Kentucky Law Review

COURTS: Officer Absent, District Court Prosecutions and a hard-hitting letter to the editor

The recent stories by the Courier Journal on Officer Absent has prompted the following letter to the editor.  It has been several weeks, with no real substantive developments on solving the problem of district court dismissals for failure of police officers to show up as witnesses.

Why hasn't the bar association or someone with the AOC taken the bull by the horns to get all the principals together - police chief, county attorney, commonwealth attorney, chief public defender, chief district court judge - to map out a plan?

Although a computerized subpoena system seems to be at the forefront to remedy the problem, it will only serve as a means of getting the word to the witness.  Without the power of the police chief, the courts, and the prosecutors backing it up, there will be little change. Conduct without consequences will not make any difference.

However, a change in attitudes will not accomplish the goals alone.  A system of running district court prosecutions which were designed to operate under the caseloads of a half-century ago using outdated scheduling and timing will not fully benefit from a computer designed subpoena system.  But a change in attitudes and approaches will be a good start.

Here's the letter entitled "Gross Negligence":

The recent investigation by The Courier-Journal of our court system and its relationship with the police department was a shocking revelation of terrible administration, gross negligence and dreadful performance. That this has been an ongoing problem for years and never corrected is even worse.
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Other cities, we are told, have had this type of situation and fixed it.

We can't brag any more about our city's "livability" when court cases of criminal activity aren't prosecuted because the police don't testify.

This appalling misconduct begins in the police department, goes right to every one of the Metro Council members, each person with any authority in the court system, and ends with the Mayor's office. Every one of them should be ashamed of themselves.

Mrs. ROBERT M. NASH

Some other stories or letters:

'Officer Absent: A police officer responds

I would like the opportunity to make a few observations concerning your 'Officer Absent' exposé as it appears to have missed or failed to provide a more complete story to the issue.

Reform pledge

A week after The Courier-Journal printed a series of articles about problems with Louisville Metro Police Department officers not showing up for court appearances, it is clear that LMPD Chief Robert White grasps the seriousness of the lapses reported in the stories.

CIVIL RULES: Kentucky Rules of Civil Procedure Amended Effective Apr. 1, 2009

Recent changes to the Kentucky Rules of Civil Procedure are to take effect on April 1, 2009.  Thanks to David Kramer, here is a short summary of the changes and a link to SCOKY Orders.

Attached  is an  Order of the Kentucky Supreme Court amending the Kentucky Rules of Civil Procedure effective 4/1/09.  The amendments include the following:

2009-1 ORDER AMENDING
RULES OF CIVIL AND CRIMINAL PROCEDURE (ORDER CORRECTING)

1. New CR 7.03 prohibiting the filing of documents with the court clerk containing unredacted personal data and financial information (including SSN or TIN, DOB (except in criminal cases), and financial account numbers).

2. Various amendments to CR 45 governing subpoenas, including:

    - requiring the issuing attorney to include his/her name, address, phone number, and email on the subpoena (CR 45.01(1));

    - permitting issuance of a subpoena solely for production or inspection of documents without testimony (CR 45.01(1)); in this event, notice, with certification of service on the subpoena itself, must still be given to all other parties and to any person whose information is being requested (CR 45.01(1));

    - permitting a person served with a subpoena for production or inspection of documents only (i.e., without a notice of deposition) to elect not to appear in person but rather produce the subpoenaed documents or things to the issuing attorney (CR 45.04(3)), who must then "forthwith" furnish copies to all other parties (CR 45.03(2));
    - requiring proof of service to be filed with the court, consisting of the server's statement showing the date and manner of service and name of the person served (CR 45.03(1)).

    A new subpoena form is attached to the Order.

3. Amendments to CR 73.02 clarifying time computation for filing of a notice of appeal when certain post-judgment motions are filed.

David V. Kramer
Dressman Benzinger LaVelle PSC
207 Thomas More Parkway
Crestview Hills, KY 41017

CIVIL RULE AMENDMENTS: New Rule to Protect Privacy in Pleadings and other Court Filings of Documents

Civil Rule 7.03 is new, new, new.

In a nutshell:

• Attorney shall redact SSN, DOB, TIN, financial account number in civil matters (DOB ok in criminal pleadings) from those documents FILED WITH THE COURT.
• Attorney is the custodian of the original.
• Court may order unredacted filed under seal.
• Not the clerk's responsibility to review the filings for compliance.  Responsibility vests with counsel and party filing documents.
• Failure to comply will subject attorney to sanctions and relevant portions stricken.

Implications:

• Redacting these items from the pleadings and other prepared discovery should be straightforward.  However, I have been simply not providing SSN and DOB in the discovery responses and sending that under separate cover.  Now it looks like two documents one redacted and one not.  TIN and other financial information arises frequently in divorce and business litigation.
• The rule includes "certain personal data identifiers" and then lists specifics.  What about residences, former residences, children's names, health care providers, employers' names, etc.???  Is the "including" all inclusive or by way of example?
• What about the interrogatory asking about other civil or criminal matters which may contain personal indentifiers filed before the civil rule change?
• What about the requests for documents such as medical records, personnel records, employment records, insurance policies, etc.? Sounds like the easiest solution is not to produce for filing with the court but simply make them available for inspection or copying and sent by separate cover (copies or digital format).
• These questions only scratch the surface of the ramifications of this rule which must also be read together with the subpoena changes since many records from physicians and employers and financial institutions require personal identifiers.  I will have to reread the rules regarding the filing of subpoenas and see what the risks are on these documents to avoid inadvertant filing by the sheriff of any unredeacted documents.

Make  your comments on these changes and how to avoid problems.

STATE: Unemployment Insurance Task Force Appointed AFTER State Loses $45 million in fed money (or now you lose it, now you don't)

Where were these folks and this task force as the state was losing federal stimulus money for unemployment funds???  Looks like the door was closed after the horse got out of the  barn on this one.    See, Courier Journal story - Ky. will miss out on $45 million for jobless benefits Fri Mar 27, 2009.  However, not everything was falling through the cracks at the state asNew program will help unemployed get re-trained at KCTCS (Bluegrass Politics Blog, Ryan Alessi).

Post from Bluegrass Politics Blog:

Beshear appoints task force on unemployment insurance

By Jack Brammer on Steve Beshear

FRANKFORT –Gov. Steve Beshear created a task force Friday to study and propose changes to the state’s financially strapped unemployment insurance trust fund. “In these difficult economic times, it is imperative that we address head on a critical issue for Kentucky that has been overlooked in the past,” Beshear said in a statement.

While reading Mark Herbert's post on this issue at Gov. Names Unemployment Study Group, I saw an interesting paragraph which looks like an attempt at an executive "do over" --

Kentucky is receiving all allowable unemployment benefits for which we are eligible under the law. Currently, the state pays out 59 weeks of benefits including 26 weeks of regular and 33 weeks of extended benefits. In addition, Gov. Beshear has signed an agreement with the U.S. Department of Labor to temporarily increase the weekly payout by $25.

Of course, I am all in favor of the appropriate changes in state law to obtain the increased benefits allowed by federal law, but I wonder if the executive agreement complies with state law or encroaches upon the legislative power in implementing the change?  I don't know.

In a financial, economic, and/or political crisis, it is always easy to skirt the rule of law under the guise of necessity or the ends justify the means.  Think about Congressional laws to change the tax laws after the fact and earmarked for the AIG Bonus receivers!  Yes, the fact of the bonus is controversial and tax payers are outraged at the millions of dollars going to reward those who are believed to have been part of the problem and not part of the solution.  But, we do have a rule of law, and isn't there another way? 

If you do not believe in the creativity of our executive and governmental intrusion into the private economy, just think about GM and their CEO who was asked to leave as a condition to receiving future stimulus money.  And again, the TARP may be a TRAP for those asking and getting financial assistance.  And when this crisis is over, what will we have, who will own it, and what next?

GM CEO asked to quit

Rick Wagoner, Chairman and CEO of GM, will step down immediately at the request of the White House. » Details

More on federal indictment of Senior Status Judge Cletus Maricle

Lawreader has posted the text of the indictment.  Click here.

From Bluegrass Politics Blogger, John Stamper: 

Judge arraigns 4 of 8 charged in Clay Co. corruption case

Our earlier post: 

JUDICIARY: Senior Status Judge Cletus Maricle Indicted for racketeering

JUDICIARY: Governor and Chief Justice Agree to Postpone Making Judicial Appointments until later in year

List of Judicial Vacancies
The four names in blue are vacancies due to election; the 23 other vacancies are due to retiring judges who took senior status. The vacancies are listed, from top to bottom, in the order in which they will be filled. The determination on which vacancies to fill first was based on several factors, including the jurisdiction's caseload, the number of other judges in that jurisdiction and the level of coverage by senior judges for that jurisdiction.

Judicial Vacancies 3-09.pdf

FRANKFORT, Ky. -- Chief Justice John D. Minton Jr. and Gov. Steve Beshear agreed in February to delay the nominating process for 27 vacant judgeships. The decision has the effect of allowing 23 new senior judges to remain in their current seats for several months, a move that is expected to save the Commonwealth more than $1 million. Twenty-three circuit and district judges retired in recent months to enter the Senior Judges Program before it expired by operation of law on Jan. 31, 2009. An additional four circuit and district judgeships are vacant due to elections.

Under sections 118 and 152 of the Kentucky Constitution, the governor is the appointing authority for all judicial vacancies. It is the responsibility of the chief justice to convene the Judicial Nominating Commissions. [See also Supreme Court Rules Six regarding the JNC].

The pay for senior judges comes from a judicial retirement account instead of the state general fund, which accounts for the savings. Chief Justice Minton said he will begin convening Judicial Nominating Commissions in July 2009. The Judicial Branch will save approximately $277,000 for each month these 27 judgeships are filled by senior judges.

"Gov. Beshear and I believe this is a fiscally responsible move that will keep experienced judges on the bench while providing a substantial savings to the Judicial Branch," Chief Justice Minton said.

"We are confronting unprecedented economic challenges in Kentucky," Gov. Beshear said. "By allowing senior judges to stay in their current roles, we are not only ensuring upwards of a million dollars in savings, but the continued integrity and longstanding experience of veteran judicial leaders in courts across the Commonwealth."

There are currently 69 senior judges. The 2000 General Assembly created the Senior Judges Program, which allows judicial vacancies to be filled in a timely manner by retired judges who serve 600 days over five years. Senior judges receive no extra pay and are compensated through an enhanced retirement benefit. Under the guidelines, sitting judges are called upon to handle routine situations, such as disqualifications, recusals, vacations and short illnesses, while senior judges are reserved for vacancies due to death or retirement and extraordinary circumstances leading to unusually congested dockets.

UofL: Call for papers for Second Annual Conference on Innovation and Communication Law

From UofL Law:

Call for Papers

By vmsmit06 on Faculty

Second Annual Conference on Innovation and Communication Law
Louisville, KY USA
August 21 and 22, 2009

The University of Louisville will host the second annual Conference on Innovation and Communication Law on August 21 and 22, 2009.  The Conference, a follow-up to the 2008 conference held in Turku, Finland, is a cooperative effort of the University of Louisville School of Law, University of Turku Faculty of Law, Drake University Law School, Michigan State University College of Law, and the IPR Center in Helsinki, Finland.  The conference sponsors seek proposals for presentations from those in academics, government, and industry.

This year's conference will focus mainly on the role intellectual property and communications law play in the dissemination of information.  As a result, discussion will focus less on the creation of rights, and more on how the legal system helps (or hinders) the development of knowledge.  For example, we anticipate one or more sessions dealing with licensing and franchising issues.  Other possible topics might include the role of intellectual property registration, the law governing trade secrets and confidential information, remedy issues, and the special case of university inventions and works.  Because many of the participants will come from countries other than the United States, proposals with an international or comparative law perspective are especially encouraged.

Anyone interested in presenting at the conference should submit a written abstract of the topic (not to exceed two letter size or A4 pages) via e-mail to one of the following:

• Professor John Cross
• Professor Lars Smith

To be ensured of full consideration, proposals should be submitted no later than May 2, 2009.

The University of Louisville Law Review will produce a symposium issue of papers submitted at the conference. Presenters are encouraged to prepare articles setting out, or expanding upon, the subject of their presentations. The final draft of the paper would be due a few weeks after the conference.

Details concerning accommodation, registration, travel, and the like will be available shortly on the conference website.

JUDICIARY: Jefferson County Commission on Racial Fairness passes resolution that Gov, CJ Minton, "seek out" qualified minorities for appointment to judiciary

FRANKFORT, Ky. -- The Jefferson County Commission on Racial Fairness has unanimously passed a resolution that calls for the Judicial Nominating Commission, Chief Justice of Kentucky John D. Minton Jr. and Gov. Steve Beshear to seek out, nominate and appoint qualified African-Americans and other minorities to the Kentucky judiciary. 

“The commission calls for a judiciary that represents the racial diversity of our population,” the resolution says in part. 

The resolution covers all Kentucky courts. It does not endorse or support a particular candidate for judicial office or call for a racial quota.

The commission voted for the resolution Jan. 23 after discussing the racial composition of the Jefferson County judiciary at its December and January meetings. Jefferson County, where approximately 20 percent of residents are African-American, has no elected African-American judges among its 40 judges in Circuit, District and Family Court. 

The racial makeup of the Jefferson County judiciary is “an essential component of the larger question of whether the courtroom environment alienates or detrimentally impacts African-Americans and other racial minorities,” according to the resolution.

District Court Judges Janice R. Martin and Joan A. “Toni” Stringer, the only African-American trial court judges in Jefferson County, retired in January to join the Senior Judges Program. Chief Justice Minton has appointed Judges Martin and Stringer to continue in their Jefferson County District Court posts as senior judges until judges are appointed to fill the vacancies created by their retirements.

“The Commission on Racial Fairness believes that the Kentucky Court of Justice recognizes the importance of a judiciary that is statistically representative of all racial groups within the commonwealth,” the resolution reads. “Mistrust of public institutions is fostered by stark statistical disparities with regard to the representation of African-Americans and other minorities in public offices and positions of authority, including the judiciary.”

This resolution is an important and timely call for action in light of the racial composition of the trial bench in Jefferson County, the number of judicial vacancies to be filled statewide and the recent celebration of Black History Month, said Court of Appeals Judge Denise G. Clayton, who chairs the fairness commission.

There are 27 judicial vacancies statewide. Twenty-three circuit and district judges recently retired to join the Senior Judges Program before it expired by operation of law on Jan. 31, 2009, and four circuit and district judgeships are vacant due to elections. The judgeships will be filled later this year through the Judicial Nominating Commission process.

The Jefferson County Commission on Racial Fairness was appointed in 2001 to examine study claims of racial bias in Jefferson Circuit Court. The commission is composed of a diverse group of judges, lawyers, civil rights proponents and other leaders in the African-American community. In its nearly eight years of work, the commission has found evidence of disparities or systemic bias regarding bail determinations, sentencing and jury selection. Some of the measures it has recommended to address the problems have been implemented through immediate policy changes and training initiatives, while others are the subject of pending or proposed legislation.

JUDICIARY: Open Records Procedures Proposed for Judiciary

Here's story from Andrew Wolfson, Courier Journal, regarding proposal to institute open records procedures in the judiciary (even though SC decision years ago held Kentucky Open Records statute did not apply to the courts).  Will it include the AOC, financial matters, court house construction, salaries, etc?

Proposal would open judicial branch's records
Council to help draft proposal this year

By Andrew Wolfson • awolfson@courier-journal.com • March 18, 2009

* * *

John Minton Jr., chief justice of Kentucky, is expected to propose new open-records rules for the judiciary later this year.

Katie Quitter, Minton's chief of staff, said the state's Judicial Council, a group of judges, lawyers and state legislators, will help draft the policy.

The new rules wouldn't apply to court records, which are already open, or change the confidentiality rules in the disciplinary process for lawyers and judges.

But they may open administrative records of Supreme Court agencies, which include the KBA, the Board of Bar Examiners and the Judicial Conduct Commission.

Criminal News: Attorney’s illness causes concern, delays in fen-phen case

Attorney’s illness causes concern, delays in fen-phen case

By H-L Justice Team on William Gallion