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Friday, November 21st, 2014


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Lawyer is disbarred for ‘inexplicable incompetence’

Friday, November 21st, 2014

 (see video of his argument in Jefferson garb)

POSTED NOV 17, 2014 07:29 AM CST



A lawyer who told jurors his capital murder client was a “professional drug dealer” and a “shooter of people” has been disbarred for “inexplicable incompetence.”

The Kansas Supreme Court posted itsopinion (PDF) on Friday as well as a video of oral arguments in which Dennis Hawver appeared dressed as Thomas Jefferson. (A good shot of his attire is at five minutes and 17 seconds; his argument begins at 22 minutes and 38 seconds.) The Wichita Eagle has coverage.

At trial, Hawver described his client, Phillip Cheatham Jr., as a “professional drug dealer” and a “shooter of people,” according to findings of fact cited by the state supreme court. During the sentencing phase of the trial, he said the killer should be executed. “I had a single mitigator to offer the jury in sentencing,” Hawver said in an affidavit, “and that was my argument that my client was innocent.”

Hawver didn’t investigate alibi witnesses and didn’t track his client’s cellphone to find his location at the time of the murders, the court said.

According to previous coverage of the case, Hawver had argued at trial that his client would never have left a witness alive if he had shot the two women victims.

Hawver had never previously tried a capital murder case and had not tried a murder case in more than 20 years, according to the opinion. He was unfamiliar with ABA guidelines for trying capital murder cases. At trial, he informed the jury his client had previously been convicted of voluntary manslaughter, even though prosecutors agreed to a stipulation that the client had a prior felony conviction without further details.

Hawver had testified his client would pay him the $50,000 fee only if jurors returned a not guilty verdict. In an affidavit, Hawver also said he failed to seek dismissal of the capital charge after the Kansas Supreme Court struck down the death penalty scheme.

Hawver had said he had no funds for a pretrial investigation and he didn’t call the indigent defense board to explore whether funding was available to support his representation. He also said he didn’t recall whether a board representative had called him with an offer to provide co-counsel, investigators, consultants and expert witnesses, but he doesn’t contest that an offer of funding was made.

During the arguments, Hawver identifies Jefferson as his hero and says he wore the outfit because he had a constitutional right to represent the client “as directed, instructed and agreed” by the client, “no matter what the ABA guidelines have to say.”

Hawver explained to the Kansas Supreme Court why he didn’t get cellphone records for an alibi defense. “I had no idea that cellphones had GPS capabilities at that time,” he said. “Did you? I didn’t. If I had known it, I’d have been on it like a dog on a bone.”

Hawver had argued the First Amendment protected his representation of his client and the Sixth Amendment protected his client’s decision to choose Hawver as defense counsel. The Supreme Court rejected both arguments.

“In this court’s view the essentially uncontroverted findings and conclusions regarding Hawver’s previous disciplinary history, his refusal to accept publicly financed resources to aid in his client’s defense, and his inexplicable incompetence in handling Cheatham’s case in the guilt and penalty phases of the trial are more than sufficient to require disbarment,” the court said.

The prior discipline involved Hawver’s participation in an attorney diversion program for violating the ethics rule involving competence.

Kentucky Supreme Court recently limited the authority of Kentucky trial courts to make awards of attorney’s fees for equitable reasons or to impose attorney’s fees as a sanction.

Thursday, November 20th, 2014

By David Kramer

The Kentucky Supreme Court recently limited the authority of Kentucky trial courts to make awards of attorney’s fees for equitable reasons or to impose attorney’s fees as a sanction. The Court, noting that attorney’s fees are not recoverable litigation costs under CR 54.04 unless they are provided for under a contract between the parties or by Kentucky statute, held that a trial court has discretion to make an equitable award of attorney’s fees or impose them as a sanction “only…when the very integrity of the court is in issue.” Bell v. Com., Cabinet for Health & Family Svcs., Dept. for Cmty. Based Svcs., 423 S.W.3d 742 (Ky. 2014) (emphasis omitted).

The Court in Bell listed several examples of situations in which the trial court’s integrity is implicated by an improper action of an attorney or a party: (1) a Rule 11 violation; (2) disregard of a court order justifying an award of fees under CR 37.02; and (3) a contempt proceeding. Only in those or similar circumstances does a trial court have discretion to impose fees as a matter of equity or as a sanction. The Court stated that the very limited prior Kentucky authority to the contrary was “misguided,” and reaffirmed Kentucky’s general adherence to the prevailing “American rule” under which fees are generally not to be awarded absent a right to recover them pursuant to statute or contract.

Note: The foregoing post includes commentary reprinted from the forthcoming 2015 supplement to 7 Philipps & Kramer, Rules of Civil Procedure Annotated, 6th ed. (Kentucky Practice Series), by David V. Kramer, with permission of the author and publisher. Copyright (c) 2014 Thomson Reuters. For more information about this publication click here.

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

The Roberts Court Has Already Said That Obama Has The Power To Issue His Immigration Order

Thursday, November 20th, 2014

by Ian Millhiser Posted on  

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The Roberts Court Has Already Said That Obama Has The Power To Issue His Immigration Order


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President Obama is widely expected to issue an executive order permitting millions of undocumented immigrants to remain in the country without fear of deportation — or at least, without fear of deportation for as long as the order remains in effect. Indeed, sources tell ThinkProgress that the president is likely to announce the order on Thursday.

Congressional Republicans, as they often do when they disagree with a particular policy, claim that this executive order is illegal. Indeed, Sen. Jeff Sessions (R-AL), a leading opponent of immigration reform, claims that the executive order is an “unconstitutional action.”

Yet, the Supreme Court of the United States, including two of the Court’s conservative members, appear to disagree with Sessions and others who doubt the legality of the president’s impending action. In 2012, the Supreme Court struck down several provisions of Arizona’s controversial immigration law SB 1070. Justice Anthony Kennedy wrote the Court’s 5-3 opinion in Arizona v. United States, which was joined by Chief Justice John Roberts (Justice Elena Kagan was recused). Both Roberts and Kennedy are Republicans.

Kennedy’s opinion in Arizona does more than strike down several provisions of a state law, however. It also includes language highlighting the “broad discretion” the executive branch enjoys in matters relating to immigration:

Congress has specified which aliens may be removed from the United States and the procedures for doing so. Aliens may be removed if they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law. Removal is a civil, not criminal, matter. A principal feature of the removal system is the broad discretion exercised by immigration officials. Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If removal proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal.

Several details of this passage are worth noting. The Supreme Court says that aliens “may” be removed if they meet certain criteria, not that they “must” be removed under the law. The executive branch does not simply enjoy “broad discretion” over who is or is not removed, it also “must decide whether it makes sense to pursue removal at all.” Thus, according to the Supreme Court, the law clearly contemplates cases where the executive branch will choose not to remove someone that could be subject to deportation.

Admittedly, there may be some limits on executive discretion in this space. One provision of federal immigration law provides that the “[t]he Attorney General shall take into custody any alien who” meets certain criteria, such as they have committed a serious crime or they have previously “engaged in a terrorist activity.” As a constitutional matter, there are strong legal arguments that the executive branch may invoke something known as “prosecutorial discretion” if they do not wish to detain someone that the law commands them to “take into custody.” It is unlikely, however, that President Obama’s order will shield serious criminals or terrorists, so this constitutional issue likely will not need to be resolved.

In contrast to the mandatory language governing major criminals and terrorists, the statutory language governing most other removals of undocumented immigrants is far more permissive. It provides that certain individuals “shall, upon the order of the Attorney General, be removed.” Here, the key words are “upon the order of the Attorney General,” which indicates that an executive branch official has discretion to decide whether most undocumented immigrants are deported.

The Supreme Court’s opinion in Arizona also suggests that the executive branch’s discretion in matters of deportation may be exercised on an individual basis, or it may be used to protect entire classes of individuals such as “[u]nauthorized workers trying to support their families” or immigrants who originate from countries torn apart by internal conflicts:

Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state may be mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities.

Notably, President Obama issued his Deferred Action for Childhood Arrivals (DACA) order permitting many young undocumented immigrants to remain in the country on June 15, 2012Arizona was decided on June 25, 2012. So the idea that the president might use his power to grant a broad class of undocumented immigrants new rights via an executive order would have been very much on the justices’ minds at the time that Justice Kennedy wrote language into the Arizona decision laying out the breadth of the executive branch’s discretion. It certainly was on Justice Antonin Scalia’s mind, who railed against the DACA order in a dissenting opinion.

President Obama also is not the first president to exercise his discretion to give broad relief to a class of undocumented immigrants. In 1987, the Reagan Administration granted relief from deportation to the minor children of parents who benefited from a 1986 immigration reform, even though the 1986 law did not grant that relief directly to those children. Three years later, President George H.W. Bush granted similar relief to approximately 1.5 million “family members living with a legalizing immigrant [] who were in the U.S. before passage of the 1986 law

The Constitutional Authority for Executive Orders on Immigration Is Clear

Thursday, November 20th, 2014

Eric Posner, a professor at the University of Chicago Law School, is the co-author of “The Executive Unbound.”

NOVEMBER 18, 2014

Critics of the plan the president is reported to be considering argue that the Constitution obliges him to “take care that the laws be faithfully executed,” an obligation that seems to give the lawmaker, Congress, the primary authority to set policy. They say that refusing to enforce immigration law against millions of illegal immigrants violates that constitutional duty.

Executive power has always included the power to allocate resources among enforcement efforts. The power has grown over the years.

Yet the Constitution also gives the president “executive power,” which has always been understood to include the discretionary power to allocate resources among enforcement efforts. The significance of this power has grown over the last century, as Congress has created vast regulatory agencies and given the president control over them.

Congress typically appropriates money for regulators, gives the president some vague guidelines and enacts far more laws than he could possibly enforce, and then allows him to set enforcement priorities as he sees fit. That’s why different administrations can pursue such different policies from each other without getting Congress’s permission first. The Reagan administration came to power promising to deregulate the economy, which often meant not enforcing the law, whether it was antitrust, environmental or financial.

If, under the Constitution, the president must enforce much of the law but need not enforce all of it, where should the line be drawn? It might be surprising that after two centuries of constitutional experience, we don’t know the answer. Probably the reason is that most of the time, the president’s nonenforcement decisions are not controversial. Every day, an executive branch official decides to drop an investigation, or not to prosecute a case, because resources are scarce and the harm caused by a particular legal violation does not seem serious. We don’t object because that’s a sensible thing to do.

And the sensible thing to do in the area of immigration law is to bring removal proceedings against the most serious violators — typically, criminals — while leaving otherwise law-abiding noncitizens alone. Given that Congress has not appropriated nearly enough money to deport 10 million or more people, this type of priority-setting is unavoidable, and not merely wise. Indeed, the president is just following in the footsteps of his predecessors, who also focused removal efforts on dangerous aliens. Congress has acquiesced in this practice for years. The president’s discretion over immigration is deeply interwoven in our law. As the Supreme Court recognized just two years ago, in the course of summarizing the statutory scheme: “A principal feature of the removal system is the broad discretion exercised by immigration officials.”

The only difference between the president and his predecessors is that the president has openly declared the de facto policy of his predecessors. We might disagree about whether this move is wise, but it’s not a constitutional violation.


Should We Impeach Chief Justice John Roberts?

Wednesday, November 19th, 2014

The fragile and faltering state of American democracy.

William Greider on November 19, 2014 – 10:47 AM ET

  • Republicans like to talk about impeaching President Obama, but there is a far more deserving candidate for impeachment—Chief Justice John Roberts of the Supreme Court. While the Republicans in Congress have blocked Democrats from enacting much of substance, the GOP majority in control of the Court has been effectively legislating on its own, following an agenda neatly aligned with their conservative party. Step by step, the five right-wing justices are transforming the terms of the American political system—including the Constitution.

They empowered “dark money” in politics and produced the $4 billion by-election of 2014. They assigned spiritual values to soulless corporations who thus gained First Amendment protection of free speech and religion. The justices effectively gutted the Voting Rights Act of 1965, even as they allowed state governments to create new obstacles for minority voting. The High Court made it okay to take guns to church and more difficult to keep guns from dangerous people. It rendered a series of decisions that collectively shifted political power from the many to the few.

This power grab by the unelected—and supposedly non-partisan—justices has already produced a historic rewrite of America democracy. But it was done by blatantly usurping the decision-making authority that belongs to the elected government in Congress and the executive branch. The Republican justices are not finished with their undeclared revolution. They will continue unless and until people rise up and stop them.

The Roberts Court’s latest target is once again President Obama’s singular achievement, the Affordable Care Act. Under peculiar circumstances just three days after the midterm elections, the Court announced it will hear another legal challenge that threatens to disable and perhaps destroy the new healthcare system.

The timing of this new intervention has a distinct odor of political collusion. The Republican takeover of the Senate is already invoked by Court allies to suggest the justices are merely responding to the will of the people. Some conservative Court watchers tout the new case as a chance for the chief justice to make amends and get with the program. The latest challenge was fashioned in Washington by the same club of right-wing legal foundations and pricey corporate lawyers who have been attacking affirmative action and other liberal reforms since the Reagan administration.

Michael Carvin of the Jones Day law firm is a cocky veteran of the right’s long crusade and the lead lawyer for the new case. He is already boasting of the outcome, even though the intermediate DC Circuit Court of Appeals has not yet ruled up or down as would normally occur before the Supreme Court agreed to consider it. Carvin dismissed the DC Circuit Court, now dominated by Democratic appointees, as a meaningless anomaly. He told a Talking Points Memo reporter he doubts that Supreme Court conservatives “are going to give much of a damn about what a bunch of Obama appointees on the DC Circuit think.” Goodbye to deference and regular order.

But might Carvin’s case still lose at the Supreme Court? “Oh, I don’t think so,” he said. That was his cute way of saying this time Chief Justice Roberts will be on board with the other four conservative justices. Carvin didn’t say why he is so confident, but he and Roberts seem to be old chums. At a Federalist Society event last year, Michael Carvin indulged in a bit of classy namedropping. The admiring conservative society reported that Carvin “told an anecdote in which Chief Justice Roberts approached him and jokingly chided him for having favored appointing Samuel Alito before Roberts.” What does this say about their relationship? Maybe nothing, but one would like to ask a few follow-up questions.

Roberts himself takes offense at accusations that the Roberts Court renders politicized decisions. He has frequently denied the charge. “We’re not Republicans or Democrats,” Roberts told students at the University of Nebraska law school. Unlike some of his right-wing colleagues, Roberts wants to have it both ways. He’s not an ideologue, just an earnest umpire calling balls and strikes.

Baloney. If Carvin and other conservative legal eagles are correct that this time the Chief Justice will rule against the healthcare law, that should give people a prima facie case for considering impeachment. At a minimum, people should demand a thorough public investigation into whether surreptitious political interference occurred (who said what to whom offstage?). If politicians are reluctant to go down that road, people can start their own inquiries. The chief justice should be forewarned what will likely happen if he does scuttle the ACA. I expect “Impeach John Roberts” signs and billboards to start popping up all over America as people finally figure out who did this to them. Hint: it was not Barack Obama.

A prime witness should be Linda Greenhouse, who for decades was the influential New York Times correspondent covering the Supreme Court (now at Yale law school). Greenhouse was admired for her fair-minded analysis and great clarity in explaining esoteric legal arguments, She finds the current state of affairs “profoundly depressing.”

Greenhouse explained in her blog posted at “In decades of court-watching, I have struggled—sometimes it seems against all odds—to maintain the belief that the Supreme Court really is a court and not just a collection of politicians in robes. This past week I found myself struggling against the impulse to say two words: I surrender.” (Linda Greenhouse has not herself called for impeachment.)

The new case against Obamacare reads like “a politically manufactured argument,” Greenhouse wrote. She called the maneuvering “a naked power grab by conservative justices who two years ago just missed killing the ACA in its cradle.” As evidence, she cited the unusual twists in Supreme Court behavior. Normally it waits to see if there are conflicting views among circuit courts of appeal before taking a case for consideration. This time, the Fourth Circuit based in Richmond, Virginia, upheld the law. The DC Circuit in Washington has all twelve judges reviewing and seems very likely to uphold the law, since that court is now top-heavy with Democratic appointees. The Supremes went ahead regardless.

Greenhouse cited Michael Carvin’s confident boasting as suggesting the political flavor. She also invoked remarks by Professor John Yoo of UC Berkeley—famous in Bush years as the “torture lawyer” who defended brutal interrogations and a former clerk for Justice Clarence Thomas. On National Review Online, Yoo felt sure Roberts will now support the ACA challenge because the case “gives him the chance to atone for his error upholding Obamacare.” Yoo wrote: “What judge can resist the chance to reach the right legal result, fix mistakes from the past and act with popular support? It’s a Supreme Court trifecta.”

Over-confident Republicans naturally assume the public will be grateful if the Supreme Court rescues them from Obama’s healthcare system. But the first result is bound to be utter chaos and confusion and millions of people—mostly in red states—who discover they are the losers. If the GOP legal challenge succeeds, the High Court will rule that the federal exchanges—created for states that declined to create their own state exchanges—operate illegally because the ACA does not give them explicit authority to dispense the tax credits that subsidize health insurance.

A blizzard of low- and moderate-income buyers of insurance would be suddenly stripped of government assistance—around 5.2 million of them. But there is a cruel twist Republican leaders fail to acknowledge: their own red-state constituents will be the most victimized. Leading right-wing politicians have endorsed the very lawsuit that will punish the Southern and Western states if it prevails, while blue states and northern cities that are operating their own state exchanges may not suffer at all.

The lawsuit now before the Supreme Court, for example, has been formally joined by Senators Cornyn and Cruz of Texas, Hatch and Lee of Utah, Portman of Ohio, Rubio of Florida, Representative Darrell Issa of California and the state governments of Oklahoma, Alabama, Georgia, West Virginia, Nebraska, South Carolina and Kansas. If these politicians win, their states are the big losers.

But of course the citizens who will be screwed in the red states are mostly working poor or moderate-income families. Republicans are okay with that. They ostensibly believe that belt-tightening helps build character. The GOP may have a time with blowback from the insurance industry and other providers in the healthcare system. While it’s not widely understood, many billions in federal subsidies help people of limited means buy health insurance but they never actually see the dollars themselves. The money flows directly from the Treasury to the private enterprises. Insurance lobbyists are already on the case, explaining real life to clueless conservatives.

Up to this point, I have barely mentioned the logic of the conservative assault on Affordable Care. Because there isn’t much logic to it. It depends entirely on a narrow-minded reading of the original legislation—so ridiculously literal that only gnomes in a medieval castle could take it seriously. In a nutshell, the right-wing lawyers claim that the law describes how state-run exchanges will be able to dispense federal subsidies to people in need, but the law fails to say explicitly that federal exchanges have the same powers.

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Okay, the drafters could have repeated the requisite language to reassure fly-specking lawyers, but really there was never any doubt about the congressional intent. As the US Court of Appeals for the Fourth Circuit has ruled, the logic of the entire system over-rules any blurred language. The law says explicitly that the secretary of Health and Human Services has the authority to create federal exchanges when and where states don’t want to do it. In other times, any such ambiguity would have been quickly eliminated with a technical fix, routinely adopted by mutual consent.

But the new Republican Party refuses to go along with anything that resembles cooperation and might shine a good light on Democrats. What the right-wingers really hope to achieve is a total breakdown of the ACA’s complex architecture. Throw sticks in the spokes. Force the Obama administration to open the legislation for Republican tinkering. The Supreme Court appears to be pursuing a similar strategy In other words, right-wing senators want Supreme Court right-wingers to accomplish by edict what GOP legislators could not accomplish for themselves.

Barack Obama can win this fight by not giving in to the Supreme Court, even if he temporarily loses there. The president has to call out his opponents and tell the hard truth about their illegitimate abuse of power. People may listen if he genuinely fights for them.

People may recall the last time Americans wanted to impeach a Chief Justice was in the 1950s, when Earl Warren—a liberal Republican from California—championed Brown v. Board of Education in the long legal battle to defeat Jim Crow segregation. Chief Justice Roberts has been leading in the Court in the opposite direction. Instead of comforting the afflicted, he is comforting the comfortable.

Read Next: Thanks to the Roberts Court, corporations have more constitutional rights than actual peop

How the courts trap people who were convicted by bad forensics

Tuesday, November 18th, 2014


By Radley Balko November 17 at 8:00 AM

In a short opinion issued last week, a three-judge panel for the U.S. Court of Appeals for the Fifth Circuit unanimously upheld a federal district judge’s ruling against Louisiana prisoner James Koon, who in 1996 was convicted of killing an infant and sentenced to life in prison.

The medical examiner who testified against Koon was Steven Hayne, a controversial figure about whom I’ve written at length over the last eight or so years. The panel rejected Koon’s petition for a new trial based on what Koon claimed was newly discovered evidence that calls Hayne’s credibility into question.

The rejection itself was nothing new. Despite Hayne’s impossible workload (over about 20 years he performed on average 1,200 to 1,800 autopsies per year, by his own admission), his lack of board certification, and the fact that he has on multiple occasions given testimony that other medical examiners have said ranged from implausible to malpractice, to date no court has rejected Hayne as an expert witness. While some courts have overturned a handful of convictions that were based on his testimony, they’ve only done so in the most egregious instances. Where Hayne has given plausible testimony, or even implausible-but-not-completely-nutty testimony, the courts have generally refused to intervene.

But if Hayne isn’t a credible witness, he isn’t a credible witness. If he has shown that he’s willing to say outrageous things in a few cases, has lied about his certification, and has been shown to be sloppy and unprofessional in his work, the cases in which he gave plausible but debatable testimony (and was opposed by a more competent medical examiner) should be seen just as tainted as those in which his testimony was transparently ridiculous.

So far, the courts haven’t agreed. But a two-word phrase makes last week’s ruling different than all of the others.

The evidence shows the witness for Louisiana, Dr. Steven Hayne, a now-discredited Mississippi coroner, lied about his qualifications as an expert and thus gave unreliable testimony about the cause of death.

To my knowledge, this is the first time a court has acknowledged that Hayne has been broadly “discredited.” The acknowledgment is significant because of what the panel does next. Under federal law, in order to obtain a new trial based on newly discovered evidence, a convicted person must show that the evidence is either new or could not have been discovered at trial, that had the evidence been available at trial the jury would likely have convicted, and must file his petition based on the new evidence within a year of when the evidence “could have been discovered through the exercise of due diligence.”

The federal district court judge who first ruled on Koon’s petition determined that despite the evidence that Hayne has been discredited, Koon is not eligible for a new trial because the evidence about Hayne’s credibility problems became available several years prior to when Koon filed his claim: in July 2012. The Fifth Circuit panel agreed.

Koon’s claim is imprecise, but he states generally that Dr. Hayne was not properly certified or qualified to testify as an expert, and that he misrepresented certification in forensic pathology. Koon asserts he could not have known Dr. Hayne was unreliable until he received a report from the National Inmate Advocacy Program (NIAP) in September 2011.

The district court adopted the Magistrate Judge’s report and recommendation, which recommended that correspondence to Koon from the NIAP, its predecessor Review Case Research, and Koon’s trial counsel showed Koon had knowledge of Dr. Hayne’s unreliability and untruthfulness at least as early as June 2010. That adopted recommendation was not clearly erroneous. E.g., Wilson, 564 F.3d at 704.

For example, the news media also severely criticized Dr. Hayne between 2006 and 2008; he filed a defamation action in 2009 against the Innocence Project, based on its criticisms of him; and a Mississippi Supreme Court Justice criticized Dr. Hayne as unqualified in 2007. Edmonds v. State, 955 So. 2d 787, 802-03 (Miss. 2007) (Diaz, P.J., concurring). Koon’s assertion that he could not have learned of Edmonds from information in the Louisiana State Penitentiary law library is both implausible and immaterial in the light of the public information about Dr. Hayne that was available for several years prior to July 2011.

Koon discovered, or should have discovered, the factual predicate of his claim about Dr. Hayne more than a year before he filed the state habeas petition that would have tolled the limitation period. Because the limitation period expired before it was tolled, Koon’s petition is untimely.

Under a very precise reading of the federal law and relevant case law, this is all correct. It’s also incredibly unfair, and a stark illustration of just how ill-equipped the federal courts and federal law are to catch and correct flawed evidence disguised as expertise.

To be clear: I have no opinion about Koon’s guilt or innocence. I know nothing of the state’s case against him. But this ruling addresses only the matter of Hayne, and it finds that because Koon missed his deadline, it simply doesn’t matter that Hayne may not be a credible witness.

To explain why this is so unjust, some background is in order: Since the onset of DNA testing in the 1990s, we’ve been slowly learning that our criminal justice system frequently comes up short when it comes to keeping junk science and quack experts out of the courtroom. The landmark 2009 National Academy of Sciences report on forensics was clear on this point. From bite mark matching to hair and fiber analysis to “shaken baby syndrome,” the courts have done a poor job of demanding that experts be qualified and credible, theories be grounded in science, and statements of certainty be verified with statistical sampling before allowing such expertise to be heard by a jury.

And while the criminal justice system can’t seem to keep bad science out of its courtrooms during trial, once someone has been convicted, the same system then puts a premium on the “finality” of a guilty verdict. It’s a point Congress and past presidents have hammered home over the years by revising the federal criminal code to limit habeas appeals in federal court. In order to get relief from a federal court in post-conviction, a convicted person today not only needs overwhelming evidence of innocence, they must also show that this evidence is either new or was undiscoverable at the time of trial, and they must file their petition for within a year of the new evidence becoming available.

The problem with these laws with respect to bad scientific evidence is that science doesn’t operate on deadlines. Science is a process. Most forensic specialties aren’t actually sciences at all, but disciplines that were developed in police agencies and crime labs — not in the interest of pursuing knowledge, but in the interest of helping police solve crimes. Many fields of forensics, especially pattern-matching disciplines like fingerprinting, ballistics, and fiber matching, can’t calculate a statistical margin for error. That doesn’t mean they have no evidentiary value at all (although that’s true of some of these fields). It just means that they’ve never been subjected to scientific inquiry. Their underlying assumptions have never been tested. But these assumptions and the conclusions upon which the analysts base them are often presented to juries as science.  The practitioners in these fields  also often give testimony that expresses levels of certainty for which there is no statistical support. That is also a problem.

By contrast, DNA testing is steeped in science. DNA profiling was developed by scientists, with extensive scientific review. You’ll rarely if ever see two analysts disagree over a DNA profile the way you’ll often see, say, two bite mark experts or blood spatter analysts disagree over crime scene photos. Because we know how DNA markers are distributed over the human population, DNA analysis has a quantifiable margin for error. Barring tainted evidence or human manipulation, that margin is very, very small, though it’s still there, and it’s still acknowledged. A bad forensic analyst will often testify about his or her certainty about a match. A DNA analyst will testify about probabilities. Consequently, DNA evidence is one of the few ways the courts will let a wrongly convicted person get over the high barriers to a new trial or exoneration once a case is in post-conviction.

But DNA testing is also why we now know that many of those forensic specialties are flawed. It has shown that defendants were actually innocent in cases in which a bite mark expert or blood spatter expert or hair analysis expert said without equivocation that the defendant was guilty. Unfortunately, this has not been enough to get the federal courts to reconsider convictions in cases for which the primary evidence was from one of those same fields (or a disturbing number of cases, from the same expert), but for which DNA wasn’t a factor.

These forensics fields have largely avoided seeking out scientific validity for their claims because once the courts began accepting the analysts as experts, there wasn’t much incentive for them to do so. Again, purpose of forensics is to solve crimes. The end game is to testify in court and persuade a jury. Once you’ve accomplished that, you’ve won. Subjecting your methods and analysis to scientific scrutiny won’t get you any farther. It can really only hurt you.

Because these forensic fields haven’t sought out scientific validation, science has been slow to look into their claims. That began to change when we started to encounter the first DNA exonerations in the early 1990s. But full-on scientific scrutiny of forensics really didn’t get going until the last decade or so. (Here too, the process has been marred by politics and posturing.) And it’s worth emphasizing again that science is a process. It moves slowly. A study will get submitted for peer-review. It might then be published. Other studies will verify or contradict that study, or distinguish it in some way. There is no set point in time at which science will officially declare a theory to be proven or disproven. It’s about the process itself. It’s a gradual accumulation of knowledge.

Courts operate differently. Statutes of limitations toll. Procedural rules impose deadlines. The courts and the people who operate in them seem to feel that the integrity of the system demands the preservation of verdicts. Institutionally, the legal system and the system of scientific inquiry operate in fundamentally different ways. And we haven’t yet figured out how to reconcile the differences.

Let’s say someone who was convicted due to an expert’s diagnosis of “shaken baby syndrome” wants to file a post-conviction petition based onthe growing consensus that the theory is flawed. At what point does that year-long window to file the petition begin to start? Is it after the first critical study? The second? Is it once the scientific community has reached a consensus? What defines a “consensus?” How do you define the field of scientists among which a consensus must arise?

From the prospective of the wrongly convicted, you can see the trap, here. File too soon, and the court may conclude that you haven’t presented enough evidence that the forensic theory upon which you were convicted has been discredited. If you then try to file more petitions as more evidence comes out to bolster your argument, you risk the court concluding that this is an  issue you’ve already raised, you lost, and you’re therefore barred from raising it again.

Here’s a real-world example: Mississippi courts, prosecutors, and attorneys general continued to uphold and defend the credibility of the now notorious bite mark analyst Michael West well into the mid-2000s. This, despite the fact that West had been repeatedly exposed as a fraud going back to the mid-1990s. He had even been ostracized within the already controversial and scientifically suspect community of bite mark analysts. Mississippi Attorney General Jim Hood finally conceded only a couple of years ago that West wasn’t a credible witness. But while Hood’s office had by then stopped defending West’s credibility in court, the office continued to defend convictions won on West’s testimony. Hood’s staff did so by arguing that defendants who had already challenged West’s credibility at trial, on appeal, or in previous post-conviction petitions, and lost, were procedurally barred from raising that claim again. Thus, defendants are stuck: File too soon and you’ll lose on the merits and risk being barred from raising the claim when more evidence comes out. But if you wait for more evidence, you risk running afoul of the deadlines on newly discovered evidence.

So let’s get back to James Koon. Forensic pathology (the field practiced by medical examiners) is a particularly tricky area of forensics because it’s both objective and subjective. “There are four bullet holes in the victim’s heart” is an objective statement. You’ll rarely find two medical examiners arguing such a point. “The bullet’s trajectory suggests that the killer shot the victim while standing” is far more subjective. It may be true. But it’s confounded by variables, such as the body positions of the shooter and victim, the elevation of both, the angle at which the killer was holding the gun, and so on. How much stock the jury puts in a medical examiner’s testimony on such questions relies heavily on how credible the jury finds the medical examiner. This is particularly true if the defense has its own medical examiner with contradictory opinions. (Perversely, this is a system that rewards people who sound convincing to juries. A medical examiner who speaks in certainties will sometimes sound more persuasive to a jury than one who hedges his opinions and refuses to speak in absolutes, even though the latter is usually the more scientifically sound approach.)

In some cases, forensic experts have been clearly exposed as frauds, such as cases in which a crime lab technician was shown to have faked test results. Here, there’s a clear time for the clock to start running on that window to file a petition. In other cases, such as Hayne, the information has come out in a stream, so it’s far less clear.

The Fifth Circuit has now apparently decided that Dr. Steven Hayne is no longer a credible witness. But when did the court reach that conclusion? And how was James Koons supposed to know?

Consider the following:

1. Mississippi Attorney General Jim Hood still defends Steven Hayne as a credible witness.

2. To this day, Hayne still testifies as an expert witness in Mississippi’s courts. He has effectively been barred from testifying for the state in new cases by a state law requiring such experts to be board-certified in forensic pathology. But he can still testify in retrials of old cases for which he performed the autopsy. He’s still defended as credible in state briefs. And he now sometimes testifies for the defense and in civil cases. (Bizarrely, this has led to situations — including the recent publicized trial of Pebbelz Da Model — in which the same state that has been defending Hayne in court briefs attempts to discredit him by using the same attacks on his credibility that it dismisses in those briefs.)

3. It’s true that the Mississippi Supreme Court tossed Hayne’s testimony in the previously mentioned Tyler Edmonds case. One would think Hayne’s testimony in that case would have been enough to discredit him, and perhaps provide a point at which the click on new evidence could begin ticking. (Hayne preposterously claimed that he could tell by the bullet wounds in the victim that two people were holding the gun that fired those bullets — thus confirming the prosecution’s theory that a brother and sister simultaneously killed the sister’ husband in his sleep.) But in the same opinion, the court explicitly noted that its ruling applied only to that case, and that as far as the court was concerned, Hayne was still a credible witness.

4. In fact, just months after the Edmonds decision in 2007, a federal district court judge in the same Fifth Circuit where the appeals court issued last week’s opinion made the same declaration.

The petitioner also claims that he has discovered new evidence that Dr. Hayne, who testified as an expert on behalf of the state at trial, should not have been allowed to testify as an expert in forensic pathology. The petitioner’s new evidence claim arises out of a recent state court decision, in which the state supreme court found that Dr. Hayne should not have been allowed to testify to a matter beyond his expertise-based on the facts in that case. The court did not however, conclude that Dr. Hayne was not an expert in the field of forensic pathology. Instead, the court found that the particular opinion offered by Dr. Hayne in the Edmonds case should not have been allowed without any scientific testing to support it. The petitioner refers to Justice Diaz’s concurring opinion in Edmonds-in which Justice Diaz stated his belief that Dr. Hayne should not have been qualified as an expert. This expressed belief by a single Mississippi Supreme Court Justice, however, was not the finding of the majority-and does not constitute ‘new evidence’ for purposes of § 2244(d)(1)(D). As such, the petitioner’s arguments in support of use of the factual predicate exception must fail.

5. In the 2009 case Brown v. Kelly, another federal district court judge from the Fifth Circuit considered the case against Hayne’s credibility, which by then had grown, and again found it lacking:

Petitioner argues that Dr. Haynes [sic] was not qualified to provide expert testimony for three reasons: 1) he was not qualified to serve as the State Medical Examiner because he was not certified in forensic pathology; 2) he testified that he performed between 25,000 and 30,000 autopsies during his 25–year career, which Petitioner claims is “highly unrealistic”; and 3) he provided “questionable” testimony in another case, reported in a recent magazine article. Petitioner claims that his attorney was ineffective for failing to investigate Dr. Haynes’ qualifications (or alleged lack thereof) as an expert and that if he had, he would have been prepared to object to his testimony at trial . . .

However, it seems clear to this court that based upon Dr.Haynes‘ qualifications, he was amply qualified to provide expert testimony in the field of forensic pathology. Moreover, Plaintiff’s arguments regarding Dr. Haynes lack merit. First, the fact that Dr. Haynes was not qualified to serve as the State Medical Examiner has no bearing on whether he was qualified to provide expert testimony. Second, Petitioner’s claim that the number of autopsies performed by Dr. Haynes is “highly unrealistic” is pure speculation. Finally, the fact that Dr. Haynesmay have been criticized in a magazine article does not establish that he was not qualified to render an expert opinion at Petitioner’s trial. In short, Petitioner has failed to establish that his attorney was ineffective in failing to investigate Dr.Haynes‘ qualifications or to object to his testimony and, therefore, this claim for habeas relief should be dismissed.

(Note here that the judge repeatedly and incorrectly refers to Hayne as “Haynes.”)

6. In the 2011 case Council v. Bingham, a federal district judge in the same Fifth District again ruled that the growing media coverage (including my own) of Hayne and mounting questions about his credibility still didn’t undermine his status as an expert witness.

Council claims she is innocent of the charge based on new evidence that Dr. Hayne is not licensed and is a forensic fraud and wrongfully testified in her case . . . She further states thatDr. Hayne testified that the victim was stabbed six times but never stated how the wounds were inflicted. Id. Council attaches to her petition an article by Radley Balko, “CSI: Mississippi, A case study in expert testimony gone horribly wrong,” criticizing Dr. Hayne and his qualifications . . .

The fact that Dr. Hayne may have been criticized in a magazine article does not establish that he is a “forensic fraud” or that he wrongfully testified in Council’s case.

In a footnote, the court adds:

According to the magazine article, Dr. Hayne is not board certified in forensic pathology. See Petition [1–3] at 30. At trial, Dr. Hayne testified that he is a physician practicing in the fields of anatomic, clinical, and forensic pathology. He did not claim to be board certified in forensic pathology . . .

The article also references the Mississippi Supreme Court’s decision in Edmonds v. State . . . where the court reversed and remanded defendant’s murder conviction, holding in part that Dr. Hayne’s testimony pertaining to the two-shooter theory was improperly admitted, as the State made no proffer of any scientific testing performed to support the theory. However, as Respondent points out, the court did not find that Dr. Hayne was not qualified to proffer expert opinions in forensic pathology. Respondent further notes that since the Edmonds decision, Mississippi appellate courts have consistently found Dr. Hayne qualified to testify as an expert.

Here, the ruling is correct: Appeals courts in Mississippi have consistently upheld Hayne’s status as an expert witness. The ruling lists two of them:

See Lima v. State, 7 So.3d 903, 907 (Miss. 2009) (holding that the trial court did not abuse its discretion when it accepted Dr. Hayne as an expert, despite defendant’s claim that Dr. Hayne was not qualified as an expert “because his work load was too heavy, he lacked reliability, his work lacked peer review, and he was not board-certified by the American Board of Pathology in forensic pathology”); Keys v. State, 33 So.3d 1143, 1150 (Miss. Ct. App. 2009) (finding that Dr. Hayne’s testimony as to the cause and manner of death of victim was permissible where the trial court accepted that Dr. Hayne was qualified as an expert in the area of forensic pathology without any objection or voir dire from defense counsel).

So it’s now 2011, and there’s still no reason for someone like Koon to believe that the courts have any problem with Hayne as a witness.

7. As I wrote in a post here at The Watch, just last January a separate panel from the very same U.S. Court of Appeals for the Fifth Circuit that denied Koon ruled in a separate case that the petitioner “[did] not show that Hayne’s testimony at trial was false or unreliable.” One federal judge, E. Grady Jolly, was actually on both panels.

8. As I mentioned in that same post, as well as in this report from a couple years ago, state officials in Mississippi have tried desperately to keep information about Hayne, his autopsies, and his arrangements with the state from becoming public. It seems unfair to then punish those he has helped convict because they couldn’t access that information sooner.

So as recently as last January, the same federal appeals court, including one of the same judges, found a petitioner’s claims about Hayne’s credibility to be without merit — and that decision is in addition to two other federal circuit court rulings and numerous court decisions from the Mississippi Court of Appeals and the Mississippi Supreme Court coming to the same conclusion since my first expose of Hayne in 2006 and the Tyler Edmonds ruling in 2007.

In fact, we’ve only really started to see court opinions expressing concern about Hayne’s general credibility in the the last couple of years. That has only happened in a handful of cases, and those opinions have been matched or exceeded by opinions still finding no problem with Hayne as a witness.

The Catch-22 for someone like Koon is compounded by the fact that Louisiana only offers post-conviction indigent defense services to those who have been sentenced to death. Since Koon was sentenced to life in prison, he hasn’t had an attorney since he lost his appeal. He filed his post-conviction petition himself. The court is saying here that, from his prison cell, an indigent defendant like Koon should not only have been keeping abreast on each revelation about Hayne’s credibility as it happened, he also should have known the precise moment when those revelations tipped the scales to make Hayne officially “discredited” in the eyes of the court — even though the court itself can’t or won’t say precisely when that occurred — and filed his petition within a year of that moment.

If you support the death penalty (I do not), there is an argument for imposing a deadline on claims based on newly discovered evidence in those cases. Hayne testified and helped convict people who turned out to have been innocent. But he has also helped convict a lot of people who were guilty. Without a deadline, when revelations come out about a prolific witness like Hayne, guilty death row inmates whom Hayne helped convict — but for whom there’s other ample evidence of guilt — could sit on the new revelations for years in order to buy themselves time.

But a deadline makes little sense when we’re talking about people serving long or life sentences. These people just want to get out. It’s hard to see how someone like Koon could game the system by waiting to file. At worst, he knew about the earlier revelations and held off because he wanted to wait until there was enough evidence to persuade a federal court. But that isn’t gaming the system, it’s understanding the high bar in getting a court to overturn a conviction. More likely, he just wasn’t aware of all that had come out about Hayne. If the court does indeed believe that Hayne is now discredited, then Koon deserves a new trial. Perhaps a different, more credible medical examiner would look at the photos and slides from Hayne’s autopsy and come to the same conclusion, and Koon would still be convicted. Perhaps, as has been the case in the past, Hayne’s autopsy report would prove to be too vague and lacking in detail for credible forensic pathologist to draw any conclusions. If that’s the case, then it would be the state’s mistake for entrusting the autopsy to Hayne, and Koon should be freed.

This is in part a failure of the courts, in part a failure of the federal law (and Congress for passing it), and in part a failure of the elected and public officials who have used and defended Hayne over the years. Regardless of who’s to blame, Koon was convicted due to testimony from an expert the court now admits isn’t credible. For the same court to nevertheless uphold his conviction because he missed a deadline is to keep him in prison on a technicality. It’s a cynical outcome that suggests the criminal justice system values process more than justice.


Radley Balko blogs about criminal justice, the drug war and civil liberties for The Washington Post. He is the author of the book “Rise of the Warrior Cop: The Militarization of America’s Police Forces.”

Guest column: Sixth Circuit Court’s punt on gay marriage is a Failure of justice

Tuesday, November 18th, 2014


By Guest writer 
on November 18, 2014 at 8:00 AM, updated November 18, 2014

By Douglas Meeks
Douglas Meeks is a Lansing lawyer who married Republican strategist Greg McNeilly.

Court after Court has been nearly unanimous: the U.S. Constitution bars discrimination in the form of bans on same-sex marriage. 32 of 50 states currently recognize marriage equality. So many Federal Circuit Courts have agreed that the U.S. Supreme Court said there was no reason for them to engage.

Proponents of banning same-sex marriage have been losing and running out of time.
Enter the Sixth Circuit (which represents Kentucky, Michigan, Ohio and Tennessee). All eyes were on the Sixth Circuit Court of Appeals. Like a championship football game, it is the last quarter and all eyes are the quarterback (Sixth Circuit), as they step up to the line of scrimmage. And… they punt!

It was quite obvious at the onset the Sixth Circuit majority wanted no part of making a decision that would legalize same-sex marriage.

Like a game of hot potato, the Sixth Circuit Court punted as to who should make the decision on whether same-sex couples should have the right to marry. The United States Supreme Court? A majority of voters in each separate state?

In lieu of interrupting the Constitution, the Sixth Circuit wondered aloud in its decision that perhaps gays need to work harder, wait longer—get out there and change the minds and hearts of their citizenry.

Acknowledging discrimination occurs, the Sixth Circuit proceeded to contemplate – like a college philosophy class – on the interrelation between historical marriage, modern inequality and the virtues of a democracy versus a republic. Meanwhile, failing to address the issue and punting back to its respective states.

Sadly, this is no game.

The Court’s failure impacts real people. Families who on an everyday basis are living their lives, raising children, paying bills and engaged to improve their community. They are regular Americans who are denied the freedom to marry who they love, protect their families, and be treated equally by their government who doles out benefits to marriages of those it has chosen as “winners.”

Michigan is now once again in the minority of states who refuse to allow its LGBT families to be recognized by law. While waiting for the highest Court to resolve this injustice or the democratic process, LGBT families continue to be saddled with inequality of benefits, second-class stigma and in too many cases, a lack of protection for their children and families.

The delay of justice one minute continues to harm the LGBT community for a lifetime. Gays and Lesbians are no different from the rest of the public, we all want to live life to its fullest, we all will die, and we all don’t know how many more days we will be on this earth.

The Sixth Circuit thinks we should just wait more time, wait for the Supreme Court, and wait for the democratic process to work itself out. Thankfully this judicial panel did not sit in review of Brown v Board of Education. Time is precious, and not infinite. Why should the LGBT Community’s life, liberty and happiness be deprived one more day?

The Sixth Circuit argues that the LGBT community should change the hearts and minds of Michigan Citizens through the democratic process, and continue to wait for the majority to recognize the injustices. This is somewhat akin to asking a bully to recognize they’re being a bully. It is as if the Sixth Circuit Court of Appeals forgot that we are a republic and not a democracy ruled by the majority. While forgetting that, they forgot their constitutional responsibility to exercise checks and balances to ensure that a majority does not discriminate against a minority.

As of today I have been married 230 days, not a day goes by that I don’t look down and see the ring on my finger and smile. I am lucky to have found love and marry my best friend. I was able to do it in the State of Michigan, the state I call home, with the people that I love and who love me.

Sadly, this last punt has been emotionally hard and the uncertainty unnerving. Many of our friends are contemplating leaving this State of Michigan for a State that recognizes same sex marriage, protects their families and ensures their employability. I only can say, stay! Fight! Get involved! There will be another fight, and with that fight — the triumph of love.

Do you have a guest column on a statwide topic to share? Email Director of Community Engagement Jen Eyer at


Tuesday, November 18th, 2014


COM. V. JONES, 217 S.W.3D 190 (KY., 2006) -

“[P]robable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules.”17 Thus, in order to determine if probable cause has been shown, the “principal components” a reviewing court must examine are “the events which occurred leading up to the stop or search, and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion or to probable cause.”18 Thus, as evidenced by the use of the adverb “immediately” to modify the adjective “apparent,” probable cause must be met at the time the officer touches the item in question and post-touching conduct cannot be used retroactively to find probable cause.19 Although an appellate court must defer to the findings of fact made by a trial court, “as a general matter determinations of reasonable suspicion and probable cause should be reviewed [de novo] on appeal.”20 Since the trial court made no real findings of fact in this case, our review is completely de novo.” “…this case is remanded to the trial court with instructions to suppress the evidence obtained during Teagle’s warrantless search of Jones..”


Tuesday, November 18th, 2014

It was an extraordinary moment last week in Charleston, W.Va., when a federal grand jury handed down a four-count criminal indictment against former coal company CEO Don Blankenship.

Extraordinary because it’s often difficult for prosecutors to directly tie those at the top of the corporate ladder to misdeeds below.

And, as Kentuckians know too well, the coal industry in Appalachia is rarely held accountable for its wrongs. If you doubt that, check out NPR’s recent reporting by Howard Berkes on the industry’s massive backlog of unpaid fines for mine-safety violations.

Justice is being served in the preventable disaster that killed 29 coal miners at Massey Energy’s Upper Big Branch mine in West Virginia in 2010, thanks to the determined efforts of U.S. Attorney Booth Goodwin and his assistant Steven Ruby.

Blankenship was charged with conspiring to willfully violate explosion-prevention rules for proper ventilation and dust control, conspiring to conceal safety violations and thwart safety enforcement, and lying to the investing public and the Securities and Exchange Commission about the company’s safety practices and record.

Unfortunately, U.S. District Judge Irene Berger threatens to mar this shining moment for the justice system with a sweeping gag order.

Berger, who has sentenced three former Massey managers and a lower-ranking employee to prison for their parts in violating mine safety standards, placed a gag not only on lawyers in the case but also on the families of the victims, none of whom is on trial. Her order forbids them from speaking or releasing documents to the media.

She even ordered that filings in the case be excluded from the computerized system that makes court documents available to the public and media, meaning the public would be unable to follow each side’s arguments as the case develops. The Charleston Gazette reports that Berger’s order says only “docket entries,” brief descriptions of court filings, are to be publicly available.

The judge’s stated concern is that potential jurors will be biased by pre-trial publicity. But seating an impartial jury can be accomplished without trampling the First Amendment rights of individuals to speak and the media to report the news.

Transparency is especially critical to public trust in the prosecution of Blankenship because of his history of influencing the courts.

Blankenship in 2004 spent $2.5 million on electing a judge to the West Virginia Supreme Court who then cast deciding votes in Blankenship’s favor in a potentially expensive lawsuit, a ruling the U.S. Supreme Court eventually overturned.

Berger should revoke the gag order.

U.S. Sen. Jay Rockefeller, D-W.Va., was correct when he said that as Blankenship goes on trial he “will be treated far fairer and with more dignity than he ever treated the miners he employed.”

The judge can protect Blankenship’s right to a fair trial while also protecting the public’s right to know what is happening at every step of the process.

Read more here:


Ron Formisano: Electoral catharsis achieved what?

Monday, November 17th, 2014



November 17, 2014

Ron Formisano, professor of history at the University of Kentucky, is author of The Tea Party: A Brief History.


Well, let us hope the catharsis has some salutary effects. Maybe some Republican-voting Kentuckians have purged their hatred of President Barack Obama and now can enjoy — what exactly?

Obama will be president for two more years and the Congressional makers of gridlock in Washington are stronger than before. The eastern coal industry is in decline no matter what Obama does.

The president, we are told repeatedly, is “deeply unpopular” in Kentucky. And why is that? Archie Bunker knows: “He’s a Muslim, was not born here, and wants to help ‘poor people,’ and you know what that means.”

Edith: “But Archie, he’s half white.”

Archie: “Stifle it Edith.”

For younger readers, Archie and Edith were characters in the popular 1970s sit-com All in the Family that satirized white Americans’ prejudices, as well as the holier-than-thou moralism of Archie’s liberal son-in-law.

If Faux News had been around back then, Archie, ensconced in his armchair, would have been glued to the TV all day and perhaps comatose by nightfall. But let us count the ways Kentuckians should hate the president.

In 2009, as Kentucky’s economy tanked with the rest of the country, the federal government’s stimulus bill sent some $3 billion into the state for roads, law enforcement, schools, energy assistance and Medicaid: $900 million to Medicaid erasing a $232 million deficit. Apart from that, Kentucky receives $1.40 in tax money for every $1 it pays.

As of September, 521,000 people had enrolled in Kynect, Kentucky’s version of the Affordable Care Act. Poor people who have seldom seen a doctor now have health insurance.

But some still hate “Obamacare” and Obama, and believe the false charges about high premiums and other distortions.

Sen. Mitch McConnell wants to kill the ACA but said Kynect’s website was okay with him: but the website is Obamacare.

Kentuckians, he counts on our ignorance.

Poverty in Kentucky is pervasive and more white than black. Compared to previous Democratic presidents, Obama’s budgets have allocated significantly more assistance to low-income families for food, housing, education, and health care.

These benefits to Kentucky are outweighed of course by the mythical “war on coal.” To blame Obama for all the decline in the coal industry that has occurred on McConnell’s 30-year watch makes as much sense as blaming him for Hurricane Sandy.

Hatred of America’s first black president just partly ruled the mid-term election, a creation also of the five activist, reactionary Supreme Court justices whose delusional decisions that “money is speech” unleashed a $4 billion tsunami, much of it “dark money” from undisclosed sources.

Hundreds of millions went for attack ads. Negative campaigning, studies have shown, turns off many voters who stay home. So the embarrassing turnout of 37 percent was the lowest since 1942 when the U.S. was in a world war.

Anti-Democrats spent $200 million just trashing Obama. The Supreme Court’s reactionary majority got just the kind of election they want.

Negative ads discourage voters, while the voter ID and other laws passed by many Republican state legislatures prevent people from voting, targeting groups that vote mostly Democratic. Republicans’ claims that such laws prevent fraud are false since such cases are extremely rare and a pretty stupid way to try to cheat (easier just to rig the voting machines as Bush supporters did in Ohio in 2004).

Republican Sen. Rand Paul deserves credit for bucking his party on voter ID and other laws designed to suppress voting. But Republican efforts to suppress voting are ramping up again after their recent victories.

Whether Republican voters’ hatred of Obama dissipates or not — perhaps not among the minority who suspect he is a disloyal Muslim or the anti-Christ — the plutocrats and their allies will continue to demonize him.

Ron Formisanois the author of The Tea Party: A brief History. His forthcoming book is about inequality in the United States.


Read more here:


Monday, November 17th, 2014

Quoting Hobby Lobby, Federal Appeals Court Hands Down Big Victory For Birth Control


Quoting Hobby Lobby, Federal Appeals Court Hands Down Big Victory For Birth Control

A federal appeals court in Washington, DC handed down a decision on Friday that could neutralize some of the impact of the Supreme Court’s decision in Burwell v. Hobby Lobbyif it is upheld on appeal. Hobby Lobby held that employers with religious objections to birth control have broad immunity from federal rules requiring them to include birth control in their employer-provided health plan. Judge Nina Pillard’s decision in Priests For Life v. Department of Health and Human Services, however, indicates that there are limits to an employer’s ability to deny birth control coverage to their employees.

To explain, Hobby Lobby exempted employers with religious objections to birth control from a rule requiring contraceptive coverage to be included in employer-provided health plans. At the same time, however, the Court suggested that it might be possible for the government to accommodate religious objectors while still ensuring that birth control was widely available to women in the workplace. Prior to Hobby Lobby, the government accommodated non-profit employers by allowing them to exempt themselves from the birth control rules so long as they filled out a form notifying the government and their insurance administrator of their objection. In most cases, the insurer would then contract separately with the religious objector’s employees to ensure that they received contraceptive coverage. After Hobby Lobby, the government extended this accommodation to for-profit businesses and allowed religious objectors to invoke the accommodation through an alternative means if they objected to the form the government provided.

Judge Pillard’s opinion holds that this accommodation is enough to satisfy the government’s obligation to religious objectors, and it relies, in part, on Justice Samuel Alito’s opinion in Hobby Lobby to achieve this result. Hobby Lobby described the very same accommodation at issue in Priests For Life as “an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty.” Moreover, as Pillard writes in her opinion, “the Supreme Court stressed that [the accommodation] alleviates the burden on the plaintiffs of having to provide contraceptive coverage and ‘serves HHS’s stated interests equally well.’”

Elsewhere in her opinion, Pillard lays out another flaw in the argument claiming that this accommodation does not go far enough to protect employers with religious objections to birth control. The Religious Freedom Restoration Act, which is the federal law governing religious liberty claims, applies when the federal government “substantially burden[s] a person’s exercise of religion.” Yet, as Pillard explains, the burden in Priests For Life could not be any more insignificant. “All Plaintiffs must do to opt out,” she explains, “is express what they believe and seek what they want via a letter or two page form. That bit of paperwork is more straightforward and minimal than many that are staples of nonprofit organizations’ compliance with law in the modern administrative state.” Indeed, Judge Pillard writes, “[t]he accommodation requires as little as it can from the objectors while still serving the government’s compelling interests.”

So, on the surface, Pillard’s opinion appears likely to survive review by the Supreme Court — if such review is even necessary at all. She relies on the language and reasoning of Hobby Lobby itself to justify her opinion, and she upholds a federal rule that imposes an extraordinarily mild obligation on employers. They must simply fill out a one page form or mail off a very short letter.

There are three reasons, however, why the fate of her decision is less certain. The first is that Pillard was a member of a particularly liberal panel when she decided this case — the other two judges who joined her opinion were appointed by Presidents Clinton and Obama. Pillard herself may be the closest thing the federal judiciary has to another feminist icon like Justice Ruth Bader Ginsburg. As an attorney, Pillard litigated two major women’s rights cases before the Supreme Court, and as a law professor she authored apre-Obamacare article arguing that “[t]he lack of a national requirement that insurance plans cover women’s contraceptives is emblematic of a much broader failure to make contraceptive access a priority to reduce the extremely high numbers of unintended pregnancies in the United States.” The five conservative justices, to say the least, do not share Pillard’s commitment to women’s equality and reproductive freedom.

Moreover, while Pillard is correct that federal religious liberty law only applies in cases where someone’s religious exercise is substantially burdened, Justice Alito’s opinion inHobby Lobby comes very close to reading this requirement out of the law. According to Alito, the Hobby Lobby plaintiffs’ “sincerely believe that providing the insurance coverage demanded by the HHS regulations lies on the forbidden side of the line, and it is not for us to say that their religious beliefs are mistaken or insubstantial.”

Finally, despite the language in Hobby Lobby suggesting that the accommodation at issue in Priests For Life is acceptable, the Supreme Court called this language into doubt just days after Hobby Lobby in a case called Wheaton College v. Burwell. Dissenting in Wheaton College, Justice Sonia Sotomayor even implied that the Court’s majority was deceptive inHobby Lobby. “Those who are bound by our decisions usually believe they can take us at our word,” Sotomayor wrote. “Not so today.”

Ky. Ct. of Appeals-revives whiskey fungus lawsuit

Saturday, November 15th, 2014


James Bruggers, jbruggers@courier-journal.com7:26 p.m. EST November 14, 2014


Whiskey fungus lawsuit had been thrown out, but now gets a second chance after appeals court decision.

A lawyer who on Friday won a big ruling that revives a battle in Louisville over whiskey fungus from aging bourbon said city officials could solve the problem, if they wanted to.

But William F. McMurry said the Louisville Metro Air Pollution Control District has lost “any fire in the belly” for helping residents and businesses in Shively and western Louisville deal with vapors from what has become a signature industry in Louisville, after taking action in 2012 against just one company, Diageo Americas Supply Inc.

District spokesman Tom Nord said district officials felt they had a “resolvable situation” with Diageo, declining to comment on other distillery operations.

Called “the angel’s share,” liquor vapors drifting from Louisville bourbon warehouses have long been romanticized by distilleries, but reviled by neighbors as a smelly, property-damaging nuisance. The ethanol vapors have been linked to excessive growth of a fungus known as baudoinia compniacensis.

READ MORE: Bond endorsed for Brown-Forman distillery

On Friday, the Kentucky Court of Appeals gave new life to McMurry’s law firm’s battle against whiskey fungus and two big Kentucky liquor companies: Brown-Forman Corp. and Heaven Hill Distilleries.

The ruling overturned a lower court’s dismissal of a lawsuit by a Shively-area business and residents, claiming the black splotchy fungus that’s fed by ethanol vapors is a nuisance and damages their property.

“We are disappointed in the decision and are considering our options, including asking the Kentucky Supreme Court to review the Court of Appeals reversal of the Jefferson Circuit Court decision,” the two companies said in a joint statement.

The lawsuit is one of several led by McMurry, challenging distillers in Kentucky, the Virgin Islands and Scotland. It was filed in 2012 but dismissed by Jefferson Circuit Court Judge Judith McDonald-Burkman, at the request of the two companies.

Splotching problems

The appeals court’s three-judge panel of Denise Clayton, Sara Walter Combs and Janet L. Stumbo voted unanimously to overturn the lower court ruling. They found that McDonald-Burkman misinterpreted earlier case law in ruling that the federal Clean Air Act does not allow the plaintiffs to sue in state court over air quality nuisance issues.

Their decision sends the case back to the lower court for a resolution.

“This opinion is going to resonate with Brown-Forman and Heaven Hill in a way that no other has,” McMurry said. “We are are so close now to finally getting discovery into how they conduct their business. No one has ever pulled back the curtain and looked … especially at how they have been able to ignore this huge environmental issue all these years.”

Among those who sued the companies is Bruce Merrick and his Dant Clayton Corp. Dant Clayton makes and installs stadium seating, and Merrick argues that the whiskey fungus destroys any inventory stored outdoors and has doubled the cost of replacing a commercial roof, according to the nine-page ruling.

“It’s a nuisance, it is time consuming and it’s expensive,” Merrick said.

In a matter of months, aluminum seating samples that can cost $25,000 to make are so covered with black spots that they can’t show them to prospective clients, Merrick said.

The splotching also eats away at buildings on the company’s 23-acre property on Bernheim Lane, he added.

He said it seems to be getting worse, as the bourbon industry has boomed. Few issues are affecting as many people in Shively as the fungus, he added.

Dant Clayton was co-owned by Louisville Mayor Greg Fischer until 2011, who has been promoting bourbon as a signature industry for Louisville. In the days after the air district issued its violation against Diageo, Fischer questioned the science used by his own air district experts; he also recused himself from any involvement in the matter because of a business relationship he had with Merrick.

After being threatened by the district with $10,000-a-day fines, Diageo agreed in July 2013 to clear out its inventory in a Millers Lane warehouse, with some of the barrels to be moved to another facility about a half mile away, and others to be moved to Tennessee.

The aging process

But even though there are other warehouses in the area where bourbon is aged, district officials have not brought any other enforcement actions against them, including Brown-Forman and Heaven Hill, yet local residents and business owners are still being affected, McMurry asserted.

“This is something that could have, would have, and should have been done, but for politics, politics and more politics,” McMurry said. “The district picked on the international corporation, but sidestepped the same actions against the good ol’ boys of Kentucky, Brown-Forman and Heaven Hill,” McMurry said.

Nord would only comment on the Diageo matter, writing in a statement that the district had responded to citizen complaints, and its Miller’s Lane warehouse should be empty by early 2016.

“We expect that to resolve the matter,” he wrote.

He declined to answer questions about the other companies, and invited The Courier-Journal to file open records requests to get more information. “I just have to let the statement speak for itself,” he said.

The district in 2012 posted on its website detailed information about the problem of whiskey fungus. But that information has since been taken down.

It was removed, he said, “when the issue seemed to die down.”

Heaven Hill and Brown-Forman have previously said they were sympathetic to the concerns about the fungus, but that the fungus was natural and also found in areas not related to the production of whiskey. They have also said that an aging process in warehouses with open windows contributes to the flavor of their products, and that they would vigorously defend themselves in court.

McMurry said the companies need to enclose the warehouses and prevent the vapors from getting into the community, or pay property owners for their damages. The suit does not seek a specific dollar amount for damages.

McMurry was lead counsel in a case in which the Roman Catholic Archdiocese of Louisville in 2003 paid $25.8 million to 243 victims of abuse by priests, brothers and teachers.

Reach reporter James Bruggers at (502) 582-4645 or on Twitter @jbruggers.

Baudoinia Compniacensis

A naturally occurring mold, it is normally slow growing and eclipsed by other faster producing molds.

When introduced to ethanol-rich environments, such as that surrounding a whiskey-aging warehouse, it becomes uncharacteristically fast growing, resilient and adaptive to many environments.

Baudoinia uses the ethanol as a carbon source, stimulating rapid growth.

Mature colonies of the whiskey fungus are crust-like and scorched in appearance.

The pronounced blackening from whiskey fungus often extends a considerable distance from the ethanol emission source and indiscriminately colonizes on exposed surfaces.

Source: Louisville Metro Air Pollution Control District.


Friday, November 14th, 2014

go to:



Friday, November 14th, 2014

CASE NO. # 14-ci-005790
On behalf of himself and all other participants
in the Kentucky Teachers’ Retirement System
Serve: Beau Barnes Attorney and Managing Agent for the Board of Trustees of the Kentucky
Teachers’ Retirement System
479 Versailles Road
Frankfort, KY 40601
The Kentucky Teachers’ Retirement System (KTRS) is one of the worst funded pensions in the
country, but its thousands of members have not been adequately apprised, and remain woefully
unaware of this fact. i
The Federal Government Accounting Office says the standard for a
pension to be healthy is an 80% or greater funding level.ii This 80% standard is reiterated in
publications by Pew and the Stanford Center for Economic Research. KTRS sank under 80%
funding in 2005.iii
Standard & Poor’s (S&P) rates pensions at 90% and greater funding as Strong; 80% to 90%
Above Average; 60% to 80% as Below Average; and 60% and below as Weak.iv Fitch ratings
considers 70% and above as Adequate and 60% and below as Weak. KTRS sank below 60%
funding in 2011.v
As late as 2007 KTRS had no alternative investment managers listed in their CAFR; by 2013
there were 31 alternative managers Alternative managers have been criticized recently
for underperformance, excessive fees, excessive risks and a lack of transparency.vii

History gives clues to Chief Justice Roberts’ thinking on new Obamacare case

Friday, November 14th, 2014
The latest challenge to Obamacare puts Chief Justice Roberts back in the spotlight
Together again: The Supreme Court and the Affordable Care Act

The Supreme Court’s surprising decision last week to hear a new challenge to the Affordable Care Act has once again focused attention on Chief Justice John Roberts, who cast the deciding vote in a 2012 decision that saved Obamacare from being declared unconstitutional. Many court watchers expect that he will once again be the swing vote in deciding a case crucial to the healthcare law, this one involving questions about who qualifies for subsidies under the law.  But Roberts’ vote in a recent voting rights case suggests he might not step in to save the health law this time.

At issue in King vs. Burwell is a provision of the Affordable Care Act that authorizes subsidies in the form of tax credits for qualifying individuals who buy their insurance from exchanges “established by the state.” But 34 states did not set up their own healthcare exchanges, opting instead, as the law allows, to send state residents to a federal exchange to buy insurance. The challengers argue that because this exchange was not created by a state, but rather by the federal government, people obtaining insurance through it are not entitled to subsidies.

There are strong reasons to reject this argument. First, the intent of the Affordable Care Act’s drafters is clear. The text as a whole makes sense only if the provision in question is interpreted to include federal exchanges. At worst, the wording of the law might be considered ambiguous, and in ambiguous circumstances the court has said that it should defer to reasonable interpretations by the agency in charge of administering it. In this case, the IRS has interpreted the law to allow subsidies for those on federal exchanges. Finally, the court has a well-established tradition of looking to interpret laws so that they work and are coherent, a practice that long predates a recent tendency on the part of some justices to fixate on narrow snippets of statutory text.

Still, it seems entirely possible that Roberts might focus narrowly this time on the snippet of the act extending subsidies only to those insured by exchanges “established by the state.” One argument he might make in defense of that position is that Congress has the ability to go back and fix any unclear language through a revised statute.

Roberts telegraphed his willingness to take such an approach in the 2013 Shelby County vs. Holder case, which struck down a key provision of the Voting Rights Act. The provision the Supreme Court declared unconstitutional defined which states had to get federal approval (or pre-clearance) before making changes to their voting laws. Roberts’ opinion for the majority ordered the provision struck because it was based on old data. Congress, he reasoned, could simply update the formula to respond to “current conditions” if it wished to.

When Roberts wrote his Shelby County opinion, he knew full well that Congress would not update the coverage formula. Congress is polarized, and the issue was a political hot potato. Indeed, in the period since the opinion, a bill introduced to update the Voting Rights Act has gone nowhere. It is supported by Democrats and a sole Republican, Jim Sensenbrenner (R-Wis.).

Although Congress used to come forward on a bipartisan basis to change laws in response to Supreme Court rulings, the number of such overrides has fallen to a trickle. From 1975 to 1990, Congress overrode an average of 12 Supreme Court decisions in each two-year congressional cycle. In the last decade, that number has fallen to 2.7 every two years, and there have been no significant overrides during the Obama presidency since Republicans took over the House of Representatives. During the last two years, perhaps owing to the intensity of the current political polarization and paralysis, overrides have been even rarer. I have identified just one override, which pertained to a single Indian tribe’s right to certain tribal lands.

Even if Congress were to come together in a bipartisan way to override some statutory interpretations of the Supreme Court, there is no way it is going to override the Supreme Court on the Affordable Care Act. The House has voted dozens of times to repeal the healthcare law in its entirety; there is little chance it would step in now to save a law its members have so long maligned.

Roberts can point to many past cases in which court decisions have initiated a “dialogue” with Congress, which then stepped in with legislation to correct what it saw as errors in the court’s interpretation of congressional statutes.

In today’s fraught political environment, court-Congress dialogues are not generally possible.  But that might not stop Roberts from citing the possibility of such a dialogue  — especially if what he is really seeking is political cover and a chance to redeem his controversial earlier ruling on the Affordable Care Act with a new one that hobbles a key part of the law.

Richard L. Hasen is a professor of law and politics at the UC Irvine School of Law.

New court decision could end California’s restrictions on conceal-carry permits

Thursday, November 13th, 2014


A procedural decision in a landmark Second Amendment case could spell the end for California laws restricting the issuance of permits to carry concealed handguns.

The decision by the 9th U.S. Circuit Court of Appeals would bar other law enforcement officials, including state Attorney General Kamala Harris, from gaining “intervener status” to join in further challenges of its ruling in a case originally brought by an independent journalist who sued the San Diego County Sheriff’s Department over its policy of requiring a specific reason for being allowed to carry a concealed weapon in public.

San Diego County Sheriff Bill Gore has said he will not fight the ruling, meaning there is no one with standing left to challenge the decision made in February.

“Since becoming Sheriff, I have always maintained that it is the legislature’s responsibility to make the laws, and the judiciary’s responsibility to interpret them and their constitutionality,” Gore wrote in a letter to the county board of supervisors earlier this year, in which he said the court’s decision gave him clarity on the issuance of licenses. “Law enforcement’s role is to uphold and enforce the law.”

Edward Peruta sued Gore’s department over its policy of requiring a specific reason for being allowed to carry a concealed weapon in public, restrictions other counties around the state also had in place.

In its bombshell ruling earlier this year, the 9th Circuit found those policies to be unconstitutional and held that law-abiding citizens have a right to bear arms under the Constitution’s Second Amendment and could not be required to justify their reasons for carrying concealed weapons. The panel simultaneously ruled on a similar case brought in Yolo County, and that county’s sheriff, Edward Prieto, has not indicated he will drop further appeals, which could be heard en banc by all of the 9th Circuit judges or by the U.S. Supreme Court. Harris could try to join Prieto’s case, although Wednesday’s ruling appears to make it unlikely she would be allowed.

California counties have differed on policy in the wake of the February decision, with Orange County issuing the permits on request and others waiting for a resolution in the case.

One judge on the panel disagreed with Wednesday’s ruling, saying the state should be able to intervene in the case to “present an argument on an important constitutional question affecting millions of citizens.”

The law would still not allow felons or the mentally ill to possess firearms, and would still prohibit the carrying of them in places such as schools and government buildings.

Brandon Combs, executive director of the pro-Second Amendment Calguns Foundation, which represented the plaintiff in the Yolo County case, said he believes more counties will likely drop their restrictions on concealed-carry permits.

“Some sheriffs are probably going to see this news as evidence their policies are wrong,” he said. “But sheriffs and police chiefs in anti-gun jurisdictions may need more help seeing the light. We’ll be happy to help them, even if it means going to the Supreme Court.

Kentucky Drivers Are Being Ripped Off By Not Following One Simple Rule

Wednesday, November 12th, 2014

(KENTUCKY) - Are you being scammed by your current insurer? New policies are indicating that for years many Kentucky drivers have likely overpaid on their car insurance coverage.

This is the one simple truth your car insurance company doesn’t want you to know. If you’redriving less than 50 miles/day on average and live in Kentucky you can get an extremely high discount. Did you know that? Or DUI’s… if you have no DUI’s, you can get even more discounts. But do you think your auto insurance company will tell you that? Fat chance.

When Miranda entered her zip code at, she was shocked. She found out her local insurance agent was ripping her off, and she could get car insurance much cheaper.

We managed to reduce our insurance premium by 50%! I only wish we had discovered this sooner.” Miranda exclaimed.

What Miranda did was visit an independent car insurance rate comparison website –, and entered in some basic information. Within seconds, she was shown the different rates that all of the popular insurance companies offered for the criteria she put in. And that’s when she found out she was overpaying.

Does this mean Miranda was being scammed by her former insurance agent? She would not say one way or the other, but the truth is most agents are paid on commission which means the higher your insurance premiums, the more money your agent makes. You can be sure, however, that your insurance company is not going to call you up to offer you a discount.

Did you know that car insurance rates have dropped?

Comparing insurance companies is especially important now, because rates have dropped over the last year or so. In fact, thanks to new program policies, you may be able to save $100′s on your current rate.

So, what is the “One Simple Rule?” NEVER buy insurance without comparing all discounts online first. Out of the 100′s of insurers out there, only a handful will give you really big discounts. But they ARE out there, and they WANT to insure you – you just can’t find each other.

You can automatically compare auto insurance companies - it’s fast, it’s easy, and it’s FREE. Heck, it’s even fun (well, as fun as insurance can be!)

NOTE: You’re NEVER LOCKED into your current policy. If you’ve already paid your current policy, you can very easily cancel and the balance will be refunded.

Indeed, these insurance comparison websites are very easy to use. Customers just need to enter their zip code, and then fill out a simple & short online form. It takes less than 5 minutes, and the insurance company rates that are delivered for your side-by-side comparison are all trusted names you know. It couldn’t be any easier.

According to ComScore’s 2012 U.S. Online Auto Insurance Shopping Report, “nearly 70 percent of shoppers reported getting an online quote”. The report also found that “the online channel remains the preferred channel for customers shopping for auto insurance policies”.

In the end, it’s the smart, diligent consumer that gets the best deals. This is true when shopping for a TV, and it’s true for buying car insurance. If you just go to your local agent and have him or her write what’s available, you are probably paying too much (and also subsidizing the agent’s tropical vacation). But again, the only way to find out for sure is to be a smart consumer and look at insurance companies side by side on an independent comparisons website.


Wednesday, November 12th, 2014

“The total cost of attendance (indicating the cost of tuition, fees, and living expenses) at University of Kentucky College of Law  for the 2014-2015 academic year is $53,700.[14] The Law School Transparency estimated debt-financed cost of attendance for three years is $204,646.”     WIKIPEDIA

Time to Say Goodbye to Judicial Overreach

Tuesday, November 11th, 2014

Monday, 10 November 2014 15:33By The Daily Take TeamThe Thom Hartmann Program | Op-Ed

The U.S. Supreme Court in Washington, Nov. 7, 2014. The court on Friday agreed to hear a new challenge to the Affordable Care Act, potentially imperiling President Obama’s signature legislative achievement two years after it survived a different challenge in the court by a single vote. The case concerns tax subsidies that are central to the operation of the law. (Photo: Jabin Botsford / The New York Times)

The Supreme Court has turned the US from a republic into a Constitutional monarchy.

Last week, the Supreme Court announced that it would hear yet another conservative-fueled challenge to Obamacare.

This time, the attack on Obamacare focuses on the phrasing of one sentence in the Affordable Care Act that talks about who can receive subsidies under the health-care law.

That phrasing is in Section 36B of the Affordable Care Act, which gives the government the power to subsidize health-care plans, “which were enrolled in through an Exchange established by the State.”

Basically, as it stands now, US citizens who sign up for health-care insurance under Obamacare through the federal exchange receive a subsidy to help pay for that insurance.

However, the plaintiffs in the case are arguing that, based on the wording of the particular clause, Americans who sign up for Obamacare through the federal exchange AREN’T eligible for the subsidies; only Americans who sign up through state-run exchanges are.

Subsidies are a major aspect of Obamacare, and if the conservative justices on the Supreme Court were to rule against them in this case, millions of US citizens will lose the health-care coverage they got under Obamacare.

The frivolous nature of this challenge to Obamacare is pretty clear, and you would think that the Supreme Court would recognize that, and would have refused to hear the case.

But, given the history of the Roberts’ Supreme Court, we really shouldn’t be surprised that the court decided to hear the case.

After all, the Roberts’ court is synonymous with the judicial overreach that’s turned the US into a Constitutional monarchy.

Over the past several years, we’ve seen time and time again how the conservative justices of the Roberts Court are willing to engage in judicial activism and overreach.

As the Alliance for Justice points out, the Roberts Court has routinely taken up cases that is has no right hearing.

In a report titled, “The Roberts Court and Judicial Overreach,” the Alliance for Justice writes that, “The Supreme Court generally grants certiorari—that is, agrees to hear a case appealed to it—where there is an unsettled question of law or where the circuit courts of appeal have split on the proper interpretation of a given law. In recent years, however, the Court has taken a number of cases outside these parameters, which, in almost all cases, results in rulings favoring corporate interests.”

But the Roberts Court’s judicial overreach doesn’t stop there.

The court has also routinely answered legal questions that weren’t even presented to it, and that were entirely unnecessary to decide the case before them.

For example, in the highly controversial Citizens United decision, the court was initially asked to decide whether the electioneering communications provisions of the McCain-Feingold Act apply to “pay-per-view” movies made by nonprofit organizations.

However, as we all know, the court went well beyond the scope of that question, and instead decided to rule that corporations are just like people, and that their spending of money is just like our speech.

Finally, the Roberts’ court has shown a consistent lack of respect for established legal precedent or the will of Congress.

In the court’s Shelby County v. Holder decision, the conservative justices on the court managed to completely ignore decades of legal precedent while essentially gutting the Voting Rights Act which had passed the Senate unanimously just the year before.

And, to make matters worse, in the majority opinion in the case, Chief Justice Roberts was unable to cite any precedent or reasoning for why the court decided how it did. He just did things because he decided to.

So, it’s really no surprise that the Roberts Court has decided to hear a completely frivolous case, because the court has been pulling these kinds of tricks for years now.

In Federalist Paper No. 78, Alexander Hamilton wrote that, “The interpretation of the laws is the proper and peculiar province of the courts. … Whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.”

When our nation’s founders established the Supreme Court and the court system, they did everything in their power to create a branch of government that wouldn’t be swayed by political interests or public opinion.

But, somewhere along the way between 1776 and today, the Supreme Court has lost its way.

Today, we’re left with a court that is all too comfortable overstepping its boundaries, while trying to make new laws.

Our nation’s founders never intended for the Supreme Court to have as much power as it does today.

It’s time to reel in our runaway Supreme Court, and that starts by making it accountable to “We the People.”

Congress should use their Article 3, Section 2 power to regulate the Supreme Court, and to make sure it stays within its boundaries.

It’s time to say goodbye to judicial overreach once and for all.

This article was first published on Truthout and any reprint or reproduction on any other website must acknowledge Truthout as the original site of publication.