Archives For May 2008
Justice is not free, and nothing is done without a price. But who will pay the price for our courts to meet their constitutional obligation to provide counsel for certain indigent defendants. Looks like the indigent defendants will.
Last year the guardian ad litem issue in this state seemed to be funded by the efforts of private attorneys were paid inadequately. Now, with the state’s budget cuts, the ripple effect of fewer dollars means fewer attorneys in the public defender offices, and thus fewer hours and less time to handle the cases. The solution is to decline certain new cases since it is easier to decline than to withdraw.
With a $2.3 million dollar budget shortfall, something’s gotta give, and it looks like a constitutional showdown in the making as Director Ernie Lewis is probably doing the only thing he can do with a smaller wallet than last year and an increasing case load for an already heavily burdened cadre of hard working poorly paid competent public defenders.
Here’s the story from Herald Leader’s Pol Watcher writer, Brandon Ortiz:
Public defenders’ office to begin refusing cases
By Brandon Ortiz
The state’s chief public defender is asking judges to order the state Finance and Administration Cabinet to pay for private lawyers for poor criminal defendants because his agency can no longer afford to represent them.
In a letter to judges released Wednesday, public advocate Ernie Lewis warned that public defenders will begin refusing certain types of cases starting July 1 as a result of the $2.3 million budget cut approved this spring by the General Assembly.
Lewis said the Department of Public Advocacy cannot afford to fill about 40 vacancies. With caseloads already at unethically high levels, Lewis said, public defenders cannot take on additional cases.
"The dilemma that now exists is that the Commonwealth of Kentucky is obligated to provide counsel to poor people charged with crimes, but the legislature has failed to fund that obligation," Lewis wrote. "DPA will assert that the solution to this is for courts to enter orders requiring the Commonwealth to pay for private counsel."
The service cuts, and the request for the state to foot the bill for private lawyers, could lead to a constitutional showdown. And, as Lewis acknowledges in the letter, it could lead to sanctions for Lewis personally.
Public defenders must have the permission of a judge to be removed from a case. Lewis or public defenders face contempt of court and jail if they refuse to follow a judge’s order to represent a client.
"This is an action for which I am ultimately responsible, and any sanctions or retribution should be directed at me rather than a directing attorney or individual staff attorney," Lewis wrote. "I fully anticipate that there will be some judges who attempt to put pressure upon our local lawyers to represent people outside of this service-reduction plan. I would ask that courts respect the separation of powers and the independence of the Department of Public Advocacy."
Lewis warned judges of several service cuts, the first since 1991, that will begin July 1:
• Funding will be eliminated for contract lawyers for 3,000 to 5,000 conflict-of-interest cases. These are cases in which there is more than one defendant; the DPA contracts with other lawyers so it is not representing both clients.
• The DPA will stop representing family court cases, which involve domestic violence and failure to pay child support.
• The DPA will withdraw from status offender cases, those involving children charged with running away from home, unable to be controlled by their parents or being truant.
• It will pull out of civil commitment cases, in which the state is trying to force a mentally ill person into an institution.
• It will refuse Class B misdemeanors (crimes with punishment of no more than six months in jail), some Class A misdemeanors (which carry punishment of up to one year in jail) and probation and parole violations.
Lexington’s public defender office will be the hardest hit. The DPA requested $2.8 million in funding for it but received $1.5 million.
Caseloads in Lexington will surge from 442 per lawyer, which were already the highest in the DPA, to more than 600 per lawyer.
The DPA employs 350 lawyers and handled 148,518 cases last year. The Lexington office handled 10,500 cases.
Kentucky Judge given 30 day suspension for being rude, and publicly opposing re-election of another judge.May 23, 2008 District Judge Frank Wakefield II of Franklin, Ky., has received a 30 day suspension for talking too much in court and being rude. On Friday May 23, 2008 the Judicial Conduct Commission issued a sanction against the Judge who sits in Allen and Simpson counties. click on heading for Stan Billingsley’s entire post.
Indiana Law Blog has a routine entry announcing issues to be reviewed by its "Commission on the Courts" – Interim Legislative Committee to study court issues – which also referenced an earlier post which is a "groups of lawmakers who gather throughout the summer to brainstorm what issues might need to be dealt with in the law."
I am not aware of a similar entity in Kentucky consisting of members of the legislature, judiciary, and local county representatives, but it sounds like something to think about. Reliance upon legal changes solely at the leisure of the legislature and prompted by self-interest of various groups who each have their own agenda is not the ideal way of effecting change.
The Indiana folks will be looking at judicial mandates (whatever those are), judicial elections/appointments/retentions, and a unified statewide mechanics lien apparatus.
I hear a lot of ideas bandied about in Kentucky by lawyers and others on how to improve the quality of our system. But, there seems to no single entity with the public protection and interest in mind with a systematic process (meetings, minutes, methods, etc).
We reported earlier this year on the creation of a committee to look into the ethical rules on class action and tort litigation in the Commonwealth.
Feb. 5, 2008. Chief Justice Joseph E. Lambert
has appointed 12 Kentucky attorneys to a committee that will study mass
tort and class action litigation cases. The Mass Tort and Class Action
Litigation Committee will determine whether current court rules for
attorneys and judges provide adequate safeguards against unethical
conduct and whether rule changes may provide guidance to attorneys and
courts dealing with complex litigation.
However, a hit or miss approach to the problem of the moment is an episodic rather than a systemic approach to problem solving and solutions. Plus this committee included only lawyers since it was apparently focusing solely on the concerns of unethical conduct.
Be it the legislature, the judiciary, the bar (KBA, LBA, FBA, NKBA), or a group of volunteer brainstormers, the time has come for a committee to look at the whole court system – a Y2K Court Committee.
I have some ideas, but will see if this generates any comments. Think inside the box, as well as outside the box. Everything from a simple revision of the civil rules to match up the commencement of a complaint to the simple filing (like the feds) to a review of judicial appointments versus elections and everything in between. Since there is something already going on in the criminal law setting, this should focus on the civil side of the house.
From Courier Journal:
Charged with burglarizing two family members’ homes in Clay County earlier this year, Michael Gilliam was facing as many as 20 years in prison — and angry relatives pushing for stiff punishment.
From Kentucky.com is story of two lawyer-witnesses who are testifying in the criminal trial of the three lawyers that they understood the settlement did not include future cases coming into the class:
Two Washington lawyers who represented American Home Products in a 2001 fen-phen settlement testified in federal court Thursday that the $200 million agreement was intended to cover the roughly 440 plaintiffs in the class-action lawsuit, and not future claims by others in Kentucky who had used the diet-drug combination.
We previously posted on a COA decision that should go up on discretionary review to SCOKY. It looks like another case has caught the eye of another Kentucky law blogger – Stan Billingsley at LawReader has a post -
A court of appeals case that cries out for Supreme Court Review
The following unpublished case demonstrates just how conservative some panels of the current Court of Appeals can be. We would suggest that this case cries out for review by the Supreme Court. LawReader case # 24 issued on May 23rd— Subscribers can view at: COURT OF APPEALS DECISIONS FOR MAY 23, 2008 oral plea agreement claim warrants * * * * click on heading for his entire post.
The judge who approved a $200 million class-action settlement in a fen-phen diet drug lawsuit testified he was embarrassed by the way he handled the case.
Retired Circuit Court Judge Joseph "Jay" Bamberger was on the stand in U.S. District Court in Covington on Wednesday in the fraud trial of three Lexington attorneys.
"I’m embarrassed," Bamberger testified. Bamberger told the court he had not presided over a class-action lawsuit before and depended on the advice of the defendants and Cincinnati class-action attorney Stan Chesley.
Lawyers Shirley Cunningham Jr., William Gallion and Melbourne Mills Jr. are being tried on charges of conspiracy to commit wire fraud.
They’re accused of keeping $45 million dollars that should have gone to plaintiffs they represented and putting another $20 million into a charity that they were paid to administer.
From the Herald Leader is story about western Kentucky law school planning building new library after changing name and pending ABA approval:
A western Kentucky law school is planning a new $3.8 million law library.
Alben W. Barkley School of Law President Larry Putt says construction is expected to begin soon on the 25,600 square-foot, single-story building in the Paducah Information Age Park.
Putt, currently a visiting law professor at the University of Houston Law Center, says other plans include redesigning the classroom building’s interior and constructing a third building to handle future expansion needs.
The law school was once called American Justice School of Law. Dr. Laxmaiah Manchikanti of Paducah purchased 75 percent of the stock in the school in February to help settle a lawsuit brought by stockholders and students.
The school is awaiting accreditation by the American Bar Association before its graduates can take the bar exam and receive a law license.