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National Insurance Get started today by phone, fax, online, Agency, Inc. or in person... Professional Association Insurance Program Administration 502-425-3232 • 800-928-6421 www.NIAI.com 11801 Brinley Avenue • Louisville, KY 40243 This issue of the Kentucky Bar CONTENTS Association’s Bench & Bar was published in the month of July. Publications Committee Constitutional Law Frances Catron-Malone, Chair, Frankfort Paul Alley, Florence Mindy Barfield, Lexington 17 Reservations for 50: A Closer Look Gregory M. Bartlett, Covington at the Tenth Amendment’s Powers Sandra A. Bolin, Berea Michael A. Breen, Bowling Green Reserved to the States Christopher S. Burnside, Louisville By John J. Balenovich Shawn E. Cantley, Louisville David C. Condon, Owensboro William S. Cooper, Elizabethtown 23 Board and Commission Appointments: James P. Dady, Newport Executive Power – With Limits Bruce K. Davis, Lexington Judith D. Fischer, Louisville By Bill Lear & David Fleenor P. Franklin Heaberlin, Prestonsburg Sheryl E. Heeter, Newport Judith B. Hoge, Louisville 28 Civil Resolution of Ecclesiastical Disputes Edna M. Lowery, Frankfort By Paul E. Salamanca Theodore T. Myre, Jr., Louisville Eileen M. O’Brien, Lexington Brian K. Pack, Glasgow 34 Reforming Reform – Kentucky’s Campaign Richard M. Rawdon, Jr., Georgetown Sandra J. Reeves, Corbin Finance Laws in Transition E.P. Barlow Ropp, Glasgow By David S. Samford Candace J. Smith, Covington E. Frederick Straub, Jr., Paducah Gerald R. Toner, Louisville John A. West, Covington Departments Michele M. Whittington, Frankfort 3 President’s Page Publisher By Barbara Dahlenburg Bonar James L. Deckard 6 Fall Getaway Registration Form Editor Frances Catron-Malone 9 YLS By Scott D. Laufenberg 16 Effective Legal Writing Managing Editor Barbara L. Thomas By Adrienne Noble Nacev The Bench & Bar (ISSN-1521-6497) is 38 Judicial Conduct Commission published bi-monthly by the Kentucky Bar 42 Supreme Court of Kentucky Association, 514 West Main Street, Frankfort, Order Correcting 2008-01 KY 40601-1812. Periodicals Postage paid at Frankfort, KY and additional mailing offices. Amendments to Circuit and All manuscripts for publication should be District Civil Fees & Costs sent to the Managing Editor. Permission is 46 Shop Talk By Michael Losavio granted for reproduction with credit. Publication of any article or statement is not 48 Resolution Adopted by to be deemed an endorsement of the views KBA Board of Governors expressed therein by the Kentucky Bar Recognizing Kentucky Public Association. Subscription Price: $20 per year. Members Defenders’ Excessive Caseloads subscription is included in annual dues and is 50 CLE not less than 50% of the lowest subscription price paid by subscribers. For more informa- 52 Kentucky Bar News Cover photo and photo above tion, call 502-564-3795. 59 Who, What, When & Where by Deogracias Lerma. POSTMASTER Send address changes to: Come join us October 23-25, 2008 for our Fall Getaway in beautiful French Bench & Bar Lick, Indiana at the historic West Baden Springs Hotel. Register now for a 514 West Main Street relaxing fall weekend! See page 6 of this issue for registration information Frankfort, KY 40601-1812 or register online at www.kybar.org. — Barbara D. Bonar, KBA President Kentucky Bar Association Annual Convention 2008
Chief Justice Joseph E. Lambert Administering the Oath to the 2008-2009 Kentucky Bar Association Board of Governors. Left to right: 7th Supreme Court District Bar Governor Bobby Rowe, 3rd Supreme Court District Bar Governor Daniel J. Venters, 2nd Supreme Court District Bar Governor James D. Harris, Jr., 1st Supreme Court District Bar Governor Jonathan Freed, Young Lawyers’ Section Chair Scott D. Laufenberg, Vice President Bruce K. Davis, President-Elect Charles E. English, Jr., 4th Supreme Court District Bar Governor Douglas C. Ballantine, 5th Supreme Court District Bar Governor Anita M. Britton, 6th Supreme Court District Bar Governor David V. Kramer and President Barbara Dahlenburg Bonar.
2008-2009 KBA President Barbara Dahlenburg Bonar accepting gavel from 2007-2008 KBA President Jane Winkler Dyche.
KBA President Barbara Dahlenburg Bonar giving inaugural address.
KBA President Barbara Dahlenburg Bonar with her husband, John Bonar, and her father, Charles Dahlenburg.
2 Bench & Bar July 2008 PRESIDENT’S PAGE
CastingCasting shadowsshadows inin thethe newnew MillenniumMillennium
Barbara Dahlenburg Bonar Character is like a tree and reputation like its shadow. The shadow is what we think of it; the tree is the real thing. — Abraham Lincoln, 16th U.S. president (1809-1865) celebrating 200 years in February, 2009.
ou won’t glean it from the news dedicated to this very proposal, if you ment genres, we have been urged to Y these days, but one of the most can believe it.) How unfair, we say. take the lead, and we wittingly have pressing issues on the collective minds Especially given that the real intent of complied. And history shows that we of attorneys is the apparently declining the tyrant from Henry VIII was to elimi- have consistently taken on these battles reputation of our profession, and the nate the guardians of the law so as to in spite of the known social setbacks. results from our recent Kentucky Bar create chaos and run amok. But doesn’t We inherited the wind, remember? member survey seem to confirm it. So, that tell us something right there? Even So, can we as a profession pursue if we care so deeply about our image, where old Will had scripted our profes- justice without fear of social condemna- why is it we can’t come up with a sure sion the grandest of compliments, our tion, and then ask to be socially method to improve it? critics managed to turn it against us for coddled? Sometimes. But it doesn’t Each of us chose this profession posterity. always work out that way. Courage because we think it is an honorable one, So let’s first accept that our reputation seems to defy popularity. Thomas right? We exit law school proud to be is a two-edged sword. Being warriors for More’s unwavering passion for the rule attorneys and generally keep that belief the rule of law and noncomplacent to of law was exactly what got him throughout our careers. More impor- tyranny is what elevates our profession. beheaded. And let’s not forget Abraham, tantly, although the professional road Yet our valiant and often misunderstood Martin, John, Bobby and a few others. we travel is often harsh and fraught with warfare is what also brings our image Famous for their respective agendas of pitfalls, most of us remain true to our right back down. social justice, they were also publicly oath, devoted to our clients and, above History certainly supports such a pub- condemned by their enemies, and, oh all, honorable in our professionalism. lic relations conundrum. Take the yes, ultimately assassinated to take their So why is our image so tainted? Is it American Revolutionists. Thomas Paine seats of honor. Even fictional Atticus because people just generally dread knew all too well that fighting British Finch, the exemplar for a reputable encounters with the legal system and tyranny would undoubtedly “raise a attorney, lived with constant public dis- resent our making money off of their formidable outcry of disbelief” among paragement, merely for standing up for misfortunes? Maybe we should blame colonists. His solution? Publish Common justice. word-smithing lawyer politicians, the Sense anonymously and urge protectors Taking on unpopular battles in the complexity of our times, or the sensa- of law to lead the charge. “If the name of justice will just not always win tionalism of a few bad lawyers and impulses of conscience were clear, uni- us friends. And as long as greed and modern-day media? Well, yes we form, and irresistibly obeyed,” he pled, corruption continue in our world, so should. That still doesn’t get us any “man would need no other lawgiver.” We must our role to fight them, even when closer to solving our image problem, took the bait, and promptly laid the popularity wanes. As the warfare though. groundwork for our country’s birth. becomes more complicated, the enemies Besides, the persecution of our profes- Attorneys have been expected to smarter, and attacks on us and society sion is as old as the ages. Shakespeare’s show the same courage and tenacity in more fervent, we just have to be satis- “First thing…. let’s kill all the lawyers” most of America’s greatest reforms. In fied that our victories are no less has been a favorite expression of attor- the abolition of slavery, the civil rights consequential to social reform than in ney hate-mongers – for a long while, one movement, and, most recently, reforms history. The public may misunderstand would assume. (And there’s now a blog in our financial, business and govern- us, but our saving grace is the mighti-
July 2008 Bench & Bar 3 ness of our profession’s legacy. character in our lawyers and, ultimately, yes, even popularity. Is it possible then, to still improve our bar. “The easiest way to judge one’s This year, in the name of Lincoln, our image? According to Abe, it is. character,” he noted, “is by how he let’s honor and emulate our good We start back at the basics by building treats those who can do nothing for lawyers and judges, and educate other individual character, one lawyer at a him.” On that simple premise, we know disciplines as to the rule of law we fol- time. If we establish the core values of there is character aplenty among low. This will plant more seeds of our profession, and ensure our young Kentucky lawyers and judges. It is there character in our young lawyers and lawyers are brought forward in that among the thousands of strong-minded insure our profession’s healthy future. character mold, the shadow of our repu- lawyers quietly serving their clients, and One by one, but together, we will cast a tation will begin to solidify and grow. the hundreds of judges resolute in mak- long and beautiful shadow. The humanist Johann Goethe wrote ing sound decisions – every day – and I welcome your comments at the perfect formula for establishing without expectation of fame, fortune, or, [email protected].
Past Presidents of the Kentucky Bar Association
Left to right: Herbert D. Sledd, Ben L. Kessinger, Jr., Charles E. English, Sr., David L. Yewell, John G. Prather, Jr., Marcia Milby Ridings, Stephen D. Wolnitzek, Donald L. Stepner, Norman E. Harned, Robert L. Elliott and Robert C. Ewald. 2008 Award Recognitions Bruce K. Davis Bar Service Award Asa “Pete” Gullett (below) accepted the Bruce K. Davis Bar Service Award from KBA President Jane Winkler Dyche.
President’s Special Donated Legal Service Award Services Award KBA President Jane Winkler Dyche Frank C. Medaris, Jr. (above) accepted presented the President’s Special Service the Donated Legal Services Award from Award to Norman E. Harned (above). KBA President Jane Winkler Dyche.
4 Bench & Bar July 2008 Outstanding Judge Outstanding Lawyer KBA President Jane Winkler Dyche presented the Outstanding Margaret E. Keane, of Louisville, accepted the Outstanding Judge Award in memory of and to the family of Justice Lawyer Award from KBA President Jane Winkler Dyche. William E. McAnulty, Jr. of Louisville.
Chief Justice’s Special Service Award Justice Thomas B. Spain Award Erwin W. Lewis, of Frankfort, accepted the Chief Justice’s CLE Chair Olu A. Stevens presented the Justice Thomas B. Special Service Award from Chief Justice Joseph E. Lambert. Spain Award to Professor William H. Fortune of Lexington.
July 2008 Bench & Bar 5
KENTUCKY BAR ASSOCIATION 2008 FALL GETAWAY WEST BADEN SPRINGS RESORT HOTEL, FRENCH LICK, INDIANA
Registration
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West Baden Springs Resort Hotel, French Lick, IN (limited room block) H H H H Single (Thurs. & Friday) $189.00 Double (Thurs. & Friday) $189.00 Smoking Non-Smoking H H H H Single (Saturday) $215.00 Double (Saturday) $215.00 Smoking Non-Smoking H H H Suite $425.00 Smoking Non-Smoking
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Check in time is 4:00 p.m. Check out time is 11:00 a.m. All reservations must be received by the Kentucky Bar Association, 514 West Main St., Frankfort, KY 40601 no later than September 19, 2008. A 72 hour notice prior to check in is required on all cancellations.
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Come join us
October 23-25, 2008 for our Fall Getaway in beautiful French Lick, Indiana at the historic West Baden Springs Hotel. This magnificent structure boasts luxury suites, fine dining, and exciting casino nightlife! Join your friends and colleagues for Continuing Legal Education courses that will be offered on site Friday and Saturday mornings. Register now and bring your entire family for what promises to be a relaxing and beautiful fall weekend at this Midwestern landmark. We look forward to seeing you at West Baden Springs in October!
Barbara D. Bonar, KBA President
2008 Outstanding Young Lawyer Award
Ryan Reed, Jackie Wright, LaToi Mayo & Mark Burton. LaToi D. Mayo, the 2008 Outstanding Young Lawyer.
2008-2009 YLS Chair Scott D. Laufenberg (right) presented Ryan C. Reed (left), 2007-2008 YLS Chair, congratulated plaque to 2007-2008 YLS Chair Ryan C. Reed (left). Scott D. Laufenberg (right), 2008-2009 YLS Chair.
Law school students Katherine Holm and Travis Mayo Sean Carter, author and self-described humorist at law, was the accepted awards from Ryan Reed. guest speaker at the Young Lawyers’Section Luncheon.
8 Bench & Bar July 2008 By Scott D. Laufenberg Chair, KBA Young Lawyers Section
here is an ongoing debate across ise of the program is simple: ten-minute designed to teach high school seniors T this country whether young lawyer video clips on topics ranging from about responsibilities of becoming sections should call themselves “new ethics and trial advocacy skills to law adults. The program materials include a lawyer” or “young lawyer.” While it practice management are available on book and sample lesson plans for high may make for an interesting debate for the web for free twenty-four hours a school teachers. bar leaders, the question for the aver- day. Besides the clips shown at the con- At the Section luncheon at the 2008 age young lawyer is: what will you do vention, the KBA and the Section will KBA Annual Convention, the Section for me? be recruiting additional presenters and presented its annual Outstanding Young If you attended the 2008 KBA Annual placing those clips on a website located Lawyers Award to LaToi D. Mayo, who Convention, you saw examples of how at www.briefinsights.com. practices with Wyatt, Tarrant & Combs, the Young Lawyers Section serves its But there is more to the Section than LLP in Lexington. The Section also pre- members. At the suggestion of the Sec- just serving its members; it serves our sented $500 bar study scholarships to tion, the KBA agreed to conduct the communities too. In response to the recent law school graduates J. Clark spring New Lawyers Program in con- events of September 11, 2001, a South Baird of the University of Kentucky junction with the annual convention. As Carolina young lawyer was inspired to College of Law, Katherine M. Dittmeier in the past, new admittees attended one make a difference by addressing a stark Holm of the University of Louisville day of programming specific to them. reality – many of the first responders who Brandeis School of Law, and Steven The major change, however, was their died that day did not have a will. Since Travis Mayo of the Salmon P. Chase Col- ability to attend the Young Lawyers that time, he and another young lawyer lege of Law. Congratulations to LaToi Conference on Thursday, June 19, with have created the Wills for Heroes Foun- and the three bar scholarship recipients. other convention attendees. The Young dation, Inc. (www.willsforheroes.org), and In recent months, the Section has Lawyers Conference consisted of pro- they partnered with the American Bar unveiled its new slogan and logo on its gramming designed by the Section to be Association Young Lawyers Division to website, www.kbayls.com. If you have not relevant to lawyers just beginning their promote a program called Wills for visited the website in a while, I encourage practice and for more advanced practi- Heroes across the country. Through this you to check it out. It is a work in tioners. On behalf of the Section, I want program, first responders receive a basic progress, but in upcoming months the to express my appreciation to the KBA will, a living will, and durable power of Section will be adding additional content CLE office for making this idea a reality. attorney. During the 2008-09 bar year, the to its website, and I encourage you to During the convention, KBA Presi- KBA Young Lawyers Section will be contact me with any ideas. dent Barbara Bonar and I announced a implementing Wills for Heroes in As part of the restructuring of the joint project between the KBA and this September. Section, there are nine committees on Section called Brief Insights. This pro- Besides Wills for Heroes, the KBA which members may serve. If you are gram is modeled after a highly Young Lawyers Section will be imple- interested in volunteering and making a successful program created by the Texas menting its U@18 program across the difference in the profession and in your Young Lawyer Association. The prem- Commonwealth. The program is communities, please review the commit- tee list on the Section’s website at http://www.kybar.org/documents/inside_ For additional information about the KBA Young Lawyers Section, kba/sections/yls/yls_committee_list.pdf visit http://www.kbayls.com or contact Scott Laufenberg at and contact me at slaufenberg@ [email protected] or (270) 782-8160. kscvlaw.com or (270) 782-8160. Whether you consider yourself a young or new lawyer, I hope you find the KBA Young Lawyers Section a home to you in your beginning years of practice. I July 2008 Bench & Bar 9 Terms Expire on the KBA Board of Governors
On June 30 of each year, the terms expire of seven of the fourteen Bar Governors on the KBA Board of Governors. SCR 3.080 provides that notice of the expiration of the terms of the Bar Governors shall be carried in the Bench & Bar. SCR 3.080 also provides that a Board member may serve three consecu- tive two-year terms. Requirements for being nominated to run for the 2008-09 YLS EXECUTIVE COMMITTEE Board of Governors are contained Chair: Scott D. Laufenberg, Bowling Green in Section 4 of the KBA By-Laws. Chair-Elect: Jennifer L. Howard, Lexington The requirements include filing a Vice-Chair: J. Nathan Billings, Lexington written petition signed by not less Secretary/Treasurer: Clint Quarles, Frankfort than twenty (20) KBA members in Immediate Past Chair: Ryan C. Reed, Bowling Green (ex-officio) good standing who are residents of District Representatives the candidate’s Supreme Court Dis- First: Michael O. Walker, Paducah Fourth: Patrick Shane O’Bryan, Louisville trict. Board policy provides that: Second: Jennifer L. Brinkley, Bowling Green Fifth: Justin M. Schaefer, Lexington “No member of the Board of Gov- Third: Tighe A. Estes, London Sixth: Jacqueline S. Wright, Maysville ernors or Inquiry Commission, nor Seventh: Randall L. Saunders, Huntington, WV their respective firms, shall repre- At-Large Representatives sent an attorney in a disciplinary Roula Allouch, Covington Rebekkah Bravo Rechter, Louisville matter.” Any such petition must be Lauren R. Brooke, Lexington Stephanie Renner, Lexington received by the KBA Executive Robert M. Croft, Jr., Lexington Jesse Robbins, Frankfort Director at the Kentucky Bar Cen- Sara R. Elrod, Cincinnati David A. Trevey, Lexington ter in Frankfort prior to close of Walter Hawkins, Bowling Green Christina L. Vessels, Lexington Robert L. Raper, Covington Timothy A. West, Lexington business on the last business day in October. The current terms of the Local Bar Association Representatives following Board members will Bowling Green-Warren County: Matthew M. McGill, Bowling Green expire on June 30, 2009: Fayette County: Adrien Spencer McKiness, Lexington Louisville: Erica A. Lee, Louisville 1st W. Douglas Myers Northern Kentucky: Stacy Hege Tapke, Covington Hopkinsville SBA Representatives nd University of Kentucky College of Law: TBA (ex-officio) 2 R. Michael Sullivan University of Louisville School of Law: TBA (ex-officio) Owensboro NKU Salmon P. Chase College of Law: TBA (ex-officio) 3rd Richard W. Hay Somerset
4th Douglass C.E. Farnsley Louisville
5th Fred E. Fugazzi, Jr. Lexington
6th Thomas L. Rouse Ft. Wright
7th William H. Wilhoit Grayson
10 Bench & Bar July 2008
Law Day Awards
Lisabeth Hughes Abramson was the guest speaker for the Law Day Ceremony.
® The Medium Bar Award was presented to the Madison County Bar Association. Nora Shepherd, past president of the Madison County Bar Association, accepted the Matthew Cook accepted the Large Bar Award for the Bowling Green-Warren County Bar award. Law Day activities Association from Gailen W. Bridges, Jr. conducted in Madison County included a Kentucky Bar Foundation Speaker Project, a Law Day Motion Hour Cere- mony, a Law Day Banquet, and an annual Law Day Essay Contest. Kentucky Supreme Court Justice Mary C. Noble was the guest speaker at the ailen W. Bridges, Jr., the 2008 Law Day Banquet and Family KBA Law Day Chair, recognized Court Judge Jean Chenault Logue pre- Goutstanding Law Day programs sented a pro bono award to Melinda from bar associations across Kentucky at Murphy. Circuit Judge Julia Hylton Catherine Stavros accepted the Large Bar the Membership Awards Luncheon that Adams also presented savings bond cer- Award for the Northern Kentucky Bar was held during the 2008 KBA Annual tificates to the essay contest winners at Association from Gailen W. Bridges, Jr. Convention in Lexington. Mr. Bridges the Law Day Motion Hour. presented awards to the winners of this year’s KBA Law Day Competition ® Judge Earl-Ray Neal and Clark which was centered on “The Rule of County Bar Association President Law: Foundation for Communities of William Elkins accepted the Small Bar Opportunity and Equity.” Award for the Clark County Bar Associ- ation. A series of events were held in ® The Northern Kentucky Bar Associ- Clark County to commemorate Law Day ation and the Bowling Green-Warren 2008. Circuit Judge William T. Jennings County Bar Association were co- approved a proclamation commemorat- recipients of the Large Bar Award. ing the 50th anniversary of Law Day Cathy Stavros, Northern Kentucky Bar and focusing on this year’s theme, “The Nora Shepherd accepted the Medium Bar Association President, and Matt Cook, Rule of Law: Foundation for Communi- Award for the Madison County Bar Bowling Green-Warren County Bar ties of Opportunity and Equity.” Local Association from KBA Law Day Chair Association Treasurer, accepted the attorneys spoke to ele- Gailen W. Bridges, Jr. awards. In Northern Kentucky, nineteen mentary school judges and attorneys spoke to students students about the rule in ten area schools about the 50th of law. Clark County anniversary of Law Day, the law in gen- middle school students eral, and the Law Day theme, “The Rule participated in an art of Law: Foundation for Communities of contest and high Opportunity and Equity.” In Bowling school students had the Green, over 150 judges, attorneys, opportunity to partici- teachers, children and parents attended pate in an essay the 2008 Law Day Ceremony and contest and a mock reflected upon the meaning of the rule trial. Members of the of law, its role in society, and how it is bench and the bar also Judge Earl-Ray Neal and William Elkins accepted the essential in sustaining a free society. held a local law forum Small Bar Award for the Clark County Bar Association Kentucky Supreme Court Justice for the community. I from Gailen W. Bridges, Jr. July 2008 Bench & Bar 11
2008 Convention CLE 2008 Rules Hearing Considers Ethics Rules Changes
On June 18, 2008, the Kentucky Supreme Court held a three-hour long Rules Hearing on significant changes to the Kentucky Rules of Professional Conduct (KRPC), stemming from the work of the “Ethics 2000” Committee. The Rules Hearing was chaired by now- Chief Justice John Minton, Jr. The changes to the KRPC were origi- nally presented at the Rules hearing at the 2007 Annual Convention in Louisville in 2007. However, it was Newly-elected Chief Justice John Minton chaired part of the Rules Hearing realized that more time was needed for at the Annual Convention. study of the proposals. Chief Justice Minton noted that the Court “made an The Nine, Mr. Toobin said that the U.S. shire, Massachusetts, and Boston Bar effort to put this out before the members Supreme Court is “at an important Associations. In addition, he has of the Bar for discussion.” The changes moment in its history.” He reviewed the received a number of awards through- were presented to the membership at all Court’s work over the last forty years, out his career, including having been locations of the Kentucky Law Update and remarked on retired Justice Sandra named Lawyers’ Weekly “Up and in 2007 by Professor William Fortune. Day O’Connor’s impact on the Court Coming Attorney” in 2001, and Massa- The Court is taking comments on the during her tenure. Toobin called Justice chusetts’ “Rising Star” in 2005, 2006, changes through the end of July 2008. O’Connor “a toweringly important fig- and 2007. All comments should be in writing and ure in American history.” Toobin also Mr. Korman’s presentation, The addressed to Susan Clary, Clerk of the noted that for the first time in the Emailed that Roared, focused on the Supreme Court. Court’s history, all nine justices are for- increased and widespread use of elec- mer federal appellate court judges. He tronic communication in the day-to-day Noted Author and Commentator said that the Court has “greatly missed” practice of attorneys. Such pervasive Jeffrey Toobin Addresses Convention a “non-judge” justice, such as a gover- use of email can result in a breach of nor, senator, or president. ethical responsibilities by an attorney Jeffrey Toobin, author and legal through disclosure of confidential infor- affairs commentator on CNN, addressed William Korman presents the Email mation. While such email responsibility the 2008 Annual Convention on June that Roared: Ethics in an Age of will vary from jurisdiction to jurisdic- 19, 2008. Discussing his recent book, Electronic Communication tion in regards to electronic communication, Mr. Korman identified At this year’s KBA Annual Conven- several issues to be cautious of, includ- tion, William Korman presented The ing sending electronic communications Email that Roared: Ethics in an Age of to unintended recipients, and the com- Electronic Communication, providing munication of invisible data. He also attendees with a very informative discussed several precautions that can overview of ethical dilemmas surround- be taken and tools that can be used to ing the use of electronic technology. ensure the confidentiality of your client Mr. Korman practices in the area of and their case. Such precautions and state and federal criminal defense, and tools include manually addressing is the founding partner of Korman & emails as opposed to using pre- Associates, LLC, located in Boston, programmed addressing and group MA. He received his B.S. from Syra- addresses; removing metadata, or invisi- cuse University in 1992, and his J.D ble data from documents; minimizing from Boston University School of Law the use of electronic communication for in 1995. Mr. Korman is a member of confidential matters; and keeping a numerous organizations including the tighter control on the information Jeffrey Toobin addressed the National Association of Criminal received by third party contractors and KBA Convention. Defense Lawyers, and the New Hamp- consultants. I
12 Bench & Bar July 2008 LostLost in in the the shuffle? shuffle?
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EFFECTIVE LEGAL WRITING
A Collection of Epigrams — Some Mantras for Legal Writing
Adrienne Noble Nacev, Visiting Assistant Professor of Legal Writing, NKU Chase College of Law
Legal writing is founded on the inter- process of formulating and writing 6. Don’t proposition/cite — nal voice of reason that is inherent in about rule explanations and applications Conclusory legal propositions, followed humans. That voice is honed through that may not be apparent in the standard by cites, do not work because the expla- experience and schooling, starting long acronyms. These are mnemonic devices nations and applications are missing. before a student enters a law school’s to scroll through the mind in the process The same goes for string cites. portals to begin a life in the law and of deriving and expressing the solutions continuing through all stages in the life to legal problems. Some are familiar, 7. Analyze, don’t personalize — of a lawyer. This article posits a some are traditional expressions that That is, do not say, “I believe,” rather Collection of Epigrams that provides may appear in a new context, and per- analyze the law and the facts so that the guidance to that internal voice. haps some are new. logic speaks for itself. Early in the process of becoming a lawyer, the student is introduced to 1. Tell the readers what you are 8. Do not tell your readers what enduring analytical and organizational going to tell them, tell them and then they “must” decide — Rather, appeal to constructs that inform understanding of tell them what you told them — This is the readers’ sense of logic and justice. the law and how to write about it. the basic outline of a piece of legal writ- Students learn about the basic organiza- ing. It is basically the roadmap and 9. Remember to edit — That is, tional principle of IRAC or Issue, Rule, issue, the rule explanation and applica- read, reread, put aside and reread. Application and Conclusion. That is a tion and the conclusion. It is analogous good beginning, but it is only a begin- to the sonata form in music: exposition, 10. Brevity is the soul of wit2 — Say ning. IRAC structure does not provide development and recapitulation. all you need to say as completely as pos- guidance on how to identify the issue, sible, as briefly as possible — No one or derive the rule, or apply the rule to 2. Saying something is so, does not wants to read more than they need to. support the conclusion reached. Nor make it so — This is a reminder of the does it recognize the need to address need to support statements with both 11. And room to grow…. — This counter arguments in order to logically logic and authority. Collection of Epigrams is not finite, and justify the conclusion. more epigrams will reveal themselves in CRAC is the amusingly pronounced 3. Don’t be conclusory — This is an the process of thinking about legal rea- persuasive form of IRAC: Conclusion, admonition to make sure that the writer soning and legal writing. I Rule, Application and Conclusion. It too has laid the foundation for the conclu- is only a beginning because it does not sions reached (and it is a word that spell ENDNOTES encompass the analytical foundations check rejects even though it does 1. See Ecclesiastes 3:1 (King James that support its conclusions. express the point well.) Version). CREAC is an improved, though still 2. William Shakespeare, Hamlet, Act imperfect, acronym: Conclusion, Rule, 4. Substantiate your assertions — 2, scene 2, 90. Explanation, Application, and This is a variation on the theme that the Conclusion. It incorporates the need to just application of law is based on anal- explain the rule so it can be applied to ysis of authority, including its Register online support the conclusion. However, the underlying logic. logical requirements for that explanation now for the and persuasive conclusion are still not 5. To everything there is a purpose1 KBA Fall Getaway there. — That is, be sure to include all the The Collection of Epigrams below necessary logical and analytical compo- at www.kybar.org! addresses some of the steps in the nents in your memo or brief.
16 Bench & Bar July 2008
Reservations for 50: A Closer Look at the Tenth Amendment’s Powers Reserved to the States
By John J. Balenovich of the “living” Constitution, has wit- that is not expressly or impliedly nessed its own evolution in response to derived from an enumerated power is, his article addresses the Court’s the changing needs of the country. An by definition, unconstitutional.9 Further, application of the Tenth Amend- explanation of the Tenth Amendment in the fact that the Constitution is a docu- T ment as a constitutional restraint the proper historical context sheds valu- ment of “limited and enumerated on Congressional power. The Tenth able light on its meaning and powers,” logically necessitates “that Amendment, based on the principle that importance in the constitutional scheme. what is not conferred [to Congress], is the Constitution’s authority rests on the The Tenth Amendment is the guardian withheld, and belongs to the state consent of the people, not individually of the federal structure in the Constitu- authorities.”10 as an entire nation, but as to the “indi- tion.3 American federalism is the Historically, the Court’s key focus on vidual states…they respectively vertical division of power between the the issue has been whether the Tenth belong,”1 reads: federal government and the states based Amendment is a “judicially enforceable on the principle of duel sovereignty. limit” on Congressional power.11 In THE POWERS NOT DELE- other words, can the Court declare a GATED TO THE UNITED A Sword or a Shield? federal law unconstitutional because the STATES BY THE CONSTITU- The major impetus for the Framers law violates the Tenth Amendment?12 TION, NOR PROHIBITED BY including the amendment stemmed from The Court has employed two IT TO THE STATES, ARE concerns raised during the Constitu- approaches to address the meaning and RESERVED TO THE STATES tional Convention about the scope of the Tenth Amendment. One RESPECTIVELY, OR TO THE appropriation of power between the two approach, the reminder approach, views PEOPLE.2 concurrent sovereigns – the national and the Tenth Amendment as a reminder state governments.4 Intending to strike a that Congress may only legislate if it The Tenth Amendment operates as an proper balance and fearful the national has the constitutional authority to do exception – a limit on the general rule government would abuse its power so.13 Under this approach, the Tenth that the federal government may enact under the Supremacy clause5, the Amendment is not a separate restraint laws necessary and proper to effectuate Framers inserted paper protections into on Congressional power; therefore a one of the federal government’s enu- the structure of the Constitution itself to federal law could not violate the Consti- merated powers. The Tenth Amendment prevent Congressional legislative tution on Tenth Amendment grounds.14 preserves the rule of limited federal encroachment into the realms of purely The second approach applies the government by reserving powers to the state control.6 Tenth Amendment as a constitutional states. This reservation has been con- Not convinced a mandate to refrain protection of state sovereignty.15 Under strued by the Court to delineate what from legislating in excess of its consti- this approach, the Supreme Court has the national government may not tutional power was strong enough to used the Tenth Amendment as a “key demand of the states because the action guard against the threat of Congres- protection of states’ rights and federal- intrudes upon state sovereignty. sional tyranny; the Tenth Amendment ism.”16 The Tenth Amendment, being a The Court’s treatment of this express was passed to prevent national govern- viable restraint on Congressional power, limitation on the national government ment intrusion on state sovereignty. But, confirms the “Federal Government is has been anything but consistent, lead- as we will see, the Supreme Court has subject to limits that…reserve power to ing to confusion surrounding the scope not always embraced the Tenth Amend- the States.”17 Thus, the Tenth Amend- and extent of the Tenth Amendment’s ment as viable constitutional restraint. ment forces the Court to determine constraint on Congress. But confusion whether Congressional action was per- should not be taken to mean insignifi- A Lion or a Lamb? missible or did the Federal action offend cance. The final amendment in the Bill The United States is wholly “a crea- state sovereignty protected by the Tenth of Rights maintains its importance and ture of the Constitution.”7 The most Amendment.18 viability in our modern system of gov- basic constitutional limitation on Con- The second approach is more in line ernment. Today, the Tenth Amendment gress is restricting it to its enumerated with the intent of the Framers.19 As retains its stature as a viable constitu- powers in Article I.8 Because Congress Alexander Hamilton explained in The tional restraint on Congressional power. can legislate only by exercising one of Federalist No. 33, Congressional action The Tenth Amendment, while a part its enumerated powers, a law passed is allowed if executed properly under
July 2008 Bench & Bar 17 Article I. However, when a federal law need for big national government to from commandeering state legislatures violates state sovereignty, then that law address big national problems led to a and state officials.39 The Supreme is “merely [an] ac[t] of usurpation” serious shift in the Court’s approach on Court’s reversal of opinion can largely which “deserve[s] to be treated as many constitutional issues. In 1937, in be attributed to Chief Justice Rehnquist. such.”20 West Coast Hotel Co. v. Parrish,31 the The Rehnquist Court, citing “first prin- Court upheld the federal minimum wage ciples,” 40 took the country on a Early Treatment of the law and effectively ended the Lochner “federalism revival” that expressly over- Tenth Amendment era. The Court reverted back to viewing ruled Garcia and revitalized the Tenth Tenth Amendment jurisprudence has the Tenth Amendment as merely a Amendment.41 gone through four phases since it adop- reminder of Congressional limits. This The three cases that establish current tion into the Constitution in 1789. swing in the pendulum was confirmed Tenth Amendment jurisprudence are During the Nineteenth Century, based in 1941 in United States v. Darby,33 New York v. United States, Printz v. on Chief Justice John Marshall’s opin- where the Court squarely addressed the United States, and Reno v. Condon. In ions in McCulloch v. Maryland 21 and issue of whether the Tenth Amend- New York, the State challenged the fed- Gibbons v. Ogden,22 the Court treated ment34 was an actual restraint on eral 1985 Low Level Radioactive Waste the Tenth Amendment as a reminder to Congressional authority. The Court held Policy Amendments Act. The Court’s Congress that it must have constitu- it was not. analysis focused on the Act’s incentives, tional authority to legislate, not a Between 1937 and 1992, Tenth specifically the “take title” provision, restraint on Congressional power.23 Amendment issues were raised in sev- that obligated states to accept ownership These cases involved testing the limits eral cases before the Court; however the of any undisposed of waste within their of one of Congress’s enumerated pow- Court only struck down one federal law borders and held states liable for any ers under the Supremacy Clause and the as violative of the Tenth Amendment. In direct or indirect damages caused by the Commerce Clause, respectively. 1976, Justice William Rehnquist’s opin- waste as a consequence of ownership.42 In both cases, Marshall, a staunch ion for the Court in National League of The Court found the Act’s “take title” nationalist, expanded national power Cities v. Usery, briefly revived the Tenth provision unconstitutional because it and limited state sovereignty.24 This was Amendment as a viable constitutional forced state governments to make a no surprise; Marshall consistently “con- restraint when he articulated the govern- Hobbsian choice; either accept owner- strued” the Constitution as authorizing ment functions test that prohibited ship of the waste or regulate “according the broad Congressional powers he Congress from regulating “traditional … to the instructions of Congress.” 43 believed were necessary to ensure the functions” of state governments.35 The The Court was unequivocal: Con- national government was effective when problem for the Court was determining gress is prohibited from commandeering executing national initiatives.25 which state functions deserved Constitu- state legislatures, or the state legislative Marshall’s approach was abandoned tional protection. process, by compelling states to enact in 1918, when the Court handed down Over the next ten years the Court and enforce federal laws.44 The Court its opinion in Hammer v. Dagenhart consistently rejected Tenth Amendment- laid down a bright-line rule: it will (The Child Labor Case).26 Brought based claims similar to those raised in never sanction an explicit federal com- before the Court during the Lochner era, National League of Cities. In 1985, the mand to states to affirmatively act.45 the decision in Hammer fundamentally Court expressly overruled the govern- Simply put, the Court concluded that changed Tenth Amendment jurispru- ment functions test in Garcia v. San Congress is not empowered to comman- dence by explicitly recognizing “zones Antonio Metropolitan Transit deer state legislatures by requiring state of state control.”27 The Court reasoned Authority.36 The Garcia Court explained governments to “promulgate and enforce that Congress was prohibited by the the government functions test was not [federal] laws and regulations” and the Tenth Amendment from legislating sound, unworkable in practice, and lead Tenth Amendment expressly forbids activities in those zones.28 The Hammer to inconsistent results.37 The Court ulti- such action.46 This misuse of Congres- Court ruled Congressional authority mately concluded that protection of sional power, the Court reasoned, would over a federal matter could not destroy state sovereignty is best left to the polit- destroy the federal system and under- the innate power always reserved by the ical process, and in so doing, the Court mine government accountability because states over the same issue.29 The Court “washed its hands” of the Tenth Amend- Congress would make the political deci- used the Tenth Amendment as a formi- ment leaving it for dead.38 sions, but the states would take the dable limit on federal power until the “political heat” and be held responsible early 1930s.30 Modern Tenth Amendment for a decision they did not make.47 By the end of the decade, the Court Jurisprudence In Printz v. United States, the Court had an influx of progressive Justices In the 1990s, the Court resur- extended the anti-commandeering prin- who were less concerned with adhering rected the Tenth Amendment by using it ciple to encompass federal laws to the text of the Constitution than to limit Congress’s authority to require requiring action by state executive offi- reaching what they believed was the state governments to effectuate federal cers. The case involved a Tenth right result. Again, a perceived strong regulatory laws by prohibiting Congress Amendment challenge to the Brady
18 Bench & Bar July 2008 Handgun Violence Prevention Act. which compel states or state executive Banking Act.58 Alito joined the majority Specifically, the Court found the Brady officers to affirmatively act are uncon- recognizing a zone of federal activity Act’s requirement that each state’s chief stitutional as violative of the Tenth that is free from undue interference by law enforcement officer establish a Amendment. However, Congress may state regulations.59 Further, the majority national background check system vio- pass laws that prohibit state conduct so held the Court may properly overturn lated the Tenth Amendment because it long as the law does not influence the state laws that unduly hamper federally “pressed into federal service” state manner in which states regulate their preempted national banking executive officers for federal regulatory own citizens. regulations.60 The dissent, in which purposes.48 The Court ruled the Federal Roberts joined, expressed concern about Government could not issue directives Future of the Tenth Amendment how the majority’s decision impacts the (1) requiring state officials to address a Reverberations of the Rehnquist federal-state balance of power.61 The particular problem, nor (2) command Court’s “federalism revival” will con- dissent pointed to the Tenth Amend- State officials or political subdivisions tinue to echo as these decisions have ment, and explained that it serves to to administer federal programs.49 The spawned hundreds of lower court deci- remind the Court that its decisions Court restated that it would not allow sions delineating issues of federalism.56 impact sovereigns.62 The dissent con- Congressional attempts to circumvent With Chief Justice Rehnquist and Jus- cluded the dual sovereignty enjoyed by the Tenth Amendment by “conscripting” tice O’Connor no longer on the bench, the states and federal governments is the state officers instead of passing laws how the Tenth Amendment will be reason for the well established “pre- directing state governments.50 shaped by the Roberts Court remains to sumption against preemption.” 63 Shortly after the decision in Printz, be seen. To date, the Roberts Court has The second case, United Haulers, the Court reigned in the scope of the not directly addressed the scope of the involved a state law that required waste Tenth Amendment in Reno v. Condon. Tenth Amendment or any of the funda- haulers to bring their waste to a state- The case involved a challenge by the mental “constitutional federalism issues created public benefit corporation.64 The state of South Carolina to a provision of that formed the heart of the Rehnquist constitutional question was whether the the Drivers Privacy Protection Act of Court’s Federalism Revolution.” 57 But dormant Commerce Clause precluded 1994 (DPPA) that restricted the disclo- it has dealt with cases that raised feder- state and local governments from favor- sure and sale of personal information alism issues. ing (i.e. showing preference to) kept in DMV records.51 The state’s law Two recent cases, Waters v. Wachovia government-owned corporations over was in direct conflict with the federal Bank, N.A. and United Haulers Associa- private competitors.65 Roberts, writing law because it allowed any person to tion, Inc. v. Oneida-Herkimer Solid for the majority, strongly argued for access DMV records by filling out a Waste Management Authority, indirectly judicial restraint on the expansion of the formal request, so long as they swore shed light on both Chief Justices dormant Commerce Clause.66 Despite the information would not be used for Roberts’s and Justice Alito’s stance on making comments at his nomination telephone solicitation.52 The state federalism. In Waters, the Court faced a hearing emphasizing stronger Congres- argued the DPPA was unconstitutional preemption issue involving the National sional power, Roberts’ opinion because it “thrust[ed]” upon the state government the day-to-day responsibil- ity of administering a complex federal Forensic Psychiatry PLLC program.53 Providing Psychiatric Expertise To The Court ruled the DPPA provision The Legal Community did not violate the Tenth Amendment because it did not require affirmative 919 6th Ave. Huntington WV 25701 Office: 304-781-0228 action by the state and instead prohib- Fax: 304-781-0229 ited state conduct, which is a Email: [email protected] permissible use of Congressional 54 power. In other words, Congress pro- Forensic Fellowship Trained hibiting state conduct does not violate with 20 years of clinical experience the Tenth Amendment because Congress does not force a state to pass laws, regu- late their own citizens, or require state Bobby A. Miller M.D. Forensic Psychiatrist and Neurologist officials to assist in the enforcement of federal regulatory programs.55 General forensic psychiatry cases including In summary, it is clear the Court will Brain Injury Civil Competency strike down a federal law that comman- Emotional Damages Employment Disputes deers state legislatures or state executive Independent Medical Evaluation Disability Rating officials for federal regulatory purposes. Malingering Medical Malpractice Fitness for Duty The Court has held that federal laws
July 2008 Bench & Bar 19 strengthened states’ rights by holding Amendment is, in a word, ironic. 10. New York v. United States, 505 U.S. that state enterprises should not be The irony is that federalism “was the 144, 156 (1992) (quoting J. Story). treated with as much skepticism as pri- unique contribution of the Framers to 11. CHEMERINSKY, supra note 9, at 312. vate businesses and therefore may political science and political theory.” 74 12. Id. properly be favored or preferred.67 Find- Federalism, in other words, is the defin- 13. Id. at 313. ing otherwise, he maintained, would ing characteristic of American 14. Id. lead to unbounded interference with government as expressed in the written 15. Id. local and state government by the Constitution. Yet, for the better part of 16. Id. Courts.68 the past forty-five years, federalism has 17. New York, 505 U.S. at 157. Conversely, Alito, a champion of fed- taken a “back seat to an extensive 18. Id. eralism on the Third Circuit Court of period of judicial activism” that has 19. Printz v. United States, 521 U.S. 898, Appeals, argued in the dissent that both reduced the Tenth Amendment’s impor- 923-924 (1997). 75 public and private corporations should tance in constitutional law. 20. Printz, 521 U.S. at 924 (quoting FED- be treated equally under the dormant Even if the Tenth Amendment remains ERALIST NO. 33 (Alexander Commerce Clause.69 Alito argued the a weak limit on federal power, it never- Hamilton)). Court should not shirk its obligation to theless serves an important role in the 21. 4 Wheaton 400 (1819). overturn disruptions in the market, even modern state/federal dichotomy. If noth- 22. 22 U.S. (9 Wheat.) 1 (1824). if the disruption involves state regula- ing else, the Tenth Amendment is 23. CHEMERINSKY, supra note 9, at 317. tion within her police power of a testament to the propriety and necessity 24. CHARLES F. HOBSON, THE GREAT 70 traditional government function. More of state regulators to continue to devise CHIEF JUSTICE: JOHN MARSHALL AND surprising, Alito harkened back to Gar- innovative responses to today’s chal- THE RULE OF LAW 20 (1996). cia to remind the majority that the lenges. The Court’s recent federalism 25. Id. at 113. traditional state functions analysis has decisions implicating the Tenth Amend- 26. 247 U.S. 251 (1918). been found unsound in principle and ment have placed the powers reserved to 27. Id. 71 unworkable in practice. Alito’s the states back into the constitutional law 28. CHEMERINSKY, supra note 9, at 317. embrace of Garcia along with his disre- spotlight. So as it was at the beginning, 29. See Hammer v. Dagenhart, 247 U.S. gard of states’ rights throughout his states’ rights versus federal power contin- 251 (1918). dissent is a far cry from Justice O’Con- ues to be the great American question. I 30. Palmer, supra note 3, at 170-71. nor, whom Alito replaced, and leaves 31. 300 U.S. 379 (1937). room to question the future of the Tenth ENDNOTES 32. Erwin Chemerinsky, Assessing Chief Amendment.72 1. U.S. Term Limits, Inc. v. Thornton, Justice William Rehnquist, 154 U. 514 U.S. 779, 846 (1995) (Thomas, PA. L. REV. 1331, 1359 (2006). Conclusion J., dissenting) (quoting FEDERAL- 33. 312 U.S. 100, 124 (1941). Of the various structural elements the IST NO. 39 (James Madison)). 34. Nat’l League of Cities v. Usery, 426 Framers built into the constitution – 2. U.S. CONST. amend. X. U.S. 833 (1976). checks and balances, separation of pow- 3. See David M. Palmer, Note, Untan- 35. Id. at 854. ers, judicial review, and federalism – the gling Tenth Amendment Standing: 36. 469 U.S. 528 (1985). latter has been the only doctrine not Why Private Parties Cannot 37. Id. at 546-47. unconditionally embraced by the Enforce the Federal Structure, 35 38. Palmer, supra note 3, at 173; William Court.73 The Court’s hesitation to HASTINGS CONST. L.Q. 169 T. Barrante, States Rights and Per- impose the limits expressed in the Tenth (2008). sonal Freedom Breathing Life into 4. See CATHERINE DRINKER BOWEN, the Tenth Amendment, 63 CONN. BAR IRACLE AT HILADELPHIA HE OURNAL John J. Balenovich M P : T J 262, 262 (1989); Erwin is a member of the STORY OF THE CONSTITUTIONAL CON- Chemerinsky, Reconceptualizing Kentucky and West VENTION MAY TO SEPTEMBER (Back Federalism, 50 N.Y.L. SCH. L. REV. Virginia bar associ- Bay Books 1986) (1966). 729, 739 (2005). ations. After 5. 39. graduating from Id. at 1787. Palmer, supra note 3, at 173-74. Bellarmine Univer- 6. U.S. CONST. amend. X. 40. United States v. Lopez, 514 U.S. 549, sity, Mr. Balenovich 7. Reid v. Covert, 354 U.S. 1, 5-6 552 (1995). obtained his law (1957). 41. Chemerinsky, supra note 38, at 739. degree from the 8. 42. Louis D. Brandeis See United States v. Lopez, 514 U.S. New York v. United States, 505 U.S. School of Law at the University of 549 (1995) (reinforcing the principle 144, 153-54 (1992). Louisville and earned a Masters of Sci- of law that Congress possesses only 43. Id. at 177. ence in Justice Administration from the enumerated powers). 44. Id. at 161 (quoting Hodel v. Virginia University of Louisville. He focuses his 9. RWIN HEMERINSKY ONSTITU practice on debtor/creditor law, criminal E C , C - Surface Mining & Reclamation law, and commercial law. TIONAL LAW: PRINCIPLES AND Assn., Inc., 452 U.S. 264, 288 POLICIES 234 (3d ed. 2006). (1981)). 20 Bench & Bar July 2008 45. Id. at 188. 46. Id. at 161 (quoting FERC v. Missis- sippi, 456 U.S. 742, 761-62 (1982)). 47. CHEMERINSKY, supra note 9, at 324. 48. Printz v. United States, 521 U.S. 898, 905 (1997). 49. Id. at 935. 50. Id. 51. Reno v. Condon, 528 U.S. 141, 146 (2000). 52. Id. 53. Id. at 150. 54. Id. at 151. 55. Id. 56. Chemerinsky, supra note 38, at 732. 57. Dan Schweitzer, Federalism and Separation of Powers: The Different Approaches of Chief Justice Roberts and Justice Alito on the Scope of State Power, 9 ENGAGE 52, 52 (2008). 58. Watters v. Wachovia Bank, N.A., 127 S.Ct. 1559, 1566-67 (2007). 59. Id. 60. See Id. at 1566-72. 61. Id. at 1573. 62. Id. at 1585. 63. Id. 64. United Haulers Ass’n, Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., 127 S.Ct. 1790 (2007). 65. Schweitzer, supra note 58, at 55. 66. United Haulers Ass’n, Inc., 127 S.Ct. at 1786. 67. Id. at 1795. 68. Id. at 1796. 69. Id. at 1804-05. 70. Schweitzer, supra note 58, at 56. 71. United Haulers Ass’n, Inc., 127 S.Ct. at 1810. 72. Marci Hamilton, A Recent Opinion Shows a Clear Split Between Chief Justice Roberts and Justice Alito on Federalism Issues-With Roberts Displaying Justice O’Connor’s Respect for the States, and Alito Lacking that Respect, FINDLAW, May 3, 2007, http://writ.lp.findlaw.com/ hamilton/20070503.html. 73. United States v. Lopez, 514 U.S. 549, 575 (1995). 74. Id. 75. John H. Clough, Federalism: The Imprecise Calculus of Dual Sover- Lexington, Kentucky eignty, 35 J. MARSHALL L. REV. 1, 42 (2001).
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By Bill Lear & David Fleenor CONSTITUTIONAL PROVISIONS appointment power for Boards and Com- AFFECTING THE GOVERNOR’S missions. Most cases have held that ecent controversies concerning APPOINTMENT POWER Section 76 applies only to constitution- the governing boards of the At first blush it would appear that the ally created offices. Typical of these are RCommonwealth’s public uni- Governor’s power to make appointments Poyntz v. Shackleford 6 and Rouse v. versities1 and the leadership of the to the Commonwealth’s Boards and Johnson.7 In these two cases the Ken- Council on Postsecondary Education,2 Commission is contained within Section tucky Court of Appeals held that Section bring into focus the overall impor- 76 of the Constitution, which states: 76 had no applicability to legislatively tance of boards and commissions in He shall have the power, except created positions. The plain language of the structure of state government. as otherwise provided in this Section 76 supports that view. At least These controversies also highlight a Constitution, to fill vacancies one case in the Kentucky Supreme Court continuing tension between the Gover- by granting commissions, subsequent to Poyntz and Rouse, how- nor’s authority to make appointments which shall expire when such ever, has referenced Section 76 as the to those boards and the General vacancies shall have been filled basis of the Governor’s power to appoint Assembly’s desire to limit that power. accordingly to the provisions of members to university boards.8 Reliance The stakes are not insignificant. The this Constitution.5 upon Section 76 was not critical to the nearly 500 boards and commissions in Courts in Kentucky have inconsistently result in that case. The Court referenced the Commonwealth regulate and applied this Section to the Governor’s that section only to show that it con- define nearly every aspect of our lives. Professions as diverse as medi- cine and barbering have their own governing boards. The worker’s com- pensation system, public utilities, election finance, and executive branch ethics, each have a specialized board that governs it or adjudicates disputes or both. These boards and commis- sions are diverse in function but similar in that they are typically attached to the executive branch of government and are controlled by appointees as opposed to elected offi- cials. Those appointees are primarily selected by Kentucky’s Governor. The power of the Governor to make appointments to these boards is a con- stitutional prerogative of the Commonwealth’s “Chief Magistrate,”3 a prerogative that is not unfettered and which is limited in varying degrees by legislation enacted by the Legislative Branch and interpreted by the Judicial Branch. This article will examine the constitutional basis of the Governor’s appointment power, the practical aspects of the use of that power, and the attempts by the General Assembly to limit that power.4
July 2008 Bench & Bar 23 tained no prohibition that would have Assembly to determine whether a posi- Courts have not always taken that hard prevented Governor Wallace Wilkinson tion will be elected or appointed, and not line approach. from appointing himself. The same hold- the manner of appointment. As will be ing could be reached by reference to discussed in more detail below, the GENERAL STATUTORY PROVISIONS other sections of the Constitution that Supreme Court has at times taken the Procedures for the Governor’s have been used as a basis for the Gover- position that the separation of powers appointments are outlined within Chap- nor’s appointment power. doctrine limits the ability of the General ters 11 and 12 of the Kentucky Revised This is not to suggest that Section 76 Assembly to only this “advise and con- Statutes. Specifically, KRS § 11.160 does not provide the Governor with an sent” roll. At other times the Court has delineates the process for General extremely important appointment allowed a more expansive oversight role. Assembly confirmation of appoint- power. That section clearly applies to Yet another section of Kentucky’s ments. It provides that a board vacancies in constitutionally created Constitution has an impact on the Gov- appointment may be subject to confir- offices. This includes judges in all of ernor’s appointment power. Section 23 mation by the Senate or by the Senate the Commonwealth’s courts, county of the Kentucky Constitution says noth- and the House of Representatives judge executives, and Commonwealth ing about boards and appears aimed depending upon the specific enabling Attorneys to name a few. These guber- only at preventing Kentucky from con- legislation. The appointee requiring natorial appointments are temporary; ferring titles of nobility. confirmation is allowed to serve prior to however, lasting only until the next Notwithstanding the lack of express ref- his confirmation.13 However, if not con- scheduled election. The procedures for erences to appointment power, Section firmed, the appointment expires at the these appointments are also laid out in 23 has been used as a basis for the cre- end of the General Assembly session express terms within the body of the ation of certain board and commission that declined to confirm the appointee. Kentucky Constitution. See Section 152 offices and is so referenced in the The Governor may not reappoint that of the Kentucky Constitution. Gubena- underlying legislation. Specifically, that person to the same position for a period torial appointments to Constitutional Section of the Constitution is used when of two (2) years.14 As noted before, the offices have thus not been the subject of the General Assembly has created board provisions of Section 93 concerning the same volume of litigation as board offices with a term in excess of four Senate confirmation would at least and commission appointments. year limit contained in Section 93.10 arguably appear to be at odds with a More to the point with respect to The seminal case of LRC v. Brown,11 statutory provision requiring Senate and board and commission appointments is a 1982 Kentucky Supreme Court case, House confirmation. That issue has yet Section 93 of the Kentucky Constitution took a different approach in defining the to be resolved by a court. which states in pertinent part: Governor’s appointment powers, ignor- KRS § 12.070 contains requirements Inferior State officers and ing Sections 76, 93 and 23. This case for minority representation on Boards members of boards and com- has been called by legal commentators and Commissions. It also contains a missions, not specifically the Kentucky Marbury v. Madison.12 provision that allows the Governor to provided for in this Constitu- The approach taken by the Court in reject a list and require that other lists tion may be appointed or Brown viewed the Governor’s appoint- be submitted in those instances where elected, in such manner as may ment power as implicit in the doctrine he is required to select from a list. A be prescribed by law, which of separation of powers contained in recent decision by the Kentucky Court may include a requirement of Sections 27 and 28 of the Kentucky of Appeals has made it clear that the consent by the Senate, for a Constitution. Section 27 divides the Governor’s power to reject a list is not term not exceeding four years, powers of the government into three (3) limited solely to the instance of achiev- and until their successors are distinct departments. Section 28 states: ing minority representation.15 There was appointed or elected and quali- No person or collection of per- a dissent to that decision and it is not an fied.9 (Emphasis supplied.) sons, being of one of those absurd position to view this statute as Significantly, the phrase “boards and departments, shall exercise any only applying to issues affecting minor- commissions” and the provision for con- power properly belonging to ity representation. sent by the Senate were both added by a either of the others, except in Constitutional Amendment ratified by the instances hereinafter ILLUSTRATIVE BOARDS popular vote in 1992. The phrase “in expressly directed or permitted. Contained within the numerous such manner as may be prescribed by As Kentucky’s Separation of Powers Boards and Commissions which regu- law” would seem to give the legislature provision is particularly strong, the late affairs in the Commonwealth of fairly broad latitude in limiting the holding of Brown would seem to indi- Kentucky are several distinct appointment power, until it is paired cate that the Governor’s appointment approaches to appointment of board with the “consent by the Senate” lan- power can only be limited by the advise members. In some instances the Gover- guage. Under this approach, the “in such and consent function of the Senate nor’s appointment power is completely manner as may be proscribed by law” added in the 1992 Amendment to Sec- unfettered. He may appoint whomever language only allows the General tion 93. Despite the language of Brown, he chooses and that appointment is not
24 Bench & Bar July 2008 subject to any confirmation process. In consists of three members with stag- confirmed by both houses of the Gen- some instances the Governor must gered four year terms. The Governor eral Assembly. Members of the select from a list of potential nominees makes his choice from a list submitted University Boards are not subject to submitted by another entity, but his by a nominating commission.17 The General Assembly confirmation. nominee is not subject to confirmation. members of the nominating commission As a final note on university boards, At the other end of the spectrum, there are in turn also appointed by the Gover- these appointments are for a term of six are Boards in which the Governor must nor, subject to certain qualifications. (6) years. This would seem squarely at pick from a list and the choice is subject Members of the Board are subject to odds with the requirement contained to confirmation by one or more of the Senate Confirmation.18 Members of the within Section 93 of the Constitution houses within the General Assembly. nominating commission are not. that a Board appointment not last longer These approaches are best explained by University Boards, a subject of recent than four (4) years. Kentucky’s highest reference to specific boards. litigation, are a hybrid form of appoint- court passed on its last opportunity to The Executive Branch Ethics Com- ment. The Governor is required to pick determine this issue.22 The current statu- mission consists of five members, all from a list submitted by the Post Sec- tory schemes however, indicate that appointed by the Governor.16 Each ondary Education Nominating these appointments are made pursuant serves a four year term. Even a one Committee.19 Contained within the to Section 23 of the Constitution. Sec- term Governor will over time have the statute that set up the university boards tion 23 states that appointments shall opportunity to appoint a majority of the are requirements that the composition of only be for a term of years with no ref- EBEC. The EBEC has significant the boards must be balanced both politi- erence to a specific number of years. power: the ability to issue subpoenas, cally and try to achieve full This provision was first seen in the levy fines of up to $5,000.00, and issue representation of the sexes as well as Constitution of 1792 and in fact is part recommendations that state employees minority representation.20 The nominat- of the Kentucky Bill of Rights. Viewed have their employment terminated. The ing committee that submits the list to in the context of the years immediately only constraint on the Governor’s the Governor itself must reflect repre- after the Revolutionary War, this section appointment power is that an appointee sentation of the sexes, minority appears aimed more at preventing titles be a registered voter. Currently, no con- representation and voter registration in of nobility. Nevertheless, it has been firmation process is in place. its membership.21 Finally, the members used as an expedient to achieve six (6) The Worker’s Compensation Board of the Nominating Committee must be year appointments, and its applicability
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July 2008 Bench & Bar 25 has not been challenged.23 Ex-Servicemen’s Board from a list sup- directly addressed the issue of whether a Another appointment method is plied by the American Legion was statute could require confirmation of the reflected in the State Board of Medical constitutional. The Court held that this gubernatorial appointment by one body Licensure. Of the fifteen members, procedure did not violate separation of of the General Assembly, in that eleven are appointed by the Governor. powers as it “… merely sets in motion instance the Senate. At issue was a The other four are ex officio members. the machinery by which its purpose will rejected Worker’s Compensation Eight of the eleven members appointed be effected.”25 The Governor still made Administrative Law Judge who had by the Governor are to be selected from the appointment. been denied confirmation by the Senate. lists provided the Kentucky Medical The issue of whether the Governor The Court ultimately held that the State Association and the Kentucky Osteopath may be required to pick from a list Senate has an inherent power to advise Association. Three appointments are seemed to have been answered in the and consent on Executive Branch completely within the discretion of the negative in 1984 by the Supreme` Court appointments. This case was decided Governor, subject to the qualification LRC v. Brown. The post-Brown argu- prior to the Amendment to Section 93 that they represent a consumer health ment would be that requiring the which made the Senate’s advise and advocacy. None of the fifteen members Governor to select from a list submitted consent power express. Again the case of this board are subject to confirmation. by another entity would usurp a power contained a strong dissent which ques- reserved exclusively for the Governor. tioned whether the advise and consent CASES However, in the 1991 case of Kentucky function of the Senate had been The concept of requiring the Gover- Association of Realtors v. Musselman 26 removed by the Constitution of 1892. nor to pick from a list supplied by the Supreme Court decided that lists An express advise and consent provi- another entity would seem to be an were still an acceptable procedure, albeit sion had been considered in the improper delegation of the Governor’s with a strong dissent from part of the Constitutional Convention of 1890-91. authority. The constitutionality of this Court. The Musselman case involved the That provision was ultimately rejected. delegation of authority was first practice of appointments to the Real The dissent viewed this as a constraint addressed in Elrod v. Willis.24 That case Estate Commission being made from a on the Governor’s executive power and concluded that requiring the Governor list submitted by Kentucky Association a violation of the separation of power to make his appointment to the Disabled of Realtors. The Court distinguished provisions of Section 27 and 28 of the Brown on the basis that the entity pro- Kentucky Constitution. viding the list was not the LRC or the In a slightly different context, Prater David E. Fleenor is General Assembly. Since the Governor v. Commonwealth 29 examined separa- Of Counsel to Stoll still had the ability to pick from the list, tion of powers from the view point of Keenon Ogden PLLC and is a resi- and implicitly since the Governor had separation between the Executive and dent of the firm’s the ability to reject the list in its entirety Judiciary divisions. That case held Lexington office. and require a subsequent list, the Court unconstitutional a judicial pre-release Prior to joining the held that this passed Constitutional program as it impermissibly conferred firm, Mr. Fleenor served as general scrutiny, if only barely. the Executive Power of Pardon and counsel to Governor The Wilkinson case involved the Clemency upon the Judiciary. Ernie Fletcher and appointment to the University of Ken- Finally, in Galloway v. Fletcher,30 the as general counsel for the Cabinet for tucky Board of Trustees of Wallace most recent case to deal with the Gover- Health and Family Services. He is a 27 1979 graduate of the U.S. Naval Acad- Wilkinson and merits another look. nor’s appointment power, the Court of emy and earned his J.D. from the While the case stands for the proposi- Appeals held that the Governor had the University of Tennessee College of Law tion that a Governor can appoint right to reject the list for reasons other with highest honors in 1987. himself, that occurrence triggered a than achieving minority representation. complete revision of the statutes con- Bill Lear is a former cerning university boards. Under the CONCLUSION State Representa- modern provisions of KRS Chapters Boards and Commissions constitute a tive who served in 164, the Governor may make an powerful and far reaching element of the Kentucky Gen- eral Assembly from appointment to a University Board only the Executive Branch of Government. 1985-1994. He is from names on list submitted by the In the Commonwealth of Kentucky currently Chair of Postsecondary Education Nominating there are nearly five hundred (500) of the Board of Direc- Commission. That Commission must these Boards and Commissions which tors of Stoll Keenon Ogden PLLC. His adhere to strict requirements in formal- regulate or adjudicate many aspects of practice has ity, as to the list composition, and the our daily life. The power to fill these focused on real estate development law, appointments to the Commission appointments is an important element of including land-use development, munici- require confirmation by both houses of the Governor’s overall power and pal law, economic development incentives and constitutional law. the General Assembly. allows that official to effect government Kraus v. The Kentucky State Senate 28 well beyond his term of office. Recent
26 Bench & Bar July 2008 controversy and litigation concerning with an appointing board. The rendering the issue moot. the Governor’s appointment power is appointing board consisted of the 23. The General Assembly has been nothing new and will likely not be Governor, Lieutenant Governor and inconsistent in its approach to the resolved in the near future. I Attorney General. Ultimately, the length of term of state university Court avoided deciding the consti- board member. Until 1988, KRS ENDNOTES tutionality question. Chapter 164 provided for six year 1. Comm. Ex rel. Conway v. Beshear, 8. Comm. ex rel. Cowan v. Wilkinson, terms. In 1988, the statutes were Franklin Court, Civil Action No. 828 S.W. 2d 610 (Ky. 1992). The amended to shorten that period to 07-CI-1456. The action was origi- Court discussed the Governor’s four years. In 1992, the term was nally filed by then Attorney General appointment authority solely by again lengthened to six years, and Greg Stumbo against then Governor reference to Section 76. the reference to Section 23 was Ernie Fletcher challenging whether 9. Kentucky Constitution, Section 93. added. appointments to the university 10. Section 23 of the Kentucky Consti- 24. Elrod v. Willis, 203 S.W. 2d 18 (Ky. boards reflected voter registration tution states: “The General 1947) as required by statute. The newly Assembly shall not grant any title 25. Id at 228. elected Governor and Attorney of nobility or hereditary distinction, 26. Kentucky Association of Realtors v. General agreed to dismiss the case. nor create any office the appoint- Musselman, 817 S.W. 2d 213 (Ky. 2. “Cowgill Resigns Post” Lexington ment of which shall be for a longer 1991). Herald Leader April 30, 2008. The time than a term of years.” KRS 27. Comm. ex rel. Cowan v. Wilkinson, Council on Postsecondary Educa- Chapter 165 references this section 828 S.W. 2d 610 (Ky. 1992). tion, composed of gubernatorial as creating university board terms 28. Kraus v. The Kentucky State appointees had initially selected of six years, directly contrary to the Senate, 872 S.W. 2d 433 (Ky. Brad Cowgill as the Council’s pres- Section 93 limit of four years. 1994). ident over the Governor’s 11. LRC v. Brown, 664 S.W. 2d 907 29. Prater v. Commonwealth, 82 S.W. objections. Mr. Cowgill voluntarily (Ky. 1984). 3d 898 (Ky. 2002). resigned to defuse the controversy. 12. See Snyder and Ireland, The Sepa- 30. Galloway v. Fletcher, 241 S.W. 3d 3. Section 69 of the Kentucky Consti- ration of Governmental Powers (Ky. App.2007). tution provides that “The supreme Under the Constitution of Ken- executive power of the Common- tucky: A Legal and Historical wealth shall be vested in the Chief Analysis of LRC v. Brown, 73 Ky Magistrate, who shall be styled the L.J. 165 (1984-85). Need help with a ‘Governor of the Commonwealth 13. KRS §§ 11.160(1)(f) and of Kentucky.’” 11.160(2)(h). firearms collection? 4. The issues raised in this article are 14. KRS § 11.160(1)(h) and For 32 years, we have bought, sold uniquely issues of Kentucky law. 11.160(2)(i). and serviced all types of new, used and collectable firearms. We are References to the “Constitution” 15. Galloway v. Fletcher, 241 S.W. 3d licensed, bonded and insured. are references to the Kentucky (Ky. App. 2007). In that case the Constitution in its current form. Governor rejected a list of three We also offer: References to decisions of the potential appointees to the Murray APPRAISAL “Supreme Court” refer to the Ken- State University Board. The Gover- AUTHENTICATION tucky Supreme Court. nor ultimately made the EXPERT TESTIMONY 5. Kentucky Constitution, Section 76. appointment from a subsequent list CONSIGNMENT SALE 6. Poyntz v. Shackleford, 54 S.W. 855 submitted to him by the Post Sec- (Ky. 1900). “It cannot, of necessity, ondary Education Nominating ESTATE SETTLEMENT have any application to vacancies in Committee. The disappointed nomi- STORAGE/MAINTENANCE office for the filling of which no nees from the first list brought suit. provision is made in the constitu- 16. KRS § 11.060 Charles B. Layson • T. Rees Day tion; for, as to such offices, there 17. KRS § 342.213 2263 Nicholasville Road would be no period at which the 18. Id. Lexington, KY 40503 commissions granted by the gover- 19. KRS § 164.005(5)(a) 859.276-1419 • 859.278.0838 fax www.am-firearms.com nor would expire.” Id at 857-8. 20. KRS §§ 164.131, 164.321 and 7. Rouse v. Johnson, 78 S.W. 2d 145 164.821. (Ky. 1930). This case dealt with the 21. KRS § 164.005 constitutionality of a statute that 22. Jones v. Forgy, 750 S.W. 2d 434 took the appointment power for the (Ky. 1988). The court declined to State Highway Commission away decide the case as the terms of the ANTIQUE & MODERN FIREARMS from the Governor and lodged it trustees at issue had expired, thus “Dealers in Quality Arms Since 1974”
July 2008 Bench & Bar 27
Civil Resolution of Ecclesiastical Disputes
By Paul E. Salamanca [meaning the church’s hierarchy] on the that its clergy continue to espouse rein- sole condition that the general church carnation as a theological concept. n our world of extraordinary reli- adhere to its tenets of faith and practice Assume that, well after the demise of gious plurality, schisms within existing at the time of affiliation by the the donor, a new minister took to the Idenominations occur with great fre- local [church].”3 This doctrine reflected pulpit of the church and began to quency, often bringing with them the the fairly simple assumption that, when describe reincarnation as merely a fascinating legal problem of who keeps people gather together on a local basis, metaphor for the fact that each day is a the bricks, mortar, records and savings raise money, build a church, and affili- new day, wherein we can be new and of the institution. The problem can arise ate themselves with a larger institution, better people. People of common sense in virtually any denomination, from the they do so on the implied understand- might be able to formulate a reasonable most hierarchical to the most congrega- ing that the latter will continue to opinion about whether the new minis- tional. Here in Kentucky, for example, espouse the basic theological doctrine ter’s theology is consistent with the we have recently seen people in the that it holds forth at the time of affilia- intentions of the donor, but courts Episcopalian tradition coming close to tion. Courts maintained a similar understandably are wary of the entan- litigation after the consecration of V. doctrine for churches adopting a con- glement that might arise from making Gene Robinson, an openly gay man, as gregational polity.4 these kinds of determinations in a Bishop of the Diocese of New Hamp- Needless to say, there are flaws in legally binding way. Thus, in Presby- shire.1 On first impression, one might this theory. First, it depends on a sup- terian Church in the United States v. think that cases arising in this area position of the exact nature of the Mary Elizabeth Blue Hull Memorial involve only the laws of property, con- original grantors’ intent. Although Church, the Supreme Court of the tracts, trusts and estates, but in fact such many donors may be particular about United States held that the doctrine of cases strongly implicate the First doctrine, others may not. Others, in implied trust could not be applied in a Amendment as well.2 First, lack of fact, might wish to facilitate theological manner consistent with the First access to adequate, familiar facilities innovation by worshipers to follow. A Amendment to the federal Constitu- can affect free exercise, as can the exi- second, related problem arises from tion.6 As the Court noted in Hull, the gencies of litigation itself, particularly conflicting rights. That is, whose rights “departure-from-doctrine element” of discovery. Second, civil courts are should control – those of the donors, the theory “requires the civil court to understandably wary of being called who may be long deceased, or those of determine matters at the very core of a upon to construe ecclesiastical terms, worshipers who prefer the innovation at religion – the interpretation of particu- given the risk of establishment posed by issue, and who may be many in num- lar church doctrines and the importance such construction. In light of these con- ber? One might answer that a condition of those doctrines to the religion.” cerns, a handful of somewhat attached to a gratuitous grant should be “Plainly,” it went on to say, “the First specialized approaches to resolving respected out of deference to the rights Amendment forbids civil courts from ecclesiastical disputes over bricks and of property, but of course the doctrine playing such a role.”7 Ironically, this mortar have developed. The purpose of does not require the condition to be rationale would appear to apply just as this essay is to describe three of the explicit. This tension is obviously most forcefully to express trusts in favor of most historically prominent of these acute when the condition is explicit, religious uses as to implied ones. approaches, with specific reference to that is, when the original donor does As of today, there are two approaches prevailing rules in Kentucky. make his or her grant subject to an to resolving ecclesiastical disputes that express religious use.5 have been held to comport with the First The Doctrine of Implied Trust But the formal demise of the doctrine Amendment. The one with the longer Until fairly recently, one of the most of implied trust did not in fact arise historical pedigree is the so-called “rule common methods of resolving such dis- from any of the foregoing concerns. of deference,” which actually arose putes, at least with regard to Instead, it arose from the anxiety from a dispute here in Kentucky. The hierarchical denominations, was to courts felt with distinguishing one the- other is the so-called “rule of neutral apply the doctrine of implied trust. ological concept from another. To principles.” As we will see, the courts of Under this doctrine, a grant of property illustrate, consider a grant to the hypo- the Commonwealth have not defini- to a local church was deemed to be “for thetical “First Church of tively embraced either of these rules to the benefit of the general church Reincarnation,” subject to a condition the exclusion of the other.
28 Bench & Bar July 2008 The Rule of Deference Union and opposed slavery.9 In the bit- putes. As two prominent commentators The rule of deference is uniquely ter ecclesiastical disputes that followed noted in a general article on the subject, suited to a hierarchical church, the war, it became apparent that a the approach of Watson v. Jones “posed although it has some application to a majority of the congregation had also few difficulties”: congregational polity as well. Under opposed slavery. A majority of the local Once civil courts found this rule, courts avoid enmeshing them- Session, however, had defended slavery, implied consent on the part of a selves in theological disputes by the Session being the primary governing local church to be bound to a deferring to the highest authority body of the local institution.10 A dispute general church organization, the within a particular religious structure thus ensued as to whether the majority crucial determination then as that structure presents itself to the of the Session or a majority of the con- became the characterization of civil world. As the Supreme Court of gregation, which itself aligned with the the church polity as either congre- the United States explained in Watson General Assembly, were the “true” rep- gational or hierarchical. When a v. Jones, the case in which it first resentatives of the local church. The church’s organizational structure applied the doctrine, when a dispute case originated in federal court on was ascertained to be hierarchi- within a denomination has “been account of diversity, some of the con- cal, the action or judgment of the decided by the highest of [the ecclesi- gregants being from Indiana.11 The highest church tribunal was con- astical] judicatories to which the matter Court, adhering at that time to the doc- clusive on the civil court.13 has been carried, the legal tribunals trine of Swift v. Tyson,12 which On the other hand, the rule of defer- must accept such decisions as final, permitted it to create federal common ence obviously prefers hierarchy and and as binding on them, in their appli- law, applied the rule of deference to order to the wishes of dissenting mem- cation to the case before them.”8 resolve the case. bers of such a society, who of course Watson v. Jones arose from a dispute This rule has the obvious virtues of can be many in number, and who may within the Third or Walnut Street Pres- upholding the prerogatives of religious have been much more responsible for byterian Church in Louisville in the tribunals, of preserving lines of author- building the local institution than the aftermath of the Civil War. During the ity set up by a religious society, and of larger church. As noted above, however, war, the church’s national body, the protecting civil courts from the potential there are rights on both sides of such General Assembly, had supported the hazards of resolving theological dis- disputes.
July 2008 Bench & Bar 29 The Rule of Neutral Principles tice Blackmun in his opinion for the church in fact to adhere to the larger The other constitutional option is for majority, “religious societies can specify hierarchy, he or she can say so in the courts to resort to so-called “neutral prin- what is to happen to church property in instrument of trust or conveyance. ciples of law.” Under this approach, the event of a particular contingency, or courts apply the same principles of law to what religious body will determine the Civil Resolution of Ecclesiastical a dispute arising from a denominational ownership in the event of a schism or Disputes in Kentucky schism as they would to a dispute arising doctrinal controversy.”16 Over the last seventy years, Kentucky from the fragmentation of a non-religious This approach is also not without its has seen both “deference” and “neutral voluntary association. The Supreme detractions, however. First, by emphasiz- principles” applied in its courts, often in Court of the United States give its first ing lawyerly examination of a church’s the same case.18 In Clay v. Crawford, for fulsome approval to this approach in papers and records, the rule of neutral example, the Commonwealth’s highest Jones v. Wolf, another case involving the principles will inevitably compel reli- Court held in favor of the faction of a Presbyterian Church.14 In this case, the gious organizations to become lawyerly local church in the African Methodist Supreme Court of Georgia had held in in conducting their affairs. This can be a Episcopal tradition that had remained favor of the local congregation, applying source of difficulty. Although many reli- loyal to the larger church, which took the neutral principles, and the Court upheld gious organizations are well-endowed form of an Annual Conference under the its decision to do so. Although the Court with attorneys or funds with which to direction of a Bishop and a General Con- did not describe neutral principles as engage attorneys, others are not. Second, ference.19 To a substantial extent, the mandated by the First Amendment, it and as a related matter, ecclesiastical Court justified its decision in terms of nevertheless saw them as permissible, documents are not necessarily written deference, citing Watson v. Jones. “In an and perhaps even preferred.15 with an eye toward civil litigation, nor adjudication of rights,” the Court wrote, An obvious advantage of applying perhaps should they be. When this “the criterion is identity, not of individu- neutral principles is that it saves courts occurs, courts will lack “neutral” lan- als, but of organization. The question is from having to choose between an guage upon which to rely.17 Finally, as which of the rival factions is the true rep- ecclesiastical hierarchy (if there is one) applied to grants executed in the past, resentative and successor or continuation and a dissenting congregation, unless strict adherence to neutral principles will of that local society as it existed prior to the denomination has ordered its affairs not properly discern the original intent the division. The answer is to be found in accordance with civil law to require of the grantor if that individual simply by ascertaining which of them adheres to preference of one over the other. As the assumed that his or her donation would or is sanctioned by the governing or cen- Court maintained in Jones v. Wolf, the remain with the larger ecclesiastical tral body.”20 But the Court went on to rule of neutral principles is both “secu- body. Nevertheless, the rule of neutral examine the various instruments by lar” and “flexible” in its operation. principles is consistent with familiar which the church had acquired its prop- “Through appropriate reversionary notions of private ordering. That is, if erty, concluding that the grants were clauses and trust provisions,” wrote Jus- someone wants a donation to a local subject to a trust in favor of the larger church.21 In doing this, the Court’s analy- sis sounded in neutral principles.22 In Pelphry v. Cochran, by contrast, the Court appeared to adopt a pure version of the rule of deference.23 This case involved a doctrinal schism within a church in the Baptist tradition, which generally contemplates a congregational polity. The majority of the congregation and the association with which the majority sought to affiliate adhered to one belief regarding the eligibility of people who have been divorced and remarried to become members, and the minority adhered to another.24 Pretermit- ting the issue of the church’s exact polity, the Court adopted a position that sounds in deference, noting with approval that “the trial court merely recognized as church doctrine that which had been so declared by the church authorities vested with the power to declare it – either the association if the church was a part of its
30 Bench & Bar July 2008 hierarchy or a majority of the congrega- in the local institution. The Court’s observation in Bjorkman tion if it was not.”25 The Court did not Citing Jones v. Wolf, the Court applied that deference (almost) invariably yields appear to rely on any evidence that neutral principles and held in favor of the a victory to the ecclesiastical hierarchy is would sound in neutral principles, stating local church. “[T]his nation’s highest not only true, but essentially a restate- only that “[t]he property in question was Court,” noted then-Justice Lambert for ment of the rule itself. That is, the rule conveyed to the church in 1925.”26 the majority, “has held this approach to by definition gives almost categorical Against this backdrop, the highest be constitutional, preferable, and broadly preference to the decision of the church’s Court of Kentucky’s most recent deci- applicable as a method of resolving highest judicatory body. But this had sions in this area, Bjorkman v. Protestant church property disputes.” Therefore, he been no less true when Clay v. Crawford Episcopal Church in the United States of continued, “this Court is clearly empow- and Pelphry v. Cochran were decided America and Cumberland Presbytery of ered to adopt the neutral-principles than when Bjorkman was decided. For the Synod of the Mid-West of the Cum- approach if we so choose.” On the other the Court, however, the salient difference berland Presbyterian Church v. hand, the Court noted, the justices were between the earlier cases and present Branstetter, can be discussed.27 To one “reluctant . . . to overrule longstanding case lay in the fact that in Bjorkman the degree or another, both Bjorkman and precedent.”29 The Court found an appar- free exercise of the entire local congrega- Branstetter involved a blend of defer- ent escape from this dilemma, however, tion was at stake. Although this was true, ence and neutral principles. in the fact that none of its precedents had the Court’s analysis is still vulnerable to Bjorkman involved a schism within the involved a local church that, without dis- the modest criticism that it failed to take Episcopal denomination. Specifically, an sent, had sought to dissociate from a every actor’s rights into account. That is, entire church within that denomination, denominational hierarchy.30 In reaching although there were no dissenting mem- without dissent, sought to dissociate itself this conclusion, the Court noted the bers of the local church whose free from the larger structure, and litigation harshness and rigidity of the rule of def- exercise would suffer were the building ensued as to whether the larger church or erence, at least from the point of view of to follow the schismatics, the officials of the local institution lay proper claim to a dissenting local faction. Although the the diocese, other worshipers of the dio- the bricks and mortar.28 This was a case Court acknowledged that neutral princi- cese, and the local church’s prior donors where neutral principles and deference ples might not be a “panacea,” it might also have had legitimate interests, might well have yielded different results. nevertheless saw it as preferable to defer- sounding in free exercise or in rights of The Episcopalian Church has a hierarchi- ence because, under the latter, “in every property, to have the local institution cal polity, with judicatory powers lying in case, regardless of the facts, compulsory remain in the hierarchical fold. In other its senior officials. On the other hand, the deference would result in the triumph of words, to distinguish a schism involving instruments by which a church takes and the hierarchical organization.”31 It then an entire congregation from one involv- holds its property may appear to vest title proceeded to examine the documents at ing a mere faction puts strong and issue in the case, concluding that, as a perhaps too much emphasis on the rights 33 Paul E. Salamanca, matter of neutral principles, the bricks of the current local congregation. Wyatt, Tarrant & and mortar lay in the local church.32 Cumberland Presbytery of the Synod Combs Professor of Law, teaches courses in constitu- tional law, federal courts, and freedom of religion at the University of Ken- tucky, College of Law, where he has been a member of the faculty since 1995. He received his A.B. from Dart- mouth College in 1983 and earned his J.D. from Boston College Law School in 1989. After receiving his law degree, Professor Salamanca served as a clerk to Judge David H. Souter of the U.S. Court of Appeals for the First Circuit. He then served as a clerk to Justice Souter at the U.S. Supreme Court. After his clerkships, Professor Salamanca practiced with the firm of Debevoise & Plimpton in New York. He began his legal teaching career at Loyola University School of Law in New Orleans. Professor Salamanca has pub- lished articles on freedom of religion, privacy, freedom of expression, and sepa- ration of powers.
July 2008 Bench & Bar 31 of the Mid-West of the Cumberland Pres- lengthy discussion of Watson v. Jones, tion of the ‘compulsory deference rule’ to byterian Church v. Branstetter involved a which had also involved the Presbyterian the . . . dispute before us,” wrote Justice schism within a local church in the Pres- Church, noting the rule from that case Spain, “leads to the inescapable conclu- byterian tradition, with the minority of and quoting from it quite substantially. sion that the minority faction[,] which the congregation adhering to the larger Next, it took up Clay v. Crawford, which ‘adheres to’ and ‘is sanctioned by’ the church and the majority seeking to break it described as “a scholarly opinion” and central body, . . . must prevail.”37 away.34 In the course of describing the “[o]ne of the leading Kentucky cases At this point, the Court took up neu- facts, the Court, per Justice Spain, was applying the compulsory deference tral principles, discussing Jones v. Wolf careful to emphasize the “connectional or rule.”36 In light of this predicate, the and the demise of the doctrine of hierarchical” nature of the Presbyterian Court had little difficultly holding in implied trust that had given rise to that polity, as well as the various steps that favor of the minority of the local institu- approach. After a brief review of that judicatory bodies higher than the local tion that had remained faithful to the case, the Branstetter Court noted that church had taken.35 It then went into a larger ecclesiastical hierarchy. “Applica- neutral principles does not yield a “fore- ordained” result (presumably in favor of a majority of the local congregation),38 but instead requires analysis of those Don’t Wait for Kentucky principles, as they exist in the jurisdic- tion, as well as analysis of the Appellate Decisions! documents in question. The Court then went on to observe that the larger church in the case before it had amended its Constitution in 1984, before the dispute had arisen, to provide that “all property LawReader held by or for a particular church . . . is held in trust nevertheless for the use and Posts Weekly Updates of benefit of the [general church].”39 In Kentucky Appellate Decisions other words, wrote Justice Spain, the general church had amended its organic with Keywords - Synopsis and Full Text document in response to Jones v. Wolf. The Court then proceeded to distinguish Within Hours of Release! Bjorkman, noting first that the earlier case had involved a unanimous local With LawReader You Also Get: congregation seeking to break away, and second that Bjorkman had not involved a • Kentucky Revised Statutes Annotated denomination that had revised its organic documents to make the results • A Complete 50 State Case Law Data under deference and neutral principles the same.40 • Thousands Of Legal Forms As the foregoing discussion suggests, much of the analysis in Branstetter • Jury Instructions sounded in the rule of deference, with substantial positive references to both Watson v. Jones and Clay v. Crawford. Nevertheless, the Court did not overrule Get it All and Get it NOW! Bjorkman, instead distinguishing it as a case involving a unanimous local depar- ture. In addition, the Court was careful A complete online Law Library in Branstetter to emphasize that both neutral principles and deference would for only $34.95 amonth. yield a decision in favor of the hierar- chy in that case. Thus, Branstetter does not appear to stand firmly for either www.LawReader.com rule, and further litigation may be nec- essary to establish whether neutral Call for a Free Trial - Phone: 502-732-4617 principles will govern in all such cases Or e-mail: [email protected] in Kentucky, or only where the facts of Bjorkman arise again. I
32 Bench & Bar July 2008 ENDNOTES uals have “departed from the fun- tained a congregational polity. The 1. See Frank E. Lockwood, Now damental doctrine” of a particular Court also construed various docu- Anglican, both are acquiring build- faith without violating Hull). ments of the local church as ings, LEXINGTON HERALD-LEADER 8. Watson v. Jones, 80 U.S. (13 Wall.) confirming this arrangement. (Dec. 16, 2006) (describing 679, 727 (1872). As this doctrine 23. Pelphry v. Cochran, 454 S.W.2d parishes that withdrew from the developed, courts did acknowledge 675, 678-79 (Ky. 1970). Episcopalian Diocese of Lexington some exceptions to it at the mar- 24. See id. at 676-77, 678. and affiliated themselves with the gins, for instance in cases involving 25. Id. at 678-79. Anglican Church of Uganda.) allegations of “fraud, collusion, or 26. Id. at 677. 2. The First Amendment provides in arbitrariness.” Arlin M. Adams & 27. Another recent decision in this part that “Congress shall make no William R. Hanlon, Jones v. Wolf: broad area is Music v. United law respecting an establishment of Church Autonomy and the Reli- Methodist Church, 864 S.W.2d 286 religion, or prohibiting the free gious Clauses of the First (Ky. 1993). Because this case was exercise thereof . . . .” U.S. Amendment, 128 U. PA. L. REV. actually about employment, with CONST. amend. I. 1291, 1303 (1980). specific reference to a minister, it 3. Presbyterian Church in the United 9. See Watson, 80 U.S. at 690-91. may reasonably be seen as falling States v. Mary Elizabeth Blue Hull 10. See id. at 693. in a different category. As the Court Memorial Presbyterian Church, 11. See id. at 694. noted in Music, the doctrine of neu- 393 U.S. 440, 443 (1969). 12. Swift v. Tyson, 41 U.S. (16 Pet.) 1 tral principles originated in the 4. See, e.g., Parker v. Harper, 295 Ky. (1842), overruled by Erie R. Co. v. realm of disputes over ecclesiasti- 686, 175 S.W.2d 361, 363 (1943). Tompkins, 304 U.S. 64 (1938). cal property, where its likelihood of Other decisions by the highest Court 13. Adams & Hanlon, supra note 8, at interference with religious liberty is of Kentucky sounding in the area of 1301 (footnote omitted). considered slight. See id. at 288. implied trusts for religious purposes 14. Jones v. Wolf, 443 U.S. 595 (1979). 28. See Bjorkman v. Protestant Episco- include Mullins v. Elswick, 438 15. See id. at 602-04. pal Church in the United States of S.W.2d 496, 497 (Ky. 1969), Flem- 16. Id. at 603. America, 759 S.W.2d 583, 584 (Ky. ing v. Rife, 328 S.W.2d 151, 152 17. Indeed, the Court in Jones v. Wolf 1988). (Ky. 1959), and Bunnell v. Creacy, was careful to note that, where doc- 29. Id. at 585. 266 S.W.2d 98, 99 (Ky. 1954). uments allocate property according 30. See id. at 585-86. 5. The Southwest Reporters contain to “religious concepts” that are 31. Id. at 586. quite a few decisions by the highest themselves in dispute, a court 32. See id. at 586-87. Writing in dis- Court of Kentucky sounding in the should defer to the resolution of sent, Chief Justice Stephens, joined area of express trusts for religious that issue by the “authoritative by Justice Leibson, argued that the purposes. See, e.g., Cantrell v. ecclesiastical body.” Id. at 604. larger church should have prevailed Anderson, 390 S.W.2d 176, 177 (Ky. 18. In Pelphrey v. Cochran, 454 in the case under either neutral 1965); Luttrell v. Potts, 257 S.W.2d S.W.2d 675, 678 (Ky. 1970), the principles or deference, because the 542, 543 (Ky. 1953); Hall v. Court appeared to recognize that hierarchy had organized its affairs Deskins, 252 S.W.2d 417, 419 (Ky. the decision of the Supreme Court to ordain that result. See id. at 587 1952); Black v. Tackett, 237 S.W.2d of the United States in Presbyterian (Stephens, C.J., dissenting). 855, 855-56 (Ky. 1951); Martin v. Church in the United States v. 33. See generally John H. Garvey, Kentucky Christian Conference, 255 Mary Elizabeth Blue Hull Memor- Churches and the Free Exercise of Ky. 322, 73 S.W.2d 849, 851 (1934). ial Presbyterian Church, 393 U.S. Religion, 4 NOTRE DAME J.L, Cf. Rife v. Fleming, 339 S.W.2d 650, 440 (1969), precludes use of the ETHICS & PUB. POL’Y 567, 586 652-53 (Ky. 1960) (express language doctrine of implied trust. (1990) (“[T]he rule of neutral prin- deemed to be overcome by contem- 19. Clay v. Crawford, 298 Ky. 654, 183 ciples serves the goal of individual poraneous understandings and S.W.2d 797, 804 (1944). freedom; the rule of deference, the continuous practice). As noted 20. Id. at 800. goal of group freedom.”). below, the enforceability of such 21. See id. at 803-04. 34. See Cumberland Presbytery of the trusts is doubtful because of consti- 22. In Nolynn Association of Separate Synod of the Mid-West of the Cum- tutional concerns. Baptists in Christ v. Oak Grove berland Presbyterian Church v. 6. See Presbyterian Church in the Separate Baptist Church, 457 Branstetter, 824 S.W.2d 417, 417- United States v. Mary Elizabeth S.W.2d 633, 634 (Ky. 1970), the 18 (Ky. 1992). Blue Hull Memorial Presbyterian Court recognized the abstract valid- 35. See id. at 418. Church, 393 U.S. 440, 450 (1969). ity of the rule of deference, but 36. Id. at 419. 7. Id. See also Pelphrey v. Cochran, went on to hold in favor of the local 37. Id. at 420. 454 S.W.2d 675, 678 (Ky. 1970) church on two grounds. First, the 38. Id. at 421. (noting that the courts of Kentucky Court saw “substantial evidence” 39. Id. at 421-22 (emphasis removed). may not determine whether individ- that the denomination in fact main- 40. See id. at 422.
July 2008 Bench & Bar 33
Reforming Reform – Kentucky’s Campaign Finance Laws in Transition
By David S. Samford Supreme Court generally held that con- paign finance, the Court wrote: “The tribution limits are not a violation of the overall effect of the Act’s contributions here is no law more political in contributor’s freedom of speech because ceilings is merely to require candidates nature than a campaign finance they only limit the ability to speak and political committees to raise funds T law. While most laws regulate through another person.4 The Court from a greater number of persons and to the behavior of all citizens, campaign agreed that a governmental interest in compel people who would otherwise finance laws specifically regulate the preventing “corruption and the appear- contribute amounts greater than the behavior of politicians. With little ance of corruption spawned by the real statutory limits to expend such funds on incentive to self-regulate, it comes as no or imagined coercive influence of large direct political expression… .”9 The surprise that the enactment of signifi- financial contributions on candidates’ advent of the perpetual fundraising cam- cant campaign finance legislation often positions and on their actions if elected paign and the proliferation of so-called closely follows the incidence of scandal. to office” justified the contribution lim- 527 Organizations, which are less trans- Watergate and BOPTROT precipitated its’ abridgment of the First Amendment, parent than candidate campaign com- the most recent Kentucky campaign but rejected the notion that the govern- mittees, begs the question of whether finance laws, culminating in the Ken- ment could constitutionally “mute the contribution limits have in fact tucky Public Financing Campaign Act voices of affluent persons and groups in improved the public’s perception of the of 1992 (the “Act”),1 which significant- the election process” or place “a brake political process. ly altered the ground rules for financing on the skyrocketing cost of political The Act — which was loosely mod- political campaigns in Kentucky and campaigns.”5 eled on the Federal Election Campaign implicated several important First The freedom of speech is preserved Act construed in Buckley – blurred the Amendment rights. The Act is adminis- through the contributor’s uninhibited line between contribution and expendi- tered by the Kentucky Registry of Elec- right to speak on his own behalf through ture limitations in many respects. It tion Finance (“Registry”). personal, independent expenditures. was quickly challenged. There are two fundamental First Limitations on expenditures are viewed In Wilkinson v. Jones, 876 F.Supp. Amendment rights implicated by cam- less favorably because they limit “the 916 (W.D. Ky. 1995), the Court was paign finance laws – the freedom of ability of candidates, citizens, and asso- asked to rule, in part, on the constitu- speech and the freedom of association. ciations to engage in protected political tionality of a $100 campaign contribu- Both freedoms are essential to maintain- expression… .”6 tion limit on candidates not accepting ing the marketplace of ideas that Justice Buckley also considers the potential public financing while those receiving Holmes so eloquently described as for unconstitutional infringement upon public funds could raise $500 from each being “the theory of our constitution.”2 the freedom of association resulting contributor and then receive a two-for- Buckley v. Valeo, 424 U.S. 1 (1976), from mandatory disclosure obligations one match. In response to a motion for remains the landmark United States in campaign finance laws. Buckley con- injunctive relief, the Court found that Supreme Court decision construing the firms that the compelled disclosure of former Governor Wallace Wilkinson, permissible intrusions upon the free- contributors may unconstitutionally who indicated a willingness to self-fund doms of speech and association in the infringe upon the contributor’s right of another gubernatorial campaign, would context of financing political cam- association.7 “On this record,” howev- likely prevail on his challenge that the paigns. er, the Court held that the government’s “cap gap” was unconstitutional. The Buckley draws a crucial distinction interest in requiring disclosure of the Court noted that contribution limits between campaign contributions and identity of those persons making expen- were generally permissible in light of campaign expenditures. Reasoning that ditures “that expressly advocate a par- Buckley, but that the Act was “palpably a contribution is a symbolic form of ticular election result” was penal and thus not narrowly tailored to expression but not a direct communica- constitutionally tolerable.8 achieve the goal of thwarting quid pro tion per se, Buckley essentially views a Thus, Buckley upheld the constitu- quo corruption.”10 candidate as the contributor’s surrogate tionality of contribution limits and Next came Kentucky Right to Life v. speaker. Contributions may reflect the mandatory disclosure of the identity of Terry, 108 F.3d 637 (6th Cir. 1997), intensity of a contributor’s support for a campaign contributors but struck down which alleged, inter alia, that “contribu- candidate, but not necessarily the basis several forms of expenditure limitations. tion” and “permanent committee” were for that support.3 As a result, the Astutely perceiving the future of cam- too broadly defined to survive First
34 Bench & Bar July 2008 Amendment scrutiny. The district court eight days of a campaign is in fact an 121A.150(16) were declared to be dismissed the action on the basis that expenditure limitation and therefore unconstitutional.19 The former statute “the Registry had never interpreted unconstitutional.14 Anderson v. Spears, created a per se taking by requiring those definitions as broadly as plain- 356 F.3d 651 (6th Cir. 2004), later gubernatorial slates not participating in tiffs’ asserted.”11 Yet during the pen- extended Gable to hold that the prohibi- the public financing scheme to surrender dency of the appeal, the General tion on contributions within the final any unused campaign funds to the state Assembly amended KRS Chapter 121 to twenty-eight days of a campaign was at the conclusion of a campaign. The narrow the definition of “contribution” unconstitutional as applied to write-in latter statute imposed an absolute ban on and “permanent committee.” The 1996 candidates, regardless of the source of fundraising after an election. On this amendments to the Act also made the the contribution.15 Quoting from McIn- point, the Court found the prohibition to distinction between regulated “express tyre v. Ohio Elections Com’n, 514 U.S. be an impingement “on associational advocacy” and unregulated “issue advo- 334, 347 (1995), Anderson noted, “the rights even where there is little risk of cacy” more explicit and raised the con- fact that speech occurs during the heat corruption following an election.”20 tribution limit from $500 to $1000 per of an election ‘only strengthens the pro- Anderson also struck down the election – bringing it in line with federal tection afforded.’”16 $50,000 limit on loans by a candidate to law.12 The appellate court ruled that Martin v. Commonwealth, 96 S.W.3d his own campaign as being an unconsti- most of Kentucky Right to Life’s consti- 38 (Ky. 2003), noted three constitutional tutional limitation on a candidate’s tutional challenges were rendered moot infirmities relating to the definitions of expenditures. Finally, the Court held by the General Assembly, but affirmed “contribution” and “independent expen- that an absolute ban on cash contribu- the constitutionality of KRS 121.190(1), diture” as well as the scope of prohibited tions, for items such as T-shirts and but- which required persons making inde- communications regarding potential tons, “effectively forecloses speech by a pendent expenditures to disclose their independent expenditures.17 The Ken- large body of individuals who will be identity on a handbill or in an advertise- tucky Supreme Court also found that chilled from making a de minimis con- ment. The Court reasoned that the gov- each of these constitutional infirmities tribution.” 21 Following Anderson, KRS ernment’s interest in limiting political was redressed in the course of the Gen- Chapter 121 and KRS Chapter 121A corruption is stronger than the right to eral Assembly’s 1996 legislative session. were beginning to resemble Swiss “publish anonymously.”13 The Court The most recent in the line of cases cheese. also sustained the $1,500 per year construing the Act is Anderson, supra., A bill to expand public financing to aggregated contribution limit to perma- where the Court of Appeals struck down include political parties passed the nent committees set forth in KRS the definition of “contribution” in KRS House with less than a majority in 2000, 121.150(10), finding that it did not Chapter 121A – relating to public but was never considered in the Sen- unconstitutionally restrict the freedoms financing of gubernatorial campaigns – ate.22 Kentucky’s experiment with pub- of speech or association. as it “infringes upon constitutionally lic financing of political campaigns In Gable v. Patton, 142 F.3d 940 (6th protected speech.”18 Likewise, both lasted only two gubernatorial election Cir. 1998), the Court of Appeals KRS 121A.080(6) and KRS cycles and effectively ended in 2003 affirmed the District Court ruling that a statutory prohibition on a non-publicly financed candidate’s contributions to his KENTUCKIANA REPORTERS, LLC own account within the final twenty- OTHER EXCITING SERVICES
- In-housefull service David S. Samford, a videoconferencing center. graduate of the UK - Complimentary Conference rooms & catering. College of Law, is - Over a dozen in-house certified court the general counsel reporters and videographers COURT REPORTING TRIAL PRESENTATION to the Kentucky available for reporting assignments immediately. Public Service - Kentuckiana Reporters is - Kentuckiana Trial Vision has a team Commission. He dedicated to delivering a - Full-timeadministrativepersonnel of certified trial technicians and previously served as personalized service unparalleled in located in our Louisville, KY office. presentation specialists who will thecourt reportingindustry. - Satellite offices located in Lexington, make your presentation in court as executive director KY & Cincinnati, OH. impressive and seamless as you have ever seen. of the Office of -Transcripts are delivered within - Service all of the mid-west. Legal Services in 6 to 8 days, which far exceeds industry standard. - Your iPod just - Experience in case management the Kentucky Transportation Cabinet, as became a business and databaseadministration. an associate in the Office of Stan Cave - Transcript includes tabbed exhibits expense!!!! scanned and hyperlinked. - Demonstrative exhibit preparation. and Associates, PSC, and as a law clerk - AUDIO and VIDEO to the Honorable Henry R. Wilhoit, Jr. depositions now - CD-ROM containing: ASCII, - Softwaretraining and support. in iPod format Mr. Samford was appointed to the Ken- searchable Visionary File, printable tucky Registry of Election Finance by full size, condensed and exhibits. Schedule and confirm 5 depositions - Equipment rental. Governor Paul Patton and Governor Ernie with transcripts and ordering attorney Fletcher. He also served as co-chairman - Audio/Video-to-text synchronization. gets a FREE iPod. - On-sitecourtroom assistance. of the Registry’s Legislative Task Force. www.kentuckianareporters.com 502.589.2273
July 2008 Bench & Bar 35 CITY ATTORNEY
The City of Owensboro is seeking a progressive, experienced, and dynamic leader to serve as its next City Attorney.
Located in a metropolitan area, Owensboro maintains a low-crime and family-friendly environment with its population of 55,000. Owensboro is the third largest city in Kentucky, representing the indus- trial, medical, retail, and cultural hub of western Kentucky. Centrally located to several large cities, Owensboro offers 10 minute commutes, a low cost of living, affordable and attractive homes, nation- ally recognized sports, recreational, and cultural activities, a nationally recognized public education system, public and private colleges and universities, and beautiful scenic views.
The City Attorney will have a strong advisory presence in providing legal counsel to the Owensboro Board of Commissioners, City Manager, City Boards and Commissions, City Departments, and will supervise EEO investigations. This position offers a competitive salary and benefit package. QUALIFICATIONS Requires a Bachelors and a Juris Doctorate Degree from an accredited college or university plus a minimum of four (4) years experience as a practicing attorney. Requires Kentucky Bar Association License upon employment. TO APPLY To ensure your application will be considered, it must be received no later than 12:00pm Noon Fri., Aug. 8, 2008. Applications are available at the: Office of Employment and Training (OET), located at The Career Center, 121 E. 2nd Street, Owensboro, Kentucky 42303. Return all applications to OET. In addition to the application, please attach a resume and cover letter. Applications and more infor- mation also available at:
Website: www.owensboro.org (click on “Apply for a City Job”) Toll-free: 1-888-616-8540 Jobline: (270) 687-INFO x1550 EEO/AA—M/F/V/D when it was de-funded by the General must sometimes advise them – may 616, 630 (1919). Assembly.23 KRS Chapter 121A was obtain helpful guidance from the Reg- 3. Buckley, p. 21. repealed in its entirety in 2005.24 istry’s general counsel in the form of an 4. Id. In light of the piecemeal dismember- advisory opinion. Where such an opin- 5. Id., p. 26. ment of the Act, the Registry voted in ion has been rendered, the requesting 6. Id., p. 59. 2003 to establish a bipartisan task force party may then claim reliance on that 7. Id., p. 64. to evaluate the current campaign finance advisory opinion. Informal advice 8. Id., pp. 64-80. system from top to bottom and to make about particular points of Kentucky law 9. Id., pp. 21-22. appropriate recommendations to the is almost always available less formally 10. Wilkinson, p. 929. General Assembly. In a collaborative, with a simple phone call. 11. Terry, p. 642. year-long process involving all stake- Establishing rules for financing elec- 12. Id., p. 643. holders, the Registry’s Task Force made tions is controversial, emotional and 13. Id., p. 646, 648. eighty-eight recommendations to highly technical simply because cam- 14. Gable, p. 953. improve Kentucky’s existing campaign paign finance laws go to the heart of the 15. Anderson, p. 675. finance laws in late 2005. The recom- democratic process and implicate funda- 16. Id. mendations generally were aimed at mental constitutional rights. Ultimately, 17. Martin, pp. 50-51. correcting the constitutional deficiencies political speech and expression are the 18. Anderson, p. 667. noted by the Courts but still set forth in remedy, not the enemy. I 19. Id., p. 669. the statutes, simplifying the statutes (the 20. Id., p. 671. reporting requirements statute alone is ENDNOTES 21. Id., p. 672. eleven pages long), easing the adminis- 1. “Campaign Finance Legislation in 22. HB 750, 2000 Regular Session. trative burden on campaigns, and giving Kentucky: An Historical Overview” 23. HB 269, 2003 Regular Session. greater transparency to the political by Rosemary F. Center & Jennifer 24. SB 112, 2005 Regular Session. process. Black Hans, Kentucky Registry of 25. HB 670, 2006 Regular Session. In 2006, former State Representative Election Finance (2005). 26. SB 159, 2007 Regular Session. Adrian Arnold, a Democrat, sponsored 2. Abrams v. United States, 250 U.S. 27. SB 8, 2008 Regular Session. legislation that included most of the Task Force’s recommendations.25 The bill passed the House on a vote of 97-0, but Landex Research Inc. was received in the Senate too late in the session for meaningful consideration. In PROBATE RESEARCH 2007, State Senator Damon Thayer, a Republican, sponsored similar legislation to implement the Task Force’s recom- mendations.26 Senator Thayer’s bill passed the Senate in three days on a final vote of 35-0. Although a House commit- tee favorably reported the bill, it failed to win House approval. This year, Senator Thayer’s bill again narrowly missed passing both chambers.27 The bills intro- Missing and Unknown Heirs duced by Senator Thayer and former Representative Arnold reflect the spirit of Located bipartisanship which gave rise to the with No Expense to the Estate Registry Task Force’s original recom- mendations. Although both chambers of the General Assembly have unanimously Domestic and International Service for: passed similar versions of the same legis- Courts lation, there has not yet been a consensus Lawyers between them that the bill should Trust Officers become law. But each year the legisla- Administrators/Executors tion gets one step closer to final passage. Currently, most violations of Ken- Two North La Salle Street, Chicago, Illinois 60602 tucky’s campaign finance laws are Telephone: 312-726-6778 Fax: 312-726-6990 felonies. KRS 121.135 sets forth a pro- Toll-free: 800-844-6778 cedure, however, by which participants www.landexresearch.com in the political process – and those who
July 2008 Bench & Bar 37
COMMONWEALTH OF KENTUCKY JUDICIAL CONDUCT COMMISSION
IN RE THE MATTER OF:
JUDGE JOHN P. CHAPPELL, 27TH JUDICIAL DISTRICT, DIV. 02
ORDER OF PUBLIC REPRIMAND (Pursuant to SCR 4.020(1)(b)) John P. Chappell filed for candidacy for the vacant position of district judge of Division Two of the Twenty-Seventh Judicial District on December 12, 2007. On January 19, 2008, he made a contribution of $200 to a candidate running for public office. On January 28, 2008, he was appointed by the governor to fill the district judge vacancy. Judge Chappell agreed to accept without for- mal proof the disposition made in this Order.
The Commission determined, after an informal investigation, that Judge Chappell made a campaign contribution to a candidate for public office.
The above actions of Judge Chappell violated the following Canon of the Code of Judicial Conduct, Supreme Court Rule 4.300:
Canon 5
A JUDGE OR JUDICIAL CANDIDATE SHALL REFRAIN FROM INAPPROPRIATE POLITICAL ACTIVITY
**********************
A. Political Conduct in General
**********************
(1) A judge or a candidate for election to judicial office shall not: (c)solicit funds for or pay an assessment or make a contribution to a political organization or candidate…
The Commission gave due consideration in making this disposition to the fact that Judge Chappell self-reported the violation and fully cooperated with the Commission in its consideration of this matter and agreed to the resolution adopted by the Commission.
Upon consideration of his agreement to accept this disposition without formal proof, the Commission finds and it is hereby ORDERED and ADJUDGED that for the foregoing violation, John P. Chappell should be and hereby is PUBLICLY REPRIMANDED.
This Order is issued this 23rd day of May, 2008.
STEPHEN D. WOLNITZEK, CHAIR JUDICIAL CONDUCT COMMISSION COMMONWEALTH OF KENTUCKY
AGREED TO: JOHN P. CHAPPELL JUDGE, 27TH JUDICAL DISTRICT, DIV. 02
This is to certify that a true copy of this Order has been served on the judge by mail this 27th day of May, 2008.
JAMES D. LAWSON EXECUTIVE SECRETARY
38 Bench & Bar July 2008 COMMONWEALTH OF KENTUCKY JUDICIAL CONDUCT COMMISSION
IN RE THE MATTER OF:
FRANK H. WAKEFIELD II, DISTRICT JUDGE 49TH JUDICIAL DISTRICT
ORDER OF SUSPENSION
Judge Frank H. Wakefield II is district judge for Kentucky’s forty-ninth judicial district composed of Allen and Simpson Counties. Judge Wakefield has waived formal proceedings and proof and has agreed to entry of this order by the Commission. The Commission notes at the outset, and has duly considered, that Judge Wakefield fully cooperated in the investigation which cul- minated in the disposition made in this order.
PATTERNS OF IMPROPER PRACTICES Judge Wakefield has engaged in patterns of practices in his court in violation of the Code of Judicial Conduct, SCR 4.300, in regard to the following matters:
Failure to Accord Fundamental Rights Judge Wakefield frequently failed to follow orderly procedures to safeguard fundamental rights to counsel and notice and right to be heard; and interrogated individuals in open court without regard to their privilege against self-incrimination. In one instance Judge Wakefield interrogated a juvenile and obtained an admission of guilt on one of two charges after the juvenile had expressed an intention to plead not guilty to both charges; and appointed counsel only after the admission of guilt. By these practices Judge Wakefield violated the Code of Judicial Conduct, Canon 2A, providing that a “judge shall respect and comply with the law,” Canon 3B(2) providing that a “judge shall be faithful to the law and maintain professional competence in it,” and Canon 3B(8) requiring that a judge dispose of judicial matters fairly.
Lengthy and Rambling Discourses On numerous instances during proceedings in his court, Judge Wakefield engaged in lengthy and rambling discourses on subjects unrelated to the business before his court. Judges often have occasion to make explanations or comments in conduct- ing court and this is not inappropriate nor a violation of the Code. However the discourses of Judge Wakefield involved trivia unrelated to court business, and were so lengthy that conducting an arraignment and setting a court date in a single traffic or misdemeanor case sometimes consumed ten minutes or more. The business of all persons in Judge Wakefield’s court was unnecessarily and unreasonably delayed by these discourses. The instances in question occurred as early as March 22, 2007, less than three weeks after the Commission issued a private admonition to Judge Wakefield for similar conduct. By these actions, Judge Wakefield violated Canon 3B(4) requiring that a judge be courteous to litigants and others with whom the judge deals in an official capacity, and Canon 3B(8) requiring that a judge dispose of judicial matters promptly, efficiently and fairly.
Demeaning and Belittling Individuals Judge Wakefield often demeaned persons in his court by inappropriate critical comments. Instances include: Judge Wake- field demeaned a young defendant because his mother had posted his bond; in explaining his policy regarding employment of persons seeking appointment of a public defender, Judge Wakefield stated that a named individual seated in his court was a “knucklehead” and would not qualify as an employer; and Judge Wakefield pointed out an individual in the courtroom and stated that if he was there to see the court, he was guilty, and after the individual’s unfavorable comment in response to the judge’s question about an earlier case when the judge had represented him, Judge Wakefield stated that he should have gotten more jail time. By this conduct, Judge Wakefield violated Canon 3B(4) providing that a judge shall be dignified and courteous to those with whom he deals in an official capacity.
Imposing Unlawful Conditions or Requirements Judge Wakefield engaged in practices of ordering that defendants be removed from homeschooling and attend public schools in cases unrelated to school, and of requiring a defendant to show contact with 120 potential employers in order to qualify for appointment of a public defender. A district judge is not vested with authority to regulate homeschooling. The requirement of 120 employment contacts has no legal basis and is punitive. By these practices Judge Wakefield violated Canon 2A providing that a “judge shall respect and comply with the law,” Canon 3B(2) providing that a “judge shall be faithful to the law and main- tain professional competence in it,” and Canon 3B(8) requiring that a judge dispose of judicial matters fairly.
July 2008 Bench & Bar 39 ACTIONS REGARDING FAMILY COURT JUDGE Judge Wakefield also engaged in two instances of improper conduct related to the family court judge in his district. On July 3, 2007, Judge Wakefield became upset that his court was delayed because the county attorney was attending the family court’s session in another courtroom. Judge Wakefield recessed his court to address the problem and commented openly that the public could remedy the situation by going to the polls in November (the family court judge was the incumbent candidate in that elec- tion). Judge Wakefield then entered the family court session, and after the judge announced a recess in order to recognize him, he confronted the family court judge in the presence of attorneys and court personnel as to why the county attorney was there and not in Judge Wakefield’s court. By the comment regarding the election Judge Wakefield violated Canon 5A(1)(b) provid- ing that a judge shall not “publicly endorse or oppose a candidate for public office.” By confronting the family court judge in the presence of others about a matter which should have been addressed in private, Judge Wakefield violated Canon 3B(4) requiring that a judge be dignified and courteous to those with whom the judge deals in an official capacity.
SANCTION In addition to the previous admonition to Judge Wakefield for lengthy discourses mentioned above, the Commission previ- ously issued a private admonishment and a private reprimand to Judge Wakefield for not being dignified and courteous to per- sons in violation of Canon 3B(4). The Commission concludes that for the foregoing conduct, Judge Wakefield should be, and hereby is, suspended from his duties as district judge without pay for a period of thirty (30) days commencing June 1, 2008 and concluding June 30, 2008. The Commission will monitor Judge Wakefield’s court to determine that the patterns of offending conduct are not repeated.
DATE: May 23, 2008 STEPHEN D. WOLNITZEK, CHAIR
AGREED TO:
CHARLES E. ENGLISH GEORGE F. RABE Counsel for Judge Wakefield Counsel for the Commission
JUDGE FRANK H. WAKEFIELD II
40 Bench & Bar July 2008 COMMONWEALTH OF KENTUCKY JUDICIAL CONDUCT COMMISSION
IN RE THE MATTER OF:
JUDGE FRED F. WHITE, 34TH JUDICIAL DISTRICT, DIV. 02
ORDER OF PUBLIC REPRIMAND (Pursuant to SCR 4.020(1)(b))
Fred F. White filed for candidacy for the vacant position of district judge of Division Two of the Thirty-Fourth Judicial Dis- trict on December 12, 2007. On January 19, 2008, he made a contribution of $200 to a candidate running for public office. On March 14, 2008, he was appointed by the governor to fill the district judge vacancy. Judge White agreed to accept without for- mal proof the disposition made in this Order.
The Commission determined, after an informal investigation, that Judge White made a campaign contribution to a candidate for public office.
The above actions of Judge White violated the following Canon of the Code of Judicial Conduct, Supreme Court Rule 4.300:
Canon 5
A JUDGE OR JUDICIAL CANDIDATE SHALL REFRAIN FROM INAPPROPRIATE POLITICAL ACTIVITY
**********************
A. Political Conduct in General
**********************
(1) A judge or a candidate for election to judicial office shall not: (c)solicit funds for or pay an assessment or make a contribution to a political organization or candidate...
The Commission gave due consideration in making this disposition to the fact that Judge White self-reported the violation and fully cooperated with the Commission in its consideration of this matter and agreed to the resolution adopted by the Commission.
Upon consideration of his agreement to accept this disposition without formal proof, the Commission finds and it is hereby ORDERED and ADJUDGED that for the foregoing violation, Fred F. White should be and hereby is PUBLICLY REPRIMANDED.
This Order is issued this 23rd day of June, 2008.
STEPHEN D. WOLNITZEK, CHAIR JUDICIAL CONDUCT COMMISSION COMMONWEALTH OF KENTUCKY AGREED TO: FRED F. WHITE JUDGE, 34TH JUDICIAL DISTRICT, DIV 02
This is to certify that a true copy of this Order has been served on the judge by mail this 30th day of June, 2008.
JAMES D. LAWSON EXECUTIVE SECRETARY
July 2008 Bench & Bar 41 42 Bench & Bar July 2008 July 2008 Bench & Bar 43 44 Bench & Bar July 2008 July 2008 Bench & Bar 45 SHOP TALK
Opening Up Information with Voice Recognition Software
Michael Losavio
pen information management But think of our own high-level O improves the easy movement of oral communication and how we of information from point A to point use context to correct for mispro- B. It improves efficiency, accuracy nunciations. Proof-reading is very and availability, all key issues for important before you send out a good information business. voice-transcribed document, at least While this has produced great in your early phases of use. Crisp benefits, there is still the frontier pronunciation is critical. Cold/aller- where the information is first created gies did effect transcription. that slows things down. How we first Homonyms and near-homonyms, speak, write or otherwise express different words with the same or ourselves is the beginning of com- expression would be easier. That’s why similar sounds, may be transcribed munication, wherever our expression voice-to-text translation has been one where you meant a different word. ends. Though many techniques have of the most sought-after computing NaturallySpeaking does an impres- improved that first rendition of our technologies. It needs massive comput- sive job of context-analysis to transcribe thoughts, we still rely on some slow ways ing power to deal with all the variations the correct word even among several of first rendering data in electronic form. and subtleties of our human tongue. identically-sounding homonyms (e.g., A common means is the keyboard. But Dragon NaturallySpeaking is now in write, right, rite) It initially scans the common doesn’t mean optimal. After its 9th generation of striving towards that documents on the hard drive of the these many years I am still not enamored goal. There are several other similar sys- machine where it is installed to index of the keyboard, but it is familiar. It gen- tems available, but NaturallySpeaking and analyze how you use language in erates that first electronic iteration of my still ranks at the top in third-party your letters, motions, briefs, pleadings thoughts, banal as they may be. But it reviews. It has moved from a technology and e-mails to better analyze the context locks me to a keyboard and a machine I deserving of consideration to one that of your dictation. must still lug around, as small as they’ve now, or in the near future, may become This and other recognition accuracy become, with less spontaneity. an essential part of legal technology. tools and features are very important. I Spontaneity is dangerous in any legal tested NaturallySpeaking on two writing but it may inspire the most Why I’m Interested? machines, one with my work available wretched case. Handwritten notes or I’m lazy. NaturallySpeaking trans- for scanning and one without, and initial voice dictation still needs later transcrip- lates very, very accurately. And I speak recognition was better on the machine tion for other uses. Keyboarding into a faster than I write. where my prior writing was scanned word processor creates an open informa- Reading some old trial transcripts and analyzed. tion document that can be manipulated shows that’s not necessarily a good thing, NaturallySpeaking does a better job and exchanged with great ease. Other but most of my communications aren’t of transcribing when you speak in a document formats, like audio voicemails so immediate and unforgiving. I kept a continuous stream of words. Speaking and video/image files (e.g., Acrobat .pdf, log using Dragon NaturallySpeaking in short phrases or word by word actu- .jpeg and .mov files) are much more diffi- across a variety of modes to see what ally reduces the accuracy as it removes cult to use other than through a particular works best, using a decent, inexpensive context from the translation engine’ s application program. Tough choice. laptop with Windows XP. First, I’m yet transcription. Again, crisp, concise and again amazed at the accuracy of the tran- clear pronunciation is still very impor- The Natural Way scription. The accuracy is superior to tant. When using NaturallySpeaking for So if we could speak and all could anything I’ve seen before. Even past the long form documents I found it impor- learn via that electronic document, open initial gee-whiz phase it is impressive. tant to proofread periodically.
46 Bench & Bar July 2008 But There Is More to Legal Practice And There’s More Than Just significant cost to power ratio, I expect Than Briefs Speaking Into a Microphone NaturallySpeaking and other, equally- NaturallySpeaking is a great help The accuracy and power of Naturally- powerful voice recognition services to with mail and e-mail. Since much of e- Speaking depended, in part, on my own continue to expand into legal and judicial mail needs only short, brief responses, discipline in using and training it on practice. the voice transcription response let me how I express myself. It continues to For example, video records are cost- answer e-mail more quickly than man- learn my patterns as I use it if I take a effective, but on appeal have been ual typing. Again, proof-reading is still few seconds to “teach” it its mistakes time-consuming as the video may need necessary, but that is always important with my style. This requires I learn and to be reviewed in full in real time, a in a quick-response medium like e-mail. use the various tools and techniques very slow process. Some courts I also found it very helpful in doing NaturallySpeaking has to learn and fit rejected video records and required text more complete annotations to electronic itself to my needs. Unfortunately, I transcripts. This has been helped by documents, commenting on whatever would often type corrections rather than judges entering text comments during point in an e-document needed further using those teaching functions. I have trial and at objection/motion moments. elaboration. Though for me these days started doing better with this, and this Those comments could now be done that’s student papers; the same could be clearly improves recognition. Discipline! through the judge’s oral restatement used for transcripts, discovery responses And one day I will read the manual… and ruling on such issues captured or comments on motions/briefs being through voice recognition. There may sent to a colleague. The ease of adding In Conclusion be sufficient accuracy with comments extensive comments also benefits from I did initially find it odd to use voice of counsel and perhaps even, one day, the reader’s ability in context to under- transcription rather than typing. I have a for witnesses such that a text transcrip- stand a transcription mistake for what rhythm with typing with which I am tion accompanies the video of the was intended. comfortable. Transcription is so much testimony. This would also apply to Again, care is needed or things may faster and non-tactile, I felt an unease video depositions, further reducing the come out mangled, like with a foreign and my thoughts felt out of sync. And I cost of producing and reducing deposi- language translation engine. One kept reaching to keyboard for correc- tions in discovery. allergy-filled day when I was not care- tions, which did not help improve It is clearly worth a look. You can find ful with the crisp enunciation, strange NaturallySpeaking’s performance. more information on Dragon Naturally- things happened. Thus “how are you But with a disciplined use of Naturally- Speaking at http://www.nuance.com/ doing” came out as a phonetically-lit- Speaking, I was better able to do naturallyspeaking/. eral “Hauer U. Dooling?” Who? But everything. And I only use a few of its NaturallySpeaking was evaluated quick remediation with tissues ended features (again, discipline…). Several using a Windows XP/Intel chip laptop such problems and I breezed through lawyers I know use it in place of any sec- running at 1.9 Gigahertz with one the rest of the day’s communiqués. retarial typing services. Given the Gigabyte of memory. I Did A Broker’s Big Promises Lead to Big Losses?
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July 2008 Bench & Bar 47
A Resolution Recognizing the Excessive Caseloads Being Handled by Kentucky Public Defenders in Light of the Recent Budget Cuts Require a Reduction in Services in Order to Achieve Ethical Caseload Levels
WHEREAS, Section Ten of the Kentucky Constitution and the Sixth and Fourteenth Amendments to the United States Consti- tution guarantee the right to counsel for persons charged with crimes;
WHEREAS, in Gholson v. Commonwealth, the Kentucky Court of Appeals stated that “common justice demands” that an attorney must be appointed when a person charged with a felony cannot afford to hire his own counsel;
WHEREAS, Gideon v. Wainwright and its progeny mandate that an individual whose liberty is threatened by either a felony or a misdemeanor charge and who cannot afford counsel cannot be held unless the state provides counsel to him or her;
WHEREAS, in Bradshaw v. Ball¸ the Kentucky Court of Appeals held that it was unconstitutional to force a lawyer to repre- sent a person in a criminal case without compensation;
WHEREAS, it is the obligation of the Commonwealth of Kentucky to provide and adequately compensate a competent attor- ney to represent indigent persons charged with crimes;
WHEREAS, the Commonwealth of Kentucky has established the Department of Public Advocacy (DPA) as the state entity responsible for providing counsel to indigents accused of crimes;
WHEREAS, Kentucky public defenders have no control over the number of cases to which they are appointed since public defender caseloads result from court-ordered appointments rather than voluntary selection of new clients;
WHEREAS, overall caseloads for public defenders have gone up by 52% over the past seven years;
WHEREAS, DPA handled 148,518 cases in FY07;
WHEREAS, individual public defenders opened 436 cases each at the trial level in FY07;
WHEREAS, 436 cases is at least 40% above nationally recognized standards first adopted in by the National Advisory Com- mission of 1972;
WHEREAS, DPA is funded presently at $40.1 million in FY08;
WHEREAS, DPA’s budget as enacted in House Bill 406 for FY09 has been cut to $37.8 million in FY09;
WHEREAS, House Bill 406 as enacted results in the loss of funding for approximately 75 of DPA’s positions, including 50 trial level public defenders, in FY09;
WHEREAS, the loss of 75 positions will result in trial attorney caseloads of over 500 cases per lawyer in FY09 if no action is taken;
WHEREAS, caseloads of over 500 cases per lawyer are clearly excessive and cause the Board of Bar Governors to question whether public defenders in Kentucky could handle these caseload levels in a competent and ethical manner;
WHEREAS, excessive caseloads can have ethical ramifications that are of deep concern to the Kentucky Bar Association.
WHEREAS, American Bar Association Formal Opinion 06-441 has explicitly stated that public defenders have the same ethi- cal responsibilities of diligence and competence as do other lawyers, that they do not have an exemption from ethical rules regarding excessive caseloads, that they have an ethical responsibility to provide competent representation, that they have an ethical obligation not to accept excessive caseloads when they cannot provide competent representation, and that their supervi- sors likewise have ethical responsibilities to ensure that those they supervise can provide ethical and competent assistance of counsel;
48 Bench & Bar July 2008 WHEREAS, ABA Opinion 06-441 also affirmed that national caseload standards are to be considered among other factors in determining whether caseloads are excessive;
WHEREAS, the National Advisory Commission set maximum standards for public defenders at no more than 150 felonies, no more than 200 juvenile cases, or no more than 400 misdemeanors;
WHEREAS, excessive caseloads affect the quality of representation being rendered by Kentucky public defenders, compromis- ing the reliability of verdicts and even threatening the conviction of innocent persons;
WHEREAS, the Public Advocacy Commission, the 12 person oversight board of the DPA, was presented by the Public Advo- cate with a plan to reduce services to ensure an ethical caseload and the Public Advocacy Commission adopted a resolution in support of the plan on March 26, 2008.
WHEREAS, although the Public Advocate in a letter dated May 23, 2008 has informed the Court of Justice of its plan to cut serv- ices beginning July 1, 2008 in a way that would minimize impact on the liberty interests of most of DPA clients, this plan includes cost containment, including no longer providing funds for the defense of an estimated 5,000 conflict cases, and reducing servic- es in a manner individualized for each office depending upon vacancy and caseload levels in addition to other office specific cir- cumstances such as travel requirements and the practices of the local prosecutor. Among the services being reduced in the indi- vidual offices are cases involving involuntary commitments, status offenses, family court, Class B misdemeanors, some Class A misdemeanors, parole violations, and other similar cases;
WHEREAS, Pursuant to SCR 3.025 the mission and purpose of the Kentucky Bar Association is to use appropriate means to insure a continuing high standard of professional competence on the part of the members of the bar, and to bear a substantial and continuing responsibility for promoting the efficiency and improvement of the judicial system;
WHEREAS, the Kentucky Bar Association has a significant interest in the quality of representation being provided by Ken- tucky lawyers to indigents accused of crime.
NOW, THEREFORE, BE IT RESOLVED by the Board of Governors of the Kentucky Bar Association:
Section 1. That the Kentucky Bar Association rededicates itself to the principle of equal justice for all regardless of income.
Section 2. That the Kentucky Bar Association hereby calls upon the Governor and the General Assembly to provide parity of resources among the different components of the criminal justice system in order to achieve a system that is balanced, effi- cient, and fair.
Section 3. That the Kentucky Board of Bar Governors believes that the DPA’s plan to reduce services in order to achieve eth- ical caseloads is both necessary and reasonable.
Section 4. That the Kentucky Board of Bar Governors encourages Kentucky policy makers, including the Executive and Leg- islative Branches, to fund the Department of Public Advocacy sufficiently to ensure that public defenders do not carry excessive caseloads.
Section 5. That the Kentucky Board of Bar Governors encourages the members of the Kentucky Bar Association to provide counsel in cases in which they are competent and where the Department of Public Advocacy cannot provide counsel for budget- ary reasons.
Section 6. That copies of this resolution shall be printed and make available to the Governor and members of the Kentucky General Assembly.
THIS 17th day of June 2008.
KENTUCKY BAR ASSOCIATION
BY: JANE WINKLER DYCHE PRESIDENT ATTEST: JAMES L. DECKARD EXECUTIVE DIRECTOR
July 2008 Bench & Bar 49 7-8 Midwest Regional Bankruptcy 10 Triage for Mechanics Liens: Seminar Identifying Common Laws & CLEvents Cincinnati Bar Association Defects Cincinnati Bar Association Following is a list of TENTATIVE upcoming CLE pro- 14 Appellate Law Brown Bag grams. REMEMBER circumstances may arise which result in program changes or cancellations. You Louisville Bar Association 10 All Ohio Annual Institute on must contact the listed program sponsor if you Intellectual Property (Covington) have questions regarding specific CLE programs 19 Video Replay: Corporate Law; Cincinnati Bar Association and/or registration. ETHICS credits are included in White Collar Crime; and Trial many of these programs. Some programs may not yet be accredited for CLE credits – please check with Skills 11 Probate & Estate Brown Bag the program sponsor or the KBA CLE office for details. Cincinnati Bar Association Louisville Bar Association JULY 19 ADR/Mediation Brown Bag 11 All Ohio Annual Institute on Louisville Bar Association Intellectual Property (Cleveland) 24-26 35th Annual Midwest/Midsouth Cincinnati Bar Association Estate Planning Institute 20 Tax Law/Issues UK CLE Cincinnati Bar Association 12 28TH Annual Conference on Legal Issues for Financial 31 Brown Bag CLE 27 Solo/Small Firm Brown Bag Institutions Louisville Bar Association Louisville Bar Association UK CLE
AUGUST 28 Video Replay: Professionalism, 17-18 Kentucky Law Update – Ethics & Substance Abuse Covington 6 Ancillary Rules in Collection Instruction Kentucky Bar Association Law: FDCPA, Ethics & Other Cincinnati Bar Association Pitfalls for the Ordinary Attorney 22-23 Kentucky Law Update – Cincinnati Bar Association 28 Health Law Brown Bag Bowling Green Louisville Bar Association Kentucky Bar Association
COUNSEL - CORPORATE SEPTEMBER 24 Securities Law; Private GOVERNMENTAL AFFAIRS Placement & Funding a Small JOB SUMMARY 4-5 Annual Convention Business The Counsel will develop and manage the governmental affairs Kentucky Justice Association Cincinnati Bar Association function of the company, serve as a Kentucky legislative agent and as the corporate liaison with regulatory authorities, keep up with new legislative 4-5 Kentucky Law Update – 26 Labor & Employment Law and regulatory developments on both the state Louisville Cincinnati Bar Association and federal level, work with the company to develop proactive legislation/regulation benefiting Kentucky Bar Association the company, monitor and lobby legislation through the legislative process, and is responsible for the integration of new legislation/regulation into the Before You Move... organization. May lead and direct the work of others. A certain degree of creativity and latitude Over 15,000 attorneys are licensed to practice in the state of Kentucky. It is vitally important that you keep the is required. Kentucky Bar Association (KBA) informed of your correct mailing address. Pursuant to rule SCR 3.175, all KBA mem- QUALIFICATIONS bers must maintain a current address at which he or she may be communicated, as well as a physical address if • Graduate of an accredited law school; Juris your mailing address is a Post Office address. If you move, you must notify the Executive Director of the KBA within Doctor’s Degree required 30 days. All roster changes must be in writing and must include your 5-digit KBA member identification number. • A license to practice law in Kentucky; admitted There are several ways to do this for your convenience. to practice in both State and Federal courts of Kentucky. VISIT our website at www.kybar.org to make ONLINE changes or to print an Address Change/Update Form • Ability to do research on all legal problems per- taining to insurance. • Excellent communication skills – reading, writ- EMAIL the Executive Director via the Membership Department at [email protected] ing and oral. • Two years’ experience in the practice of law in FAX the Address Change/Update Form obtained from our website or other written notification to: Kentucky is required; experience in a govern- Executive Director/Membership Department (502) 564-3225 mental agency or insurance company preferred. MAIL the Address Change/Update Form obtained from our website or other written notification to: • Experience as legislative agent in Kentucky Kentucky Bar Association preferred. Executive Director 514 W. Main St. TO VIEW THE ENTIRE JOB DESCRIPTION AND TO APPLY, PLEASE GO TO Frankfort, KY 40601-1812 WWW.KFBJOBS.COM, JOB #1469 - * Announcements sent to the Bench & Bar’s Who, What, When & Where column or communication MAILED, FAXED OR E-MAILED RESUMES with other departments other than the Executive Director do not comply with the rule and WILL NOT BE CONSIDERED. do not constitute a formal roster change with the KBA.
50 Bench & Bar July 2008 Kentucky Bar Association CLE Office • (502) 564-3795 2008 KENTUCKY LAW UPDATE AOC Juvenile Services Lyn Lee Guarnieri • (502) 573-2350 Dates and Locations
Louisville Bar Association September 4-5 (Th/F) Louisville Lisa Maddox • (502) 583-5314 Kentucky International Convention Center KYLAP Anna Columbia • (502) 564-3795 September 17-18 (W/TH) Covington Northern Kentucky Convention Center Kentucky Justice Association (formerly KATA) Ellen Sykes • (502) 339-8890 September 22-23 (M/T) Bowling Green Holiday Inn & Sloan Convention Center Chase College of Law Jennifer Baker • (859) 572-1461 October 6-7 (M/T) Ashland Kentucky Department Ashland Plaza Hotel of Public Advocacy Jeff Sherr or Lisa Blevins October 20-21 (M/T) Prestonsburg (502) 564-8006 ext. 236 Jenny Wiley State Resort Park AOC Mediation & Family Court Services October 28-29 (T/W) Paducah Malissa Carman-Goode (502) 573-2350 ext. 2165 KY Dam Village State Resort Park
UK Office of CLE November 6-7 (TH/F) Somerset Melinda Rawlings • (859) 257-2921 The Center for Rural Development Mediation Center of the Institute for Violence Prevention November 13-14 (Th/F) Owensboro Louis Siegel • (800) 676-8615 RiverPark Center
Northern Kentucky Bar Association Julie L. Jones • (859) 781-4116 December 4-5 (TH/F) Lexington Lexington Convention Center Children’s Law Center Joshua Crabtree • (859) 431-3313 Fayette County Bar Association FAMILY LAW MEDIATION Mary Carr • (859) 225-9897 S T A TEWID E
CompEd, Inc. Allison Jennings • (502) 238-3378 Judge Paul W. Rosenblum [ret.] OVER 23 YEARS OF JUDICIAL EXPERIENCE Cincinnati Bar Association Dimity Orlet • (513) 381-8213 Experienced as Family Court Judge, Circuit Court Judge, District Court Judge and Access to Justice Foundation Senior Status Judge of Kentucky Court of Appeals Nan Frazer Hanley • (859) 255-9913
Administrative Office of the Courts (502) 228-8883 Malissa Carman-Goode [email protected] (502) 573-2350, Ext. 2165 Prospect, Kentucky
July 2008 Bench & Bar 51
KENTUCKY BAR NEWS
honorary organization begun by Salmon P. Chase Scribes - The American Society of University of Legal Writers, to recognize graduating Kentucky College of Law law students who have exhibited exceptional legal writing skills. Scribes College of Law By Dennis Honabach, Dean itself was founded in 1953 to honor legal writers and encourage a “clear, By Heather N. Russell Chase Inducts Five Students into succinct, and forceful style in legal Communications Director National Order of Scribes writing.” Fred Rodell, a Yale Law School pro- The new Chase members of the UK College of Law fessor before most of us were born, National Order of Scribes are Kim Names Interim Dean wrote in 1939: “There are two things DeGraaf, Jamie Ireland, Katie Koch, Louise Everett Graham has been wrong with almost all legal writing. Marci Palmieri, and Dustin Riddle. Ms. named acting dean of the University of One is its style. The other is its con- Degraff was selected for her article Kentucky College of tent.” At NKU Chase College of Law, entitled, “Should the U.S. Restrict Law for the next aca- we have long taken Professor Rodell’s Imports of Chinese Archaeological demic year. Graham is critique to heart. Recognizing that the Materials? An Analysis Under the currently the Wendell ability to write well is one of the essen- Convention on Cultural Property H. Ford Professor of tial skills a lawyer must possess, NKU Implementation Act,” published in the Law and has taught at Chase is committed to developing one Art & Museum Law Journal. Ms. the College since of the top writing programs in the Ireland was chosen for her article pub- 1978. She will begin country. lished in the Northern Illinois Law Louise Everett her new leadership Great programs begin with great peo- Review, “Title II of the Americans with Graham role in August 2008. ple. That is why Chase students hone Disabilities Act and its Prohibition of Prior to becoming a law teacher, she their writing skills under the tutelage of Employment Discrimination.” Ms. served as a law clerk to Judge J. Homer full-time, tenure-track faculty members Koch was inducted for her article, Thornberry of the United States Court who hold degrees from topnotch law “Transgender Employment of Appeals for the Fifth Circuit. She schools including NKU Chase, Discrimination,” published in the received her undergraduate degree from Georgetown, Howard, Michigan, and UCLA Women’s Law Journal. Ms. the University of Texas and is a Coif Vanderbilt. Additionally, as a condition Palmieri wrote the briefs for Chase’s graduate of its School of Law, where of graduation, each Chase student satis- 2008 and 2007 Robert F. Wagner Labor she served on the Texas Law Review. In fies two advanced writing requirements & Employment Law Moot Court 1989, she received the University of while working under the close supervi- Competition teams, both of which won Kentucky Great Teacher Award. sion of Chase faculty. Best Brief awards. Also, the 2007 brief Professor Graham has a particular Evidence that the program is suc- placed second in the Scribes national interest in family law issues and has pub- cessful is abundant. In recent years, Best Brief contest. Mr. Riddle was lished the third edition of Kentucky Chase students have authored more selected for his article, “Disability Domestic Relations Law, a treatise on than fifty-four law review articles, Claims for Alcohol-Related Kentucky family law. Her law review including no fewer than fourteen pub- Misconduct,” which was published in publications include articles in the Wayne lished in reviews outside of the the St. John’s Law Review. Law Review, the Kentucky Law Journal, Northern Kentucky Law Review. Chase While these accomplishments under- and the Santa Clara Law Review. students have recently earned numer- score the already high quality of the Graham published her article “Child ous best brief awards in moot court Chase writing program, Chase faculty Witness Policy: Law Interfacing with competitions, including the 2008 and students continually strive for Social Science” in 65 Law & Robert F. Wagner Labor & improvement. To paraphrase another of Contemporary Problems 209 in 2002 Employment Law Best Respondent Professor Rodell’s famous quotations, with Dorothy F. Marcil, Jean Montoya Brief and the 2007 Robert F. Wagner any law school serious about the quality and David Ross. Labor & Employment Law Best Brief of the writing abilities of its students Provost Kumble Subbaswamy awards and the 2008, 2007, and 2006 cannot afford to be like “…the killy-loo praised Graham’s long history of dedi- National Adoption and Child Welfare bird of the sciences. The killy-loo, of cated service to the College of Law and Law Moot Court Competition Best course, was the bird that insisted on fly- to UK. “She is well respected in the Brief awards. ing backward because it didn’t care profession and community,” he said. In May, five Chase students were where it was going but was mightily Graham’s appointment marks the first selected as members of the National interested in where it had been.” At time in the College of Law’s 100-year Order of Scribes. The National Order Chase, we keep our writing program history that a woman has served as dean. of Scribes is a newly created student moving forward! “I feel privileged to serve as the 52 Bench & Bar July 2008 KENTUCKY BAR NEWS
Acting Dean for the College of Law. My tional research. There is a legal equiva- students graduate with six-figure debt only regret is that this work will take me lent of the medical profession’s desire to loads. This is to say nothing of debts out of the classroom, where I’ve taught deliver health care from bench to bed- from undergraduate education, family so many wonderful students over the last side. Law schools succeed to the extent formation, the ordinary business of life. 30 years,” said Graham. “The strength that they train skilled social engineers. American legal education today faces of our faculty, the quality of our students The term “social engineering” carries no stiff challenges. A significant portion of and our strong network of alumni all pejorative connotation. It is the con- each year’s new crop of law school position the school to move forward and scious, purposeful, and ultimately noble graduates will be fortunate to find meet the challenges of the future. Our project of avoiding, resolving, and miti- employment, if at all, in the neighbor- hope is that continued engagement with gating disputes and of designing hood of $40,000 per year in salary. The the wider University community and the institutions to accomplish goals beyond convergence of high tuition rates and Commonwealth of Kentucky will bring the reach of individuals. Social engineer- low first-year salaries is a sign that law positive outcomes to all our endeavors,” ing is the work of lawyers and allied schools need to deliver more on their said Dean Graham. professionals trained in law. promises. Mere job-hunting may not Let me translate this admittedly pose worries for students at the very University of florid and abstract thesis into a set of best schools or for the very best stu- blunt, pragmatic statements about legal dents at most other schools, and Louisville education. Law schools have a single unemployment certainly lies outside the School of Law mission: we train people to become experience of most law professors. But lawyers or to leverage their legal train- the vast majority of law students pay By Jim Chen, Dean and Professor of Law ing into gainful employment in tuition and forgo at least three years of business, government, philanthropy, or other opportunities in order to secure Truth and Beauty: A Legal Translation education. Our students represent our jobs that are more rewarding, in intel- Law schools owe their primary alle- ultimate product; their accomplish- lectual and financial terms, than those giance to those whose tuition dollars, ments, our greatest pride. they might otherwise have held. taxes, and donations enable the entire Law students — who often arrive at Employers often report that many project of legal education. We owe these school with more ambition and raw gen- law school graduates need three to five students, taxpayers, and benefactors eralized intelligence than anything years of on-the-job training to become some measure of good faith. resembling a marketable skill — have truly effective. In private practice, the Indeed, it is no exaggeration to state every right to expect a material, measur- turning point is profitability. Law this proposition in ethical terms. Law able return on their investment. schools must be able to guarantee that schools, no less than the lawyers they Although legal education at the their newest graduates will represent train, owe the profession an obligation to University of Louisville (or, for that leverage, not liabilities. At the behave ethically. Within the realm of law matter, either of our sister law schools University of Louisville, we strive to teaching and educational administration, in the Commonwealth of Kentucky) prepare our graduates to be ready for that ethical duty requires faithful transla- remains one of the profession’s greatest work in every conceivable placement tion. Legal educators should strive to bargains, many law students shoulder setting, immediately upon graduation translate their knowledge about law into tuition in the neighborhood of $40,000 and bar exam passage, or at least as real-world applications and outcomes. per year and living expenses in commu- quickly as possible thereafter. Law is an applied discipline, not a nities that are costly precisely because Today’s legal academy often seems pure science. There are divisions of the they surround universities. Many law to wage war against itself. On one hand, ideal university that ponder quantum chromodynamics, universal grammar, and number theory. And then there are divisions that design new devices, teach Spanish to otherwise monolingual Anglophones, and develop new encryp- tion algorithms. Law schools emphatically belong to the latter category. As in the health sciences, the greatest challenge facing law schools lies in translating the work of law professors, as teachers and as scholars, into real- world results. Medical schools aspire to perfecting their programs for transla-
July 2008 Bench & Bar 53 KENTUCKY BAR NEWS genuine reform efforts stress improve- class, however, cannot afford to become extent they feel that they were able to ments in teaching that are consciously divorced from the realities facing our translate their law school experiences designed to improve law school gradu- students and from our duty to address into real-world success. ates’ skills and marketability. Novel those realities on their behalf. We must The message for legal educators is approaches to the first year, experiential remember that law schools exist not as clear. Remaining true to the process by learning, interdisciplinary education, playgrounds for their faculties, but as which law school graduates transform and capstone courses represent merely training grounds for their students. themselves for good – in both senses of some of the ideas that more enterprising As matters stand, law schools have a that phrase – represents fidelity in schools have begun to explore and even very hard time accomplishing their core translation. to implement. The newly announced mission. The real cost of solid legal University of Louisville Law Clinic rep- education is very substantial, and there Bowling Green-Warren County resents our Law School’s most are no obvious places to cut costs. Most significant innovation in recent memory. law schools depend almost entirely on Bar Association Presents Award By the same token, many other law tuition or on some blend of tuition and Murry A. Raines, a Bowling Green schools are prone to chasing the latest precarious public support. It is not at all attorney, was presented the Pro Bono intellectual fads and pouring enormous unusual for unrestricted giving to a law Publico Award at the 2008 Law Day amounts of money into collateral projects school to hover in the neighborhood of ceremonies conducted by the Bowling whose connection to the core mission of one percent of the overall budget. Green-Warren County Bar Association. training lawyers and other legally sophis- Donors can be persuaded to support a The award is presented each year by ticated professionals is apparent, if at all, wide variety of causes, ranging from the Lawyers Care Volunteer Attorney only to the proponents of those projects. physical facilities and scholarships to Program to a member of the Bar who Law schools often tout these maneuvers programs such as moot courts and clin- has made a significant contribution to in glossy publications aimed not so much ics. Most donors are law school the provision of donated legal services at graduates, donors, and prospective graduates who had to work hard for rel- to low-income elderly or disabled indi- employers of our students, but at other atively low pay before achieving the viduals in the community. Mr. Raines law professors. The legal academy can, financial security that now enables them received the award for his continued should, and does blame much of this to be generous. They will support their commitment to the mission of Lawyers imprudence on the U.S. News and World alma maters, in some cases with Care and pro bono service. Report rankings. Legal educators as a extraordinary passion, precisely to the
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54 Bench & Bar July 2008 KENTUCKY BAR NEWS
SUMMARY OF MINUTES • Bar Governor Thomas L. Rouse Johnson, Pikeville. KBA BOARD OF GOVERNORS updated the Board on the status of leg- • President Dyche distributed an MEETING islation addressing notary public announcement regarding the 2008 MARCH 14, 2008 process in Kentucky. He stated the Annual Convention for distribution proposed legislation was being revised by the Bar Governors in their respec- The Board of Governors met on Friday, to omit the language the Board previ- tive districts to encourage March 14, 2008. Officers and Bar ously opposed and that the main membership participation in the Governors in attendance were President concerns were now coming from other annual convention. J. Dyche, President-Elect B. Bonar, Vice interested groups. Due to the various • Approved the nominations for the President C. English, Jr., Immediate difficulties, the bill will most likely be 2008 Outstanding Awards: Past President R. Ewald, Young addressed in a future session of the Outstanding Judge Award – In mem- Lawyers Section Chair R. Reed, Bar General Assembly. ory of and to the Family of Justice Governors 1st District - D. Myers, M. • Executive Director James L. Deckard William E. McAnulty, Jr. of Whitlow; Bar Governors 2nd District - reported that the Bar Center Trustees Louisville; Outstanding Lawyer J. Harris, Jr., R. Sullivan; 3rd District - met on February 15 to discuss the fol- Award – Margaret E. Keane of R. Hay, R. Madden; 4th District - D. lowing items: landscaping around the Louisville; Bruce K. Davis Bar Farnsley, M. O’Connell; 5th District - F. perimeter of the Bar Center, exterior Service Award – Asa “Pete” Gullett III Fugazzi, Jr.; 6th District - T. Rouse and windows, basement repairs and reno- of Louisville; and President’s Special 7th District - J. Rosenberg. Bar vations for office space and other Service Award - Norman E. Harned of Governors absent were: M. Grubbs, D. various repairs around the Bar Center Bowling Green. President Dyche McSwain and W. Wilhoit. property. informed the Board that a recommen- • Approved the Law Day Awards total- dation on the Donated Legal Services In Executive Session, the Board consid- ing $900 (3 @$300/each). Award would be made at an upcoming ered three (3) discipline default cases • Approved the Student Writing meeting of the Board. involving two attorneys and one (1) Competition Awards totaling $1,500 • Approved the payment of expenses for reinstatement case. (1st - $1,000; 2nd - $300; 3rd - $200). Board members attending the Board of In Regular Session, the Board of • Mr. Deckard reviewed the current list Governors meeting on June 17 and the Governors conducted the following of Judicial Nominating Commission convention itself on June 18-20 as fol- business: nominations. The Board will need to lows: Lodging at the Hyatt Regency • Heard status reports from the 2008- finalize a list that will nominate two Lexington at a rate of $120.00 2009 Budget Committee, Kentucky lawyers to be on the ballot for each single/double per night for a maximum Lawyer Assistance Program for the 57 circuits and 60 districts of four (4) nights. Reimbursement for (KYLAP), Long Range & Strategic across the Commonwealth, as well as round trip mileage at the rate of forty- Planning Committee and Office of Bar for the Commission for Kentucky’s one cents ($0.41) per mile. Counsel. appellate courts, in accord with SCR Reimbursement for meal expenses • President-Elect Bonar reported that a 7.000 et seq. incurred on Monday, June 16 and committee formed to consider a con- • Approved the submission of three Tuesday, June 17 above and beyond ference on the Rule of Law was held nominees to the Supreme Court of group meal functions on those dates. on Wednesday, March 12 with justices Kentucky for the appointment of one of the Supreme Court, judges of the person from each District to the CLE Court of Appeals, deans/representa- Commission for three-year term end- tives from the three law schools and ing on June 30, 2011: 5th Supreme To KBA Members members of the Board of Governors Court District – Janis Clark, in attendance. A final date and loca- Lexington; Katherine Hornback, Do you have a matter to discuss tion is being considered as plans Lexington and Melinda Murphy, with the KBA’s Board of Governors? continue to be made for the Richmond and 7th Supreme Court conference. District – Kimberly Scott McCann, Board meetings are scheduled on • Young Lawyers Section Chair Ryan C. Ashland; Michael B. Fox, Olive Hill Reed reported that the “u@18” hand- and David F. Latherow, Ashland. September 12-13, 2008 book was being printed for • Approved the submission of nominees November 21-22, 2008 distribution. He advised that the Wills to the Supreme Court of Kentucky for for Heroes clinics scheduled for appointment to the IOLTA Board of To schedule a time on the Board’s agenda March 8 had to be rescheduled to a Trustees for three-year term ending on at one of these meetings, please contact later date due to delays in finalizing June 30, 2011: 5th Supreme Court Jim Deckard or Melissa Blackwell the software formatting necessary for District Laura DeAngelo, Lexington at (502) 564-3795. documents used for the program. and 7th Supreme Court District Anita
July 2008 Bench & Bar 55 KENTUCKY BAR NEWS
SUMMARY OF MINUTES well as the employment of Anneken & at the West Baden Springs Hotel. KBA BOARD OF GOVERNORS Moser, P.S.C. of Covington, Kentucky • Approved the amount of $2.50 as a MEETING to audit the accounts of the KBA and refund of dues to any member making MAY 16, 2008 the Kentucky Bar Foundation/IOLTA a formal written objection to use Bar Fund for the Fiscal Year ending June dues for activities not sanctioned by The Board of Governors met on 30, 2008. the Keller v. State Bar of California Friday, May 16, 2008. Officers and Bar • President-Elect Bonar reported that decision. Governors in attendance were President the Rule of Law Conference • Executive Director James L. Deckard J. Dyche, President-Elect B. Bonar, Committee met again on May 15 and reported on his receipt of Orders Immediate Past President R. Ewald, has set a date for the conference, from the Supreme Court, entered Young Lawyers Section Chair R. Reed, February 6, 2009, in celebration of May 14, 2008: Appointment of mem- Bar Governors 1st District - D. Myers, Lincoln’s 200th birthday later that bers to the CLE Commission for M. Whitlow; 2nd District - J. Harris, Jr., month. three (3) year terms ending on June R. Sullivan; 3rd District - R. Hay, R. • President-Elect Bonar reported that 30, 2011: 5th Supreme Court District Madden; 4th District - D. Farnsley, M. she was in the process of putting – new appointment of Janis Clark of O’Connell; 5th District - F. Fugazzi, Jr., together the 2009 Annual Convention Lexington; and 7th Supreme Court D. McSwain; 6th District - M. Grubbs, planning committees and asked for District – reappointment of Kimberly T. Rouse and 7th District - J. Rosenberg, volunteers to participate. Plans are Scott McCann of Ashland. In addi- W. Wilhoit. Officer absent was: Vice being made to have the 2009 Annual tion, the Order citied the Court’s President C. English, Jr. Convention the week of June 8-12 in appointment of Kimberly Scott Covington. McCann as Chair of the CLE In Executive Session, the Board con- • President-Elect Bonar reported the Commission, to succeed Anita sidered two (2) discipline cases, four (4) KBA Fall Getaway is scheduled for Britton, beginning July 1, 2008. discipline default cases, involving two October 23-25, 2008 in West Baden • Approved the appointment of David attorneys, one (1) reinstatement case Springs and French Lick, Indiana. Latherow of Ashland to the Attorneys’ and one (1) restoration case. Registration fees will be $129.00 and Advertising Commission for a three In Regular Session, the Board of $99.00 for Young Lawyers, with six (3) year term beginning on July 1, Governors conducted the following (6) hours of CLE credit to be offered. 2008 and ending on June 30, 2011. business: 70 sleeping rooms have been reserved • Approved appointments and reap- • Heard status reports from the Kentucky Lawyer Assistance Program (KYLAP), Office of Bar Counsel and Legally Insane by Jim Herrick Rules Committee. • Young Lawyers Section Chair Ryan C. Reed distributed a copy of the YLS “The witness will please give project “U@18” brochure and dis- cussed curriculum materials that the affirmative answers by using the YLS would use in high schools word ‘yes’ instead of ‘duh.’” throughout Kentucky during the cur- rent and upcoming educational years. He advised that the young lawyer reg- istration for the 2008 Annual Convention continues to be strong and that by instituting the Young Lawyers Conference as part of the annual con- vention it is anticipated the young lawyer registration may well exceed last year. Mr. Reed also reported that, for the first time, the New Lawyers Program will be in conjunction with the annual convention this year. • President-Elect Bonar reported that an Order was received from the Supreme Court of Kentucky approving the KBA Annual Operating Fiscal Year Budget for July 1, 2008 – June 30, 2009 as
56 Bench & Bar July 2008 KENTUCKY BAR NEWS pointments to the Kentucky Bar of Lois Anita Kitts of Pikeville and Foundation: 1st Supreme Court Catherine C. Hughes of Ashland for BAR NOTIFICATION District appointment of Dianna Kay respective three (3) year terms ending April 21, 2008 the legal community Douglas of Paducah for a three (3) on June 30, 2011. lost one of its most valued members. year term ending on June 30, 2011; • Approved the appointment of Bar Judge Kathleen Voor Montano passed 3rd Supreme Court District appoint- Governor Thomas L. Rouse to the away after a brief illness. Judge Montano ment of Jane Adams Venters for a new KYLAP Commission to fill the served as a Jefferson Circuit Court Judge for Division Ten. She had previously three (3) year term ending on June 30, vacancy created with the expiration of served as a District Court Judge, Family 2011; 4th Supreme Court District Bar Governor Mike O’Connell’s Court Judge and had served on Teen reappointments of Edward M. (“Ted”) Board term. Also approved the Court and Truancy Court. Her service King of Louisville and Frank P. reappointment of Asa “Pete” Gullett before becoming a Judge herself included Doheny of Louisville for respective III of Louisville to the KYLAP her position as Senior Staff Attorney for the Kentucky Court of Appeals. three (3) year terms ending on June Commission for a second three (3) Judge Montano’s commitment to pub- 30, 2011; 6th Supreme Court District year term ending on June 30, 2011. lic service did not stop at the bench. She appointment of Tasha Kay Scott of • President Dyche gave a report on the was involved in numerous legal and Florence for a new three (3) year term registration for the 2008 Annual community groups including the Board th of Directors of Mercy Academy and ending on June 30, 2011; and 7 Convention, along with contributions Chair of the Metro Criminal Justice Supreme Court District appointment pledged and received. Commission. The outpouring of sympathy from Northern Kentucky Lawyers, Inc. the legal community has been a tribute I In Memoriam to Judge Montano’s time on the bench. Honored Lawyers for Service Her absence from Jefferson Circuit The 2008 Pro Bono Awards Luncheon Phillip E. Allen Louisville Court is keenly felt by many. I wish to celebrated the 30th anniversary of pro bono express appreciation for the sympathy, William T. Bishop III Lexington in Northern Kentucky patience and decorum of the bar during this time of transition. I also wish to in May at Summit Carmol D. Cook Beaver Dam Hills Country Club. express my gratitude to Valerie The president of the Albert C. Hawes, Jr. Covington Shannon, the Division 10 staff attorney Legal Services Corp., who has assisted me in this difficult Joseph E. Johnson III Bal Harbour, FL transition. Her legal ability, intellectual Helaine Barnett, spoke capacity and kindness have been greatly at the luncheon. The John C. Klotter Louisville appreciated. At this point, I believe Pro Bono Attorney of everything has been resolved of which the Year Award was Bryan LeSieur Cape Coral, FL we are aware. To aid in the resolution of presented to R. Kim James Alexander Mackenzie Frankfort any matters that may remain pending, Vocke for dedication to the legal needs of all attorneys with issues currently under families and children throughout Northern Glenn E. Nippert Newport, RI submission in Division Ten are Kentucky for the past twenty-nine years. Robert Doyle Preston Lexington requested to file the AOC-280 form to William Adkins was honored with the Nick bring such matters to my attention. The of Time Award Joseph D. Raine Louisville cooperation and thoughtfulness of the for his quick James D. Ruark Morganfield bar has made it possible to continue the response to work of the division with little interrup- requests for Edgar A. Smith Hopkinsville tion after such a singularly tragic event. client assistance with domestic Kathleen Voor Montano Louisville Ann O’Malley Shake, Senior Judge violence, cus- tody, and eviction cases. Debbie Davis was awarded the Distinguished New Volunteer Award for her acceptance of family law, property and bankruptcy cases showing concern for her C. CLEVELAND GAMBILL clients before the courts. Retired United States Magistrate Judge Stephen D. Wolnitzek, MEDIATION SERVICES Thomas L. Rouse, Donald Statewide J. Ruberg, and Thomas R. Kerr received 30 year service awards for providing volunteer Louisville • 502.931.7103 civil legal services from 1978-2008. Mary Lexington • 859.317.0303 Wallingford was the recipient of the Pro Bono Student Award, and Jeffery Sallee [email protected] received the Bar Bri Award.
July 2008 Bench & Bar 57 The Kentucky Bar Foundation Recognizes the Members of its Partners For Justice Society
CHIEF JUSTICE FRED VINSON CIRCLE $50,000 OR MORE Meredith L. Lawrence
SENATOR HENRY CLAY CIRCLE $25,000 Baird & Baird, P.S.C. Frost Brown Todd LLC Greenebaum Doll & McDonald PLLC National Insurance Agency, Inc. Stites & Harbison PLLC Stoll Keenon Ogden PLLC Wyatt, Tarrant & Combs, LLP
JUSTICE JOHN MARSHALL HARLAN CIRCLE $10,000 Bowles Rice McDavid Graff & Love LLP English, Lucas, Priest & Owsley, LLP Hilliard Lyons Landrum & Shouse, LLP Lawyers Mutual Insurance Co. of Kentucky McBrayer, McGinnis, Leslie & Kirkland, PLLC Sturgill, Turner, Barker & Moloney, PLLC William T. Warner Wolnitzek & Rowekamp, P.S.C.
VICE PRESIDENT ALBEN WILLIAM BARKLEY CIRCLE $5,000 Kathryn Ross Arterberry Kinkead & Stilz, PLLC William M. Arvin, Sr. McCoy, West & Franklin Baker, Kriz, Jenkins, Prewitt & Jones, P.S.C. McCracken County Bar Association Central Bank & Trust Co. Mickey McGuire Cole & Moore, P.S.C. John G. McNeill Thomas M. Cooper O'Hara, Ruberg, Taylor, Sloan and Sergent Jerry J. Cox Marcia Milby Ridings Larry C. Deener Savage, Elliott, Houlihan, Moore, Mullins & Denton & Keuler, LLP Skidmore, LLP Francis, Kendrick & Francis David A. Schneider Graydon Head & Ritchey LLP Gary J. Sergent W. B. Griffin & Son John W. Stevenson Norman E. Harned Taylor, Keller, Dunaway & Tooms, PLLC Henry Watz Gardner & Sellars, PLLC Thompson, Simons, Dunlap and Fore, P.S.C. Todd S. Horstmeyer Laurance B. VanMeter Elizabeth S. Hughes Webb, Hoskins, Glover & Thompson, P.S.C. John Earl Hunt Wilbert L. Ziegler
As of June 23, 2008
WHO, WHAT, WHEN & WHERE firm concentrates its partners in its Bowling ON THE MOVE practice in the defense Green office and is The Crestview Hills of complex litigation, pleased to announce that law firm of Deters, including claims of Mark C. Hahn has Benzinger & LaVelle, products liability, med- joined the firm and prac- P.S.C. is pleased to ical negligence, legal tices in its Louisville announce that Carla M. malpractice, personal office. McKinney con- Venhoff has been named injury, defamation and centrates her practice in a partner in the firm and construction defects. the areas of corporate that Kelly M. Gindele Patrick W. Gault The firm’s office is Mark C. Hahn law, business planning, has been appointed as a located in Louisville at probate and estate plan- Carla M. Venhoff new associate. Venhoff 455 South Fourth Street, ning and public finance. practices in the firm’s Suite 1400, and the Swanson concentrates his commercial, real prop- firm’s phone number is practice in the areas of erty and construction (502) 855-3800. business mergers, sales groups. Gindele, based in and acquisitions; the the firm’s downtown Richard Breen Law negotiation and drafting Cincinnati office, focuses Offices, P.S.C., is pleased of intellectual property her practice primarily in to announce that Gregory licenses; manufacturer the areas of construction Angela M. Hoyer Adam Redden has joined Elizabeth J. production agreements; and real estate law and is the Louisville law firm as McKinney property management Kelly M. Gindele admitted to practice law an associate. Redden will arrangements; and real in Kentucky. be concentrating his prac- estate financing and tice in the areas of development transac- Timothy H. Napier personal injury, insurance tions. Hahn is admitted to and Patrick W. Gault bad faith, products liabil- practice law in Kentucky are pleased to announce ity, and nursing home and New York and will the opening of Napier neglect cases. concentrate his practice Gault, PLC and that in federal and state taxa- Gregory A. Redden Angela McNeal Hoyer Wyatt, Tarrant & tion, including the has joined the firm as a Combs, LLP has named Elizabeth J. Daniel K. Swanson taxation of transactions. Timothy H. Napier senior associate. The McKinney and Daniel K. Swanson as new COMMONWEALTH OF KENTUCKY FINANCE AND ADMINISTRATION CABINET Seeking Licensed Attorneys
The Finance and Administration Cabinet requires the services of qualified attorneys throughout the Commonwealth of Kentucky for the purpose of conducting title work and other real property related services on property to be acquired on behalf of the Commonwealth. Selection of attorneys approved to conduct the work will be based on professional qualifications, experience, and geographic working area as well as a general bidding process for each assignment.
Multiple attorneys are needed in every area of the Commonwealth, and bids will be solicited as necessary. If you would like to be considered for approval to perform work, please contact Patrick McGee, Attorney, or Wilda Caudill, Office of Legal Services, Finance and Administration Cabinet at (502) 564-6660 to receive a pro- posal package. Proposals, conforming to the terms and conditions of the proposal package, must be received no later than 2:00 pm on August 29, 2008.
July 2008 Bench & Bar 59 WHO, WHAT, WHEN & WHERE
Amanda G. Greenebaum Doll & McDonald PLLC is pleased to announce that Mark T. Hayden, a Simmons has joined the member in the firm’s Cincinnati office, has been named member-in-charge of the firm’s law firm of Shutts & Greater Cincinnati offices, where he will oversee operations of the firm’s Cincinnati and Bowen, LLP, an interna- Covington offices and serve as a member of the firm’s management committee. Greenebaum tional law firm based in Doll & McDonald is also pleased to announce that Henry C.T. “Tip” Richmond III, a mem- Orlando, Florida. ber in the firm’s Lexington office, has been named to the firm’s management committee and Simmons, a 2003 gradu- that Benjamin J. Evans, Michael A. Grim, Mark A. Loyd, Ted R. Martin, and W. Edward ate of the University of Skees have been elected as members of the firm. Richmond’s practice consists primarily of Kentucky College of advising on trust and estate matters, gift and estate tax planning, and closely-held business mat- Amanda G. Law, is licensed to prac- ters, including succession planning. Evans concentrates his practice in employee benefits law, including qualified retirement plans, employee welfare benefit plans, nonqualified deferred Simmons tice in Florida and compensation arrangements, COBRA, and ERISA-related litigation. Grim is based in the Kentucky. She focuses her practice in the firm’s Louisville office and focuses his practice on state, local and federal taxation. Loyd is areas of construction litigation and equine also based in the firm’s Louisville office and concentrates his practice in the areas of state, local law. and federal taxation, tax controversy/litigation and governmental affairs. Martin is based in the firm’s Lexington office and focuses his practice on administrative proceedings and commer- Eric J. Haner cial litigation. Skees is based in the firm’s Louisville office and concentrates his practice on announces the opening of construction and commercial litigation, including contract, franchise, lender liability, product the Haner Law Office liability, and member/shareholder litigation. He practices in Kentucky and Indiana. located at 651 South Fourth Street in Louisville at Theater Square. He will continue to focus his practice in the area of plaintiff’s per- Eric J. Haner sonal injury law, workers’ compensation, social security dis- ability, and probate matters, representing clients in Kentucky and Indiana. He may be Mark T. Hayden Henry C.T. Benjamin J. Evans Michael A. Grim reached at his new office phone number at Richmond III (502) 562-0020.
Welter Law Firm, P.C. is pleased to announce that Robert R. Gillispie has become a member of the Herndon, Virginia firm. Gillispie practices primarily within the areas of commercial transactions, govern- ment contracts and immigration. He is a member of the Kentucky, Virginia and District of Columbia Bar Associations. Mark A. Loyd Ted R. Martin W. Edward Skees
Brady Dunnigan, a The law firm of Clark & Ward is pleased to announce that Justin L. Handshoe, Peter former partner with Frost W. Whaley, David P. Kaiser, Barry N. Sullivan, and John L. Tackett have joined the firm as associates in the Lexington office and that Noelle J. Bailey and Taylor P. Sorrells have Brown Todd, has joined joined the Louisville office. Dinsmore & Shohl LLP. He will practice as a part- ner in the corporate department, working from the firm’s Lexington office. Brady Dunnigan Dunnigan focuses his practice primarily in the areas of commercial real estate and lending. Justin L. Peter W. Whaley David P. Kaiser Barry N. Sullivan The Kentucky Registry of Election Handshoe Finance has appointed Emily Dennis, a Frankfort attorney, as general counsel. She joins the Registry after having been employed for nearly six years by the Kentucky Justice & Public Safety Cabinet in its Office of Legal Services. Dennis graduated, magna cum laude, from Transylvania University and earned her J.D. from the University of Louisville School of Law in 1998. John L. Tackett Noelle J. Bailey Taylor P. Sorrells
60 Bench & Bar July 2008 Jeffrey D. Hensley, of the Hensley Law Office, PSC in Flatwoods, is pleased to announce his partnership with attorney Christopher A. Dawson. Dawson, who is licensed in Kentucky, Ohio, and West Virginia, has practiced in the area for nine years and with Hensley for the last two. The firm name has changed to Hensley & Dawson, PSC and will continue to be located at 1813 Argillite Road in Flatwoods. IN THE NEWS The Chief Justice of the United States, John G. Roberts, Jr., appointed U.S. District Judge Charles R. Simpson III, of Louisville, as chair of the federal judiciary’s International Judicial Relations Committee, Judge Charles R. effective April 16, Simpson III 2008.In that role, Judge Simpson will coordinate the federal judi- ciary’s relationship with foreign judiciaries and with those agencies and organizations that are involved in the expansion of the Rule of Law and the administration of justice.
Wyatt, Tarrant & Combs, LLP is pleased to announce that Bowling Green attorney James D. Harris, Jr. was named to the execu- tive council of the Association of Defense Trial Attorneys at the James D. organization’s annual Harris, Jr. meeting in Charleston, South Carolina and that Louisville attorney Jefferey Yussman has been selected as the newest member of the Special Needs Alliance. The firm is also pleased to announce that Turney P. Berry, a partner in the Jefferey Yussman firm’s Louisville office, has been elected as a member of the of the American College of Trust and Estate Counsel’s Board of Regents; George Seay, a partner in the firm’s Lexington office, has been named to the Kentuckians for Better Transportation Board; and Joe Zaluski, also a partner in the firm’s Lexington office, has been elected to the Kentucky Coal Association Board of Directors.
NKU Salmon P. Chase College of Law is pleased to announce that Professor July 2008 Bench & Bar 61 WHO, WHAT, WHEN & WHERE Kathleen Gormley LLP in Cincinnati, will headquartered in Chicago, was recently Johnson has been serve as the Cincinnati elected a director of the National Society of selected for the Bar Association’s Young Compliance Professionals. Wagner is a 1980 Leadership Kentucky Lawyers Section (YLS) graduate of the University of Kentucky Class of 2008. Professor Chair. The YLS is open College of Law. Johnson is the associate to every member of the director of the Chase Cincinnati Bar Thomas E. Rutledge, a member of Stoll Center for Excellence in Association who is under Keenon Ogden PLLC, spoke Advocacy. She focuses age 36 or in his/her first on“Understanding Operating Agreements: Kathleen G. her teaching on civil and Paige L. Ellerman five years of practice, If We Can Understand This So Can You” Johnson criminal litigation, and regardless of age. and “Inter-Entity Mergers: Comparing clinical skills courses and serves as the fac- Texas, Delaware and META” at the ABA ulty advisor and coach of the Chase Edward J. Buechel, of Edgewood, has Section of Business spring meeting, which National Trial Advocacy Team. been elected a Fellow of The American took place in Dallas, Texas. College of Trust and Estate Counsel, a McBrayer, McGinnis, Leslie & Kirkland, national professional organization. Buechel PLLC is pleased to announce that attorney practices at the Florence law firm of Raines, RELOCATIONS Douglas T. Logsdon was inducted as Buechel, Conley & Dusing and concentrates Fayette County Bar Association President on his practice on estate planning and probate. The Law Office of Adam Zeroogian, May 1, 2008. Logsdon will serve a one-year PLLC, a Nicholasville firm concentrating term. He has previously served as secretary, Stoll Keenon Ogden its practice in the areas of criminal defense, treasurer, and president-elect within the PLLC attorney Mark T. domestic relations and personal injury, is association. Hurst, of Louisville, has pleased to announce its relocation to 114 been elected to serve on North Main Street in Nicholasville. The Woodward, Hobson the board of directors of firm’s contact information will not change. & Fulton, LLP is pleased Zoom Group, a United to announce that Amy Way agency that is a A. Carl Platt , a C. Eason and Guy E. provider of vocational 1973 graduate of the Hughes, associates in services for adults with University of Louisville the Lexington office, Mark T. Hurst mental retardation. School of Law, have been elected to the announces his relocation and the opening of his Amy C. Eason Fayette County Bar Robert G. Schwemm has been named Association Board of the first Ashland Inc.–Spears Distinguished New Albany, Indiana Directors. Research Professor for the University of (Floyd County) law Kentucky College of Law. His five-year office, at 430 West First Ellen Arvin term in the professorship began July 1, A. Carl Platt Street, while continuing Kennedy, a member of 2008. A committee comprised of Dean his general practice in Indiana and Kentucky the firm Fowler Measle Steven L. Hoch of UK’s College of Arts & focusing on construction law and litigation. & Bell PLLC, has been Sciences, Chief Justice Joseph Lambert of Platt may be reached at (812) 944-2770 or named as the 2008 the Kentucky Supreme Court, and Chief (502) 599-1256. Outstanding Young Judge Jennifer Coffman of the U.S. District Guy E. Hughes Lawyer by the Fayette Court for Eastern District of Kentucky County Bar Association. selected Schwemm for the honor. Register Now for the Philip J. Schworer Joseph L. Fink III, professor, and was inducted at the 116th Ralph E. Bouvette, Ph.D., associate pro- president of the fessor, in the Department of Pharmacy Fall Getaway! Cincinnati Bar Practice and Science at the University of Association. He became Kentucky College of Pharmacy, have the first Kentucky resi- been elected to membership in the October 23-25 dent to ever hold the title Kentucky Institute of Medicine and were of Cincinnati Bar inducted on May 15, 2008. Ellen Arvin Association President. West Baden Kennedy Schworer, a member of The American Academy of the environmental law Matrimonial Lawyers’ Kentucky Chapter department of Frost is pleased to announce that Bruce Petrie, Springs Hotel Brown Todd LLC, prac- Boyle and Mercer Family Court Judge, is tices in the firm’s the 2008 recipient of its annual Family Cincinnati office. Court Judge of the Year Award and that French Lick, Indiana Stephen Kriegshaber is the recipient of Paige L. Ellerman, the annual Raising the Bar Award. an associate in the litiga- www.kybar.org tion department at Taft Kenneth L. Wagner, chief compliance Philip J. Schworer Stettinius & Hollister officer for William Blair & Company, LLC
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64 Bench & Bar July 2008
Kentucky Bar Association 2008 Annual Convention Exhibitors
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