Judge rules that White House staffers can be subpoenaed

August 1st, 2008

By A. James Memmott   |   July 31, 2008

A setback for the Bush administration came from a Bush appointee and former Kenneth Starr associate today.
Federal Judge John D. Bates ruled that two Bush staffers, one no longer at the White House, do not have absolute immunity from testifying before the House Judiciary Committee.
“The Executive’s current claim of absolute immunity from compelled congressional process for senior presidential aides is without any support in the case law,” Bates wrote in his 92-page decision.  (Link to courts decision)
Bates stresses that his decision is “very limited.” Nonetheless, it contrasts with two earlier decisions, both controversial, in which he sided with the White House.
In 2002, Bates dismissed the General Accounting Office’s attempt to have Vice President Dick Cheney reveal the names of the members of his energy task force. Bates ruled that the GAO did not have standing to sue.
In 2007, Bates threw out a lawsuit filed by Valerie Plame and her husband, Joseph Wilson, against Cheney and I. Lewis “Scooter” Libby, Cheney’s aide.
Plame had sued on the grounds that Cheney and Libby helped reveal to the press that she was a CIA operative.
Bates dismissed that lawsuit for jurisdictional reasons, as well.
If it stands, today’s decision means that Harriet Miers, the former Bush White House counsel, and Joshua Bolton, the current White House chief of staff, have to appear before the judiciary committee.
They could at that time choose not to respond, Bates wrote.
The committee subpoenaed Miers and Bolton to testify in the matter of the forced resignation of nine U.S. attorneys in 2006. Democrats have argued that the attorneys were asked to leave for political reasons.
The White House insisted that Miers and Bolton had immunity because of their positions in the executive branch.
The judiciary committee then sued.
Bates, 61, was named to the district court in 2001 by Bush.
A graduate of Wesleyan University and University of Maryland’s School of Law, he was in the U.S. Army for three years, serving a tour in Vietnam.
Later, he clerked for a federal judge and was an assistant U.S. attorney for the District of Columbia.
From 1995 to mid-1997, Bates was deputy independent counsel for the Whitewater investigation headed by Kenneth Starr.
In 2005, Chief Justice William Rehnquist of the U.S. Supreme Court appointed Bates to serve on the U.S. Judicial Conference Committee on Court Administration and Case Management.
In 2006, Chief Justice John Roberts, Rehnquist’s successor, appointed Bates to the U.S. Intelligence Foreign Surveillance Court.
The court decides on requests for surveillance warrants against foreign intelligence agents.
The White House did not indicate today whether it would appeal Bates’ decision. Earlier news reports speculated that the case would be appealed, regardless of outcome.
In his ruling, Bates encourages both the White House and the judiciary committee to “resume their discourse and negotiations in an effort to resolve their differences constructively, while recognizing each branch’s essential role.”
 

Are appellate reply briefs necessary?

August 1st, 2008

Mike McKee The Recorder August 01, 2008

 

California Supreme Court Justice Kathryn Mickle Werdegar finds them “very useful.” State 4th District Court of Appeal Justice Barton Gaut thinks they’re mostly a waste of paper. And several other appellate justices believe they’d be a lot better if lawyers put more effort into them.

What’s everyone talking about? Reply briefs.

Those often innocuous documents — which give appellants their likely last chance of getting a lower court’s jury verdict or judicial finding overturned — are, actually, rather controversial. (Who knew?)

There has long been debate in appellate circles whether reply briefs serve a worthwhile purpose. Some wonder whether justices even read them. After all, the briefs are optional at the San Francisco-based 9th U.S. Circuit Court of Appeals.

So to get to the bottom of this divisive issue, The Recorder recently e-mailed all 103 justices on the California appellate bench, including the seven on the state Supreme Court, asking for their thoughts about reply briefs. Twenty-five justices responded, including Werdegar and Chief Justice Ronald George from the state Supreme Court.

By and large, the responding justices felt that reply briefs — called ARBs in court lingo (for appellant’s reply briefs) — are an integral and indispensable part of the courts’ record.

Werdegar said appellants often have to use the reply brief to “confront the true strength” of an opponent’s response brief. “Thus we sometimes see a petitioner in a reply brief abandoning weak arguments,” she said, “or attempting to answer, for the first time, the most difficult arguments against her position.”

But then there was Riverside, Calif.’s Gaut, who said attorneys “could save a lot of time and the cost to their clients by not preparing a reply brief.” He said a respondent’s brief, occasionally, “requires some minor response, but even that is unusual.”

The most common annoyance cited by justices was that too many attorneys commit the sins of either simply regurgitating what they said in an opening brief or attempt to raise new issues for the first time.

“A properly drafted reply brief can offer insight into the issues most in contention between the parties,” said Justice James Lambden of San Francisco’s 1st District. “Regrettably, replies are frequently ill-conceived and, simply, reargue the opening brief.”

Justice Arthur Gilbert, of the 2nd District’s Ventura, Calif., branch, made it clear that repetition isn’t welcome.

“Perhaps this is done in the hope that what is read last makes the lasting impression,” he said. “These types of reply briefs do make an impression, but an unfavorable one.”

Ten other justices complained about getting far too many rehashed reply briefs. And Chief Justice George said he understands why that would be annoying.

“If you just repeat the arguments,” he said, “they are worthless.”

George, who was so keen on the subject that he called from out of state to talk and said his court often starts working on a case before the reply brief is filed.

“Positions are staked out in the opening and response briefs,” he said, “and one would start consideration of the legal issues and modify one’s tentative conclusion [based on] the reply brief.”

In other words, the California Supreme Court reads them.

Reply briefs are limited to 4,200 words in the state Supreme Court, but can run up to 14,000 in the lower appeal courts. Appellate specialist Paul Fogel, a partner in Reed Smith’s San Francisco office, said the Judicial Council’s Appellate Advisory Committee recently proposed that the number of words allowed in Supreme Court reply briefs be doubled.

Currently, if an attorney wants to exceed 4,200 words in California’s high court, he or she has to request the justices’ approval.

“My experience is that the Supreme Court is very, very liberal at granting requests for more words,” Fogel said. “But one sentiment [among appellate lawyers] is, why should we invite all these requests? Just double the number of words.”

U.S. Supreme Court Justice Antonin Scalia heightened reply briefs’ profile a couple of months ago when he said that while researching his new book, “Making Your Case: The Art of Persuading Judges,” he discovered that “a lot of judges” start with the reply brief. They then read the respondent’s brief and, finally, the appellant’s opening brief in a practice called “retro-reading.”

One self-confessed reverse reader is Justice William Bedsworth of the 4th District’s Santa Ana, Calif., branch. But he said he instead begins with the respondent’s brief, followed by the reply brief and then goes back to the appellant’s opening brief.

“This helps narrow the issues for me before I read appellant’s brief,” he said in an e-mail. “[There's] nothing more frustrating than spending a lot of time struggling with something in appellant’s brief, only to find respondent concedes it or attacks it on a completely different basis than the one anticipated by the appellant.

“Same goes for reading [the] reply brief,” Bedsworth added. “Appellant may abandon something he spent 20 pages on in opening brief after hearing respondent’s reply, or may have a devastating comeback (or devastating lack of a comeback) to something respondent says.”

Fogel said that when he was a senior staff attorney for former Chief Justice Rose Bird more than 20 years ago, he always started with the reply brief.

“The reply brief to me was the most important document in the process,” he said. “It’s the appellant’s last attempt to show why — notwithstanding what the respondent says — the appellant should win.”

To Daniel Kolkey, a partner in Gibson, Dunn & Crutcher’s San Francisco office and a former 3rd District justice, reply briefs are “the mother’s milk of appellate advocacy.”

“If written with honest clarity,” he said, “they are not only your best opportunity to convince the court of the bankruptcy of your adversary’s arguments, they may also be your only opportunity — given the limited time available for oral argument.”

First District Justice William Stein pointed out that in 10 to 20 percent of cases, appellants don’t file a reply brief. That, he said, could mean the appellant realizes he is wrong or can’t find a way to respond to a strong argument.

“Either way,” he said, “it gives you a clue it’s not a strong case.”

Bedsworth, of the 4th District, said that as a former appellate lawyer and a justice for more than a decade, he would definitely advise appellants to file a reply brief.

“Why in the world,” he said, “would you ever want to give your opponent the last word before oral argument?”

 

GOVERNOR BESHEAR APPOINTS RUTHEFORD B. CAMPBELL JR AND JEANIE OWEN MILLER TO EXECUTIVE BRANCH ETHICS COMMISSION

July 31st, 2008

July 31, 2008
FRANKFORT, Ky. – Governor Steve Beshear has appointed the following members to the Executive Branch Ethics Commission to serve for terms expiring July 14, 2012:
*                   Rutheford B. Campbell Jr., of Lexington, is a law professor at the University of Kentucky. The appointment replaces E. Patrick Moores, whose term has expired.
 
*                   Jeanie Owen Miller, of Owensboro, is an attorney in private practice. She previously worked as a consumer protection specialist in the Attorney General’s Office. Miller represents the Attorney General’s Office. The appointment replaces John A. Webb, whose term has expired.
The mission of the Executive Branch Ethics Commission is to promote the ethical conduct of elected officials, officers and other employees in the executive branch of state government. The commission seeks to fulfill its mission through administering a program of training and education on the code of ethics, providing guidance to state employees concerning their ethical conduct, enforcing the provisions of the code of ethics, interpreting the code of ethics through the issuance of advisory opinions, registering executive agency lobbyists and recommending legislation to the General Assembly.
The first vacancy of the commission is filled by the governor. The second is filled by the governor from a list of three nominees submitted by the attorney general.
 

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Important Issues Remain in Transportation Bill Lawsuit – Next hearing set for Sept. 5th.

July 31st, 2008

 

 Besides challenging Beshear’s veto of the bill, Williams’ lawsuit contended that the Democratic governor could not come up with his own road plan without legislative approval. 

 Shepherd said he will decide later on whether Beshear has the authority to spend taxpayers’ dollars on his own road plan in the absence of HB 79. 

 Franklin Circuit Judge Phil Shepherd gave attorneys involved until Aug. 20 to submit their legal arguments on the issue and until Sept. 5 for responses

Sen. Williams comments on Road Bill Ruling by Frankfort Court

July 31st, 2008

Judge Shepherd’s order by its own terms was based on an issue that was not briefed by either party.  We look forward to briefing this issue and believe that the judge will see the error of his finding upon reading of our briefs. We believe the Governor should also think about asking for reconsideration since it is a long standing practice for governors to accept and act upon bills presented to them on the day after adjournment.  If he chooses not to seek reconsideration, it will be his duty to consider all similar pieces of legislation void ab initio and carry out his executive functions accordingly.  If Judge Shepherd’s ruling stands as is, it could lead to a myriad of litigation not desired by the legislative or executive branches.  Regardless of whether this initial ruling stands, the Governor’s determination to spend money without legislative approval is the critical question in this lawsuit.” 

 

Franklin Circuit Court hands Gov. Steve Beshear a Victory and Invalidates the Transportation Bill

July 31st, 2008

Larry Dale Keeling on his Herald Leader blog reports that the Franklin Circuit Court has ruled in favor of Gov. Steve Beshear and found that the Transportation Bill was not valid since it was passed after the Legislature had been adjourned by law. 

“Franklin Circuit Judge Phillip L. Shepherd ruled Thursday that House Bill 79, the road projects bill vetoed by Gov. Steve Beshear, is invalid because of the legislature’s “failure to present the bill to the governor prior to the end of legislative business on April 15 … as required by sections 42 and 56 of the Kentucky Constitution.” 

In ruling the legislation itself invalid, Shepherd did not address the validity of Beshear’s veto which was disputed in a legal action filed by Senate President David Williams because it came 11 business days after April 15, the constitutionally mandated time for the General Assembly to end its regular sessions. Beshear contended the veto fell within constitution’s 10-day limit because final action on the bill didn’t occur until the early hours of April 16. 

The Judge said: “Section 56 … plainly requires the legislature must present the bill to the Governor as a legislative act, and all legislation action, including presentment, must be completed prior to the time the legislature ends.” 

See the full article at: www.kykurmudgeon.typepad.com 

 

Reds trade Ken Griffey Jr. to Chicago White Sox

July 31st, 2008

The Reds have traded Ken Griffey Jr. to the Chicago White Sox, pending his approval.    A FoxSports.com report says Griffey has accepted the deal.

According to CBS sportsline.com, the Reds will get infielder Danny Richar and right-handed pitcher Nick Masset in the deal. The CBS report cited anonymous sources.

The Reds are expected to pay most of the Griffey’s remaining contract this season, CBS reported.
Because Griffey has 10 years of major league service, including five years with the same team, he had the right to veto the trade.

Griffey’s agent, Brian Goldberg, was not immediately available for comment this morning.

A Reds source confirmed the trade was made earlier this morning, pending Griffey’s approval.

E-Mail Now Allowed for Open Meetngs Notifications

July 31st, 2008

FRANKFORT, Ky. — Local governments in Kentucky will now be able to notify news organizations about their special meetings by e-mail

The new provision in Kentucky’s open meetings law took effect earlier this month, and was touted as a money- and time-saver.

 

It allows local governments to send meeting notices electronically to any agency member or media organization that asks in writing for e-mail communications. Previously, e-mail notifications did not count as an official notice.

 

Virtually every state or local governing body is bound by the state’s open meetings law. Notice of a special meeting must be made in writing and include the date, time, place and agenda, with actions at the meeting limited to items on the agenda.

 

The law states that notice must be given at least 24 hours in advance by hand delivery, fax machine or mail to every member of the agency and to media that have requested, in writing, to be notified.

 

E-mail “gives the media and the public more timely notification of the special meetings as well,” said Allison Martin, a spokeswoman for the attorney general’s office. “Because you never can ensure when a mailed letter is going to arrive by the postal service.”

The state attorney general’s office is sending out notices of the new law to more than 1,400 public officials across the state. Martin said it cost the office about $150 to do the mailing, because most of it was sent electronically.

 

Under the law, it is up to individual news organizations or members of agencies to request to be notified of any special meetings by e-mail. The e-mail notification is not mandatory, Martin said.

 

Kentucky Press Association President David Thompson said the change had the group’s backing.

 

Sylvia Lovely, executive director of the Kentucky League of Cities, said the change is a small step that’s likely to have greater significance.

 

“It brings into the modern age the whole open records, open meetings concept,” Lovely said.

 

Debbie Batliner, a city clerk in Simpsonville, said the change should speed up notifications while saving time and money.

 

“It’s definitely more efficient because the word is going electronically,” said Batliner, who also is president of the Kentucky Municipal Clerks Association. “It does help us out in our job as clerks.”

 

Congressmen seek Legalization of Marihuana Use for Adults

July 30th, 2008

CNN –  (July 30) – The U.S. should stop arresting responsible marijuana users, Rep. Barney Frank said Wednesday, announcing a proposal to end federal penalties for Americans carrying fewer than 100 grams, almost a quarter-pound, of the substance.
Current laws targeting marijuana users place undue burdens on law enforcement resources, punish ill Americans whose doctors have prescribed the substance and unfairly affect African-Americans, said Frank, flanked by legislators and representatives from advocacy groups.
 

Should Marijuana Use Be Legal?

The United States should not punish adults for responsible marijuana use, a group of lawmakers said Wednesday. They announced a proposal to end federal penalties for Americans caught carrying fewer than 100 grams of pot.

LawReader reporter to investigate the effect of 20 years of drilling for oil on the North Slope of Alaska

July 27th, 2008

LawReader reporter “Bill” Billingsley will shortly be traveling to the North Slope of Alaska to search for the truth regarding the effect that 20 years of drilling and pipeline use has had on delicate Alaska flora and fauna.   
America needs more oil reserves.  Environmentalists want to protect Caribou, Polar Bears, and the permafrost.   Are these objectives unable to co-exist?  LawReader is seeking the evidence of environmental harm that was predicted when the Gov. allowed drilling on the North Slope of Alaska

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FIVE USEFUL AND SURPRISING CELL PHONE TRICKS..

July 27th, 2008

     

 5 Things You Never Knew Your Cell Phone Could Do
 
  For all the folks with cell phones. (This should be printed and kept in your car, purse, and wallet. Good information to have with you.)
  
  Your mobile phone can actually be a lifesaver or an emergency tool for survival. Check out the things that you can do with it:
  
 FIRST
 Emergency
 
  The Emergency Number worldwide for Mobile is ! 112. If you find Yourself out of the coverage area of your mobile network and there is an Emergency, dial 112 and the mobile will search any existing  network to Establish the emergency number for you, and interestingly, this  number 112 can be dialed even if the keypad is locked. Try it out.
 
  SECOND
 Have you locked your keys in the car?
 
  Does your car have remote keyless entry? This may come in handy someday. Good reason to own a cell phone: If you lock your keys In the car and the spare keys are at home, call someone at home on their cell phone from your cell phone. Hold your cell phone about a foot From your car door and have the  person at your home press the unlock button, holding it near the mobile phone  on their end. Your car will unlock. Saves someone from having to drive your keys to you. Distance is no object. You could be hundreds of miles away, and if you can reach someone who has the other ‘remote’ for your car, you can unlock the doors (or the trunk).
 
  Editor’s Note
: It works fine! We tried it out and it unlocked
our car over a cell phone!’
 
 THIRD
 Hidden Battery Power
 
  Imagine your cell battery is very low. To activate, press the keys *3370#. Your cell phone will restart with this reserve and the instrument will show a 50% increase in battery.  This reserve will get charged when you charge your cell phone next time.
 
 
 FOURTH
 How to disable a STOLEN mobile phone?
 
 To check your Mobile phone’s serial number, key in the following Digits on  your phone:
*#06#.
A 15-digit code will appear  on the screen. This number is unique to your handset. Write it down and keep  it somewhere safe.
  
 
If your phone gets stolen, you can phone your service provider and give them this code. They will then be able to block your handset so even if the thief changes the SIM card, your phone will be totally useless. You probably won’t get your phone back, but at least you know that whoever stole it can’t use/sell it either. If everybody does this, there would be no point in people stealing mobile phones.
  
  And Finally.!
  
 FIFTH
 Free Directory Service for Cells
 
  Cell phone companies are charging us $1.00 to $1.75 or more for 411 information calls when they don’t have to. Most of us do not carry a  telephone directory in our vehicle, which makes this situation even more of a  problem. When you need to use the 411 information option! , sim ply dial:
(800)FREE411, or (800) 373-3411
without incurring any charge  at all. Program this into your cell phone now.
 
 This is the kind of information people don’t mind receiving, so pass it on to your family and friends.
  

  

STUMBO FLOATS BALLOON TO TEST CHANCES FOR SPEAKER’S JOB

July 25th, 2008


  

In a Courier-Journal article, Reporter Tom Loftus reported that Rep.Greg Stumbo (D-Prestonsburg) says he has not ruled out running for Jody Richard’s Speaker of the House job in the 2009 January session of the General Assembly.
 

Stumbo criticized the efforts put forth by Richards and other House leaders in backing Gov. Beshear’s Casino gambling bill in the 2008 session of the legislature. He was quoted as saying, “I thought what they did to the governor, quite frankly, and I’ve said this before, was not good for the state and not good politically.  Democratic leadership under Richards, failed to do enough to allow the new Democratic governor to have a successful session.”
Speaker Richards denied the Stumbo charge and said, “That’s not a true statement, I tried to pass it and tried to get consensus on a bill.”

Stumbo told Loftus that he’s not campaigning for any leadership spot and may not run for speaker. He expressed interest in winning appointment as chairman of the House Judiciary Committee.  The Judiciary Committee is a very important position and the Chairman traditionally tightly controls votes on hundreds of bills concerning the criminal code, law enforcement and the judiciary.

Use of E-Mail basis for application of Long Arm Statute-Doing Business Rule

July 24th, 2008

By Kevin Schlosser New York Law Journal July 24, 2008

 

The law relating to electronic communications continues to evolve daily, not only with respect to the ubiquitous issues concerning the preservation and production of electronic discovery, but also as to substantive legal issues. Commentators have recently addressed how the courts have considered the effect of electronic communications on the statute of frauds, service of processand criminal law violations.[FOOTNOTE 1]

 

Adding to this evolving electronic jurisprudence is a March decision by Justice Stephen A. Bucaria of the Commercial Division, Nassau County Supreme Court, JSO Associates Inc. v. Price, 2008 WL 904703 (N.Y. Sup.), 2008 N.Y. Slip Op. 30862 (U). The case involved the effect of e-mail on personal jurisdiction and the statute of frauds.

 

Justice Bucaria placed significant weight upon e-mail communications from an individual defendant to provide the basis for long-arm jurisdiction over two foreign corporations with which the individual was affiliated. The court also ruled that the e-mail exchanged between the parties satisfied the statute of frauds.

 

In JSO Associates, the plaintiff, a “food broker,” sought to recover a finder’s fee from two individuals and two foreign corporations. The individual and corporate plaintiffs alleged they introduced defendants to a Canadian corporation that, through its wholly-owned subsidiary, ultimately acquired the stock of one of the defendant companies and the assets of the other corporate defendant. Plaintiffs sought “to recover a finder’s fee for promoting the transactions and allege[d] that the reasonable value of their services [was] at least $500,000.”

 

Claiming they did not “realize” the plaintiffs expected to be paid for their services, defendants refused to pay the finder’s fee requested and, when sued, moved to dismiss on several grounds. As relevant here, defendants claimed New York lacked personal jurisdiction over both the South Carolina corporate defendant as well as the Mexican corporate defendant.

 

The court first rejected plaintiffs argument that the Mexican corporate defendant had been “doing business” in New York sufficient to justify general personal jurisdiction over it, noting that “mere sales of a manufacturer’s product, through a wholesale distributor in New York, do not make a foreign corporation amenable to suit in this jurisdiction as to claims which do not arise directly from the sale of the product.”

 

Nevertheless, Justice Bucaria found that the Mexican corporate defendant was “transacting business” within New York for purposes of the long-arm statute, CPLR 302(a)(1), finding support in the Court of Appeals’ decisions in Fischbarg v. Doucet, 9 N.Y.3d 375, 849 N.Y.S.2d 501 (2007), and Deutsche Bank Securities Inc. v. Montana Bd. of Investments, 7 N.Y.3d 65, 818 N.Y.S.2d 164 (2006).

In both of these decisions, the Court of Appeals relied on electronic communications to support New York’s exercise of jurisdiction over out-of-state defendants.

 

In JSO Associates, Justice Bucaria found that the individual defendant’s e-mail with the plaintiff established a relationship between them, implicating “the privileges and protections of New York law.” He further found that the individual defendant was “a fairly sophisticated ‘player’” in the relevant industry and thereby “projected himself into New York through his email communications, seeking [plaintiff's] assistance with a contemplated asset sale and stock purchase agreement.”

 

Thus, Justice Bucaria determined that the individual defendant’s 16 e-mails sent to the plaintiff in New York regarding the transaction in question could be “of sufficient quality to constitute a ‘transaction of business’ within the state.” The court then analyzed whether the individual’s conduct and contacts with New York (through these e-mails) could be attributed to the corporate defendants so as to justify jurisdiction over them.

 

As to the South Carolina corporate defendant, the court found: “Because of [the individual defendant's] de facto control of [that corporation], a subject of the contemplated acquisition, his engagement of [plaintiff] was clearly undertaken on behalf of that company.” Thus, the court concluded that the South Carolina defendant “transacted business in New York through an agent and is subject to personal jurisdiction on a claim arising from the brokerage agreement.”

 

As to the Mexican corporation, the court relied on “apparent authority” because that defendant denied the individual defendant was given express authority to negotiate or enter into the brokerage contract on its behalf. Justice Bucaria found that the Mexican corporation’s “acceptance of regular infusions of working capital from [the South Carolina corporation] clothed [the individual defendant] with apparent authority to retain a business broker on behalf of the Mexican corporation,” adding that the individual defendant’s “email correspondence establishe[d] that [plaintiff] was aware of [the South Carolina corporation's] periodic transfers of funds to [the Mexican corporation] and [his] other involvement in the management of the Mexican company.” Thus, as a result of this apparent authority, the court determined that the Mexican company “transacted business in New York through an agent by retaining a business broker.”

 

Given the fact that there was no other apparent basis for jurisdiction over the two foreign corporations and no other relevant contacts with New York, the court appears to have placed great weight on the e-mails that the individual defendant sent to the New York resident-plaintiff for purposes of exercising personal jurisdiction in New York over the two foreign corporations.

 

STATUTE OF FRAUDS

Justice Bucaria then turned to defendant’s argument that General Obligations Law Section 5-701(a)(10), the relevant section of the statute of frauds, barred the action because plaintiffs were seeking compensation “for services rendered in negotiating … the purchase, sale, exchange … of a business” allegedly without a written, signed contract.

The court first observed that to satisfy the statute of frauds: “The terms of the agreement may be established by a combination of signed and unsigned documents, letters, or other writings provided that the writing establishing a contractual relationship between the parties bears the signature of the party to be charged or his agent and the unsigned document refers on its face to the same transaction as that set forth in the one that was signed,” citing Intercontinental Planning, Ltd. v. Daystrom Inc., 24 N.Y.2d 372, 379, 300 N.Y.S.2d 817 (1969).

 

After reviewing older cases rendered before the “electronic age,” Justice Bucaria took a practical, common-sense view of the issue as to whether the e-mails in question were sufficient to satisfy the statute of frauds. Based on the rather mechanical manner in which other courts have analyzed similar issues involving electronic communications, Justice Bucaria’s practical approach was not without question.

 

In Parma Tile Mosaic & Marble Co. Inc. v. Estate of Short, 87 N.Y.2d 524, 527, 640 N.Y.S.2d 477, 479 (1996), for example, the Court of Appeals held that a fax transmission from the defendant in which the defendant allegedly guaranteed payment for another did not satisfy the statute of frauds’ requirement that the writing be “subscribed” because the defendant did not “sign” the fax. The Court held that the automatic imprinting of the sender’s name at the top of the fax transmittal did not constitute “a signature” for purposes of the statute of frauds, nor “an intent, actual or apparent, to authenticate [the] writing.”

 

Similarly, in Vista Developers Corp. v. VFP Realty LLC, 17 Misc.3d 914, 847 N.Y.S.2d 416 (Sup. Ct., Queens Co. 2007), the court held that e-mail exchanges between the president of a prospective purchaser and the representative of a prospective seller of real property could not constitute a “signed writing” for purposes of the statute of frauds governing real estate transactions. The court held that because the Legislature specifically added a section to the statute of frauds allowing for electronic signatures only for “qualified financial contracts,” it did not intend to allow electronic signatures or communications to satisfy the statute of frauds for other contracts, including conveyances of real property. But see Rosenfeld v. Zerneck, 4 Misc.3d 193, 776 N.Y.S.2d 458 (Sup. Ct., Kings Co. 2004) (e-mails can be sufficient to satisfy statute of frauds relating to transactions concerning real property).

 

SUBSTANCE ANALYZED

In JSO Associates, rather than getting caught up in technical issues as to whether the e-mail contained defendant’s “signature” at the bottom, Justice Bucaria analyzed the substance of the relevant e-mails. He held “that where there is no question as to the source and authenticity of an email, the email is ‘signed’ for purposes of the statute of frauds if defendant’s name clearly appears in the email as the sender.”

 

Distinguishing case law “decided in a different technological era, when email and home computers had not even entered the public imagination,” Justice Bucaria noted that “the requirement of a signature at the bottom was to minimize the opportunity for fraudulent additions to the memorandum, a practice which is not feasible with electronic communication.” He found persuasive a U.S. Court of Appeals for the Seventh Circuit decision in Cloud Corp. v. Hasbro Inc., 314 F.3d 289 (2002), in which the court concluded that “the sender’s name on an e-mail satisfies the signature requirement of the statute of frauds.”

 

With these principles in mind, Justice Bucaria found that the e-mails that defendant had sent to plaintiff sufficiently supported the existence of a contract, identified the subject matter of the alleged brokerage agreement and tied in all defendants to the alleged contract. The court also found that in certain of the e-mail, the individual defendant’s name appeared as the sender, while in other relevant e-mail the defendant had typed his name at the end “in the traditional letter writing fashion.”[FOOTNOTE 2]

 

CONCLUSION

While much has been written on the obligations of counsel and their clients to preserve and produce electronic discovery, the effect of electronic communications on substantive legal issues continues to evolve as well.

 

Recent case law shows that communications by electronic means can provide significant and powerful consequences in forming enforceable legal rights as well as the basis for jurisdiction over foreign defendants.

Kevin Schlosser, a partner and chair of the litigation department at Meyer, Suozzi, English & Klein in Garden City, N.Y.

 

FOOTNOTES-

 

FN1 See, e.g., M. Berman, “New York State E-Discovery Law: The ‘Power’ of E-Mails and Text Messages,” New York Law Journal, June 19, 2008, at p. 3 col. 1; W. Maker, Jr. “Of Keystrokes and Ballpoints: Real Estate and the Statute of Frauds in the Electronic Age,” Vol. 80, No. 6, NYSBA Journal, July/August 2008, p. 46; J. Theuman, “Satisfaction of Statute of Frauds by E-Mail,” 110 A.L.R.5th 277.

FN2 If applied, the state and federal laws involving electronic signatures would have likely facilitated and supported the practical outcome reached by the court in JSO Associates. See the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. §§7001-7006, and the New York State Electronic Signatures and Records Act, Article 3 of the state Technology Law. The alleged brokerage agreement would appear to have “affected interstate or foreign commerce” so as to trigger the federal law, while the New York law would appear to have applied as well. Both statutes liberalize the legal effect of electronic signatures.

 

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Driver Charged With .491 Blood Alcohol Level

July 23rd, 2008

 

 

PROVIDENCE, R.I. ― State Police arrested a man early Tuesday whose blood alcohol level allegedly was .491 — more than six times the legal limit — which they believe is the highest ever recorded in Rhode Island for someone who wasn’t dead.
 
Stanley Kobierowski, 34, of North Providence, was arrested after he drove into a highway message board on Interstate 95 in Providence, Maj. Steven O’Donnell said.

After police arrived, Kobierowski had trouble getting out of the car, then grabbed it and refused to move, forcing troopers to carry him to the breakdown lane before taking him back to their barracks, O’Donnell said.

A Breathalyzer test showed Kobierowski had blood alcohol readings of .489 followed by .491, Kobierowski said, the highest readings anyone at the State Police or the Department of Health could remember for someone who didn’t end up dead.

The legal limit in Rhode Island is .08. A blood alcohol of .3 is classified as “stupor,” .4 is “comatose” and .5 is considered fatal, according to the health department.

Rep. Burch to submit slots bill that avoids Constitutional Referendum

July 22nd, 2008

July 222, 2008

Rep. Tom Burch plans to introduce legislation for the 2009 General Assembly that would allow 18,000 slot machines in Kentucky.
Burch, D-Louisville, issued a statement Monday saying that roughly 6,000 of those slots would be reserved for eight horse racing tracks, while the others would be available to counties whose citizens vote to approve them.
“The time has come to either pass a bill regarding gambling or stop wasting taxpayers’ dollars debating the issue,” Burch said in the statement. “This bill would allow each and every county to have slot machines, but only if each county so desires to have them.”
Burch’s bill would not require a constitutional amendment. His position is supported by rulings of Kentucky’s highest court which found that the 1891 Constitution does not prevent casino style games, but only “lotteries”.   Greg Stumbo, when Attorney General wrote an opinion which supports this position.  It appears that only an act of the legislature is required.
The following article presents the Law Behind the News.  This article was previously published by LawReader.

Go to: There is case law that supports the conclusion that Kentucky does not need a Constitutional Amendment to permit the licensing of Casino Gambling

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DNA MATCH BETWEEN TWO MEN RAISES QUESTION ABOUT VALIDITY OF DNA TESTS…FBI SEEKS TO BLOCK INQUIRY

July 22nd, 2008

How reliable is DNA in identifying suspects? A discovery leads to questions about whether the odds of people sharing genetic profiles are sometimes higher than portrayed. Calling the finding meaningless, the FBI has sought to block such inquiry.

By Jason Felch and Maura Dolan Los Angeles Times Staff Writers

July 19, 2008

State crime lab analyst Kathryn Troyer was running tests on Arizona’s DNA database when she stumbled across two felons with remarkably similar genetic profiles.

The men matched at nine of the 13 locations on chromosomes, or loci, commonly used to distinguish people.

The FBI estimated the odds of unrelated people sharing those genetic markers to be as remote as 1 in 113 billion. But the mug shots of the two felons suggested that they were not related: One was black, the other white.

In the years after her 2001 discovery, Troyer found dozens of similar matches — each seeming to defy impossible odds.

As word spread, these findings by a little-known lab worker raised questions about the accuracy of the FBI’s DNA statistics and ignited a legal fight over whether the nation’s genetic databases ought to be opened to wider scrutiny.

The FBI laboratory, which administers the national DNA database system, tried to stop distribution of Troyer’s results and began an aggressive behind-the-scenes campaign to block similar searches elsewhere, even those ordered by courts, a Times investigation found.

At stake is the credibility of the compelling odds often cited in DNA cases, which can suggest an all but certain link between a suspect and a crime scene.

When DNA from such clues as blood or skin cells matches a suspect’s genetic profile, it can seal his fate with a jury, even in the absence of other evidence. As questions arise about the reliability of ballistic, bite-mark and even fingerprint analysis, genetic evidence has emerged as the forensic gold standard, often portrayed in courtrooms as unassailable.

But DNA “matches” are not always what they appear to be. Although a person’s genetic makeup is unique, his genetic profile — just a tiny sliver of the full genome — may not be. Siblings often share genetic markers at several locations, and even unrelated people can share some by coincidence.

No one knows precisely how rare DNA profiles are. The odds presented in court are the FBI’s best estimates.

The Arizona search was, in effect, the first test of those estimates in a large state database, and the results were surprising, even to some experts.

Defense attorneys seized on the Arizona discoveries as evidence that genetic profiles match more often than the official statistics imply — and are far from unique, as the FBI has sometimes suggested.

Lawyers seek searches

Now, lawyers around the country are asking for searches of their own state databases.

Several scientists and legal experts as well want to test the accuracy of official statistics using the nearly 6 million profiles in CODIS, the national system that includes most state and local databases.

“DNA is terrific and nobody doubts it, but because it is so powerful, any chinks in its armor ought to be made as salient and clear as possible so jurors will not be overwhelmed by the seeming certainty of it,” said David Faigman, a professor at UC Hastings College of the Law, who specializes in scientific evidence.

FBI officials argue that, under their interpretation of federal law, use of CODIS is limited to criminal justice agencies. In their view, defense attorneys are allowed access to information about their specific cases, not the databases in general.

Bureau officials say critics have exaggerated or misunderstood the implications of Troyer’s discoveries.

Indeed, experts generally agree that most — but not all — of the Arizona matches were to be expected statistically because of the unusual way Troyer searched for them.

In a typical criminal case, investigators look for matches to a specific profile. But the Arizona search looked for any matches among all the thousands of profiles in the database, greatly increasing the odds of finding them.

As a result, Thomas Callaghan, head of the FBI’s CODIS unit, has dismissed Troyer’s findings as “misleading” and “meaningless.”

He urged authorities in several states to object to Arizona-style searches, advising them to tell courts that the probes could violate the privacy of convicted offenders, tie up crucial databases and even lead the FBI to expel offending states from CODIS — a penalty that could cripple states’ ability to solve crimes.

In one case, Callaghan advised state officials to raise the risk of expulsion with a judge, then told the officials that expulsion was unlikely to happen, according to a record of the conversation filed in court.

In an interview with The Times, Callaghan denied any effort to mislead the court.

The FBI’s arguments have persuaded courts in California and other states to block the searches. But in at least two states, judges overruled the objections.

The resulting searches found nearly 1,000 more pairs that matched at nine or more loci.

“I can appreciate why the FBI is worried about this,” said David Kaye, an expert on science and the law at Arizona State University and former member of a national committee that studied forensic DNA.

But “people’s lives do ride on this evidence,” he said. “It has got to be explained.”

Concerned about errors

From her first discovery in 2001, Troyer and her colleagues in the Arizona Department of Public Safety’s Phoenix DNA lab were intrigued.

At the time, many states looked at only nine or fewer loci when searching for suspects. (States now commonly attempt to compare 13 loci, though often fewer are available from old or contaminated crime scene evidence.)

Based on Troyer’s results, she and her colleagues believed that a nine-locus match could point investigators to the wrong person.

“We felt it was interesting and just wanted people to understand it could happen,” said Troyer, who initially declined to be interviewed, then cautiously discussed her findings by telephone, with her bosses on the line.

“If you’re going to search at nine loci, you need to be aware of what it means,” said Todd Griffith, director of the Phoenix lab. “It’s not necessarily absolutely the guy.”

Troyer made a simple poster for a national conference of DNA analysts. It showed photos of the white man and the younger black man next to their remarkably similar genetic profiles.

Some who saw the poster said they had seen similar matches in their own labs.

But Bruce Budowle, an FBI scientist who specializes in forensic DNA, told colleagues of Troyer that such coincidental matches were to be expected.

Three years later, Bicka Barlow, a San Francisco defense attorney, came across a description of Troyer’s poster on the Internet.

Its implications became clear as she prepared to defend a client accused of a 20-year-old rape and murder.

A database search had found a nine-locus match between his DNA profile and semen found in the victim’s body. Based on FBI estimates, the prosecutor said the odds of a coincidental match were as remote as 1 in 108 trillion.

Recalling the Arizona discovery, Barlow wondered if there might be similar coincidental matches in California’s database — the world’s third-largest, with 360,000 DNA profiles at the time. The attorney called Troyer in Phoenix to learn more.

Troyer seemed eager to talk about her discovery, which still had her puzzled, Barlow recalled. The analyst told Barlow she had searched the growing Arizona database since the conference and found more pairs of profiles matching at nine and even 10 loci.

Encouraged, Barlow subpoenaed a new search of the Arizona database. Among about 65,000 felons, there were 122 pairs that matched at nine of 13 loci. Twenty pairs matched at 10 loci. One matched at 11 and one at 12, though both later proved to belong to relatives.

Barlow was stunned. At the time, such matches were almost unheard of.

That same year, Fred Bieber, a Harvard professor and expert in forensic DNA, testified in an unrelated criminal case that just once had he seen a pair of profiles matching at nine of 13 markers, and they belonged to brothers. He had heard of a 10-locus match between two men, but it was the result of incest — a man whose father was also his older brother.

Indeed, since 2000, the FBI has treated certain rare DNA profiles as essentially unique — attributable to a single individual “to a reasonable degree of scientific certainty.”

Other crime labs have adopted the policy, and some no longer tell jurors there is even a possibility of a coincidental match.

Soon after Barlow received the results, Callaghan, the head of the FBI’s DNA database unit, reprimanded Troyer’s lab in Phoenix, saying it should have sought the permission of the FBI before complying with the court’s order in the San Francisco case.

Asked later whether Callaghan had threatened her lab, Troyer said in court, “I wouldn’t say it’s been threatened, but we have been reminded.”

Dwight Adams, director of the FBI lab at the time, faxed Griffith, Troyer’s boss, a letter saying the Arizona state lab was “under review” for releasing the search results.

“While we understand that the Arizona Department of Public Safety, acting in good faith, complied with a proper judicial court order in the release of the nine-loci search of your offender DNA records, this release of DNA data was not authorized,” Adams wrote, asking Arizona to take “appropriate corrective action.”

Arizona officials obtained a court order to prevent Barlow from sharing the results with anyone else.

But it was too late. After a judge found the Arizona results to be irrelevant in Barlow’s case, the defense attorney e-mailed them to a network of her colleagues and DNA experts around the country.

Soon, defense lawyers in other states were seeking what came to be known as “Arizona searches.”

‘Don’t panic’

For years, DNA’s strength in the courtroom has been the brute power of its numbers. It’s hard to argue with odds like 1 in 100 billion.

Troyer’s discovery threatened to turn the tables on prosecutors. At first blush, the Arizona matches appeared to contradict those statistics and the popular notion that DNA profiles, like DNA, were essentially unique.

Law enforcement experts scrambled to explain.

Three months after the court-ordered search in Arizona, Steven Myers, a senior DNA analyst at the California Department of Justice, gave a presentation to the Assn. of California Crime Lab Analysts. It was titled “Don’t Panic” — a hint at the alarm Troyer’s discovery had set off.

Many of the Arizona matches were predictable, Myers said, given the type of search Troyer had conducted.

In a database search for a criminal case, a crime scene sample would have been compared to every profile in the database — about 65,000 comparisons. But Troyer compared all 65,000 profiles in Arizona’s database to each other, resulting in about 2 billion comparisons. Each comparison made it more likely she would find a match.

When this “database effect” was considered, about 100 of the 144 matches Troyer had found were to be expected statistically, Myers found.

Troyer’s search also looked for matches at any of 13 genetic locations, while in a real criminal case the analyst would look for a particular profile — making a match far less likely.

Further, any nonmatching markers would immediately rule out a suspect. In the case of the black and white men who matched at nine loci, the four loci that differed — if available from crime scene evidence — would have ensured that the wrong man was not implicated.

The presence of relatives in the database could also account for some of Troyer’s findings, the FBI and other experts say. Whether that’s the case would require cumbersome research because the databases don’t contain identifying information, they say.

Some scientists are not satisfied by any of these explanations. They wonder whether Troyer’s findings signal flaws in the complex assumptions that underlie the FBI’s rarity estimates.

Behind the estimates

In the 1990s, FBI scientists estimated the rarity of each genetic marker by extrapolating from sample populations of a few hundred people from various ethnic or racial groups. The estimates for each marker are multiplied across all 13 loci to come up with a rarity estimate for the entire profile.

These estimates make assumptions about how populations mate and whether genetic markers are independent of each other. They also don’t account for relatives.

Bruce Weir, a statistician at the University of Washington who has studied the issue, said these assumptions should be tested empirically in the national database system.

“Instead of saying we predict there will be a match, let’s open it up and look,” Weir said.

Some experts predict that given the rapid growth of CODIS, such a search would produce one or more examples of unrelated people who are identical at all 13 loci.

Such a discovery was once unimaginable.

‘Dire consequences’

In January 2006, not long after Barlow distributed the results of the court-ordered search in Arizona, the FBI sent out a nationwide alert to crime labs warning of similar defense requests.

Soon after, the bureau’s arguments against the searches were being made in courtrooms around the country.

In California, Michael Chamberlain, a state Department of Justice official, persuaded judges that such a search could have “dire consequences” — violating the privacy of convicted offenders, shutting down the database for days and risking the state’s expulsion from the FBI’s national DNA system. All this for a search whose results would be irrelevant and misleading to jurors, Chamberlain argued.

When similar arguments were made in an Arizona case, the judge ruled that the search would be “nothing more than an interesting deep sea fishing expedition.”

But in Illinois and Maryland, courts ordered the searches to proceed, despite opposition from the FBI and state officials at every turn.

In July 2006, after Chicago-area defense attorneys sought a database search on behalf of a murder suspect, the FBI’s Callaghan held a telephone conference with Illinois crime lab officials.

The topic was “how to fight this,” according to lab officials’ summary of the conversation, which later became part of the court record.

Callaghan suggested they tell the judge that Illinois could be disconnected from the national database system, the summary shows. Callaghan then told the lab officials that “it would in fact be unlikely that IL would be disconnected,” according to the summary.

In an interview, Callaghan disputed he said that.

“I didn’t say it was unlikely to happen,” he said. “I was asked specifically, what’s the likelihood here? I said, I don’t know, but it takes a lot for a state to be cut off from the national database.”

A week later, the judge ordered the search. Lawyers for the lab then took the matter to the Illinois Supreme Court, arguing in part that Illinois could lose its access to the federal DNA database. The high court refused to block the search.

The result: 903 pairs of profiles matching at nine or more loci in a database of about 220,000.

State officials obtained a court order to prevent distribution of the results. The Times obtained them from a scientist who works closely with the FBI.

A ‘unilateral decision’

A similar fight occurred in a death penalty case in Maryland during the summer and fall of 2006.

The prosecutor saw a DNA match between a baseball cap dropped at the crime scene and the suspect as so definitive that he didn’t plan to tell the jury about the chance of a coincidental match, records show.

Seeking to cast doubt on the evidence, the defense persuaded the judge to order an “Arizona search” of the Maryland database. The state did not comply.

After the defense filed a contempt-of-court motion, Michelle Groves, the state’s DNA administrator, argued in court and in an affidavit that, based on conversations with Callaghan at the FBI, she believed the request was burdensome and possibly illegal.

According to Groves, Callaghan had told her that complying with the court order could lead Maryland to be disconnected from CODIS — a result Groves’ lawyer said would be “catastrophic.”

Groves’ affidavit was edited by FBI officials and the technology contractor that designed CODIS, court records show. Before submitting the affidavit, Groves wrote the group an e-mail saying, “Let’s see if this will work,” court records show.

It didn’t. After the judge, Steven Platt, rejected her arguments, Groves returned to court, saying the search was too risky. FBI officials had now warned her that it could corrupt the entire state database, something they would not help fix, she told the court.

Platt reaffirmed his earlier order, decrying Callaghan’s “unilateral” decision to block the search.

“The court will not accept the notion that the extent of a person’s due process rights hinges solely on whether some employee of the FBI chooses to authorize the use of the [database] software,” Platt wrote.

The search went ahead in January 2007. The system did not go down, nor was Maryland expelled from the national database system.

In a database of fewer than 30,000 profiles, 32 pairs matched at nine or more loci. Three of those pairs were “perfect” matches, identical at 13 out of 13 loci.

Experts say they most likely are duplicates or belong to identical twins or brothers. It’s also possible that one of the matches is between unrelated people — defying odds as remote as 1 in 1 quadrillion.

Maryland officials never did the research to find out. 

  


 

  

 

Numerous Judicial Vacancies On Nov. Ballot- Filing date is Aug. 12th.

July 19th, 2008

 

The Office of the Secretary of State has been informed of the following vacancies in office.  Potential candidates/parties have until 4:00 p.m EDT, August 12, 2008, to file and place the candidate’s name on the ballot to fill the unexpired term.

Circuit Judges

Circuit Judge – 6th Judicial Circuit, Division 2
   Vacancy effective: June 2, 2008
   Counties affected: Daviess
   (Vacancy occurred by the resignation of Thomas O. Castlen)
 

Circuit Judge – Family Court 18th Judicial Circuit, Division 2
   Vacancy effective: June 1, 2008
   Counties affected: Harrison, Nicholas, Pendleton, Robertson
   (Vacancy occurred by the resignation of David E. Melcher)
 

Circuit Judge – 22nd Judicial Circuit, Division 7
   Vacancy effective: June 2, 2008
   Counties affected: Fayette
   (Vacancy occurred by the resignation of Sheila R. Isaac)
 

Circuit Judge – 25th Judicial Circuit, Division 1
   Vacancy effective: June 27, 2008 4:30 p.m. ET
   Counties affected: Clark and Madison
   (Vacancy occurred by the resignation of Julia Hylton Adams)
 

Circuit Judge – 25th Judicial Circuit, Division 2
   Vacancy effective: June 30, 2008
   Counties affected: Clark and Madison 12:00 p.m. ET
   (Vacancy occurred by the resignation of William T. Jennings)
 

Circuit Judge – 27th Judicial Circuit, Division 2
   Vacancy effective: June 30, 2008 4:00 p.m. ET
   Counties affected: Knox and Laurel
   (Vacancy occurred by the resignation of Roderick Messer)
 

Circuit Judge – 30th Judicial Circuit, Division 10
   Vacancy effective: April 21, 2008
   Counties affected: Jefferson
   (Vacancy occurred by the death of Kathleen Voor Montano)
 

District Judges

District Judge – 22nd Judicial District, Division 4
   Vacancy effective: June 1, 2008
   Counties affected: Fayette
   (Vacancy occurred by the resignation of David F. Hayse)
 

District Judge – 30th Judicial District, Division 2
   Vacancy effective: June 2, 2008
   Counties affected: Jefferson
   (Vacancy occurred by the resignation of Kevin W. Delahanty)
 

District Judge – 30th Judicial District, Division 8
   Vacancy effective: June 3, 2008
   Counties affected: Jefferson
   (Vacancy occurred by the resignation of Deborah J. Deweese)
 
 District Judge – 48th Judicial District, Division 2
   Vacancy effective: June 30, 2008
   Counties affected:  Franklin
   (Vacancy occurred by the resignation of William Guy Hart)
 

District Judge – 51st Judicial District, Division 2
   Vacancy effective: June 2, 2008
   Counties affected: Henderson
   (Vacancy occurred by the resignation of Kenton J. Watson)
 
District Judge – 55th Judicial District, Division 2
   Vacancy effective: June 30, 2008
   Counties affected: Bullitt
   (Vacancy occurred by the resignation of Bailey Taylor)
 
 

Supreme Court Justices

Supreme Court Justice –Third Supreme Court District
          Vacancy effective: June 27, 2008
          Counties affected:  Adair, Bell, Casey, Clay, Clinton, Cumberland, Estill, Garrard, Green, Jackson, Knox, Laurel, Lee, Leslie, Lincoln, Marion, McCreary, Metcalfe, Monroe, Nelson, Pulaski, Rockcastle, Russell, Taylor, Washington, Wayne, and Whitley

          (Vacancy occurred by the Retirement of Chief Justice Joseph E. Lambert)
 

Other Vacancies

Commonwealth Attorney
27th Judicial Circuit
   Counties of:  Knox and Laurel
   (Vacancy occurred by the resignation of Danny Evans)*
 
 
*Please note that this vacancy is for a partisan office and different procedures apply.
 

Numerous vacancies in Judicial Offices, filing date Aug. 12t.

July 19th, 2008

 

The Office of the Secretary of State has been informed of the following vacancies in office.  Potential candidates/parties have until 4:00 p.m EDT, August 12, 2008, to file and place the candidate’s name on the ballot to fill the unexpired term.

Circuit Judges

Circuit Judge – 6th Judicial Circuit, Division 2
   Vacancy effective: June 2, 2008
   Counties affected: Daviess
   (Vacancy occurred by the resignation of Thomas O. Castlen)
 

Circuit Judge – Family Court 18th Judicial Circuit, Division 2
   Vacancy effective: June 1, 2008
   Counties affected: Harrison, Nicholas, Pendleton, Robertson
   (Vacancy occurred by the resignation of David E. Melcher)
 

Circuit Judge – 22nd Judicial Circuit, Division 7
   Vacancy effective: June 2, 2008
   Counties affected: Fayette
   (Vacancy occurred by the resignation of Sheila R. Isaac)
 

Circuit Judge – 25th Judicial Circuit, Division 1
   Vacancy effective: June 27, 2008 4:30 p.m. ET
   Counties affected: Clark and Madison
   (Vacancy occurred by the resignation of Julia Hylton Adams)
 

Circuit Judge – 25th Judicial Circuit, Division 2
   Vacancy effective: June 30, 2008
   Counties affected: Clark and Madison 12:00 p.m. ET
   (Vacancy occurred by the resignation of William T. Jennings)
 

Circuit Judge – 27th Judicial Circuit, Division 2
   Vacancy effective: June 30, 2008 4:00 p.m. ET
   Counties affected: Knox and Laurel
   (Vacancy occurred by the resignation of Roderick Messer)
 

Circuit Judge – 30th Judicial Circuit, Division 10
   Vacancy effective: April 21, 2008
   Counties affected: Jefferson
   (Vacancy occurred by the death of Kathleen Voor Montano)
 

District Judges

District Judge – 22nd Judicial District, Division 4
   Vacancy effective: June 1, 2008
   Counties affected: Fayette
   (Vacancy occurred by the resignation of David F. Hayse)
 

District Judge – 30th Judicial District, Division 2
   Vacancy effective: June 2, 2008
   Counties affected: Jefferson
   (Vacancy occurred by the resignation of Kevin W. Delahanty)
 

District Judge – 30th Judicial District, Division 8
   Vacancy effective: June 3, 2008
   Counties affected: Jefferson
   (Vacancy occurred by the resignation of Deborah J. Deweese)
 
 District Judge – 48th Judicial District, Division 2
   Vacancy effective: June 30, 2008
   Counties affected:  Franklin
   (Vacancy occurred by the resignation of William Guy Hart)
 

District Judge – 51st Judicial District, Division 2
   Vacancy effective: June 2, 2008
   Counties affected: Henderson
   (Vacancy occurred by the resignation of Kenton J. Watson)
 
District Judge – 55th Judicial District, Division 2
   Vacancy effective: June 30, 2008
   Counties affected: Bullitt
   (Vacancy occurred by the resignation of Bailey Taylor)
 
 

Supreme Court Justices

Supreme Court Justice –Third Supreme Court District
          Vacancy effective: June 27, 2008
          Counties affected:  Adair, Bell, Casey, Clay, Clinton, Cumberland, Estill, Garrard, Green, Jackson, Knox, Laurel, Lee, Leslie, Lincoln, Marion, McCreary, Metcalfe, Monroe, Nelson, Pulaski, Rockcastle, Russell, Taylor, Washington, Wayne, and Whitley

          (Vacancy occurred by the Retirement of Chief Justice Joseph E. Lambert)
 

Other Vacancies

Commonwealth Attorney
27th Judicial Circuit
   Counties of:  Knox and Laurel
   (Vacancy occurred by the resignation of Danny Evans)*
 
 
*Please note that this vacancy is for a partisan office and different procedures apply.
 

Texas Supreme Court upholds written hourly fee agreement

July 19th, 2008

 

Mary Alice Robbins Texas Lawyer July 19, 2008

A written attorney fee agreement that specifies only hourly rates but is not ambiguous cannot be modified by evidence that the parties agreed orally to cap the fees, the Texas Supreme Court held in a Houston lawyer’s almost decade-old case against a former client.

“[T]he absence of a fixed total price for services does not indicate a failure of the parties to reach a meeting of the minds with regards to the essential terms of the contract,” the Supreme Court wrote in its July 11 per curiam opinion in Sacks v. Haden. In a second per curiam opinion in Sacks, the court addressed a turnover order issued by the trial court.

With no dissents, the Supreme Court reversed a decision by Houston’s 1st Court of Appeals and reinstated Harris County Court-at-Law No. 2′s judgment awarding the Sacks Firm in Houston and its president, David J. Sacks, $30,214 on the firm’s breach-of-contract claims against Charles McIntyre Haden Jr. and his business, Haden & Co. The high court’s decision also reinstated the court-at-law’s judgment awarding Sacks and his firm about $120,000 in attorney fees incurred in pursuing the contract claims against Haden and his company.

In a 2-1 decision, the

1st Court

held in 2007 that whether the parties’ minds met on the legal fees and Haden’s obligation to pay those fees were questions of fact that a jury should decide and remanded the case to Harris County Court-at-Law No. 2 for a trial.

“The Supreme Court brought order back to the law,” Sacks says of the high court’s decision.

If a lawyer has a contract with a client and spends thousands of dollars in time on the case, the client cannot say two or three years later that there is a $10,000 cap on the fee, Sacks says.

Houston solo Richard Countiss, Haden’s attorney, says Haden will file a motion for rehearing with the Supreme Court. “We’re extremely disappointed,” Countiss says.

Countiss says the Supreme Court decided the case on the parol evidence rule without addressing Haden’s challenge to the adequacy of the affidavit Sacks presented to the trial court to justify the thousands in dollars in fees Sacks claimed he was owed for trying to collect payment from Haden.

“If you’re going to allow the kind of windfall Mr. Sacks enjoyed, you should explain why,” Countiss says.

In 1997, Haden hired Sacks to prepare a brief to the 5th U.S. Circuit Court of Appeals in an appeal of an adverse judgment against Haden and his company in Haden v. Metropolitan Life Insurance Co., a commercial landlord-tenant dispute. Sacks set out his hourly rates and those of other lawyers and paralegals in his firm in an Aug. 4, 1997, engagement letter to Haden. Sacks signed the engagement letter in which he requested a $10,000 retainer.

The Supreme Court’s opinion provides the following background on what happened after Sacks sent the engagement letter: Haden sent a check for $5,000 to the Sacks Firm, along with a letter in which Haden wrote: “Also enclosed is an executed copy of your Aug. 4, 1997, letter indicating that I have acknowledged acceptance of your fee agreement on behalf of Haden & Co. and myself, except that the initial retainer amount has been reduced to $5,000 per our agreement.” Sacks filed a brief in Haden’s appeal to the 5th Circuit and sent Haden an invoice in the amount of $37,259 for legal services. Sacks also filed a reply brief that responded to the opponent in the landlord-tenant dispute and sent Haden an invoice showing $40,304 in total charges but giving Haden credit for the $5,000 retainer fee. While the invoice indicated an outstanding balance of $35,304, Haden paid only an additional $5,000. Over the next two years, Sacks requested payment of the balance on the attorney fees, but Haden contested the amount owed and contended that Sacks was only supposed to review the brief prepared by Haden’s trial counsel.

In September 1998, the 5th Circuit affirmed the adverse judgment of $66,363 that U.S. District Judge Nancy Atlas had awarded against Haden and his company in Metropolitan Life. However, the 5th Circuit ruled partially in favor of Haden and his company by vacating Atlas’ dismissal of a promissory-estoppel counterclaim that Haden and the company made.

Sacks and his firm sued Haden and his company in 1999 in Harris County Court-at-Law No. 2, asserting claims for, among other things, breach of contract, quantum meruit and Deceptive Trade Practices Act violations. In 2000, the court-at-law rendered a partial summary judgment in favor of Sacks and his firm, ruling that they were entitled to attorney fees of about $30,000 incurred in preparing the briefs for Haden’s appeal and for an unspecified amount of attorneys’ fees incurred in pursuing the contract claim. The court-at-law also held that Haden and his company take nothing on his counterclaims against Sacks and his firm for unconscionable acts, fraud, DTPA violations, breach of fiduciary duty and breach of contract.

As noted in the Supreme Court’s opinion, Sacks and the firm sought summary judgment on the reasonableness of the attorney fees incurred in their collection effort. The court-at-law awarded Sacks and the firm an additional $75,887 in attorney fees at the trial level and another $45,000 for fees if there was an appeal.

Haden and his company appealed to the

1st Court

, which in 2006 issued a unanimous decision affirming the court-at-law’s judgment in an opinion written by Justice Elsa Acala. After Haden filed a motion for rehearing, however, the

1st Court

reversed its original holding in a 2-1 decision. Chief Justice Sherry Radack wrote the March 8, 2007, majority opinion on rehearing, in which Justice Evelyn Keyes joined.

The 1st Court majority concluded that Haden’s evidence that he had an oral agreement with Sacks to cap the attorney fees at $10,000 was admissible as a defense to Sacks’ claim, because the engagement-letter contract that Sacks sent to Haden did not expressly state whether the parties had agreed to an open account or a flat maximum fee.

Haden argued to the

1st Court

and to the Supreme Court that he offered evidence of “consistent collateral conditions” when he testified in the court-at-law that he and Sacks had an oral agreement to cap the fee amount.

Because the engagement-letter contract did not spell out whether the parties had agreed to an open account or a flat maximum fee, the

1st Court

concluded that Haden’s evidence of an oral agreement capping the attorney fees at $10,000 was admissible in defense to Sack’s claim under the collateral-and-consistent exception to the parol evidence rule. According to the Supreme Court’s opinion, the

1st Court

raised the “meeting of the minds” issue sua sponte and concluded that, because there was not a clear statement that identified the fee agreement as an open account, there was a question where the parties had a meeting of the minds on Haden’s obligation.

The Supreme Court held that the

1st Court

erred in holding that there was no meeting of the minds necessary to form a binding contract. The high court further held that the

1st Court

erred in holding that the parol evidence rule did not bar Haden’s evidence that he and Sacks had an oral agreement capping the fees.

Haden argued to the

1st Court

and the Supreme Court that a fee agreement must state specifically that the hourly fees would accrue without limit for the agreement to be unambiguous and enforceable.

“But the lack of such explicit language is irrelevant if the agreement can be reasonably interpreted only one way. … We have never held that an open-ended hourly fee agreement will be enforced only if it expressly states there is no cap on fees, and we decline to do so now,” the Supreme Court said in Sacks.

Claude Ducloux, an Austin lawyer who represents attorneys in the State Bar of Texas grievance process and is knowledgeable about legal ethics but who is not involved in the case, says the Supreme Court’s ruling assures lawyers that when they have an unambiguous agreement with a client, that agreement is going to be valid and the client cannot inject testimony into the case that the agreement says something else.

“All I can say for the tens of thousands of us who very regularly enter into hourly fee agreements with hundreds of clients is a collective ‘whew!’ ” says Ducloux, a principal in Hill, Ducloux, Carnes & de la Garza.

SECOND PER CURIAM

In a separate per curiam opinion in Sacks, the Supreme Court reversed the

1st Court

‘s decision regarding the trial court’s turnover order. The Supreme Court remanded that part of the case to the

1st Court

. The trial court had awarded Sacks and his firm $90,000 in a turnover order. According to that Supreme Court opinion, when Haden failed to supersede the judgment against him and his business on Sacks’ breach-of-contract claim, Sacks and the firm incurred considerable expense to secure a turnover order under Texas Civil Practice & Remedies Code §31.002(e), have a receiver appointed to prevent prejudgment transfer of Haden’s assets and seek dismissal of Haden’s bankruptcy filings.

Haden had sought Chapter 13 relief in the U.S. Bankruptcy Court for the Southern District of Texas, but that court dismissed his bankruptcy claim in December 2001. The

1st Court

had reversed the turnover order when it reversed the underlying judgment on Sacks’ breach-of-contract claim, the Supreme Court noted in its opinion.

Sacks estimates that, with interest compounding at a rate of 10 percent annually, Haden and his company owe Sacks more than $400,000. But Sacks says he has spent “a lot more than I’ll ever see” in trying to collect his fees.

It’s been a legal victory, Sacks says of the Supreme Court’s rulings. “It hasn’t been a financial win.”

San Francisco Ballot Referendum seeks to name Sewer Plant after President Bush

July 19th, 2008

San Francisco Chronicle – July 16, 2008 

San Francisco voters will be asked to decide whether to name a city sewage plant in honor of President Bush, after a satiric measure qualified for the November ballot Thursday.

Backers of the measure, who for several months circulated a petition to place the measure on the ballot, turned in more than 12,000 signatures on July 7, said organizer Brian McConnell. The Department of Elections on Thursday informed those supporters, the self-proclaimed Presidential Memorial Commission, that they had enough valid signatures – a minimum of 7,168 registered San Francisco voters – to qualify for the November ballot.

McConnell, who came up with the idea over beers with friends, often donned an Uncle Sam outfit to drum up support for the petition. The all-volunteer group of signature gatherers often carried around an American flag and blasted patriotic music from a boom box to attract attention. He said the campaign to pass the measure will be an equally grassroots effort.

The measure, if passed, would rename the Oceanside Water Pollution Control Plant the George W. Bush Sewage Plant. McConnell said the intent is to remember the Bush administration and what the group sees as the president’s mistakes, including the war in Iraq.

Some people aren’t laughing, including the San Francisco Republican Party, which sees the measure as an embarrassment, even to this famously liberal city. Chairman Howard Epstein has vowed to fight the measure with all means available to him.

A White House spokeswoman, when asked about the measure several weeks ago, refused to comment