Kentucky Law Review

SCOKY: Justice Scott files for re-election. Looks like rematch of the close 2004 race with then Justice Janet Stumbo

From the Republic:

FRANKFORT, Ky. — Justice Will T. Scott has filed for re-election to the Kentucky Supreme Court, hoping to win a second term representing eastern Kentucky's 7th district.

Scott, a former Pike County Circuit Court judge, filed his candidacy papers for the 2012 race with the secretary of state's office on Monday.

He has already drawn a challenger, Court of Appeals Judge Janet Stumbo of Van Lear, who served on the Supreme Court until Scott defeated her in 2004.

Their first race was a close one with Scott winning by just more than 2,000 votes. It was also costly for a judicial campaign. Scott outspent Stumbo $245,000 to $175,000.

The winner of next year's rematch will represent a sprawling district that runs through such towns as Ashland, Booneville, Harlan, Morehead and Pikeville.

Two Jefferson County Judicial Races Result in two winners by a nose... Will there be a re-canvas? A re-count?

In Jefferson County there were two incredibly close judicial elections decided by just a few hundred votes! Out of over 185,000 plus votes cast.  My oh my!!!

Anyone besides me wondering if there will be a re-canvas or a re-count?

Think about it - two judicial races decided by the choices made by just 250 to 300 voters out of 180,000+?????  A check mark the other way, and a different result could have taken place.

I say yes! The voters deserve it, the candidates who campaigned hard deserve it, and the system needs it.

It's still politics and if they really wanted it, then do it! Anyone saying this is just not the way it is done, needs to reconsider that four people put in a year's worth of campaigning, sacrificing, and laboring for a position they believed in.  When a few hundred votes tips the scales at the end, then we all deserve to be sure about those results.  Absolutely sure.

Decisions must be made next week, and soon.

The races for those interested are as follows (with tallies from Jefferson County Clerk's Office):

CIRCUIT JUDGE 11
		Total
Number of Precincts		537
Precincts Reporting		537	100.0 %
Total Votes		195304
John J. VANDERTOLL		97071	49.70%
Brian C. EDWARDS		97741	50.05%
Write-in Votes		492	0.25%

DISTRICT JUDGE 17
		Total
Number of Precincts		537
Precincts Reporting		537	100.0 %
Total Votes		184032
Erica Lee WILLIAMS		92058	50.02%
A. Christine WARD		91457	49.70%
Write-in Votes		517	0.28%

 For those interested in the money raised up through 10/18/2010 for the primary and the general elections for these four candidates:

John J. Vandertoll      $339,496.96
Brian C. Edwards       $119,918.93

Erica Lee Williams      $94,030.56
A.Christine Ward        $85,010.55

Of course, this does no reflect the moneys raised and disbured in the weeks before the general election.

Now, that's a lot of money raised for positions that pay $120,000 or so per year.

 

 

 

Courier Journal Issuing its endorsements - I agree with four, disagree with one. Judge Prather has my vote.

The Courier-Journal editorial folks are now issuing their endorsements for contested judicial elections in November. Editorial Endorsement | Judicial Contests in Divisions 3,7,6,10, 11 .  However, please note that Divisions 6 and 11 are in CIRCUIT COURT; the rest are in DISTRICT COURT

They posted five today. 

I agree with four of their five.

I do not agree with their failure to endorse Judge Claude Prather.  Their reasoning and analysis are not only weak but suspect.

I agree with the CJ's following endorsements. 

• Olu Stevens - Div. 6, Jefferson Circuit Court
• Brian Edwards - Division 11, Jefferson Circuit Court
• Jennifer Bryant Wilcox -  Div. 7, Jefferson District Court
• Sheila Collins - Div. 10, Jefferson District Court

However, the Curious Journal did miss the mark in endorsing Sandra McLaughlin over incumbent Judge Claude Prather who has now served 8 years on the bench and already has the endorsement of Citizens for Better Judges and very favorable marks from lawyers in the Louisville Bar Associations Judicial poll.

Judge Claude Prather has my vote. He is currently sitting on the bench, having been elected back in 2002, and now having served the public well for these past 8 years.  The Courier's notes that Ms. McLaughlin has studied political science, clerked for a Supreme Court justice, and served as a county attorney (per CJ), guardian ad litem attorney and volunteer with the Legal Aid Society.  When stacked up to a sitting judge doing a darn good job, these attributes are not enough.  No disrespect intended to Ms. Sandra L. McLaughlin who is challenging him for this race, but Judge Prather is just doing too good a job. 

You don't have to take my word for it.  Judge Prather has been endorsed by Citizens for Better Judges - this endorsement is highly valued and respected among lawyers and those involved in the legal profession. 

Don't take the "blue ribbon" committee's word for it.  The 2009 Louisville Bar Association Judicial Evaluation Poll offers further insight.  A poll by lawyers who practice in Jefferson District Court thought Judge Prather was doing a great job as he received a 95% approval rating and was one of two highest rated district court judge in 2009 bar poll.  What is the bar poll?  Those lawyers who practice in district court and who know the good judges, the hard working judges.  And those in the know, place their faith and trust in Judge Prather to hear their cases and do justice.  Now that's a pretty good endorsement too.

Please note that the other four candidates endorsed in this round also had Citizens for Better Judges endorsements.  Why not Judge Prather?  I guess it boiled down to a perception by the Curious Journal's editors that the challenger had "fresh ideas and energy".    Little do they know this judge! 

I cannot disagree with the CJ any more on this one.  Judge Prather has years of experience, hard work, family, friends, integrity, and competence plus a tireless energy when he was campaigning that put me to shame.  All these qualities mean more than a "fresh idea" or two.  District Court requires judges who work hard, day in day out, day after day, week after week.  

What is even more perplexing is how the Courier-Journal overlooked the 2004 story in their own paper by Jason Riley in which Sandra McLeod (now McLaughlin) was fired by Commonwealth Attorney David Stengle "amid allegations she grabbed and berated a juror who helped acquit a man accused of rape."  See, "Juror Incident leads to firing, Prosecutor says she didn't grab, berate woman".  Also, quoted in the Courier's January 14, 2004 story was Jefferson Circuit Court Chief Judge James Shake regarding Sandra McLeod (now McLaughlin's) conduct -

"It's extremely inappropriate and unprofessional. . . . It's intolerable."

The Courier can't seem to get all the facts in order since McLeod McLaughlin was a prosecutor with the Commonwealth Attorney's Office and not the County Attorney's Office.  And, their reference that Prather was a "tool and die maker" seems to ignore the fact that in addition to being a hard worker in the trenches that Prather also was a labor relations specialist involved in negotiating conracts at GE, a union steward, and a delegate for several  years with the Greater Louisville Central Labor Council. 

You can count on Claude to do the job.  He treats lawyers and litigants with respect.  That's what a judge is supposed to do. 

I will share this bit of advice I received from "Claude" back when we were both on the campaign trail in 2002, and I had to go speak to the various groups regarding their support.   I remember his advice -  "Don't let them make their cause, your cause."   As a judge, you have but one cause - justice.  He followed that ethical guideline during the campaign and on the bench.  I understand he still maintains that independence.

We deserve a judge who works as hard as we do;  Claude is one of those judges.  He has not slowed down a bit, and has a love for the job and for people and for doing the right thing.

Judge Prather has my vote.  I hope he has yours.

 

 

 

 

 

 

 

OP-ED: Judicial elections, free speech, and committee constraints.

I received the following "press release" from regarding judicial elections.   To be blunt, I am no fan of this committee and their interference in judicial elections under the guise of keeping them under control.  By setting up false standards and attempting to coerce the candidates to give up their political rights regarding campaign speech and financing, they are impeding and interfering with the lawful political process.  The law is clear on what a judicial candidate can say and do.  If you don't like it, then change the way we pick our judges.  Muzzling the candidates by a committee vigilant on their own particular sense of judicial campaign propriety is wrong.  Plain and simple.

Do I agree with the committee's hopes and aspirations?  Of course, I do.  But judicial elections are part of our political process because that is the way we made them.  I see one judicial candidate facebooking away with photos of him with the governor and the president, both of whom are somewhat politically connected.  Does a polite and passive posture of physical proximity imply an endorsement or simply politics and name dropping from the old school. 

Bottom line is that it is legal.  It is also legal to ask for money, give opinions, and post your political party.  Unseemly and not "judicial"?  Of course.  But, politically "correct" and legal? Yes, to that too.

But, I will post their press release because I do want a different way of electing or should I say selecting our judges.  A way better than gentlemen's and gentlewomen's agreements that favor those with better known names, well financed campaigns, and an endorsement system connection that reaks of backdoor politics. 

The muzzle keeps the public in the dark as to what is really happening.  Open the door as far as the law allows OR change the way we select/elect our judges.  But don't corrupt the system by implied threats based upon your sense of right and wrong.

Oh well.... Here's the press release:

Kentucky Judicial Campaign Conduct Committee cautions judicial candidates about soliciting and accepting contributions

 August 14, 2010

 In a Kentucky case decided July 13, 2010, the U.S. Court of Appeals for the Sixth Circuit held that judicial candidates have First Amendment rights to personally solicit campaign funds and to announce their party affiliation and receive political party endorsements. The appellate court sent the case of Carey v. Wolnitzek back to U.S. District Judge Karen Caldwell to determine the meaning of the word “issue” in the Kentucky Supreme Court rule that prohibits judicial candidates from saying how they will rule on “issues.”

 The Kentucky Judicial Campaign Conduct Committee, a non-profit, non-partisan and non-governmental body, is concerned that the ruling on contributions may undermine the integrity of judicial elections and thus damage public regard for the judiciary. While candidates have a First Amendment right to personally solicit campaign funds, they should recognize the coercion inherent in a judge personally asking lawyers who practice before the judge to give money to the judge’s election campaign.

 All judicial candidates should recognize the appearance of favoritism created by acceptance of substantial funds from a litigant or attorney with business before the court. We believe the better practice is to follow the procedure that has been in place for many years in Kentucky; that is to use a committee to raise campaign funds. We also believe that in order for voters to be fully aware of who is supporting candidates, the General Assembly should require immediate or near-immediate reporting of large contributions between the day that books close for the last pre-election campaign-finance report and the day of the election. Now, contributions during that approximate two-week period are unknown until after the election.

 The Committee also believes that judicial candidates should refrain from making statements about issues that might come before them. Judicial races are not like races for the executive or legislative branches. In those branches of government, candidates routinely promise the voters that they will, if elected, vote a certain way on issues. In judicial races, on the other hand, candidates should only promise to fairly interpret and apply the law and the U.S. and Kentucky constitutions, to treat all litigants fairly and with dignity, and to approach every case with an open mind and without pre-judgment. A judicial candidate who speaks out on issues should remind voters of these obligations, and a candidate who appears to promise how he or she will decide an issue has an obligation to let another judge handle the case if the issue arises in the judge’s court.

 Kentucky Judicial Campaign Conduct Committee Inc.

Released Aug. 12, 2010

Contact: Spencer Noe, chairman, 859-422-7509; Al Cross, secretary, 502-682-2848

JUDICIAL ELECTIONS: Sixth Circuit Decision Opens Door to Further partisan politics in judicial elections

Due to the unique relevance to lawyers, judges, and the current campaign season, I have posted substantial portions of this story by Andrew Wolfson.

One comment on the story posted on-line basically sees the writing on the wall if the changes continue in the current direction; eg., "So much for justice being blind. "For Sale" signs out in judiciary campaigns - Can't wait for that one."  One can't argue much with the portent of things to come with this decision and the decision last year by SCOTUS which opened the corporate coffers for campaign contributions.

Here is another development in the continuing changes in judicial elections with a further partisan politicization of the process.  Soon we will be seeing party endorsements, if not slates, of candidates.

The above image is from the book by C. harles Ashman, "The Finest Judges Money Can Buy and Other Forms of Judicial Polution".  Click on this link to obtain the book from Amazon.com.

For the full text of Marcus Carey v. Stephen Wolnitzek, click here.

And for some commentary from Marcus Carey's blog at BlueGrassBulletin.com:

I Stood Up For The Constitution, And Won

I am thrilled to announce that the United States District Court for the Sixth Circuit has affirmed the decision in my case wherein I challenged the Canons of Judicial Ethics in 2006 as violating the First Amendment to the U.S. Constitution.

Here are a few highlights from today's decision, Carey vs. Wolnitzek:

From the Courier Journal: 

Kentucky judicial hopefuls get right to solicit funds, reveal party

Judicial candidates in Kentucky have a First Amendment right to announce their political party affiliation and to directly solicit campaign contributions, a federal appeals court ruled Tuesday.

"Elections are elections, and the same First Amendment applies to all of them," a 6th U.S. Circuit Court of Appeals panel said.

The panel also questioned another rule that bars judicial candidates from pledging to rule a certain way on issues likely to come before them, but sent that back to a federal judge for additional consideration.

Marcus Carey, a former Republican Party leader from Northern Kentucky who lost a Kentucky Supreme Court race in 2006 and challenged the rules, said: "It's a great day for the Constitution."

But two candidates for Jefferson District Court said that they won't take advantage of either portion of the ruling because they think the changes will erode confidence in the impartiality of the courts.

"Just because you have a right to do something doesn't mean you should go out and do it," Judge Claude Prather said.

He and challenger Sandy McLaughlin, a former prosecutor, said they will continue to use committees to seek campaign contributions, rather than soliciting donations themselves.

"I just don't believe in putting pressure on people to do that," Prather said.

McLaughlin said litigants would be uncomfortable appearing before somebody who had advertised that he belonged to a different political party.

District court seats in Kentucky are up for election this year; circuit judges don't run for re-election until 2014.

Under the ruling, judicial candidates will still run in nonpartisan elections and their political party won't be identified on the ballot.

Steve Wolnitzek, chairman of the state Judicial Conduct Commission, a defendant in Carey's suit, said it would be up to the state Supreme Court, which sets judicial election rules, to decide whether to ask the U.S. Supreme Court to hear the case.

Carey also challenged a portion of a rule that bars judicial candidates from making statements committing them to rule a certain way "in a case, controversy, or issue that is likely to come before the court."

CAMPAIGN FINANCES: "Lawsuit challenges $100 contribution limit to school board candidates"

From the Bluegrass Politics Blog (Herald-Leader):

The following post addresses a lawsuit re limitations on campaign contributions to school board candidates.  The nibbling is now beginning on limitations following the US Supreme Court's decision regarding corporate contributions to political races.  Whither now goest on nonpartisan school board races, nonpartisan judicial races, political races? 

If caps are gone for the corporations, then what next?

Oh well.  Katie bar the door down the road.  Or should I say "king of the road"?

Here's there post:

Lawsuit challenges $100 contribution limit to school board candidates

By Government Editor on State Government

By Jack Brammer and Jim Warren - jbrammer@herald-leader.com FRANKFORT — The ACLU of Kentucky is backing a challenge to Kentucky’s $100 limit on campaign contributions to school board candidates in U.S. District Court in Frankfort. The limit violates donors’ right to free speech by restricting their ability to contribute money to their chosen candidate and undermines the democratic process, says the ACLU on behalf of two plaintiffs. “The strength of our democracy depends on ensuring fairness in the political process,” said ACLU attorney Amy Cubbage in a statement. “By limiting individual contributions in school board elections to $100, the law effectively prevents candidates from marshaling the necessary resources to mount an effective campaign, particularly in the face of rising costs and special interest expenditures,” Cubbage said.

Around the horn and political postings

From around the blog and news sites are some other stories of note.  One can't help but sense a change in the air.  Will it be an ill wind, just wind, or a good wind?  Time will tell, but I will keep winking, blinking,and linking.

SPRINGSTON RECEIVES EVEN MORE ENDORSEMENTS

WHAT DO DISTRICT 13 METRO COUNCILWOMAN VICKIE WELCH AND COUNTY ATTORNEY MIKE O'CONNELL HAVE IN COMMON?

JIM KING: QUIT THE SPIN AND GIVE IT UP

COUNCILMAN KELLY DOWNARD ENDORSES SPRINGSTON

Oh Snap Monday! No Budget, Kentucky’s Still Broke

Legislative Branch Just Extreme Smoke & Mirrors

Judicial Politics, Big Bucks, and Blankenship - a recipe for disaster

Massie Energy, Don Blankenship, and the legal system.  Not a good combination over the years.  Now, with the mining disaster in my home state of West Virginia, Blankenship and money are now synonymous with death and profits.

See, eg.,

Daily Kos: Blankenship's Bloody Coal Mine: A Deluge of Violations

One no longer needs to read the tea leaves from the past to figure out what lies in our future with the recent Supreme Court's opening the flood gates on campaign contributions and the negative implications on the judiciary and judicial elections.

Cha-ching.  Get it.  Money talks, and ethics and integrity walk when the political currency is the vote and insurance companies and big business get to write big checks to place their persons on the bench.  Nobody thought it would happen in West Virginia, but Brent Benjamin's election to the Supreme Court of that state was largely owed to the coal money and finances of Blankenship.

Yes, some say I am crying wolf, but back room money and politics is not the way to elect judges.  Open and obvious works.  Judicial appointments involving the other two branches of government for all to see works better than the the current practice.  The SCOTUS decision has and will simply  compound the system as that ivory tower has no clue as to what they have wrought locally.

Recent story by Lawreader is just another chapter in this continuing saga of questionable governmental regulations and corporate influence in the courts:

From Stan Billingsley's LawReader Blog:

BIG COAL’S DON BLANKENSHIP AND THE U.S. CHAMBER OF COMMERCE – BUYING THE COURTS TO KEEP THE MONEY FLOWING – over $50 million spent in judicial races

By Stan on Uncategorized

By: Jason Rosenbaum  April 12, 2010     Don Blankenship is the head of Massey Energy, the company that runs the Upper Big Branch Mine which just had a horrific “accident” that left 29 dead. Massey’s conduct under Blankenship has been negligent enough to approach criminality, calling into question how much of an “accident” this was.

And some of our old stories to refresh your recollections amid my concerns of campaign contributions, judicial races, and the bad that money can do.

From Sept. 21, 2006:

Ky Kommentary: Judicial Elections Running Amok Elsewhere Or So Says the NY Times

In "Justice for Sale", William Kistner remarks on this West Virginia Supreme Court election, the high stakes finances, and interest groups with their impact on the outcome:

Judges are supposed to make decisions based on the law, not politics. But in 38 states, judges get elected to their jobs, and judicial candidates are raising big bucks and running TV attack ads. Judicial candidates spent more money running for office in 2004 than ever before. Meanwhile, special interest groups poured millions of dollars into their campaigns. Will the mountains of cash corrupt the independence of the courts?

* * *

The race for a seat on the West Virginia Supreme Court was mean and expensive. Over $5 million was spent by the candidates and their supporters, a staggering amount in this small state. The incumbent McGraw raked in donations from trial lawyers and unions. His opponent, corporate attorney Brent Benjamin, was the favorite candidate of big business and big coal. One of his major backers was the CEO of Massey Energy Company, the largest coal producer in the region. The company happened to be fighting off a major lawsuit headed to the West Virginia Supreme Court. That prompted many in these parts to say that Massey was out to buy itself a judge. At a senior center out on the campaign trail, Brent Benjamin vowed that no amount of money could influence his vote.

Is the battle in West Virginia over?  Not hardly per this and other stories:

• "But in an unusual show of political candor from a sitting judge, West Virginia Supreme Court Justice Larry Starcher lashed out that same night saying, "We're going to see Massey Coal and a bunch of out of state insurance companies and huge mega corporations buy a seat on our supreme court, and I'll be very sad to sit on that supreme court for the next four years quite frankly." Id.
• Massey sues state Supreme Court [Justice Larry Starcher]

And from Nov. 11, 2007 is yet another incident of Blankenship and West Virginia judicial politics as the state's judicial system goes from a Judicial Hell Hole to the Black Hole of Calcutta:

ELSEWHERE: Pending Case involving W.Va.'s highest court highlights dangers when justices speak off the bench

Our Constitution guarantees the individual the right of free speech.  However, that right is not without limits.  Of course, we all know the Holmes' admonition about yelling fire in a theater or your right to speak goes only as far as my right not to listen.

But not all may know that soldier's rights of free speech are limited by government service. 

And this is not the only public service position in which one much watch what they say as not all conduct is without consequences.

Here is a post that prompted this rumination.  It is from the W.Va. Record and discusses the issues of recusal arising from a sitting justice's remarks outside of published (and not to be published) court opinions.

Bias is not a judicial trademark that is valued by those appearing before the courts (even though many would love the bias to be in their favor).  Justices and judges speak to groups all of the time, and striking the balance between public service speeches and potential proconceived bias problems has raised its ugly head in W.Va.  Click on heading for entire story.

W. Va. SC seeking appeal in recusal case
CHARLESTON - While Massey Energy's case against it continues, attorneys for the state's Supreme Court of Appeals are asking for an appeal of a federal judge's decision not to dismiss the suit.

"Because immediate appeal from the Court's Order may materially advance the ultimate termination of the litigation, certification is appropriate," wrote members of the Tinney Law Firm in the motion.

U.S. District Judge for the Southern District of West Virginia John T. Copenhaver Jr. must grant the interlocutory appeal, which would be heard by a federal appeals court.

The case concerns statements made by current Supreme Court Justice Larry Starcher concerning Massey and its CEO, Don Blankenship. Massey argues that Starcher has shown a personal bias against both, and that the company (and subsidiary Marfolk Coal) would be unfairly treated if Starcher is allowed to participate in the cases against Massey currently before the Court.

Starcher has publicly called Blankenship "stupid" and "a clown." Two major jury awards against Massey are before the court, a $243 million award in a contract dispute and a $76 million Boone County award. The Boone appeal was heard in October, though Starcher did not attend. He will still participate in the decision.

And April 8, 2008, in a bizarre twist of Blankenship, then Chief Justice of Supreme Court of West Virginia, the Riviera, drinks, and a good time had by all:

Justice Takes a Hit as Chief Justice "Spike" Maynard recuses himself in case in West Virginia as life imitates fiction from "The Appeal"

The public's perception of justice took a hit in this story from Nightline regarding the West Virginia Supreme Court and Massey Energy. 

A picture of your Supreme Court Chief have drinks on the Riviera with a good friend and party with a case pending before you is unbelievable.  Not to recuse yourself is even worse. However, this is what happened in West Virginia as Chief Justice Elliott "Spike" Maynard was caught on film having drinks with the CEO of the nation's largest coal company while vacationing with their girlfriends on the French Riviera with cases pending before that same court. Not good.

Nightline did a story on this which had previously made the rounds in national papers (eg., NY Times Article).  Below is a link to a video from WV Public Broadcasting available at You Tube. However, Spike Maynard did not recuse himself the first time.  Not until a motion was filed with the pictures, and after initially refusing to recuse, he did so.  Now, the second appeal went the same way in favor of Massey Coal. 

I apologize for some of the poor formatting, but the content is here.  For a list of links "googled" on this topic, then click HERE.  For a Wikipedia link on Spike Maynard, click here which contains links to some of the pleadings, opinions, motions, etc. 

After the disclosure following the first appeal, Maynard recused himself.  Justice Starcher also recused himself under the circumstances.  However, Justice Brent Benjamin who was one of the remaining justices to hear the case did not recuse himself.  "Shortly after the initial verdict against Massey, Blankenship helped to raise $3.5 million for an advertising campaign that led to the defeat of one of the Supreme Court justices. The winning candidate who benefited from Blankenship's money, Justice Brent Benjamin, has refused to recuse himself from the Massey appeals. Benjamin turned down a request from ABC News to be interviewed. Despite numerous requests for his recusal, Benjamin writes in court documents that there is no evidence to suggest that he cannot be fair and impartial." [for a link to stories on this election, see Justice for sale(American Radio Works)].

John Grisham's novel, "The Appeal", is it life imitating fiction, or the other way around?

Meanwhile, here is the recent Nightline story. 

Another Legal Victory for Tough Coal Boss
Questions Have Emerged About Blankenship's Relationships With State Supreme Court Justices Hearing Multi-Million-Dollar Appeals by His Company
By BRIAN ROSS and MADDY SAUER
April 7, 2008

Our Constitution guarantees the individual the right of free speech.  However, that right is not without limits.  Of course, we all know the Holmes' admonition about yelling fire in a theater or your right to speak goes only as far as my right not to listen.

But not all may know that soldier's rights of free speech are limited by government service. 

And this is not the only public service position in which one much watch what they say as not all conduct is without consequences.

Here is a post that prompted this rumination.  It is from the W.Va. Record and discusses the issues of recusal arising from a sitting justice's remarks outside of published (and not to be published) court opinions.

Bias is not a judicial trademark that is valued by those appearing before the courts (even though many would love the bias to be in their favor).  Justices and judges speak to groups all of the time, and striking the balance between public service speeches and potential proconceived bias problems has raised its ugly head in W.Va.  Click on heading for entire story.

W. Va. SC seeking appeal in recusal case
CHARLESTON - While Massey Energy's case against it continues, attorneys for the state's Supreme Court of Appeals are asking for an appeal of a federal judge's decision not to dismiss the suit.

"Because immediate appeal from the Court's Order may materially advance the ultimate termination of the litigation, certification is appropriate," wrote members of the Tinney Law Firm in the motion.

U.S. District Judge for the Southern District of West Virginia John T. Copenhaver Jr. must grant the interlocutory appeal, which would be heard by a federal appeals court.

The case concerns statements made by current Supreme Court Justice Larry Starcher concerning Massey and its CEO, Don Blankenship. Massey argues that Starcher has shown a personal bias against both, and that the company (and subsidiary Marfolk Coal) would be unfairly treated if Starcher is allowed to participate in the cases against Massey currently before the Court.

Starcher has publicly called Blankenship "stupid" and "a clown." Two major jury awards against Massey are before the court, a $243 million award in a contract dispute and a $76 million Boone County award. The Boone appeal was heard in October, though Starcher did not attend. He will still participate in the decision.

The public's perception of justice took a hit in this story from Nightline regarding the West Virginia Supreme Court and Massey Energy. 

A picture of your Supreme Court Chief have drinks on the Riviera with a good friend and party with a case pending before you is unbelievable.  Not to recuse yourself is even worse. However, this is what happened in West Virginia as Chief Justice Elliott "Spike" Maynard was caught on film having drinks with the CEO of the nation's largest coal company while vacationing with their girlfriends on the French Riviera with cases pending before that same court. Not good.

Nightline did a story on this which had previously made the rounds in national papers (eg., NY Times Article).  Below is a link to a video from WV Public Broadcasting available at You Tube. However, Spike Maynard did not recuse himself the first time.  Not until a motion was filed with the pictures, and after initially refusing to recuse, he did so.  Now, the second appeal went the same way in favor of Massey Coal. 

I apologize for some of the poor formatting, but the content is here.  For a list of links "googled" on this topic, then click HERE.  For a Wikipedia link on Spike Maynard, click here which contains links to some of the pleadings, opinions, motions, etc. 

After the disclosure following the first appeal, Maynard recused himself.  Justice Starcher also recused himself under the circumstances.  However, Justice Brent Benjamin who was one of the remaining justices to hear the case did not recuse himself.  "Shortly after the initial verdict against Massey, Blankenship helped to raise $3.5 million for an advertising campaign that led to the defeat of one of the Supreme Court justices. The winning candidate who benefited from Blankenship's money, Justice Brent Benjamin, has refused to recuse himself from the Massey appeals. Benjamin turned down a request from ABC News to be interviewed. Despite numerous requests for his recusal, Benjamin writes in court documents that there is no evidence to suggest that he cannot be fair and impartial." [for a link to stories on this election, see Justice for sale(American Radio Works)].

John Grisham's novel, "The Appeal", is it life imitating fiction, or the other way around?

Meanwhile, here is the recent Nightline story. 

Another Legal Victory for Tough Coal Boss
Questions Have Emerged About Blankenship's Relationships With State Supreme Court Justices Hearing Multi-Million-Dollar Appeals by His Company
By BRIAN ROSS and MADDY SAUER
April 7, 2008

More on the Katie King - Jim King Campaign Finance Story as Legislation Proposed to Clear up the mess

The news stories indicate that Jim King gave his daughter $145,000 in the midst of her campaign to be used for her judicial  campaign knowing she would put the money in her campaign as her own money.  Some may question whether or not the statute was really that unclear and had enough wiggle room to permit a father to give his daughter $145,000 to finance her campaign under the guise of a "personal" gift. 

The criminal justice system is investigating the matter for potential criminality, and now the legislative system is changing the law in an attempt to avoid a repeat.  Whether or not the judicial system is going to take action against the elected judge Katie King is unknown at this time.  However, I submit the legislative change needs a closer look at their stated goal and method of implementation since I believe it makes an exception based on the "current election cycle" which will benefit the wealthy.  To get around the prohibition that some assumed existed before this bill, all that needs to be done after this bill should become law is to make a large gift just before the "current election cycle" begins.  Worse yet, by attempting to create this "election cycle exception" has now created another potential ambiguity by its very proposal and even if it NEVER becomes law.

Here is an extract from HB 114.  You decide if there was any confusion in the old language.  It was money, it was a gift, and it was made to the candidate.  And it looks like the money trail ended up in the campaign finance coffers. 

However, click here for the entire bill, and I do applaud Jefferson County's legislator's who wish to make it abundantly clear that this is not to be repeated - L. Clark, D. Owens, C. Miller, R. Weston.  However, I suggest they take a closer "look see".

The underlined portion is the addition to the statute.  With so much in the news on this point, I thought it worth sharing the actual statutory language to avoid any confusion on ambiguity as to what the protagonists are discussing.

(6) "Contribution" means any:(a) Payment, distribution, loan, deposit, or gift of money or other thing of value, to a candidate, his agent, a slate of candidates, its authorized agent, a committee, or contributing organization, including any payment, distribution, or deposit of money by the candidate using personal funds, where the candidate has no expectation of repayment from the campaign fund. As used in this subsection, "loan" shall include a guarantee, endorsement, or other form of security where the risk of nonpayment rests with the surety, guarantor, or endorser, as well as with a committee, contributing organization, candidate, slate of candidates, or other primary obligor. No person shall become liable as surety, endorser, or guarantor for any sum in any one (1) election which, when combined with all other contributions the individual makes to a candidate, his agent, a slate of candidates, its agent, a committee, or a contributing organization, exceeds the contribution limits provided in KRS 121.150;

Here is the Courier Journal story.  Click on the heading for the entire story.  The title of this story is misleading as it does not limit what a candidate cold spend, but rather attempts to limit what can be given to the candidate.

Bill would limit what candidate could spend

Jefferson District Judge Katie King would have to run for re-election later this year without her father's money if a bill being sponsored by state Rep. Larry Clark becomes law.

Clark's bill, filed Thursday, would prohibit a candidate from spending large sums of money given by a parent — or anyone else — for the purpose of funding a political campaign.

Clark, D-Louisville, said he filed the legislation in reaction to the case involving King, in which her father, Louisville mayoral candidate Jim King, gave his daughter $135,000 in the months leading up to her 2008 election. Katie King, in turn, used much of the money to fund her $360,000 judicial campaign.

Kentucky law prohibits anyone other than a candidate from spending more than $1,000 on a state election, but it doesn't specifically prohibit someone from making a personal gift to a candidate, who, in turn, could spend the money on his or her election.

According to the Courier Journal's read of this amendment -

"Under the provisions of Clark's House Bill 214, personal funds that candidates would be allowed to contribute in unlimited sums to their campaigns would include money they had before the campaign began; salary earned during the campaign; money from the sale of investments; bequests and trusts created by bequests; trusts established before the election cycle; proceeds from lotteries and other games of chance; and personal gifts that had been customarily given prior to beginning of the election cycle."

If "customary" is the loophole to allow unlimited personal funds from family, friends, and others, then what are the time limits and amounts that will go into that custom.   Keep in mind that the customary plan of giving only regulates gifts during the current election cycle! 

But, the negative pregnant of the change is that it makes it clearly permissible for unlimited personal gifts OUTSIDE the election cycle such that this exception may overtake the prohibition for those who plan well in advance.

Of course, the large gift outside the current election cycle thus could be considered as part of the current election cycle since the definition of a "candidate"  is "any person who has received contributions . . .  with a view to bringing about his nomination or election to public office...." 

Since election cycle is not defined.  Then, I would make an educated guess that the status as candidate would control and the intent inferred from the facts and circumstances as one goes back to the customary giving and the eventual candidacy when examined based upon temporal, professional, and personal proximity of the donor and the candidate.  If so, that is too much legal mumbo jumbo to be effective.

This change to the law has teeth but little bite. 

Some commentators have come down even harder on this bill.  See Ed Springston's post, by clicking here.

LOCAL JUDGES: "Blogger: Judge King went easy on accused friend"

Ed Springston has fired another complaint involving Judge Katie King.  This time it is based upon her conduct on the bench (as opposed to the campaign finance violations during her election).  Here are a few stories on this point:

Jason Riley story on Judge Katie King in the Courier-Journal:

vious Blogger: Judge King went easy on accused friend

Ed Springston, a blogger and former mayoral candidate, has filed a complaint with the Judicial Conduct Commission against Jefferson District Court Judge Katie King, claiming she gave preferential treatment to a friend arrested for driving on a suspended license after drunken driving offenses.

In his complaint Friday, Springston said Jacob Isaac was arrested Jan. 8 and charged with driving on a suspended license after pleading guilty to a second DUI and a felony charge of theft of a motor vehicle registration plate. But after his bond was set at $1,000 cash, Springston alleges, someone called King — even though she was not the on-call judge — and she reduced his bond and released him.

On May 21, Isaac pleaded guilty to driving on a suspended license and King sentenced him to 180 days in jail that was conditionally discharged, or set aside as long as Isaac stayed out of trouble. King also did not revoke the conditional discharge of a sentence from a previous DUI conviction.

“She let him off with literally nothing,” said Springston, who included in his complaint what he says is a Facebook picture of King and Isaac together at a bar.

Click on the heading for the rest of the story.

Click here to go directly to reader's comments on the story (59 at last count).

And here is a story at WLKY.com:

Complaint: Judge Gave Preferential Treatment To DUI Suspect
Did Katie King Let Acquaintance Off The Hook?
By Andy Alcock/WLKY

It's the latest in a series of complaints former mayoral candidate Ed Springston has filed against King.

However, this complaint is the first one to deal with King's conduct on the bench.

According to court records, Jacob Isaac pleaded guilty to four DUI-related offenses in about a 15-month period.Most recently in January, police arrested Isaac, 24, for driving on a suspended license after pleading guilty to his second DUI. It was also the second time he'd been arrested for driving on a suspended license from a DUI.In addition, in an effort not to get caught, Isaac admitted he placed a license plate stolen from his father's business on his car."I did it because I was stupid and kind of selfish and didn't want to give up the right to -- the privilege, excuse me, the privilege to drive," he told WLKY.Isaac was arrested after midnight on Jan. 8. His initial bond was set at $1,000.Another district court judge was on call, but King got involved and released Isaac from jail on his own recognizance that same day.King said she can't remember how she became involved, but assumes Isaac's attorney called her.But a photo of King and Isaac together was taken before Isaac's arrest, he said.

Isaac said the picture was taken in front of a bar at a gay-lesbian-bisexual-transgender, or GLBT, event in 2008."We were getting drinks," he said.

Click on heading for rest of story and the photo.

For some background read Tony McAdam's piece at the Louisville Examiner, entitled:

Louisville politics: The sport of Kings

September 30, 8:42 PMLouisville City Hall ExaminerThomas McAdam

And a campaign video which purports objections to the behavior referenced in
Springston's complaint against Judge King: 

And it hit a national blog at DUIattorney.com

Questions of favoritism in Kentucky DUI case