Kentucky Law Review

FEDERAL: Will bid-rigging case result in another judicial recusal?

A few weeks ago I remarked that the number of judicial recusals in the Leonard Lawson bid rigging case was sounding like a Commodores' song, "One, Twice, Three Times a Recusal".  Actually, the tune is more like Queen's "Another one bites the dust" as the funky finger of foreknowldge may fall upon Judge Forrester who is the father-in-law of highway industry lobbyist, relatively speaking that is. 

See earlier post at Are the recusals in the bid rigging case of robed roulette or recusal round-robin event? Now its Judge Karl Forester!

Story from the Courier Journal:

Latest judge in Lawson case is father-in-law of highway lobbyist

By Tom Loftus • tloftus@courier-journal.com • July 10, 2009

FRANKFORT, Ky. — The new judge in the highway bid-rigging case is the father-in-law of a highway industry lobbyist.
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U.S. District Judge Karl S. Forester confirmed Friday that he is the father-in-law of Sean Cutter, a Frankfort lobbyist whose many clients include the Kentucky Association of Highway Contractors.

One of the defendants in the case, road contractor Leonard Lawson, owns companies that are members of the association. His son Steve Lawson is a former president of the association.

Are the recusals in the bid rigging case of robed roulette or recusal round-robin event? Now its Judge Karl Forester!

Didn't the Commodores have a song entitled, "Once, Twice, Three Times A Recusal"?  Or something like that.

Actually, if you applied the song to the bid-rigging case in federal court it would need to be extended to "Once, Twice, Thrice, Four Times a Recusal".  As the revolving recusal door has gone from Reeves, to Caldwell, to Hood, and finally Forester.

The revolving robed recusals makes it hard to keep a judge on the bench to hear the case.  Yes, I know I have not been posting much on this series of events, but when there is eventually a trial judge whose robes are beyond any appearance of a prior contact or relationship with any of the parties, then maybe, just maybe they will take Justice Brandeis's advice and remember that a little sunshine is a wonderful disinfectant.

Or to make it a little more blunt.... Open the doors and let the public in and the Fourth Estate see how the public's business has been conducted and how the public treasury has been spent.  It's our money in the mix.

Here is a post to update you on the developments thanks to Beth Musgrave of the Bluegrass Politics Blog.  The pics are of Bill Nighbert on the left and Leonard Lawson on the right.

Forester assigned to bid-rig trial

U.S. District Judge Karl Forester has been assigned to oversee a federal criminal trial involving the alleged bid-tampering of more than $130 million in state road contracts.

The first part of a trial of contractor Leonard Lawson, former Transportation Cabinet Secretary Bill Nighbert, and Lawson employee Brian Billings was originally set to start Tuesday, but U.S. District Judge Danny Reeves stepped down from the case after discovering that he had a potential conflict of interest. T

wo other judges -- U.S. District Judge Karen Caldwell and U.S. District Judge Joseph Hood -- were assigned the case on Friday but had to recuse because of potential conflicts of interest. In an order entered Monday, U.S. District Judge Jennifer Coffman, the chief judge of the Eastern District of Kentucky, assigned the case to Forester, who is on senior status, or semi-retirement. Forester has not filed a notice saying that he might have to recuse himself. The three men have been charged with conspiring to buy internal cabinet estimates of road projects and then covering up the conspiracy. All three have pleaded not guilty. The trial has been indefinitely delayed. -- Beth Musgrave

GOV: Judge Orders Gov. Beshear to testify in bid rigging case

I have not posted much on the trials and tribulations developing in the Lawson/Nighbert bid rigging trial in federal court.  But, Judge Reeves is ordering the Governor to show up and testify.  Not by deposition; not by proxy.  Here are some links to recent posts from the Herald Leader's Bluegrass Politics Blog:

• Beshear says he will testify at bid-rig trial
  By Beth Musgrave on Steve Beshear

• Judge: Beshear must testify in bid-tampering trial
  By Government Editor on Steve Beshear

UofL News: Nursing student sues school over dismissal based upon her blog postings

Here are stories filed on the UofL nursing student Nina Yoder's lawsuit in federal court claiming she was dismissed due to content on her blog.  The story was scooped at PageOne Blog on March 5, then followed up with the links to pleadings on March 12, and now the AP is carrying the story.  PageOne has links to the complaint filed.

For those interested in following this nursing story, you should/need to subscribe or visit Page One Blog (the same blog that broke the Robert Felner story at the UofL).  Here is a follow up story by "jake" at the blog: "The Chronicle for Higher Education has picked up on University of Louisville nursing student Nina Yoder being expelled for a blog post. The Chronicle is academia’s premier publication. Check their story out. They link to us, so we’re kinda stoked. But they did a fairly terrible job with the story and didn’t bother to mention the name of Yoder’s attorney– who deserves a lot of credit for getting to the bottom of this and taking it on for the greater good of higher education. Really, why slam her if you’re not also going to slam the University? [Chronicle]"

The home or front page of Page One is at http://pageonekentucky.com/.

• Explosive Problem for the University of Louisville - Nursing Student Expelled for MySpace Blog

  March 12th, 2009 from Page One

  On Thursday, March 5th we learned that a nursing student at the University of Louisville was expelled because of a post on her MySpace account. And it’s official. A law suit was filed today alleging the University has violated rights to free speech. [click on link for entire post and comments]
   
• Here is the AP story from the Herald Leader by Brett Barroquerre AP Reporter with some extracts:
  
  LOUISVILLE, Ky. -- A woman dismissed from the University of Louisville nursing school because of posts on her personal blog sued Friday, saying her First Amendment rights were violated.
  
  Nina Yoder of Louisville asked U.S. District Judge Charles Simpson to issue an injunction that would allow her to resume classes and graduate in August.
  
  The school dismissed Yoder on March 2, saying in a letter that she violated the school's honor code by posting blog items concerning patient activities and naming the university on her MySpace page. A week later, the university rejected Yoder's written appeal to return to school.
  
  Yoder's attorney, Daniel Canon of Louisville, said the postings are mostly political and don't identify patients.
  
  "There's no allegation that I know of that she disrupted the education process," said Yoder's attorney, Daniel Canon of Louisville. "It's speech that's entirely protected."
  
  University spokesman John Drees declined to address the merits of the lawsuit, calling disciplinary action against students confidential.
  
  * * *
  
  
  
  In the lawsuit, Yoder said university administrators cited the gun-related postings and told her "students voiced concerns that lead us to believe you may have a gun." Canon said Yoder didn't have a gun at the time and hasn't ever brought a gun on campus.
  
  Canon said Yoder was told she could not continue in the program because of her blog posts and was considered "persona-non-grata" and withdrawn from classes immediately.
  
  In one post dated Oct. 5, Yoder offered her take on the presidential and vice presidential candidates, at times using obscenities to describe the candidates.
  
  * * *
  
  Canon said by citing the blog as the reason for the dismissal, the university clearly violated his client's free speech rights. But, Canon said, much about his client's situation remains a mystery.
  
  * * *

FEDERAL: "Retrospective: Ten Key Evidence Issues In 2008" from Supreme Court Watch

Post on federal evidentiary issues may be of note to those practicing in federal court and those who wish to see what is on the horizon for possible changes to the state rules.  Found at Supreme Court Watch.  You will have to click on the title for the entire read.

Retrospective: Ten Key Evidence Issues In 2008

By Editor on Supreme Court Watch

A variety of evidence issues were considered in 2008, ranging from a new privilege rule, Confrontation Clause issues, and more.

As the 2008 year concludes, we look back on some of the key evidence developments and issues. There were some significant evidence matters on a number of areas, including on privilege issues, Confrontation Clause, expert testimony, legislation and more.

Here is the list of Federal Evidence Review???s Ten Key Evidence Issues From 2008, which are discussed further below:

Federal Evidence Review???s
Ten Key 2008 Evidence Issues

1. New Rule: FRE 502 (Attorney-Client Privilege And Work-Product Doctrine)
2. Supreme Court: Underscoring Primary Role Of Trial Court In Making Initial Evidence Rulings: Sprint/United Management Co. v. Mendelsohn
3. Supreme Court: Giles v. California Confrontation Clause Forfeiture By Wrongdoing Decision
4. Expert Testimony: What Are The Limits Of An Expert???s Reliance On Inadmissible Or Other Materials Under FRE 703?
5. Legislation: Forestalling The Attorney Client Privilege Protection Act
6. Pending Open Issue: Whether Admitting Business Records Certified Under FRE 902(11) May Violate The Confrontation Clause?
7. Expert Testimony: Explaining Online Behavior
8. Developing Consensus: Bruton Is Inapplicable In Bench Trials
9. Legislation: Reporter Shield Law
10. Developing Consensus: Enforcing Plea Proffer Waivers Under FRE 410

 read more »

FEDERAL: Heads up on change to FRE 502 (from Day on Torts Blog!)

Summary of New FRE 502 from JOhn Day on Torts Blog

Here is a summary of FRE 502 which came into effect on September 18, 2009.  The rule - which addresses the attorney client privilege and work product doctrine - is intended to provide increased clarity in this confusing area of the law.

The author explains that "[t]he rule establishes a presumption against subject matter waiver, resolve the issue of inadvertent disclosure, provides for confidentiality orders and supports party agreements, among other issues. "

FEDERAL: "U.S. Case Against Holy See May Go Forward, Court Rules"

From NCRegister.com is the following story about the Louisville lawsuit against the Holy See and deposing the Pope.  Click on link for entire story:

U.S. Case Against Holy See May Go Forward, Court Rules

BY JEFF GARDNER

REGISTER CORRESPONDENT

December 21, 2008-January 3, 2009 Issue | Posted 12/12/08 at 8:03 AM

LOUISVILLE, Ky. — Could Pope Benedict XVI be deposed?

That’s a legal term, of course, for having to answer questions posed by lawyers as part of a “discovery” process in a lawsuit.

One lawyer in the United States feels confident that he will be able to ask the Pope certain questions during a deposition, now that a federal appellate court has ruled that a Kentucky district court may consider jurisdiction over the Holy See.

The case involves three men who claim to have been sexually abused in Kentucky. Attorney William McMurry brought a class action lawsuit on their behalf in June 2004, naming the Holy See as the defendant. The suit alleged “deliberate failure … to take effective action to prevent childhood sexual abuse by its priests, bishops, archbishops, cardinals, agents and employees.” McMurry alleged that “the Holy See has mandated that all allegations of childhood sexual abuse be kept under a cloak of complete secrecy.”
* * *

For the Sixth Circuit Decision; clicking on the link connects you to the full text.  The digest is just from the opening paragrap.

O'Bryan v. Holy See
Western District of Kentucky at Louisville
08a0417p.06 


JULIA SMITH GIBBONS, Circuit Judge. Defendant Holy See appeals the district court’s denial, in part, of its motion to dismiss all of plaintiffs’ claims due to lack of subject matter jurisdiction. The Holy See contends that the district court has no subject matter jurisdiction over plaintiffs’ claims because the Holy See is immune from suit as a foreign state pursuant to the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1602 et seq. Plaintiffs James H. O’Bryan, Donald E. Poppe, and Michael J. Turner (“plaintiffs”) cross-appeal the district court’s partial grant of the Holy See’s motion to dismiss. Plaintiffs claim that the FSIA does not immunize the Holy See from suit on the grounds alleged in their complaint and thus the district court does in fact have subject matter jurisdiction in this case. The United States as intervenor and amicus supports the position of the Holy See with respect to the Holy See’s status as a foreign state and the constitutionality of the FSIA. For the following reasons, we affirm the decision of the district court.

NEWS: "Sen. Bunning profits from his non-profit"

From Bluegrass Politics Blog:

Sen. Bunning profits from his non-profit

By John Cheves on Charitable foundations

U.S. Sen. Jim Bunning, R-Ky., set up a charitable foundation in 1996, the year he entered baseball's Hall of Fame. Every year since, he has been the fund's biggest recipient. The non-profit Jim Bunning Foundation, which collects the money the former pitcher gets from autographing baseball memorabilia, has taken in more than $504,000, Senate and tax records show. Of that, Bunning has earned $180,000 in salary for working a reported hour a week.

FEDERAL: More guesses at new local US Attorney

More speculation regarding the "new" US Attorney locally.  See, Mark Herbert Who Will The New U.S. Attorney Be?

FEDERAL COURTS: "The Politics of the Federal Bench GOP-Appointed Majorities Winning Ideological Battles at Appellate Level"

Washington Post story by R. Jeffrey Smith addresses the political impact of George Bush on the federal courts, to include our own 6th Circuit Court of Appeals.  Although there is a hue and cry at the Supreme level, let us not forget that the daily business of the bench happens closer to home in the district and circuit courts, and all those young former prosecutors who have close ties to a particular party or senator will be with you/us for a long, very long time since they get life-time tenure and can only be removed for high crimes and misdemeanors.

Inability to get along is evidenced by:

Ideological trench warfare is frequently on display in the 6th Circuit's austere fourth-floor hearing room in the Potter Stewart Courthouse here, which shifted to Republican-appointee control in mid-2005. Rulings sling around words such as "absurd," "rash," "meritless," "Pollyannaish," "unconscionable," "careless," "overwrought" and "alarming" -- from jurists on each side, directed at the judgments of colleagues appointed by the other political party. Tensions between Democratic and Republican appointees have become so intense that they no longer regularly lunch together at the city's University Club.

Click on heading for entire story:

The Politics of the Federal Bench
GOP-Appointed Majorities Winning Ideological Battles at Appellate Level

By R. Jeffrey Smith

Washington Post Staff Writer
Monday, December 8, 2008; Page A01

CINCINNATI -- In June 2005, two federal appellate judges here ordered Joseph Arnold released from a 21-year prison sentence after ruling that there was no credible evidence he had threatened to shoot his girlfriend's daughter with a pistol.

This Story

• The Politics of the Federal Bench
• A Bench More White, Male and Conservative
• The Politics of the Federal Bench
• Courts of Last Resort

View All Items in This Story

View Only Top Items in This Story

But Arnold's relief was fleeting. Prosecutors appealed to all of the judges on the U.S. Court of Appeals for the 6th Circuit. And the full court, dominated by appointees of President Bush and other Republican presidents, reversed the initial appellate ruling, saying the evidence presented by prosecutors was sufficient to merit Arnold's conviction.

Other criminal defendants, including some on death row, remain in federal prisons for the same reason: After initial appellate verdicts that their convictions or sentences were unjust, the last word came from Bush's judicial picks on the 6th Circuit. Acting in cooperation with other Republican appointees on the court, they have repeatedly organized full-court rehearings to overturn rulings by panels dominated by Democratic appointees.

Although the impact of Bush's judicial appointments is most often noticed at the Supreme Court, it has played out much more frequently and more importantly here and in the nation's 12 other appellate courts, where his appointees and their liberal counterparts are waging often-bitter ideological battles. After Bush's eight years in office, Republican-appointed majorities firmly control the outcomes in 10 of these courts, compared with seven after President Bill Clinton's tenure. They also now share equal representation with Democratic appointees on two additional courts. * * *