied definition to mean the “legislative process.” This would support the voters assigning the task to an appointed commission. Stakes are huge as the largest state California made a similar arrangement several years ago as did Washington and a few others as a viable alternative means of resolving this long contentious issue. So dozens of congressional districts around the nation could be overturned by the high court’s decision.

Though the big money handlers (Koch brothers, Sheldon Adelson, PAC’s) pour millions in strings attached donations to candidates from both parties in order to ensure that the elite’s undue influence and control over whomever gets elected is secured either way, they generally favor the Republican Party. Thus the GOP ascension to power in both houses of Congress has rendered the legislative branch in this century as the most ineffective, inept and morally corrosive in all of American history. Last year a poll found that an overwhelming majority of Americans believe that Congress members are controlled by special interest groups. With the unending quagmire that paralyzes Washington, undoubtedly that percentage of public contempt and alienation will only continue to rise over time.

By design this divide and conquer strategy permeates at all levels in America (and the world) both historically and currently, and in our federal government it produces a co-opted excuse absolving all responsibility for continued failure simply by blaming the other side of the aisle. In this way the forever game of partisan politics is maintained whereby the Democrats get to always blame the Republicans, the Republicans the Democrats, and the Democrat president always blames the now Republican controlled House and Senate. As a result, the government always operates contentiously gridlocked and mired at a chaotic standstill – its inability to work effectively together as its convenient excuse to not do its proper job in protecting and promoting the interests of the American people. This then provides the necessary perfect public cover to continue in dysfunctional, abysmal failure, of course all at citizens’ expense.

See how these momentous, monumentally significant, game-changing actions from the nation’s highest court have directly impacted and caused such grave damage degenerating our republic into an oligarchy? Again by design, relentlessly pointing the finger at each other deceptively obscures the real truth of the bigger picture from ever getting noticed or recognized. Through the feds’ and their MSM’s nonstop propaganda and lies, as long as the US populace can continue to be fooled and controlled, in its complacency it will only continue to tolerate its government’s failures and accepted inadequacies, never demanding more as a disempowered, seemingly impotent, disenfranchised citizenry. The backbiting bickering between two thoroughly corrupted, co-opted political parties in the US is mere side show distraction designed to conceal the sleight of hand thievery of the banking cabal pulling all the side show puppet strings. As the late great truth-telling George Carlin used to say, the elite “doesn’t give a shit about you or me.” It’s an abomination of criminal deceit that’s bamboozled dumbed down Americans kept in the dark for far too long.

And to this day they still don’t get it. A Reuters-Ipsos poll reported this week that only 24% of Americans believe that Congress should more closely oversee the Federal Reserve private banking cabal that’s been drowning us in debt for over a century. More than twice that amount believe “the Fed should be left alone.” These must be the same sheeple who loudly complain about how horrible Congress is, yet last November turn around and re-elect 91% of the incumbents despite only a 10% approval rating. The lies are so often repeated that the voting public gets invariably conned into voting against its own self-interest again and again.

Still another Supreme Court decision that put the final dagger into the heart of our dying democratic republic was 2010’s Citizens United case followed up by last year’s McCutcheon case that opened up the purse-string floodgates giving carte blanche power for oligarchs to buy off elected politicians with absolutely no oversight or accountability. With no dollar limits making bribery perfectly legal and completely private and untraceable by high court endorsement, by no accident a joint university study last year made it official – America is no longer a republic but an oligarchy where the power interests of the few dictate and control how our federal government votes and makes laws. Rather than pay any attention to its blatant conflict of interest in violating every democratic principle, the Supreme Court has also made it official – our government is up for sale to the highest bidder. Those who simply spend the most money now own our elected representatives who are totally beholding to the hand that feeds them rather than to their constituents that send them to Washington. Of course the direct consequence of these totally undemocratic court decisions placing exclusive monetary value on funding means that Congress members will only devote more time, energy and effort to raising money to get re-elected than doing their job on Capitol Hill. The 2012 presidential election at both national and state levels cost a total of $60 billion, the most ever. With each of these dramatically impactful court rulings, the onetime democratic republic of America fades ever further into distant memory as the disconnect between the Americans and their oligarchic form of government widens exponentially.

Finally last April’s Supreme Court decision to not intervene in a Court of Appeals ruling that overturned the district court that had declared the 2012 National Defense Authorization Act (NDAA) unconstitutional sealed the nail in the coffin on whatever civil liberties we Americans still had left. Though courageous citizens like journalist Chris Hedges had filed a lawsuit on our behalf challenging NDAA’s legality and one very bold federal district court judge decided in Hedges et al’s favor, by the Supreme Court’s choice to uphold the Appeals Court decision overruling the lower court to keep the NDAA law on the books, life as we legally knew it in the United States ceased to exist. In effect, both the Appellate and Supreme Courts violated American citizens’ Fourth and Sixth Amendments as well as overturned the Posse Comitatis law that existed since after the Civil War. Comitatis was the legal protection that prohibited the US military from intervening in civil affairs that were historically under the jurisdiction of law enforcement agencies and each state’s National Guard. Currently under the 2012 NDAA law, the military can come into our homes without a warrant and arrest us without charges, detain us for an unlimited, indefinite period of time without access to either legal representation or due process and without even a trial.

Constitutional attorney John W. Whitehead comments:

No matter what the Obama administration may say to the contrary, actions speak louder than words, and history shows that the U.S. government is not averse to locking up its own citizens for  its own purposes. What the NDAA does is open the door for the government to detain as a threat to national security anyone viewed as a troublemaker. According to government guidelines for identifying domestic extremists—a word used interchangeably with terrorists, that technically applies to anyone exercising their First Amendment rights in order to criticize the government.

The highest court’s gross and inhumane failure to protect our civil liberties and our constitutional right to due process has given way to the CIA-like “black sites” currently operating in secret locations throughout America where US citizens are being rounded up, brought to detention centers, shackled and tortured without being booked or charged with any crime. In effect, we are all now potential targeted victims of the US police state under the most brutal totalitarian rule. These egregious actions of the US Supreme Court have desecrated and destroyed our rule of law that for more than two centuries used to be the United States Constitution. What we now have are criminals operating within our highest court who are nothing more than traitors who need to be held accountable.

We also have a standing president who has assumed dictatorial powers through countless executive orders that bypass both congressional approval and our civil rights. Though he campaigned on a promise of transparency and openness, he has betrayed the American people who elected him by becoming the most secretive president in US history. His administration has turned down more Freedom of Information requests than any prior using the pathetic mantra of “national security” as his always lame excuse. He has charged far more whistleblowers with the archaic espionage act than all other previous presidents combined. He has been the most aggressive amongst all past presidents in pursuing and harassing journalists, both executing and threatening arrests for their seeking to tell the truth while exercising their constitutional protection to not violate confidentiality of their sources. This blatant, over-the-top violation of civil liberties of both whistleblowers and journalists again shows Obama’s true colors that he is at war with free speech and the free press obviously no longer guaranteed by our First Amendment.

Essentially since 9/11 all three branches have been taken over and hijacked by malevolent and sinister forces that no longer serve the interests of the American people but a handful of oligarch puppet masters that is the long time controlling elite. Their intent is in fact to destroy America and to a great extent the entire world as the final step toward fulfilling their globalist agenda of a one world government. For numerous centuries the international globalists have utilized their central banking cabal to own and operate a morally corrupt and thoroughly broken, unsustainable Ponzi scheme of an economic system designed to historically steal and plunder the earth’s natural resources and enslave through insurmountable debt and feudal servitude the global masses. The brutal and ruthless tyranny of the New World Order has effectively seized control over the entire planet’s population. Under the auspices of the American Empire doing its brutal bidding along with its subservient appendage of the NATO-European Union, a pro-Zionist elite spearheaded by the likes of Israel’s Bibi Netanyahu has subversively driven humanity to the brink of global self-annihilation. Through geopolitical polarization into two militarized opposing armed camps, the West is diabolically baiting and pushing the East (Russia, China, India and Iran) into global conflict amounting to World War III.

The hard kill tactics of global war and violence in conjunction with the soft kill method of environmental degradation (i.e., pollution of air, water, soil and food production through cumulative Monsanto GMO/chemical and chemtrail toxicity and ever-rising levels of radiation) makes our living earth habitat unsustainable that is increasingly producing widespread lethality amongst all life forms. The oligarchs’ eugenic plan of reducing the world population from 7.2 billion to a half to one billion is in current process of being successfully attained. Within a few years a very strong likelihood exists that roughly 13 out of 14 of us currently living and breathing on this planet will be dead or all life forms on planet earth will have perished.

With these longshot odds on survival becoming increasingly apparent, we humans as mindful citizens of the world have nothing left to lose at this near endgame point but to fight and take back our only home from those bent on fast destroying it. As outlined here, clear violations of the US Constitution have been egregiously been committed by members of all three branches of the federal government and under the penalty code of those laws, they sorely need to be enforced. Indeed it is both the citizens’ right and obligation to do so. We have no other rational or moral choice but to mobilize and actively oppose the destructive forces currently in demonic control over the earth’s dominion.

Joachim Hagopian is a West Point graduate and former US Army officer. He has written a manuscript based on his unique military experience entitled “Don’t Let The Bastards Getcha Down.” It examines and focuses on US international relations, leadership and national security issues. After the military, Joachim earned a master’s degree in Clinical Psychology and worked as a licensed therapist in the mental health field for more than a quarter century. He now concentrates on his writing and has a blog site at http://empireexposed. blogspot. com/.


jury instruction in a medical negligence claim based on an alleged lack of informed consent should be a general professional duty instruction

Saturday, March 7th, 2015

By David Kramer

In a recent 2-1 decision (see it here) by Chief Judge Glenn Acree, the Kentucky Court of Appeals held in Horsley v. Smith that the jury instruction in a medical negligence claim based on an alleged lack of informed consent should be a general professional duty instruction and not a separate instruction outlining specific legal duties relating to informed consent. The opinion also analyzed at length the language and legislative history of the Kentucky informed consent statute, KRS 304.40-320, and held that it did not affirmatively impose a duty on a physician, but rather created a “safe harbor,” compliance with which should absolve the physician from liability for an alleged lack of informed consent.

Interestingly, the jury in Horsley was instructed by the trial court that the defendant physician had initially lied at his deposition about not having sent an anonymous pre-suit mailing to the plaintiff recounting instances where physicians countersued lawyers for filing unsuccessful malpractice claims. The doctor later came clean and was sanctioned and fined by the trial court. He still won at trial.

Even more interesting is the fact that the Horsley decision openly disagrees with a 2012 Court of Appeals decision (Oghia v. Hollan) that was authored by current Justice Michelle Keller when she was on the Court of Appeals. Horsley also states (correctly) in a footnote that a 1992 informed consent opinion of the Kentucky Supreme Court “errantly” described the nature of the informed consent duty as being based on a community versus a national standard.

The opinion was designated for publication in the South Western Reporter but is not yet final as there is currently pending a petition for rehearing. Once that petition is ruled on, the losing party has a right to seek discretionary review by the Kentucky Supreme Court.

David Kramer is a Partner in the law firm of Dressman Benzinger LaVelle, with offices in Cincinnati, Ohio, Crestview Hills, Kentucky, and Louisville, Kentucky