Kentucky Law Review

KBA: Election Ballots for Vice President in the Mail - Please mail them in!

I have been asked by others about the upcoming election for Vice President of the Kentucky Bar Association and how I was voting.  To save time and emails, I will share with you that I am voting for Scott Madden. 

In any event, please vote.  If you do not know either candidate, then ask someone whom you trust to give you a good recommendation. 

Ballots for the election for Vice President of the Kentucky Bar Association have been mailed and may be in your mailbox as you read this.  Historically, if the ballot is not completed and mailed the first few days, then it is never mailed at all.  Furthermore, the "turnout" traditionally has been small so that a small group favoring a particular candidate can exercise more influence than they should. 

Recent events in the news show that the people we select are important in position and public perception.  The best way to work on your individual image as an attorney is to select those who will lead your professional association who possess a stellar reputation and image as well. 

If you are not familiar with the candidates, then ask another lawyer; just like your non-lawyer friends ask you about which judges to vote for at election time.

As for me, I am voting for Scott Madden.   I would encourage you to vote for him too.

If you disagree, then vote for the person of your choice; but vote.

Judicial budget shortfall or "buddy, can you spare a dime.... or $37.8 million worth of dimes?

Senator Everett McKinley Dirksen has been inaccurately credited with the saying "A billion here, a billion there, and pretty soon you're talking real money"?

However, it is nonetheless a truism, just as it is easier to save a penny than earn a penny.

With that lead-in, I move to stories regarding the budget crunches and shortfalls.  Too many agencies, too little money, and too many sacred cows.

With that you got to have some empathy for Chief Justice Minton who must either get more money for the AOC or tighten the belt.  In any event, the task that has befallen him is a daunting one, with recent news stories attacking the courthouse spending boom, putative irregularities in the courthouse construction contracting, judicial hires at the AOC with felony arrests in their record, and the senior status judges program increasing daily as it approaches its sunset date.

Well, my hat goes off to Chief Justice Minton and his six supporting but silent justices meeting with Interim Joint Judiciary Committee and predicting dire consequences if the $37.8 million budget shortfall for the courts is not eliminated. If $15 million is for opening new judicial centers and apparently 88 per cent of the operating budget is tied to personnel in the courts, then what is a judicial body to do?  And since that story aired, the governor has reported a possible doubling of the shortfall! So as the Chief was seeking more money, the situation was going from bad to worse as 2010 approaches with no extra money in sight. See, eg.,Gov. reveals 50% increase in budget deficit - Plans special session

Our courts are crowded, new courts are opening up, and costs are rising in the midst of a structurally unsound budget.  However, is the AOC's house in order as it goes to the lawmaker's house asking for a handout?  And don't forget the AOC is not subject to the open records statute for citizens obtaining information on the administrative side of the court room.

In today's recession and the ever-shrinking tax dollars, wasteful and unnecessary programs are a pubic disservice.  The Chief Justice may have to take a close look at the senior status judge's program and whether or not it is an actual financial drain on the budget or a drain on the public's perception of our judicial operations; and whether the program is a negative to hang onto while asking money for essential programs at the AOC.  Delaying judicial appointments to save a few dollars by not filling constitutionally created offices and filling those offices with senior status judges via a legislatively-created and poorly conceived and marginally regulated senior status judges program is not a good solution.   Hiring freezes and letting non-essential personnel go are the usual plans for living within ones means, in business and in government. 

I can't read the tea leaves, but I suspect more and more government agencies are going to be complaining of loss of services to be necessitated by loss of budget dollars.  And the lament of the publics need for the services will be a tired refrain to those out of work. Those agencies who have looked long and hard and taken the hard steps to save money and provide service will probably deserve serious consideration when the time comes to balance the budget.

Stan Billingsley at Lawreader had probably the best reporting on the exchange at the meeting over the AOC shortfall at Chief Justice addresses Legislative Committee re: problems facing the Judiciary. 

Again, Buddy can you spare a dime?  However, doesn't anyone realize that asking for a dime from the legislature entails them raising a dime from an already financially strapped citizenry? 

Chief Justice Says Courts Face Deficit from WTVQ.com
Tuesday, 18 November 2008 18:10

Crowded court dockets and rising costs are putting Kentucky's court system in a financial pinch.

Kentucky Supreme Court Chief Justice John Minton warned lawmakers Tuesday that with current "continuation funding" the court system will face a $37.8 million deficit by July 2011, the start of the state's new budget cycle. "A budget that is structurally unsound," Minton told members of the Interim Joint Judiciary Committee.

In a very rare move, designed to show a willingness to cooperate with the legislative branch, Minton and the other six justices of the state's highest court appeared at the meeting. Only Minton testified.

"With 88 percent of the operating budget tied up in personnel it doesn't take long for those cuts to reach people," the Chief Justice told WTVQ 36 News after the meeting. Minton says without more money the court system would have to "greatly reduce expenditures" which could lead to cuts in staff and services.

Around 3,700 people work in the state's judicial system, including nearly 400 judges. The current two year budget is approximately $293 million. Senator Robert Stivers, (R) Manchester, co-chairman of the judiciary panel, suggested that balancing workloads could help save money. "I think some are under and some are over utilized," said Stivers.

The Chief Justice says changing Kentucky's judicial boundaries would be very difficult. "If there ever is, Senator, a sacred cow in the system, that would be it," said Minton.

Minton says there are no plans to slow projects to open new judicial centers, but that may happen if revenue cuts occur. Approximately $15 million of the projected $37.8 million shortfall is the result of the completion and occupancy of the new judicial centers which are scheduled to come on line according to Minton.

[updated 3:29 pm]

OP-ED: Herald Leader op-ed piece takes close look at AOC and hiring and building issues

Here is a Herald Leader story that takes a close look at Kentucky's Administrative Office of the Courts.  Although the story recommends legislation to make the AOC subject to some oversight via the "open records statute", serious consideration should be given that the AOC has a personnel/administrative side and the judicial/court side and when the functions blend over, it might not be wise to give anyone a free look into those records.

For example, the use of the open records statute to obtain personnel records of two county attorneys vying for judge against each other became part of the political landscape.  Would this be possible in the federal system with the Freedom of Information Act and the Privacy Act?  Not hardly.

However, some for of quasi-independent oversight over perceived problems and abuses may very well seem warranted since this is the public's business and the public's money being spent.  An "inspector general" or a tailored open records provision geared to budget, buildings, etc. may be worthy of consideration .

Here's the Herald Leader's op-ed, en toto:

For justice's sake, clean up AOC

 

In this country, when all else fails, we rely on the court system to deliver justice.

Because the courts are our final refuge against scoundrels, misguided public opinion and human pettiness, we hold them to a higher standard in all things.
Click Here!

And that's why the repeated shortcomings of the Administrative Office of the Courts — which, under the supervision of the chief justice of the Kentucky Supreme Court, plays a central role in operating Kentucky's courts — are so deeply disturbing.

New Chief Justice John D. Minton Jr. must move quickly and decisively to restore confidence in Kentucky's courts.

The most recent problem was laid out in a story by Brandon Ortiz in Saturday's Herald-Leader. In it, we learned that Andrew Scott, a son of Kentucky Supreme Court Justice Will T. Scott, was promoted to a position that involved monitoring accused criminals, including drug addicts, by our court system despite his own pending felony drug charge in Virginia.

The story goes on to compare the AOC's personnel policies regarding pending criminal matters to those of other state agencies and similar agencies in other states, and Kentucky's courts come up short.

There are further concerns, including the fact that, when Andrew Scott was demoted shortly after receiving an earlier promotion, he was allowed to keep his raise.

Andrew Scott resigned after a reporter began making inquiries about his case.

But Scott's departure is almost beside the point.

The point is that episodes like this fundamentally undermine public confidence in our court system. The AOC's secretiveness — refusing to answer questions about whether Scott had notified the AOC of the drug charge, whether he was disciplined because of it, or what role his family ties had in the promotion — further damages the agency's standing.

Secrecy has become something of a hallmark at the AOC, which is exempted from the state's open records law. That's made it hard to sort out just where the money has gone in the $800 million courthouse building spree overseen by former Chief Justice Joseph Lambert.

The most recent embarrassment in that program is the $6 million spent on a new Harrison County Courthouse that is not accessible to people with disabilities.

But there's more.

Lambert's son worked for a time for Ross Sinclaire & Associates, which handled the bonds on more than 68 percent of the courthouse projects. The son's girlfriend was hired for an unadvertised human resources job at AOC.

Codell Construction has gotten the job as construction manager on almost 60 percent of the courthouse jobs. Relatives of the Codell family that controls it and employees of the company have been active contributors to county judge-executives and other local officials involved in deciding the contracts, and have contributed about $3,500 to the campaigns of Lambert's wife, Debra Lambert, for family court judge and circuit court judge.

Lambert retired in June. Minton has promised to take measures to "shore up public confidence," in the building program, including opening more records on the projects to public inspection.

That's a good first step. But the story of Andrew Scott, and those that came before it, dictate that Minton must go much further to eliminate a culture of ethical laxity within the AOC if he's serious about restoring confidence in Kentucky's court system.

OFF TOPIC: The public's need to know can be aided by a debate

Interesting thought.    Might be an interesting television move to announce a debate, invite Senator McConnell and Mr. Lunsford to appear, and if one of them does not show, then ask the questions to the candidate who did appear. 

Times are serious; and all the candidates should be serious too. 

The "D" word is being mentioned regarding the economy.

Now speaking of "Dee" words, where are those bloodhounds unleashed by McConnell from the 1984 "Dee" Huddleston campaign?  The post by Andrew Green last year at his blog seems a little more interesting within the context of the debate declinations by the incumbent senator in "Nipping at McConnell's heels".

Although the incumbent usually has more to lose in a debate by legitimizing the challenger and appearing as equals, the point is that inquiring minds want to know some answers and want them and need them in a format different than the 30 second sound-bites and counter-punches using veterans as pawns in this political campaign.  Not good.

If Lunsford adopts the McConnell Move from years gone by, do you think there will be some television spots the last few days with some bloodhounds looking for the incumbent? 

And if there is no debate on the meatier issues, what about a "Where's the beef?"

Cute commercials, but not informative.  Cute does not cut it today.

This post is not designed to push either candidate for election, just push them to a debate of the issues. 

If debates are good enough for presidential candidates, they should be good enough for senatorial candidates too. 

So, I ask, where's the beef?

AOC: "Cleaning up court construction mess" from Herald Leader editorial

The Herald Leader recently did a series on concerns regarding Kentucky's courthouse construction this past decade addressing costs, oversight, etc.

Chief Justice Minton has addressed the courthouse construction, and here is the Herald Leader editorial remarking on the response.  Here's an earlier post for some background - AOC: "Chief Justice Minton to discuss judicial center construction program Oct. 3 at Court Facilities Standards Committee meeting."  And here is a "story" rather than the editorial from the Herald Leader on the Chief Justice's remarks - "Chief Judge Seeks Changes in court-house plan"

Click on the heading for the editorial.

Cleaning up court construction mess

The first step, it's often said, to solving a problem is acknowledging it.

Kentucky Supreme Court Chief Justice John D. Minton Jr. did just that last week when he announced several changes in the near-billion-dollar construction budget for courthouses, also know as judicial centers, in Kentucky.

The new chief justice said he's making the proposal to "shore up public confidence" in the program, a subtle but real way of saying the courthouse building boom has damaged trust in our state's court system.

To recap: In the last decade, under then-Chief Justice Joseph Lambert, Kentucky has spent more than $880 million on 65 new courthouses. Elaborate palaces have been built in some of our poorest counties, often displacing significant historic buildings.

Although the program is rife with cronyism and most contracts are let without competitive bidding, there's been very little outside oversight.

The Administrative Office of the Courts, which runs the program, is immune from the state's open-records law, so it can decide what it wants to let the public know about these huge expenditures.

Minton hasn't pledged yet to completely open AOC records, as we would like, but he has taken some important steps:

■ Creating an online tracking system for "every penny" spent on these projects.

■ Taking steps to include public input on projects, including better notice of meetings of the boards that oversee them.

■ Asking the National Center for State Courts to take a look at AOC's administrative procedures.

■ Asking State Auditor Crit Luallen to take "a closer look" at judicial-center projects.

These actions are a good sign of Minton's interest in creating a culture of accountability in this huge, flawed program that he inherited from his predecessor.

But they are first steps toward changing a system that has support because it has spread building projects around the state while enriching key people.

It will take time and determination to finally arrive at a fundamentally better system.

We wish Minton well and urge him to keep at it.

SCOKY: UofL Law "Reflections on the Ky Supreme Court's Visit"

From UofL Law School is the following post re SCOKY's visit at the school:

Reflections on the KY Supreme Court's Visit

By vmsmit06 on Student

Members of the law school community were asked to share their impressions of the Kentucky Supreme Court's recent visit on September 10-11, 2008.

“I thought it was a great opportunity to sit in on a real case and see the Supreme Court justices do their job,” said Kim Albritton, a senior at Central High School and a participant in the law magnet program, which is part of UofL's Signature Partnership Initiative.

Noelle Rao (2L) shared Ms. Albritton's appreciation, “I think it’s a great opportunity to see the Supreme Court in action.”

See Kentucky Supreme Court visit provides students with unique learning opportunity for more comments from Professors Judith Fischer & Susan Duncan, and Dean Chen.

 

NEWS: "Newspaper Guild responds to Herald-Leader layoffs"

The following press release received from Communications Workers of America Local 3372.  The legal implications may not be readily apparent, but not all the law and learning we get can be found in the law books but rather includes the news stories on cases, trials, verdicts, and news developments of legal consequences.  These news stories are the result of journalists with shoe leather gathering techniques and not "googling" away on a computer. 

I hope you read past my "intro" to the story and not allow it to cloud the contents and concerns raised by the guild in its press release.

One cannot help but expect a reduction in the work force can  result in a reduction in the quality of the news.  Corporate and distant ownership has already reaped the whirlwind in Louisville.  Now wither goest Lexington?

Your morning paper may seem more generic today with the globalization of the news from a single feed.  Any doubts about the results, then think about the Binghams and the Courier Journal; the Joe Elliot Show and Clear Channel Communications; and now the Herald Leader and McClatchy.  Assembly lines may make wonderful cars, but poor news.

Today the Herald Leader produces hard-hitting investigatory news such as "Law and Mortar - An Examination of a Courthouse Building Boom" by Linda Blackford and Greg Kocher (the sample headlines and stories as found in the on-line version of the Herald-Leader at http://www.Kentucky.com can be found to the immediate left <<--- or above depending on your screen size and monitor).

Tomorrow may be a whole new story. 

Here is the press release from the Newspaper Guild reporting the laying off of 22 local Herald Leader employees and contrasting the work force reduction nationwide with the corporate jets:

Newspaper Guild responds to Herald-Leader layoffs

In the last nine months, Lexington (Ky.) Herald-Leader journalists and employees have endured a wage freeze, seen their health insurance premiums skyrocket and had their short-term disability benefits gutted by 40 percent. In June, McClatchy announced corporate-wide layoffs of 1,400.

On Tuesday, McClatchy announced further staffing reductions of 1,150 nationwide. The Herald-Leader announced today it is laying-off 22 employees in Lexington, including nine employees represented by the Newspaper Guild-CWA.

Yet McClatchy's corporate headquarters has been spared the brunt of cost cutting. In fact, McClatchy has added to its corporate bureaucracy. And not long ago CEO Gary Pruitt was even awarded an $800,000 performance bonus as the company's stock tanked. Even when considering the wage freeze implemented for executives, corporate compensation is still excessive.

To add insult to injury, McClatchy only grounded its corporate jet (a 2005 Dassault Falcon 2000EX jet, tail number N57MN) in the last month. As McClatchy was making its employees bleed to pay off crushing debt incurred by corporate decisions, McClatchy executives were jet-setting in luxury. From April 16 to Aug. 5, the jet was flown 30 times, according to flightaware.com. Many of the destinations were only a one- or two-hour drive away.

As workers were asked to do more with less, McClatchy executives enjoyed a plane that features two large flat-panel TVs, with 10 leather passenger seats and a wet bar with quarter fig mahogany cabinetry. A basic Falcon 2000ES cost $23.5 million in 2003. To put that in perspective, $23.5 million is more than the annual profits of many small- to medium-sized newspapers. The Guild applauds the company for selling this extravagant luxury (http://www.avprojets.com/detail.php?planeID=196), but we ask how many jobs could have been saved had McClatchy sold this jet a year ago?

We find it deeply disturbing that the company looked to push loyal employees into the unemployment line before it forced its overpaid executives to sit in an hour or two of traffic.

Today's layoffs are no less outrageous. Unfortunately, this news is no longer surprising. As long as large public corporations own newspapers, they will continue to bleed them dry. Today's layoffs are a reminder why civic-minded, socially conscious ownership is so important to sustaining quality journalism in our community.

The Lexington Newspaper Guild, a unit of CWA Local 3372, represents 86 newsroom workers at the Lexington Herald-Leader.

Lexington Newspaper Guild
A unit of Communications Workers of America Local 3372 (CWA-TNG, AFL-CIO, CLC)
www.lexguild.org

APPEAL VIDEOS: SCOKY Argument in Coleman v. Bee Line Available on Line at TechnoEsq!

As some may know, TechnoEsq Presentations has been posting on-line videos of opening and closing arguments from trials involving significant verdicts from 2007, etc. 

However, TechnoEsq (http://www.TechnoEsq.com) has now posted an oral argument from the Kentucky Supreme Court heard Aug. 15, 2008 in Coleman v. Bee Line Courier Services regarding PIP and indemnity.  An outstanding resource is found here in trial videos (and now an occasional appellate argument video).  I understand counsel can bring a tape and obtain a copy of their arguments at the SCOKY, and I would encourage each to do so (and hopefully share it with others by contacting me or  TechnoEsq!) until these are eventually and hopefully archived at the AOC or the state's law schools.

The case was Coleman v. Bee-Line Courier Services in which the Kentucky Court of Appeals had held that a release and indemnification agreement settling a personal injury claim from a car accident against a self-insured employer and its employee which included the plaintiff indemnifying the defendant-employer for any medical expenses it paid was valid and enforceable in spite of the purpose of the Kentucky Motor Vehicle Reparations Act.  Although this holding at the COA was premised upon Bee-Line being self-insured, it became evident on appeal that this "fact" was not clearly developed at trial.  It also was evident in the release and from the questions by the justices that the language of the release did not specifically state or use the terms PIP, personal injury protection benefits, reparation benefits, etc.

The lower court decision (COA) and the briefs filed at SCOKY are below.

Judge Thomas Wine authored the Kentucky Court of Appeals opinion  which affirmed the trial court judge's order enforcing this indemnity agreement and requiring the claimant to repay the defendant self-insurer/insurer the PIP medicals (which would have meant giving back 88% of her settlement!).   Justice Lisabeth Hughes-Abramson was the trial judge in the case and was thus recused from hearing the appeal at the Supreme Court.

Here is the TechnoEsq link: New Posting on TrialVideos Page. 

In any event, the opportunity to observe appellate arguments is a great learning tool to watch how well prepared the lawyers and the justices are on these issues.  The questions by the Court were to the point addressing the facts, the language of the release, legal arguments and cases, the No Fault Act, and policy considerations. 

A most impressive presentation, and counsel and Court are both commended.

TechnoEsq's post:

We have a new posting at TechnoEsq’s TrialVideos a little different than normal. This post is the oral arguments for a very important case, Coleman v. Beeline Courier Service, Inc.

At issue is whether Ohio Casualty Inc. v. Ruschell, 834 S.W.2d 166 (Ky. 1992), requires an indemnification agreement between an accident victim and tort-feasor to contain an explicit designation of no-fault benefits in order for the indemnification to include such benefits.

This case was wonderfully argued by Kevin C. Burke and Grover S. Cox for the Movant and Jeremiah A. Byrne for the Respondent. Be sure to head on over and watch the arguments. We will post the opinion once it has been published.

Here is the Kentucky Court Report's digest of the COA decision with links to the briefs found at Salmon P. Chase School of Law at Northern Kentucky Universityh:

• SETTLEMENTS, RELEASES, AND PIP INDEMNITY: COLEMAN V. BEE LINE COURIER SERVICE INC. (COA 8/10/2007) (contains digest and link to COA decision).
• Coleman v. Bee Line Courier Service, Inc., 2007-SC-628 Briefs
  Appellant's Brief
  Appellee's Brief
  Appellant's Reply Brief

BUSINESS: Kentucky drops from 41 to 44 in Forbes Magazine's National Ranking of States Most Favorable to Business

Here is a link to the Table of Rankings of Business Climates by state from Forbes Magazine:  Click here.  Kentucky is 44!

Of course, the "best" states for business might not always mean the "best" states for workers, families, and quality of life.

John Prine wrote a song entitled "Paradise" with a chorus that should remind all that conduct is not without consequence; some intended some unintended.

And daddy won't you take me back to Muhlenberg County
Down by the Green River where Paradise lay
Well, I'm sorry my son, but you're too late in asking
Mister Peabody's coal train has hauled it away

Or, John Milton from "Paradise Lost"

The mind is its own place, and in it self
Can make a Heaven of Hell, a Hell of Heaven.

Op-Ed: A defendant's presumption of innocence and right to a fair and impartial jury versus the freedom of the press to discuss evidentiary trial issues subject to motions to suppress

Here's an interesting situation from a story in the Courier-Journal about a pending criminal trial in which the defendant is moving to strike certain statements are inadmissible and which are now posted on the internet and in the newspaper.

If the defendant wins the motion to suppress are then entitled to a change in venue?

If the defendant loses the motion, would a change in venue cure the publicity problem?

Can the bell be "unrung" through jury selection?

A criminal defendant's presumption of innocence and right to a fair trial versus the freedom of the press in the digital age of news delivery poses an interesting question.

To avoid being part of this problem, I am not linking or remarking on the specifics of this story.

And if there is any concern that the harm of publicity is limited to the criminal justice system in Jefferson County, then take a look at the story out of Bullitt County from the Courier Journal's editorial pages about the harm caused from "made up" charges. 

Tardy truth
It's been months since a Bullitt County judge dismissed child sex abuse charges against Clayton Pruett, who is a church youth pastor, substitute teacher and wrestling coach. But only recently has the public learned that Debra Kay Perez Johnson, mother of Mr. Pruett's alleged victim, confessed in a settlement that she lied.

And the variations on this theme seem to find no end in another Courier Journal story:

Pardoned man protests continuing investigation

A member of the Fletcher administration pardoned for his role in the merit hiring scandal has asked that a Jefferson Circuit Court judge force the state Executive Branch Ethics Commission to stop its investigation of him.