Kentucky Law Review

COURTS: From courthouse construction to courthouse rentals - law, bricks, and mortar travails continue as Family Courts of Madison County become a tenant of Sen. Worley's new building

John Cheeves post at the Herald Leader's Bluegrass Politics blog is somewhat disturbing on two fronts as it addresses the Madison County family courts' rental of a building to house the family courts business.  The landlord is Sen. Worley; the tenant is the county; the occupant of the rented premises is to be the family courts.

The post is entitled Sen. Worley’s new building will house Madison family courts.  The gist of the article seems to raise concerns over appearances rather than illegalities.  However, in a time of fiscal travails for state and local government, this definitely raises an eyebrow regarding the legislator's activities.  And do you remember this earlier story from the Herald Leader on Pike County's courthouse construction?  See, OP-ED FROM HERALD LEADER: "Courthouse plan wastes taxes, trust - Pike tale shows why Ky. never progresses"

Here's the post:

A company that is co-owned by state Sen. Ed Worley, D-Richmond, will get about $410,000 a year in rent from Kentucky taxpayers under a deal arranged by Madison County Judge-Executive Kent Clark, Worley’s friend and political ally.

Worley, who is the Senate Democratic leader and a private developer, spent $765,000 over two years buying up most of a downtown Richmond block full of 19th-century, Italianate-style buildings, which he demolished.

He’s now building a two-story, brick-veneer office building on the site to house Madison County’s family courts division.

UPDATED: JAKE PAYNE AT PAGE ONE BLOG HAS ALSO RAISED CONCERNS OVER THIS RENTAL: 

Why is it legal for Ed Worley to make $410,000 a year in rent from the Madison County Family Court? Is the Administrative Office of the Courts just in existence to funnel hundreds of thousands of dollars in cash to various folks around the Commonwealth? Why is it Ed Worley can legally take hundreds of thousands of dollars in state funds while he’s a member of the state legislature? [John Cheves]

However, what about the other side of the rental equation as the post goes on to say

[Madison's family law courts have] been in a county-owned building next to Worley’s property since 2002.

The county-owned building is too small and needs repairs, Clark said. And he said there is no room for family courts in the county’s existing courts buildings, including the Madison County courthouse, the Madison Hall of Justice and the $5 million courthouse annex that opened three years ago.

With no appropriate space, the county had to find a private landlord and pay outside rent, Clark said. He advertised for anyone who could offer 15,000 to 16,000 square feet of office space within two blocks of the courthouse.

With the recent addition of a $5 million courthouse annex only 3 years old (on top of the courthouse and the hall of justice] who has been on top of this building program with such shortsightedness and inability to project growth just a year or so down the road. 

Or worse yet, what if the facility construction was obsolete even before the first shovel of dirt?

I am again reminded of the recent series by Herald Leader raising questions on Kentucky's courthouse construction (Law & Mortar: Courthouse building boom).  The Herald Leader wrote a scathing editorial with a hint of optimism in hopes that the new Chief Justice Minton will address the problem and resolve it (eg., "Cleaning up court construction mess" is the editorial and no longer on line, but due to its potential long term importance I incorporated a large portion of it in my earlier post dated Oct. 9, 2008 - AOC: "Cleaning up court construction mess".  

As the editorial and series noted - $880 MILLION for 65 courthouse construction projects in 10 years.  And now one project has to be supplemented by rental for the family courts in Madison County.  Not a positive sign for the AOC.  But, I must confess the AOC may not be the culprit constructor in this case as there is no mention in the Herald Leader's data base of any judicial center construction in Madison County which means the AOC is not involved or the data base is not accurate.  See, SEARCH DATABASE: Courthouse boom.

I am not familiar with the procurement process regarding buildings and grounds, but when the Herald Leader raises an eye, then I think it is worth a look.  A look at the landlord, the tenant, and the occupant as to how in the heck did we get here?

Here are the assurances anticipated and noted in the Herald Leader post:

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.

Here are some earlier posts:

COURTS: AOC Courthouse Construction Program Under In-House Audit by CJ Minton; others wanted state auditor Luallen

Contractors ordered to completely insure work - Latest News

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Ky. hires new director for courthouse construction

COURTHOUSES: Herald Leader story follows up on its investigation into Kentucky Courthouse construction with story on failure of Harrison County project to accommodate disabled

Judicial Vacancy Announcements - Circuit Judge, 2nd Circuit, Div. 1 (McCracken County)

DEADLINE IS JULY 10!

2nd Circuit, 1st Division

Notice (49KB-PDF)
Questionnaire (19KB-PDF)

RANDOM THOUGHT: Zoning at Javanon Resolved, but not all questions answered

Here's the most recent CJ piece:

Javanon allowed to keep metal building

The controversial Javanon Soccer Club facility received the city zoning approval it needed Monday to keep operating, but not before zoning board members complained about the city's slipshod handling of the case.

Here's the unanswered questions:

• Any disciplinary action against the government officials for their blatant breaches of the law?
• And what about those government lawyers who blazed that trail to nowhere?  Any action here?
• And let us not forget that a loss of confidence has been created as some citizens who are not as well connected to the system must just wonder if other stuff like this happens which goes undetected, unreported, and unconcerned.
• Or is this just another example of it's easier to get forgiveness than permission?
• Or is it anything goes in the midst of a financial crisis?

 

RANDOM THOUGHT: Where did all that money come from for those banks repaying stimulus money?

Now riddle me this Batman. 

If many of our nation's banks were in a financial meltdown and needed funds just months ago and to the tune of billions upon billions of dollars, then where did all that money come from recently to start paying off those stimulus funds?

Makes you want to say something like, Hmmmmmmm. 

Was there a financial need, and was it real, perceived, or fictional?
Was there a financial panic at the bank or just a bunch of pecuniary lemmings running off the cliff and now that they have hit the water, they do not want anything to do with federal control and want to give back the money?

Oh well.  Where is that inspector general the Prez wants to fire?  A little oversight here might be beneficial.

Here's the story from the CJ:

BB&T among banks repaying TARP funds

WASHINGTON — Ten large U.S. banks are planning to repay the government about $68 billion in bailout money Wednesday, June 17, a pair of industry officials have told The Associated Press.

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.

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

JUDICIAL POLITICS: More on the King Campaign Finances and a little segue into investigatory journalism and blogging

This post bounces around a little - a little about local bloggers breaking stories which prompted my earlier post entitled OP-ED: Letter to the editor in CJ supportive of Judge Katie King and which generated the following comment from Ed Springston who blogs at Louisville News and Politics and who has investigated the Katie King campaign issues.  Ed has followed the election financing aspects of this story whereas Jake Payne at PageOne of Kentucky "broke" several stories during the King campaign.

Although I like to think that our normal investigative and complaint resolution procedures work, I am not so naive to believe the system is perfect.  Sometimes it needs the prodding from citizens and the Fourth Estate, to include bloggers, who provide investigatory assistance and raise issues that might be overlooked. Or to put it another way, those outside the system provide a different perspective and offer a little sunshine on the process.

If you don't believe me or you continue to question the power of solid blogging or the value of local investigatory reporting, then you should take a look at Page One and Jake Payne's posts on the Robert Felner fiasco at University of Louisville or the recent investigatory reporting in the Courier Journal regarding local courts - Officer Absent, Case Dismissed.  And Jake Payne and Page One are again putting UofL under the microscope regarding the nursing suit dismissal, having 'broke' the story before the mainstream media - Explosive Problem for the University of Louisville - Nursing Student Expelled for MySpace Blog.

After receiving Ed Springston's comment to my earlier post, I did not want it relegated to below the fold and thought it best to run the other side of this story being circulated on Judge King (which was the reason behind sharing some "good" press on her performance in the first place).  Hope this helps complete the picture.  My goal is to try and be balanced, but just because I think I am the most reasonable person I know does not mean others may disagree!

First, here is Ed's Comment (moved from below the fold):

You know the issue here is not how well she does her job. IF she got that job through illegal means it certainly would mean a great deal to those who believe our Judges should be above illegality.

Let the process take place. And really I would expect noless from Steve Magre, a well estabished insider of the machine that King works diligently. Funny though Magre was the one used for this piece instead of someone more recent and relevant to the process.

Posted by: Ed Springston | Monday, March 16, 2009 at 02:52 AM

Second, here are some of Ed's posts regarding his election finance complaint.  To the extent that should anyone be elected by illegal means then there should be consequences.  However, the rule of law requires resolution through proper channels with the hope that these forums will ultimately separate the politically permissible from the judicially and electorally improper. 

A little assist from the citizenry will presumably be beneficial, as well. 

Besides, "Sunshine is the best disinfectant (Justice Brandeis)", and these legally significant stories need to be shared with the legal community.

• ENJOY!

• KING UPDATES AND MORE!

• JIM KING: THE STORY THAT WILL NOT GO AWAY.......

• THE KING WHO WOULD BE MAYOR CONTINUED...

• THE KINGS AND KREF COMPLAINT

OP-ED: Letter to the editor in CJ supportive of Judge Katie King

Today, I am sharing a letter to the editor from the Courier Journal in support of Judge Katie King.  The letter was written by Steven Magre, former President of the Louisville Board of Alderman, and sets out two points that seem to have been overlooked by bloggers and media in coming down on Judge King. 

To these I add -  biting commentary from the pundits is not proof that inappropriate election conduct occurred, and I thus submit to all that we are a nation founded upon a "rule of law" so let the process work with the judicial campaign conduct committee and the state judicial conduct committee (as well as the election finance regulators).  In addition, Magre is correct in his personal assessment which more importanly belies an objective assessment - do you really think the law was violated by a Metro Council President, bank president, loving father when they had some of the best legal advice in the state available, a former metro council member spokesperson, and an advisory heads-up from the election finance regulators?

And yes, I was in her court for an appearance recently, and observed she was at task, the cases were moving smoothly, and she was judicial and in charge.  I have heard others make similar comments.  In any event, her next election will address her performance more so than her politics.

Two issues need to be recognized - legal vs. political.  The Katie King election was non-partisan but highly political and well-funded.  This may well be the nature of future judicial elections.  However much some voters may not like the money and the news sound-bites etc., do not forget the fact that news was generated, blogs were ablazing, and the public was watching (albeit much less than the presidential election I might add).  Public involvement and scrutiny are not a bad thing in elections.

If folks are unhappy with this judicial electoral process, then change it - elections or selections?

Oh yes, here is the letter to the editor:

Supports Judge King

I am writing in support of Judge Katie King. I voted for Judge King, though I was not directly involved in her campaign. In terms of my understanding of the specifics concerning your latest public attack, I have no direct knowledge of the financial aspects of her campaign. But I know my friend Jim King very well and know that he would never support any action that would place his bank, his integrity, his employees or one of his children in jeopardy.

And here is a final note. Without The C-J's urging, I have kept close tabs with my longtime court connections and have asked over the last few months as to how Judge King is faring. My sources tell me she is staying on task, learning and doing a professional job. What more can you ask of any elected official? She deserves a chance to perform, and like all other elected officials be judged on how well she does her job.

STEVE MAGRE
Louisville 40204

The writer is a former Louisville alderman and president of the Board of Aldermen. -- Editor.

ELSEWHERE but close: Houston Chronicle Comments on Prejudging Appeals via voting before hearing from the lawyers

An editorial comment from the Houston Chronicle (Chron.com) highlights concerns raised when an appellate court takes a vote before hearing from the lawyers in a capital case.  The reason I link to it here is two-fold:  First, it has its timing around the Kentucky lethal injection case which was about to be decided at the time;  and more importantly and secondly, a public perception created when the appellate judges cast votes (be they straw votes, etc) before even hearing from the lawyers! 

The reason the second also hits home is the reported practice the the Court of Appeals of Kentucky panels keep up with their dockets by having draft opinions prepared prior to oral arguments in some cases (which presumes a tentative vote of some kind).  Of course, by reviewing the briefs the COA does hear from the lawyers before leaning in one direction of the other (if this practice does exist).

Here's the story:

COMMENTARY
High court’s secret and hasty vote
By RICK CASEY

Vince Leibowitz, a reporter for a blog called Capitol Annex, reported this week that several judges on the state’s highest court for criminal matters want their chief judge, Sharon Keller, to resign.

Keller has been charged by the State Commission on Judicial Conduct with violations of the judicial conduct code in connection with her alleged refusal to keep the court clerk’s office open for a last-minute appeal for a death row inmate, or to inform the judge assigned to take last-minute appeals that the inmate’s lawyers were attempting to file one.

Now Keller must face the equivalent of a public trial and could lose her office.

Leibowitz quotes his source as saying the judges, at least some of whom would have to testify, feared more media scrutiny could hurt their re-election chances.

Their concern is justified. A good portion of the public might be alarmed to know, for example, that the judges acted a bit like the Queen of Hearts in Alice in Wonderland.

“Let the jury consider their verdict,” the King said, for about the twentieth time that day.

“No, no!” said the Queen. “Sentence first — verdict afterwards.”

Life rarely imitates art exactly. As usual, it was a little more complicated.

Convicted murderer Michael Wayne Richard was set to be executed by lethal injection at 6 p.m. Sept. 25, 2007. That morning the U.S. Supreme Court accepted a case called Baze v. Rees challenging the constitutionality of lethal injection.

According to the formal charges by the Commission on Judicial Conduct, Judge Cathy Cochran at 11:29 a.m. e-mailed to Keller and her other colleagues an Internet link to the Kentucky Supreme Court decision that was being appealed to the U.S. Supreme Court.

The document then says that in “early afternoon” the court’s general counsel, Edward Marty, “began drafting a proposed order for the court in anticipation of Mr. Richard’s appeal based on Baze. The Honorable Judge Tom Price drafted a dissenting opinion in anticipation of Mr. Richard’s appeal and circulated the dissent to the other judges.”

What the document omits is that the judges first took an informal vote. I have it on good authority that the tally was 5-4 to turn down Richard’s appeal.

They made up their minds without waiting for the arguments of Richard’s lawyers.

David Dow, the University of Houston Law Center lawyer who headed Richard’s defense team, called the procedure “outrageous.”

“It’s the equivalent of them sticking their fingers in their ears,” he said. The judges may well have felt confident they could anticipate the arguments, and they didn’t want to wait until late in the day to begin taking up the matter.

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.