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

Wednesday, August 20th, 2014

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

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

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

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

The New Texas Framework

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

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

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

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

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

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

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

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

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

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

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

Upcoming Changes to the Federal Rules

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

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

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

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

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

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

Practical Implications and Takeaways

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

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

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

Tuesday, August 19th, 2014

 

PERSPECTIVES (Column)

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

 

By ROGER M. GRACE

 

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

Balderdash.

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

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

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

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

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

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

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

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

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

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

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

 

—AP

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

 

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

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

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

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

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

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

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

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

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

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

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

An Associated Press account says:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Convictions came on Jan. 10, 1917.

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

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

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

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

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

 

ANNETTE ABBOTT ADAMS

First female presiding justice in California

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Death came on Oct. 26, 1956.

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

Electronic case filing now available in Fayette County

Tuesday, August 19th, 2014

Media invited to eFiling news conference Wednesday in Lexington

Electronic case filing now available in Fayette County

 

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

 

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

 

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

 

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

 

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

 

eFiling

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

 

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

 

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

 

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

 

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

 

Administrative Office of the Courts

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

 

Electronic case filing now available in Fayette County

Monday, August 18th, 2014

 

Media invited to eFiling news conference Wednesday in Lexington

Electronic case filing now available in Fayette County

 

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

 

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

 

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

 

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

 

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

 

eFiling

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

 

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

 

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

 

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

 

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

 

Administrative Office of the Courts

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

 

PUT NOT YOUR TRUST IN JUDGES

Monday, August 18th, 2014

 

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

By  – 8.18.14r

 

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

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

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

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

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

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

NC Supreme Court’s inaction on state redistricting plan raises questions

Saturday, August 16th, 2014

 

NC Supreme Court’s inaction on state redistricting plan raises questions

BY ANNE BLYTHE

ablythe@newsobserver.comAugust 15, 2014 Updated 17 hours ago

 

RALEIGH — Three years have passed since Republican lawmakers redrew North Carolina’s political landscape with redistricting maps that Democrats and voting rights advocates have challenged as discriminatory to African-Americans.

Republicans contend the lines were in keeping with the federal Voting Rights Act, and a panel of three North Carolina Superior Court judges has agreed.

Whether those maps should stand or be redrawn is before the N.C. Supreme Court. The justices heard arguments in the case eight months ago. That no ruling has been issued has added to the political tension in a state sharply divided by party lines.

“Not deciding, in essence, is a decision,” said Kareem U. Crayton, an associate UNC-Chapel Hill law professor who wrote a brief for the N.C. Legislative Black Caucus for the state justices to weigh. “The problem is this isn’t going to be something that goes away.”

Adding to the uncertainty about the impact of further delay is the pending retirement of Chief Justice Sarah Parker this month and the November elections in which four of the court’s seven seats are up for grabs.

There also is speculation about what might happen if the U.S. Supreme Court rules on an Alabama redistricting case scheduled for hearing in November before the state Supreme Court issues an opinion. The cases have many similarities, but challengers of the North Carolina maps contend the examples of alleged gerrymandering from this state are stronger than those in Alabama.

It’s unclear why the N.C. Supreme Court has not issued a ruling.

At issue is whether maps from a 2011 redistricting directed by the Republican-led General Assembly will be used through 2020.

Democratic voters and others challenging the 2011 boundaries argue that 30 legislative and congressional districts were designed to weaken the overall influence of black voters in North Carolina.

Republicans have argued that they followed the law when creating districts. The U.S. Justice Department, whose leadership was appointed by Democratic President Barack Obama, found that the maps did not hurt the ability of minorities to elect their candidates of choice in the districts being challenged and “pre-cleared” them under a procedure laid out by the Voting Rights Act.

The map challengers contend that the shepherds of the redistricting packed black voters into districts where they had already been successful in electing their candidates of choice despite being in the minority.

The courts have allowed political parties to draw districts for political advantage but prohibit racial gerrymandering.

A ruling and an appeal

In July 2013, three Superior Court judges ruled unanimously in favor of the mapmakers, concluding that though race was considered in the design of districts, it was done to comply with the Voting Rights Act.

The challengers appealed that decision to the N.C. Supreme Court. They argued that the Superior Court judges misunderstood the Voting Rights Act instructions for what are called “majority-minority districts,” or districts in which enough people of color must be in the voting population to elect their candidate of choice.

If minority voters already are electing their candidates of choice, and often those candidates are Democrats, attorneys for the challengers argue that districts do not have to be redrawn. They argue that remapping cannot dilute the black vote, and they contend that is what the 2011 districts do by packing more African-American voters into too few North Carolina legislative and U.S. congressional districts.

Attorneys for the map challengers and map drawers have cited previous challenges as they look for decisions on the 2011 districts.

Every decade, new census numbers are released. Political parties in power across the country take that opportunity to draw new maps that account for race, voting history, political affiliation of registered voters and the addresses of incumbent politicians when drawing new boundaries.

In recent years, allegations of gerrymandering have not only raised questions about disenfranchisement but also prompted calls for reform.

A core technique of gerrymandering, political analysts say, is to pack voters likely to favor the party out of power into a few throwaway districts where lopsided victories are likely to occur.

Redistricting experts and professionals then try to map other boundaries where the party out of power will be “cracked” into many districts, allowing for closer wins for candidates of choice for the political group drawing the lines.

In North Carolina, this has resulted in challenges of Democratic-led map drawing, too.

A challenge of a 1990 North Carolina redistricting case that went to the U.S. Supreme Court found that if a district is “so bizarre on its face” that it is “unexplainable on grounds other than race” it must stand up to a strict standard of scrutiny.

In the 2000 redistricting cycle, state legislative maps were successfully challenged in state court, on the grounds that they did not sufficiently maintain county boundaries.

The maps redrawn in 2002 were also challenged and struck down in state court on grounds that districts should be compact and keep county boundaries intact when possible.

Quicker rulings in the past

Challengers of the current plan point to the challenges of the past decade when questioning why the N.C. Supreme Court has not ruled on the 2011 plan.

Those cases were ruled on within weeks of the oral arguments.

Clerks for the N.C. Supreme Court say there is no set time for when a ruling is issued after oral arguments. Many cases are decided three to six months after the hearing, but some death cases and others that are complex have been known to take longer than a year.

Anita Earls, executive director of the Southern Coalition for Social Justice, counsel for challengers of the 2011 maps, worries that further delay could make it difficult to change districts for the 2014 elections, and quite possibly for the 2016 elections if such action is warranted.

She also thinks the North Carolina case, which is expected to be appealed to the U.S. Supreme Court however the state justices rule, would be a natural fit with the Alabama redistricting challenge.

“I think there are significant and important constitutional issues at stake,” Earls said.

Parker, the chief justice, will leave the bench this month because she will be 72, the mandatory retirement age, on Aug. 23.

Mark Martin, whose term ends this year, is seeking the chief justice seat on the November ballot, leaving his seat open for voters to choose between two candidates.

In all, voters will choose four seats, and if the redistricting case has not been decided by the Nov. 4 election, a new justice could ask for new arguments in the case.

Crayton, the UNC-CH law professor who has studied redistricting, said he expects that politics could be playing into the slower ruling.

“It’s impossible to divorce politics from the mix when you have elected judges and an election approaching,” Crayton said.

Read more here: http://www.newsobserver.com/2014/08/15/4074921/nc-supreme-courts-inaction-on.html?sp=/99/102/105/#storylink=cpy

 

Justices Asked to Rule on Judicial Campaign Fundraising

Saturday, August 16th, 2014

 

Marcia Coyle, New York Law Journal    |

Michael Kimberly, Mayer Brown partner
Michael Kimberly, Mayer Brown partner

As the amount of money in judicial elections swells across the nation, a major barrier to the candidates themselves directly soliciting the funds is under constitutional attack in the U.S. Supreme Court.

Thirty-nine states use elections to choose or retain their judges. Of that number, 31, including New York, prohibit judicial candidates from personally soliciting campaign contributions.

“These types of provisions are prophylactic,” said Matthew Menendez, counsel to the Democracy Project at the Brennan Center for Justice. “Once you don’t have them, there is an arms race. There is a risk that taking down more of the protections against these arms races could further erode public confidence in the courts.”

One of the 31 state rules is Canon 7C(1) of the Florida Code of Judicial Conduct. Besides banning personal solicitations, the canon prohibits judicial candidates from soliciting attorneys for public endorsements, but allows the creation of candidate campaign committees to solicit money and attorney endorsements.

In May, the Florida Supreme Court rejected a First Amendment challenge to the canon brought by Lanell Williams-Yulee who, as a non-judge candidate for county court judge in Hillsborough County, was charged by the Florida Bar with violating it. Shortly after she registered as a judicial candidate, Williams-Yulee drafted and signed a mass-mail letter announcing her candidacy and seeking campaign contributions. The state Supreme Court, agreeing with the state bar, issued a public reprimand and assessed costs of $1,860.30.

In finding that the canon did not violate the First Amendment, the Florida court held that the state had compelling interests in “protecting the integrity of the judiciary and maintaining the public’s confidence in an impartial judiciary,” a holding “that is bolstered by the broad acceptance of comparable compelling state interests by other state supreme courts.”

The justices added that the canon was narrowly tailored to further those interests because Williams-Yulee “was not completely barred from soliciting campaign funds, but was simply required to utilize a separate campaign committee to engage in the task of fundraising.” The canon, in effect, left ample alternative means for judicial candidates to raise the money to campaign, according to the court.

The Florida ruling caught the eye of Mayer Brown partner Michael Kimberly, who looks for cases for the Yale Law School’s Supreme Court clinic to take on, particularly at the certiorari stage. He found a sharp circuit conflict on the First Amendment issue raised by the judicial canon. The clinic contacted Williams-Yulee’s local counsel and offered pro bono help with a petition to the Supreme Court.

“I handle a lot of cert petitions,” Kimberly said. “Among the cases I’ve been involved with, this is one of the strongest in terms of circuit conflict. The question is very discrete. The canons from state to state are generally all the same because they follow the ABA model code. And the importance of the issue—literally every judicial election in 31 states with canons are affected—makes it likely the court will take an interest.”

The petition in Williams-Yulee v. The Florida Bar asks the justices whether a rule of judicial conduct that prohibits candidates for judicial office from personally soliciting campaign funds violates the First Amendment.

Kimberly and partners Andrew Pincus and Charles Rothfeld tell the court that the federal courts of appeals for the Third and Seventh circuits and the highest courts of Arkansas, Florida and Oregon have held that such rules do not violate the First Amendment. But the Sixth, Eighth, Ninth and Eleventh circuits have held that they do.

Although they concede that impartiality and the absence of corruption are compelling interests, they argue that the fatal constitutional flaw is the failure to narrowly tailor the remedy. The canon, they contend, “does too much and does too little” to advance those compelling interests.

Quoting from court opinions striking down similar rules, the petition argues that reproduction of a judicial candidate’s signature on a contribution letter “will not magically endow him or her with a power to divine, first, to whom that letter was sent, and second, whether that person contributed to the campaign or balked at the request.”

And so, no one “could reasonably believe that a failure to respond to a signed mass mailing asking for donations would result in unfair treatment in future dealings with the judge.” The same is true of speeches to large assemblies of voters, they add.

And the prohibition does too little to further interests in impartiality and public confidence, they argue, because the candidate’s committee can do what the candidate may not and there is nothing to prevent the candidate from knowing who has contributed or refused.

These bans have a chilling effect, the petition says, because they “encourage candidates for judicial office to censor themselves in communications of every sort for fear that what they say may be taken as a solicitation of financial support.”

The amount of money injudicial elections has changed dramatically during the past 15 years, according to Bert Brandenberg, executive director of Justice At Stake, which tracks the spending. From 2000 through the last election cycle, more than $263 million was raised in state high court elections, he said.

“We’re watching spending records fall,” Brandenberg said, noting that of 22 states holding contested elections for judgeships, spending records were smashed in 20 in the last decade. That has happened as well in retention elections in Florida, Illinois, Iowa and Tennessee.

His organization and Brennan Center are watching the Florida case closely to see whether the justices will grant review.

The members of New York’s high court, the Court of Appeals, are appointed, not elected. But 73 percent of the state’s full-time judgeships are filled through election, said Chief Administrative Judge A. Gail Prudenti, often resulting in expensive contested campaigns (“Promoting Confidence in the Elected Judiciary,” A. Gail Prudenti, NYLJ, July 19, 2013).

Nor are lawyers in New York barred from contributing to judges. However, the state did implement a rule in 2011 that restricts the assignment of cases where participating litigants, counsel or firms have made significant campaign contributions to the assigned judge within the previous two years (Rules of the Chief Judge, Part 151).

“The Constitution makes judges different from other officeholders,” Brandenberg said. “They can’t make outright promises; they’re supposed to be accountable to the facts and law of the case. Rules like [these canons] have provided insulation from political pressure. “The risk here is you would have one more step to wear away that insulation. The stakes couldn’t be higher.”

There are unique considerations in the judicial context, Kimberly agreed, but he pointed to comments by former Justice Sandra Day O’Connor in her concurrence in a 2002 decision invalidating certain restrictions on judicial candidates’ speech. She wrote: “If the state has a problem with judicial impartiality, it is largely one the state brought upon itself by continuing the practice of popularly electing judges.”

Read more: http://www.newyorklawjournal.com/id=1202667067327/Justices-Asked-to-Rule-on-Judicial-Campaign-Fundraising#ixzz3AavAnNxB

Obama order rights a wrong

Friday, August 15th, 2014

 

Michael Hiltzik, McClatchy-Tribune News Service10:36 a.m. EDT August 14, 2014

 

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Little noticed in coverage of President Barack Obama’s signing of the Fair Play and Safe Workplaces executive order July 31 was a provision that has been called “one of the most important positive steps for civil rights in the last 20 years.”

The statement comes from Paul Bland of the public interest group Public Justice, quoted by Emily Bazelon of Slate. He’s right; what he’s referring to is a provision of the order that bars employers from forcing workers to bring workplace discrimination, sexual assault or sexual harassment cases only through arbitration. As Bazelon reports, the order applies to firms with federal contracts valued at more than $1 million. But that’s plenty.

The arbitration provision got little public attention after the signing, in part because business lobbyists were so busy carrying on about other aspects of the executive order.

As my colleague Christi Parsons reported, businesses are exercised about a rule requiring prospective federal contractors to disclose labor law violations dating back three years and government agencies to take those violations into account when handing out federal contracts. The idea is to goad employers into settling the violations before they apply for contracts.

Business mouthpieces complain that the provision will create a “blacklist” barring companies with even minor violations from hopping on the government gravy train. Repeat after me: “Tough.”

The arbitration provision, however, addresses what may be an even more important abuse. As a private venue for dispute resolution, arbitration may be an effective way to keep commercial disagreement from clogging court dockets. That’s true chiefly when all the parties come to arbitration with roughly equivalent resources.

When it’s used by employers against employees, or by corporations against aggrieved customers, and when it’s forced down complainants’ throats against their wishes, however, it’s a scourge.

Arbitration provisions have proliferated everywhere, and it’s a safe bet that many, if not most, people forced into arbitration didn’t even know they were subject to the requirement until after their dispute arose — arbitration clauses are buried in the boilerplate you sign when you enroll with a cable company, go to a doctor or hospital, or take a new job. Arbitration typically favors the bigger party — they know their way around the process better, and they can take better advantage of what are often very loose standards of evidence and testimony in arbitration.

The Obama order strikes at the heart of this injustice by allowing complaints about workplace discrimination or abuse to be arbitrated only with the consent of the parties after the disputes arise. Surprise arbitration clauses, in other words, are out.

It’s hard not to see the order as a reproach to the Supreme Court and other courts. Judges are big fans of arbitration, in part because it keeps tedious commercial disputes out of their hair. The key case upholding arbitration clauses involved AT&T and a customer dispute over the real cost of “free” cellphones sold by the mobile carrier.

A California federal judge and the 9th Circuit Court of Appeals rejected AT&T’s demand to compel arbitration. But the Supreme Court sided with the company in a 5-4 ruling (naturally).

This was a reflection of what legal scholar David Cole recently called the court’s “unremittingly conservative” narrowing of access to the judiciary to remedy legal wrongs. The Earl Warren Court, he observed in the New York Review of Books, “viewed the courts’ highest calling in a constitutional democracy as safeguarding those who cannot protect themselves through the political process.”

The Roberts Court has put its thumb on the other side of the scale.

The Obama order shifts the balance just a little bit back the other way.

Michael Hiltzik is a columnist for the Los Angeles Times. Write to him at mhiltzik@latimes.com.

Miami judge declares Florida workers comp law unconstitutional

Friday, August 15th, 2014

 

BY CAROL MARBIN MILLER

cmarbin@miamiherald.comAugust 13, 2014

 

A Miami-Dade judge struck a blow Wednesday against Florida’s workers’ comp law, which was already under attack on several fronts.

A Miami judge declared Florida’s long-controversial workers’ compensation law unconstitutional saying successive state legislatures had so diminished medical care and wage-loss benefits for injured workers the statute now violates employees’ “fundamental” rights.

In a case involving a Miami-Dade County government office worker, Circuit Judge Jorge Cueto said the nearly 80-year-old law forces injured workers into a legal system so flawed it does not provide adequate medical care or dollars to replace lost wages. Under Florida law, workers have no choice but to seek benefits under the workers’ comp system. Except under rare circumstances, they cannot sue their employers.

“The benefits in the act have been so decimated,” Cueto wrote, “that it no longer provides a reasonable alternative” to filing suit in civil court.

Cueto’s ruling comes at a pivotal time for mostly blue-collar and agricultural workers in Florida: Lawmakers and business leaders say high workers’ compensation insurance premiums have threatened to derail the state’s economic growth, while worker advocates say the state has allowed widespread insurance fraud to fester while counteracting the high premiums by punishing workers.

The controversy, which has simmered for years, is becoming increasingly prominent as worker rights lawyers ask judges, including those on the state’s highest court, to strike down the law once and for all.

Wednesday’s ruling involves an account clerk who tripped in a walkway Jan. 27, 2012, when a co-worker left boxes on the floor. Elsa Padgett, already at retirement age, fell on her hip, but sustained the most serious damage to her shoulder, records say. Following shoulder replacement surgery, Padgett remained in significant pain and was eventually forced to retire.

“The free ride for injuring workers on the job is over,” said one of Padgett’s attorneys, Mark Zientz of Miami. “The workers’ comp law has been eviscerated and now we have a judge who essentially admitted that.”

If it is appealed, Cueto’s order will join at least two other cases that challenge the constitutionality of at least a part of Florida’s workers’ compensation statute.

The state Supreme Court already is considering an appeal from a St. Petersburg firefighter, Bradley Westphal, who suffered severe and disabling back injuries in 2009 and was left with no income after his temporary wage-loss benefits expired. He could not seek work upon the advice of doctors picked by his insurance carrier, and the carrier would not provide any benefits to support his family until doctors declared he was no longer capable of improving medically.

“This system of redress does not comport with any notion of natural justice, and its result is repugnant to fundamental fairness, because it relegates a severely injured worker to a legal twilight zone of economic and familial ruin,” a three-judge Tallahassee appeals court panel wrote in a February 2013 opinion that struck down the statute. The full court later restored the law, and the case is now before the state’s highest court.

In 1968, lawmakers amended state law to make the workers’ comp system the “exclusive” legal remedy when an employee is injured on the job. At the time, the comp law was far more generous, and required employers to pay all medical bills and significantly better benefits to workers who had lost all or part of their ability to earn a living. But in 1990, 1993 and 2003 — among other years — the Legislature chipped away large chunks of injured workers’ benefits. Lawmakers said the reductions were necessary to make Florida competitive with other states in order to retain or lure businesses. Both in 1993 and a decade later, lawmakers slashed benefits after industry complained workers’ compensation insurance carriers were charging among the highest premiums in the country. In 2001, for example, only California insurers were charging higher premiums to insure worker safety. In a court pleading dated Aug. 4, the Florida Attorney General’s Office said lawmakers had a “compelling need (to) reform” the state’s workers’ comp system as “Florida suffered from some of the highest insurance costs in the country, and premiums only continued to increase.” Since the 2003 revisions to the law, premiums have declined 56 percent, state records show. Workers’ compensation laws always have limited what employees may receive in medical care or reimbursement for lost wages, the Attorney General’s Office wrote. In exchange, workers don’t have to prove in court they were injured due to the fault of their bosses.

Though Attorney General Pam Bondi opted not to intervene directly in the case before Cueto, her office defended the statute, saying “while some individual workers may be worse off with workers’ compensation in a particular instance, others benefit greatly.”

George Kagan, a West Palm Beach attorney who represents dozens of insurers or self-insured businesses, said lawyers for workers have challenged the statute many times in recent years to circumvent the authority of state lawmakers, who have been generally unreceptive to the complaints of workers. “This is a kind of finger on the scale,” Kagan said. “This is really not the way to do things.”

As a practical matter, Kagan said, Cueto’s ruling won’t immediately reverberate outside of Miami-Dade’s judicial circuit, where injured workers may — and probably will — appeal if they receive an adverse ruling from a judge in a workers’ compensation claims case.

The current statute, Kagan added, is a flawed system of justice — but one that protects the majority of injured workers most of the time. “We do not seek perfect justice in each case, he said. “We know that some workers are very under-compensated, but the vast majority are adequately compensated, and it won’t be years waiting for a jury to decide if there is a perfect remedy.”

In his order though, Cueto said lawmakers had broken their end of the “trade” with workers — workers give up their right to sue in civil court when they are injured, but get a fast, efficient and no-fault justice system in its place — when they carved up the safety net of benefits that existed in 1968, when the bargain was reached.

“The purpose of a workers’ compensation act is not for it to be used as a weapon in an economic civil war,” Cueto wrote. “Its purpose is to provide adequate compensation for on-the-job injuries in place” of a worker’s ability to sue in civil court.

Read more here: http://www.bradenton.com/2014/08/13/5302285/miami-judge-declares-florida-workers.html#storylink=cpy

 

Justice Department has widened involvement in local law enforcement in past two decades

Wednesday, August 13th, 2014

 

By Chuck Raasch craasch@post-dispatch.com 202-298-6880

 

The memorial for Michael Brown on Canfield Drive in Ferguson as seen on the morning of Monday, Aug. 11, 2014. Brown was shot and killed by a Ferguson police officer on Saturday. The fatal shooting has sparked protests, looting and riots in the city. Photo By David Carson, dcarson@post-dispatch.com

WASHINGTON • The U.S. Justice Department has intervened in cases involving more than two dozen local or state law enforcement departments over the last 20 years.

The most recent intervention is coming in the fatal police shooting of 18-year-old Michael Brown in Ferguson on Saturday.

Since 1997, 21 police departments — ranging from East Haven, Conn., to Los Angeles — have signed consent agreements with the Justice Department to improve procedures and policies. They often have involved use of force or relationships with minority communities, according to Samuel Walker, a national authority on civil liberties, policing and criminal justice policy.

Not all Justice Department involvement goes as far as consent decrees, and the department does not announce all its investigative activities, particularly if it investigates and closes without further action.

Consent agreements or investigations reached between the Justice Department and police forces usually came after broad allegations of police misconduct or, in a few cases, where specific instances spark broader action against a police force with a history of complaints against it.

The Justice Department involvement in the Ferguson case has so far been what Attorney General Eric Holder describes as supplementary to local law enforcement investigations of the shooting.

U.S. Rep. William Lacy Clay, D-St. Louis, and two other members of Congress on Monday called for a broader investigation than the parallel track laid by Holder.

The concurrent investigation “may be insufficient for two reasons,” Clay wrote Holder, in a letter co-signed by Reps. John Conyers, D-Mich., and Marcia Fudge, D-Ohio. “First, the St. Louis County Police Department may not be the most objective or credible body to investigate civil rights matters involving law enforcement given evidence of racial profiling by that department in the recent past, which Congressman Clay had asked the Department of Justice to investigate.

“Second, only the federal government has the resources, the experience, and the full independence to give this case the close scrutiny that the citizens of Ferguson and the greater St. Louis area deserve.”

The Missouri State Conference of the NAACP in November 2013 filed a federal civil rights complaint alleging that St. Louis County police officers racially profiled blacks in and around stores in south St. Louis County and that racism is rampant in the department’s hiring, firing and discipline.

The attorney general’s reach in cases where race and civil rights violations are potential factors grew in the 1994 Violent Crime Act that passed in the aftermath of the late Rodney King’s beating by Los Angeles police officers.

The law gave the Justice Department power to bring civil suits against law enforcement agencies where a “pattern or practice of conduct by law enforcement officers” exists that “deprives persons of rights, privileges, and immunities secured or protected by the Constitution or laws of the United States or by the Constitution or laws of state.”

Brown’s shooting is yet another flash point in what Walker, a professor of criminal justice at the University of Nebraska at Omaha, calls “an ongoing national racial crisis,” where there are constant tensions between minority communities and law enforcement.

Walker, who has written books about civil rights and law enforcement, said consent agreements signed by law enforcement agencies with DOJ have generally produced positive results.

“Generally, they have been successful in jump-starting reforms in very troubled departments,” Walker said. “The major issue in my mind is whether the reforms take hold and become institutionalized. But overall, they are our best mechanism for dealing with troubled departments, and it is far more effective than simply prosecuting officers.”

KRS 453.050 provides for an “allowance to witnesses” to be included in the prevailing party’s bill of costs. It further provides that the trial court “may by order confine [the recoverable allowance] to not more than two (2) witnesses on any one (1) point.”

Tuesday, August 12th, 2014

In a December 2013 post (http://civilprocedure.dbllaw.com/2013/12/recent-coaky-decision-discusses-award-of-witnesss-per-diem-expense-or-allowance-as-recoverable-cost-including-for-expert/), I blogged about the Kentucky Court of Appeals’ opinion in Bryan v. Correctcare-Integrated Health, 2012-CA-1500, which was not final at that time. In March 2014 the decision became final, and it was published in April at 420 S.W.3d 526 (Ky. App. 2013).

The decision discussed a seldom-cited Kentucky statute, KRS 453.050, that provides for an “allowance to witnesses” to be included in the prevailing party’s bill of costs. It further provides that the trial court “may by order confine [the recoverable allowance] to not more than two (2) witnesses on any one (1) point.” In Bryan, the trial court had granted costs of $100 per day for a named individual defendant and for two expert witnesses called at trial by the prevailing party. The Court of Appeals reversed, holding that “the amount and nature of the expenses incurred by each witness were not properly presented to and considered by the trial court.” The Court of Appeals stated that the amount that should be awarded is a “subsistence allowance which would ordinarily include a sum for the witnesses’ necessary meals, lodging, and travel.” The Court cited for support the “venerable old case” of Nix v. Caldwell, 81 Ky. 293, 5 Ky. L. Rptr. 324 (1883), which used the phrase “per diem” to describe the allowance that should be provided for trial witnesses.

The Court of Appeals said it would not comment as to the necessity to increase or decrease the $100 per day award the trial court made, but said the amount should be recalculated after consideration of the actual expenses incurred by the witnesses. The Court also said it was within the trial court’s discretion to award the allowance to three witnesses (as opposed to only two) on a particular point. It did not draw a distinction based on the fact that one of the persons whose allowances were approved was a named defendant.

Of course, actual expenses incurred by litigants for attendance of trial witnesses can be considerable, particularly where air travel is necessitated. It remains to be seen what level of reimbursement for actual travel and lodging costs will be awarded by Kentucky trial courts and upheld by our appellate courts. Interestingly, the Court in Bryan did not discuss or distinguish a 2009 unpublished decision by a panel comprised of two of the three Judges on the Bryan panel in which the Court of Appeals reversed the trial court’s award to the prevailing party of an expert witness’s actual travel expenses totalling $3,944 as exceeding what was a reasonable allowance under KRS 453.050. See Test v. Expressbill, LLC, 2009 WL 3321009 (Ky. App. 2009). However, if they had referenced the unpublished case, the decisions are easily harmonized. The phrases “allowance” and “per diem” do not normally refer to actual costs incurred, but rather to something like an amount necessary for “subsistence,” to borrow the word used inBryan. The word subsistence in this context normally means the minimum necessary to support life. Thus, the actual cost of air travel, meals, and lodging might easily exceed the subsistence amount the trial court should consider reimbursing.

Certain other Kentucky statutes and regulations may provide some guidance to trial courts and litigants on this issue. For instance, KRS 421.015 provides that a “witness who resides in a county other than that to which he is subpoenaed shall be allowed the same amount allowed state employees under KRS 44.060.” The latter statute and its accompanying regulations (200 KAR 2:006) provide for a per diem allowance up to a maximum of $36 for meals, reimbursement for “economical” lodging, as well as mileage reimbursement for trips by automobile at the state-approved rate. The associated regulation, 200 KAR 2:006, defines “subsistence” (the same word used by the Court in Bryan) as “amounts expended … for meals, such as tax and tips, … except for any meals which may be included in charges for lodging or in registration fees paid by or on behalf of a state officer or employee.”

In short, the Bryan decision and the underlying statute on witness allowances as a recoverable cost raise the price of poker for litigants going to trial. The case provides considerable discretion to trial courts to decide how much of the actual expenses incurred by the prevailing party and that party’s trial witnesses will be taxed as recoverable costs. Bear in mind that any objections to a bill of costs must be served on the prevailing party within five days of service of the bill of costs under CR 54.04(2).

Note: The foregoing post includes commentary reprinted from the forthcoming 2014 supplement to 7 Phillips & Kramer, Rules of Civil Procedure Annotated, 6th ed. (Kentucky Practice Series), by David V. Kramer, with permission of the author and publisher. Copyright (c) 2013 Thomson Reuters. For more information about this publication please visithttp://store.westlaw.com/rules-of-civil-procedure-annotated-6th-vols-6-7-kentucky/130503/11774808/productdetail.

David Kramer is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc with offices in Northern Kentucky,Louisville and Cincinnati.

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Why couldn’t the prosecutor just call Deters before having him jailed on a traffic ticket

Tuesday, August 12th, 2014

Eric Deters, 51, was arrested Monday and booked into the Kenton County Detention Center for failure to appear in court.

He was released before midnight.

Deters has been a resident of Kentucky his whole life, and is well known.

We would welcome the prosecutor to explain why they just didn’t call

Deters and ask him to come in?   This arrest appears severe under the facts disclosed so far.

LAWREADER’S SEARCH ENGINE / FASTCASE…IS BACK ON LINE AFTER AN EMBARRASSING DELAY

Tuesday, August 12th, 2014

We are sorry for the inconvenience caused b y the failure of the FastCase data base link.

We are glad to announce that this problem is fixed and Fast Case is again accessible to our members.

 

Stan Billingsley  Senior Editor, LawReader.com

 

BLUEGRASS CASTLE OWNER THOMAS POST HOSTS VISIT FROM LAWREADER STAFF

Monday, August 11th, 2014

 

Miami Attorney Thomas Post invited Judge Billingsley and the LawReader staff  to tour the Castle located on Versailles Road between Frankfort and Lexington.  A photo of the Castle is featured  on the cover of Judge Billingsley’s novel,  ALICE VS. WONDERLAND.  The Castle was the home of the fictional  “Kentucky Ministry of Lawyer’s Ethics”,  published by LawReader books in 2011.  (See photo on bottom on LawReader.com homepage.)

The Castle was restored by Mr. Post after a fire in 2008.  The $30 million castle has become a popular bed and breakfast facility.  Guests of the Castle have included  middle-eastern royalty.  William Shatner of  the Star Trek television series has stayed at the Castle.

On the day before the LawReader visit  the Castle was the site of a large wedding.

Several scenes in Alice VS. Wonderland,  feature the Castle.   Judge Billingsley reports that the book is being reviewed in Hollywood by interested movie and  television producers  and directors.

Arkansas Calls for Appointment of Appellate Judges

Sunday, August 10th, 2014
Kentucky has been allowed to tolerate the judiciary to disclose their political affiliation and to receive endorsements by private-interest groups.   Arkansas has long been a legal in legal ethics.   Arkansas is one state that, unlike Kentucky, has changed the ABA ethics rule that allows any attorney who critizes a judge or public legal officer even if their statement is truthful.
By John Lyon
Arkansas News Bureau
jlyon@arkansasnews.com

LITTLE ROCK — Recent events in Arkansas have sparked new debate over an old question: Is choosing judges through elections the best way to ensure a fair and independent judiciary?

Attorney General Dustin McDaniel said last week he has decided the answer is “no.”

McDaniel addressed the issue while commenting on a motion filed in a lawsuit challenging Arkansas’ ban on same-sex marriage. The plaintiffs in the suit filed a motion Monday arguing that any justices on the state Supreme Court who plan to seek re-election should recuse from hearing an appeal by the state of a circuit judge’s ruling that the ban is unconstitutional.

The plaintiffs argued that the justices could not overturn the ruling without appearing to have been improperly influenced by outside forces, namely, state legislators who adopted a resolution condemning the ruling and publicly spoke of seeking the ability to recall judges in response to the ruling.

McDaniel said judges commonly hear controversial cases and called the motion “a nonstarter.” But he also said he has come to believe it is “a mistake” to elect judges to Arkansas’ appellate courts.

“I think that political fundraising, political consultants, outside campaign money are all things that should have no place in the courtroom,” he said. “I think that parties should believe that justice is the only thing on the mind of a jurist.”

Arkansas is one of 22 states that choose Supreme Court judges through competitive elections. Twenty-three states and the District of Columbia use bipartisan nominating panels to make merit-based judicial appointments and require the judges to face periodic retention elections. In the remaining five states, the governor or legislature appoint judges without the involvement of a nominating panel.

“I still believe that the voters should have a say, and so I think retention elections are a good thing and are less prone to be political than other kinds of elections,” McDaniel said, although he acknowledged that outside money has “poured in” to retention elections in some states.

“We saw an outside group come into this last election for an open seat for the Arkansas Supreme Court, and I think it’s a harbinger of things to come,” he said.

McDaniel was referring to a race this year in which state Court of Appeals Judge Robin Wynne defeated Little Rock lawyer Tim Cullen for an open Supreme Court seat. An outside group, the Law Enforcement Alliance of America, spent more than $300,000 on ads attacking Cullen.

Although Cullen said he agrees with McDaniel that the outside spending in the race was troubling, he does not believe replacing judicial elections with an appointment process would necessarily take politics out of the equation.

“I worry that it would just transfer those politics to the governor’s office, or to whatever commission winds up appointing judges,” he said.

Cullen said outside groups spent heavily on efforts to influence a retention election Thursday for three Supreme Court justices in Tennessee, one of the states that use a nominating panel to choose judges.

“There is the same kind of concern (in Tennessee) that that’s injecting politics into judicial races,” he said.

Cullen said the key issue for him is transparency in judicial races. As a so-called “social welfare group,” the Law Enforcement Alliance of America was not required to identify the sources of the money it spent to target Cullen.

Arkansas voters elect Supreme Court and Court of Appeals justices to eight-year terms in nonpartisan elections. There is a process for impeaching judges for misconduct, and the state Judicial Discipline and Disability Commission has authority to investigate allegations of judicial misconduct and recommend sanctions that the state Supreme Court may impose, including removal from the bench.

In 1980, a ballot question asked Arkansas voters to choose between electing Supreme Court and Court of Appeals justices through elections or through a merit-based selection process. Voters chose elections by a margin of 56 percent to 44 percent, according to the secretary of state’s office.

In 2000, voters approved Amendment 80 to the Arkansas Constitution, which made judicial elections nonpartisan. An attempt to add merit selection of judges to the amendment failed.

“Basically the feeling was, ‘Oh, we’ve already been through this,’” said Annabelle Imber Tuck, who served on the Arkansas Supreme Court from 1997 until her retirement in 2010.

Tuck served on a state task force that in 2012 released a set of recommendations for reforming judicial elections. Those recommendations included creating a website where voters could find information on judicial candidates and creating a team to fact-check ads and call for the removal of false ads.

But Tuck said she is not convinced that appointing judges would be preferable to electing them.

“Politics is going to be a part of the process, whether it’s appointment or election,” she said. “If it’s an appointment process, then you’re going to have to get into the business of, ‘Who helps who?’”

Tuck said that if the public wants to vote on the issue again, that would be “a great idea.”

“But I’m very practical. I don’t think the people of the state of Arkansas are going to give up their right to vote,” she said.

- See more at: http://arkansasnews.com/news/arkansas/recent-events-spur-debate-over-electing-vs-appointing-judges#sthash.7sX9WMEB.dpuf

The Most Overlooked Element in a Winning or Losing a DUI Case: Is the Officer Properly Trained to Determine Probable Cause? Using Expert Witnesses.

Saturday, August 9th, 2014

 

DUI Expert Witness Advises on The Most Overlooked Element in Winning or Losing a DUI Case

   Written by: 

DUI Expert WitnessThis article was authored by a DUI expert witness with nearly 20 years experience as a police officer. He is also a field training officer at a county police department and serves as the Vice President of a nightclub security consulting firm.

The Most Overlooked Element in a Winning or Losing a DUI Case: Is the Officer Properly Trained to Determine Probable Cause?

It seems that more and more defense attorneys are challenging Driving Under the Influence (or DWI) cases simply because they really have nothing to lose and plea-bargaining is not in the best interest of their client. There are virtually dozens of holes that a good defense argument can attack in these types of cases such as: the traffic stop, the officer’s investigation, or the breath/blood test. Police officers are specifically trained on how to locate and conduct a proper DUI investigation, but often make a number of errors that do not conform with their training. Not only does it pay to know this information on the defense side, but prosecutors should also be aware of the training and ensure the cases officers are performing correctly.

Police officers across the nation are often trained under nationally recognized standards developed in 1977 by the National Highway Traffic Safety Administration (NHTSA). These Standardized Field Sobriety Tests (SFST) have been in place for over forty years. The SFST battery consists of Horizontal Gaze Nystagmus (HGN), Walk and Turn (WAT), and One Leg Stand (OLS) – executed in that order. The training was developed using research-based data that helps officers make OBJECTIVE observations of specific clues to assist in determining whether someone is impaired or intoxicated. By using standardized elements and administrative procedures, a well trained police officer can make a “correct” arrest decision based on objective (not subjective) determinations of impairment.

With the research backed data from NHTSA, the International Association of Chiefs of Police (IACP) helped to promote the training to agencies and officers across the country to help reduce DUI and DWI fatalities. Using these standardized elements, officers are trained over a (mandated) 24 hour period on how to locate and correctly identify impaired drivers, as well as make an arrest based on the objective clues they see. While this was (and is) the goal of the training program, police officers are often not properly trained and therefore fail to sufficiently implement their training in the field.

The NHTSA SFST training teaches three phases of detection: Vehicle in Motion, Personal Contact, and Pre-arrest Screening. While most defense attorneys attack and argue the stop (Phase 1 – Vehicle in Motion) in a motion to suppress hearing, they are often choosing not to focus on the area where most officers make mistakes during their investigation, Phase 3 – Pre-arrest Screening. In the SFST training the officers are taught that they must follow the standardized elements and not deviate from the training they received. Doing so will render the tests “inherently unreliable” (see: State V. Homan, 732 N.E.2d 952, Ohio 2000). The Homan case indicates that even “minor deviations” can create a bias in the results, which defeats the ability of the officer to rely on the results of the tests.

During the blocks of in class training, officers practice often and must pass a test and a skill based assessment before receiving a certificate allowing them to use the tests in the field. The program is rigorous and standardized for each instructor to follow in providing the training and evaluations. While many officers complete the training and evaluations, they do not practice the skills. Many times they see other officers using different tests (or variations) in the field and deviate from the training they received. Here in Virginia, many basic police academies have only taught DWI detection and a portion of the SFST program up until the full 24-hour program was put in place in January 01, 2014 as part of the basic training curriculum. This means that officers trained before that may be using bits and pieces of the SFST battery or not using them at all. A proper DWI case, if field sobriety tests are being used, must include some sort of standardized elements or the officer’s determination for probable cause is clearly speculative and subjective in nature.

What does all this mean for both the defense and prosecution? That both need to ensure that the officers who are making DUI/DWI arrests are using the SFST battery in accordance with their training, as well as following the standard. The SFST battery is a perishable skill set and MUST be constantly used or trained to ensure their proper use in making arrest decisions based on probable cause. The NHTSA training manual recommends that officers be re-certified every two years in the SFST battery and many agencies are most likely not conforming to this recommendation. Regardless of the training, in order for an officer to determine probable cause in an arrest for DUI/DWI they must accurately use the SFST battery as it was developed and educated. Failure to use the battery properly, or as trained, will call into question an officer’s “correct” arrest decision and may be shown that their determination for probable cause is based on pure speculation.


 

drunk driving expert witnessThis DUI expert witness has been a police officer for nearly 20 years. A candidate for a Ph.D. in Public Safety, he is a member of the DC Nightlife Association and a recognized court expert witness in hospitality security training, policies, procedures, and standards of care. He has been published in “Nightclub and Bar Magazine” and has been a regular speaker at the Nightclub and Bar Convention and Trade Show on topics such as “Alcohol Service Liabilities, Security Training, and Reducing Violent Incidents”, “Critical Incident Preparation and Creating a Security Training Development Program”, and “Dealing With Intoxicated Patrons and Liability Prevention”. This expert is currently a Police Officer First Class and a Field Training Officer at a county police department, while he also serves as the Vice President of a nightclub security consulting firm, where his duties include providing in-house security certification training seminars and conducting liability assessment of client properties.

Expert’s Bio:
Location: Virginia
A.A., Harrisburg Area Community College
B.B.A., University of Phoenix
M.B.A., University of Phoenix
Ph.D., Public Safety, Capella University, expected to graduate 2014
Member, International Law Enforcement Educators and Trainers Association
Member, American Society for Training and Development
Member, International Association of Chiefs of Police
Member, Academy of Criminal Justice Sciences
Member, Restaurant Association of Metropolitan Washington, DC
Member, DC Nightlife Association
Current, Staff Instructor, criminal justice academy
Current, Police Academy Instructor, criminal justice academy
Current, Police Officer First Class and Field Training Officer, county police department
Current, Vice President and Consultant, nightclub security consultants

Connect with warning label expert witness

 

 

 

 

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ATTN. GEN. CANDIDATE ANDY BESHEAR VISITS LAWREADER

Friday, August 8th, 2014

.

ANDY BESHEAR VISITS LAWREADER’S OFFICE!

(LEFT TO RIGHT) LAURA JUNG, AND REBECCA KINMAN  LAWREADER PARA – LEGALS

ANDY BESHEAR, CANDIDATE FOR KENTUCKY ATTORNEY GENERAL

STAN BILLINGSLEY, SR. EDITOR LAWREADER. AND GWEN BILLINGSLEY, C.E.O. LAWREADER.

 

Justice Dept. Seeks Full Court Appeal Hearing In Health Law Case

Monday, August 4th, 2014

AUG 04, 2014

Last month, a three-judge panel ruled against the administration in the case Halbig v. Burwell, which is viewed as a blow to the Affordable Care Act. Meanwhile, Stateline reports that, based on that ruling, only those states with clear state-based exchange credentials are on solid legal footing.

Stateline: Court Rulings Add Urgency To State Exchange Decisions
As states ready their health insurance exchanges for a second open enrollment season in November, many have more to worry about than the computer glitches that plagued them last year. Last month’s federal appeals court ruling that said language in the Affordable Care Act allows only state-run exchanges to give consumers tax credits to help pay for policy premiums is spurring several states to solidify their state-based credentials. Only the District of Columbia and 14 states — California, Colorado, Connecticut, Hawaii, Kentucky, Maryland, Massachusetts, Minnesota, Nevada, New York, Oregon, Rhode Island, Vermont and Washington — have established state exchanges and are on firm legal ground, according the decision, Halbig v. Burwell (Vestal, 8/4).

Politico: White House Appeals Obamacare Subsidy Case
The Obama administration Friday asked a federal appeals court to grant another hearing in a case challenging Obamacare subsidies, and hours later, the court gave the subsidies opponents 15 days to respond to that request. The Justice Department filed the petition with the U.S. Court of Appeals for the D.C. Circuit in the case Halbig v. Burwell. In a blow to the Affordable Care Act, a three-judge panel ruled last month that the subsidies can’t flow through the federal exchange, HealthCare.gov, but only through state markets (Winfield Cunningham, 8/1).

The Associated Press: Justice Dept Seeks Appeal in Health Overhaul Case
The Justice Department asked a full federal appeals court Friday to take up a case that has endangered subsidies helping millions of low- and middle-income people to afford their health care premiums under ObamaCare. Last week, a divided three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit said financial aid can be provided only in states that have set up their own insurance markets, or exchanges (8/1).

Bloomberg:  Obama Administration Seeks Review Of Health Care Aid Ruling
“The text, structure and purpose” of the overhaul “make clear that tax credits are available to consumers ‘regardless of whether the exchange on which they purchased their health insurance coverage is a creature of the state or the federal bureaucracy,’” government lawyers wrote in a request for a re-hearing, citing the dissent in the case. The request, filed today, was widely expected after a 2-1 ruling on July 22 that struck down an Internal Revenue Service rule providing subsidies for needy customers on the insurance exchange run by the federal government. Later today, the appeals court ordered the plaintiffs to file within 15 days a response to the government’s motion. Yesterday, the plaintiffs asked the U.S. Supreme Court to hear the case, saying a ruling by the high court would end uncertainty about the IRS provision (Zajac, 8/1).

NBC News: Obamacare Challengers Urge Quick U.S. Supreme Court Review
Challengers of a key provision of the Obama healthcare law Thursday asked the U.S. Supreme Court to take up the case and decide quickly whether people who buy their health insurance on state exchanges qualify for a federal subsidy. Two federal courts reached opposite conclusions on that issue last week. On Thursday, the challengers who lost asked the Supreme Court to step in (Williams, 8/1).

In other news related to health law challenges -

NBC News: This Is The Next Hobby Lobby
Laura Grieneisen and Liz Miller have a lot in common. Both are graduate students in biology at the University of Notre Dame … Each wants to prevent pregnancy. Each was told by her doctor that her long stretches in the field would make her an excellent candidate for an intrauterine device, or the IUD. That’s where their paths diverged. … But in what promises to be the next big birth control fight after Hobby Lobby, that accommodation hasn’t satisfied Notre Dame – or over 100 other nonprofit institutions suing the administration. They claim that signing the opt-out form also violates their religious liberty, because eventually, contraception is dispensed (Carmon, 7/31).

The Milwaukee Journal Sentinel: U.S. Senator Ron Johnson To Appeal Obamacare Lawsuit
U.S. Sen. Ron Johnson says he will appeal a federal judge’s dismissal of his lawsuit challenging a rule related to the way members of Congress and their staff get health insurance under Obamacare. Johnson, a Republican, said in an opinion piece for the Milwaukee Journal Sentinel — which will run in print Sunday — that he feels compelled “to exhaust every legal recourse” as he challenges President Barack Obama’s executive actions. U.S. District Judge William Griesbach in Green Bay had ruled in July that Johnson and his aide, Brooke Ericson, didn’t have legal standing to bring their lawsuit because they hadn’t been injured (Richards, 8/2).

This is part of Kaiser Health News’ Daily Report – a summary of health policy coverage from major news organizations. The full summary of the day’s news can be found hereand you can sign up for e-mail subscriptions to the Daily Report here. In addition, our staff of reporters and correspondents file original stories each day, which you can find on our home page.

Retain judges to ensure stability in legal system

Monday, August 4th, 2014

 

NAS11:05 p.m. CDT August 1, 2014

 

 7CONNECTTWEETLINKEDIN 2COMMENTEMAILMORE

Vote for a stable rule of law and an independent judiciary: This simple, vital proposition is why I urge Tennesseans to vote to retain our Supreme Court justices and the judges on the Courts of Appeals.

Judicial elections should be about whether the judges are good judges, whether they hand down well-reasoned decisions consistent with the law. Politics plays a role in many things, of course, but we should keep its role in our judiciary as low as possible.

Tennessee has a long tradition of voting for people who value solving problems more than pushing ideology. This is one of the many things that make Tennessee a model for the rest of the country. Sometimes I think we take a stable rule of law and an independent judiciary for granted. You can see what happens when the judges are beholden to politicians in California and Illinois. Those states are bankrupt and are losing jobs and citizens by the thousands. That’s not who we want to be.

Go vote. Vote for a Tennessee that maintains its rich tradition of supporting thoughtful consensus builders instead of polarizing ideologues. Vote to retain the judges.

William “Zan” Blue

Nashville 37219

Laws increasingly decided in court, not legislative chambers

Monday, August 4th, 2014

By Jason Stein and Patrick Marley of the Journal Sentinel
Aug. 2, 2014
  • EMAIL
  • Madison — If you want to see the laws being made, don’t head to the halls of the Legislature or Congress.

That’s so 1990s. Just make for your nearest state or federal courtroom.

As state and federal lawmakers struggle to reach compromise, more controversial legislation is resulting in bitter lawsuits by the losing side. In Madison, where both parties have held total control of the statehouse in the past six years, case after case has come up.

One side passes a law on party-line votes and the other heads to the courts and loses again — or wins on some point. From GOP Gov. Scott Walker’s union legislation to Obamacare, the lawsuits have met with only mixed success, but that hasn’t stopped them.

David Deininger has watched the subtle change over his decades of past public service as a GOP state lawmaker, judge and state elections board member, where he found himself the defendant in lawsuits. In politics, legal challenges are nothing new, Deininger observed, and yet he still saw a recent difference in degree.

“Going to the courts when you don’t get what you want from the Legislature is a time-honored tradition,” Deininger said. “But it certainly seems there are more high-profile legislative enactments being taken to court these days.”

That was on full display Thursday, when the state Supreme Court decided cases on Walker’s union legislation, a photo ID requirement for voters and a registry granting limited benefits to gay couples. Each law — the first two written by Republicans and the last by Democrats — were upheld by the justices.

The trend, observers from both political parties said, is an inevitable outcome of the growing divide between the parties, resulting in higher stakes for all sides as well as a willingness to spend the astronomical sums needed to take a case from a trial court to the highest court of appeal.

Both Republicans and Democrats blame the other side for filing frivolous lawsuits to thwart the will of the majority and praise their own challenges as defenses of key constitutional rights.

At this moment, both sides are pushing multiple cases. Since 2011, for instance, Democrats, unions and other groups on the left have filed many lawsuits to overturn GOP actions:

■■ The litigation over Act 10 — Walker’s repeal of most collective bargaining for most public workers in Wisconsin — began even before the measure officially became law in 2011 and has stretched on for three years in state and federal court.

Though unions won some lower-court decisions, the Wisconsin Supreme Court and the U.S. 7th Circuit Court of Appeals in Chicago have each upheld the law in its entirety in two separate cases. The challenges are now almost exhausted.

In an emotional concurrence issued Thursday in the latest 5-2 case, Justice N. Patrick Crooks wrote that he felt bound to uphold Act 10 as constitutional despite his personal belief that “collective bargaining benefits workers, employers and society itself.”

■ Two lawsuits were filed in both state and federal court — for a total of four — over a GOP law to require voters to show photo IDs at the polls.

Trial judges in both state and federal court ruled to strike down the law, but on Thursday the state Supreme Court released opinions in two different cases, upholding it by 5-2 and 4-3 margins. The law remains on hold for now, however, while state officials go before the federal 7th circuit seeking to reinstate it.

■ Democrats also sued in federal court over a 2011 Republican law redrawing the lines of legislative districts to give them an upper hand in state Senate and Assembly elections. A three-judge panel in that case ruled in 2012 that two Assembly districts on Milwaukee’s south side violated the voting rights of Latinos but otherwise left the overall maps in place.

Meanwhile, Republicans have their own wave of legislation over the federal Affordable Care Act, also known as Obamacare:

■ The day Walker was sworn in to office in January 2011, he authorized having Wisconsin join an ACA lawsuit and Republican Attorney General J.B. Van Hollen soon did so.

That case failed, but another brought by the National Federation of Independent Businesses resulted in a 5-4 decision in which the U.S. Supreme Court upheld the bulk of the law but limited the expansion under the ACA of a state-federal health program known as Medicaid.

In January, GOP U.S. Sen. Ron Johnson of Oshkosh sued President Barack Obama’s administration over the Affordable Health Act. Johnson argued the administration had misinterpreted the law with respect to coverage for members of Congress and their staff.

A federal judge in Green Bay threw out the lawsuit late last month, saying Johnson didn’t have legal standing to bring the case. Johnson says he will file an appeal on Monday.

■ On Wednesday, the U.S. House approved a Republican plan to sue Obama for exceeding his constitutional authority in his handling of part of the health care law.

■ On Thursday, the state Supreme Court unanimously upheld a 2009 law passed by Democrats and challenged by conservatives that provides limited benefits to gay and lesbian couples.

Former Wisconsin Assembly Speaker Scott Jensen pointed out the considerable costs for taxpayers from these lawsuits. In general, Jensen said, he believed that when one party wins an election and takes Congress or the Legislature, that majority shouldn’t have to give in to the minority.

“There is a tendency to fight the battle one more time in the courts,” he said. “The majority of these lawsuits fail and all they do is create uncertainly and higher costs.”

Democrat Peg Lautenschlager, a former lawmaker and attorney general who now represents unions, said polarization and an influx of money into politics have given people the desire and means to fight.

“Theoretically, the legislative process should create a kind of mediation,” she said. “That part of the process is missing, so everybody goes to the courts.”

At the same time, litigants in cases said they feel it’s important to stand up for what is right.

“When parties perceive that their fundamental rights are being attacked, they’re more willing to put their resources into (legal challenges),” said Susan Crawford, a Democratic attorney who’s represented groups suing over the Act 10 and photo ID laws.

Rick Esenberg, president of the Wisconsin Institute for Law and Liberty, a group that is representing Johnson in his ACA lawsuit, expressed frustration over many of the challenges to Act 10. But he also noted that after Thursday’s court ruling on Act 10 he felt the Madison School District was violating it with its union contract with teachers.

“They’re wrong about that…so we’ll see if someone sues them over it,” he said