IN THIS ISSUE Jails

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This issue of the Kentucky Bar Association’s VOL. 85, NO. 1 B&B-Bench & Bar was published in the month of January. COMMUNICATIONS & PUBLICATIONS COMMITTEE Contents James P. Dady, Chair, Bellevue 2 President’s Page Paul Alley, Florence By Tom Kerrick Elizabeth M. Bass, Gallatin, Tenn. Rhonda J. Blackburn, Pikeville 5 Propsed Amendments to the Supreme Court Rules, Jenn L. Brinkley, Pensacola, Fla. Civil and Criminal Rules Rachelle C. Bolton, Lexington Frances E. Catron Cadle, Lexington Features: Jails Elizabeth A. Deener, Lexington 8 Progress and Promise: Kentucky’s Unfinished Cathy W. Franck, Crestwood Criminal Justice Reforms Lonita Baker Gaines, Louisville By John Tilley William R. Garmer, Lexington P. Franklin Heaberlin, Prestonsburg 14 The Perfect Storm? A Look at the Federal Compassionate Judith B. Hoge, Louisville Release Program Following the First Step Act and During Jessica R. C. Malloy, Louisville a Worldwide Pandemic Eileen M. O'Brien, Lexington By Joshua F. Barnette and Michael Denbow Sandra J. Reeves, Corbin 22 Addressing Prisoner Rights through CRIPA: John Schaaf, Georgetown DOJ’s Enforcement Efforts Gerald R. Toner, Louisville By Carrie B. Pond Sadhna True, Lexington Zachary M. Van Vactor, Louisville 26 Book Review: Authors Trace Kentucky’s Underside Samuel W. Wardle, Louisville By James P. Dady Michele M. Whittington, Frankfort PUBLISHER Columns 32 Young Lawyers Division John D. Meyers By Miranda D. Click EDITOR 34 University of Louisville Louis D. Brandeis School of Law James P. Dady 36 Northern Kentucky University Salmon P. Chase College of Law MANAGING EDITOR 38 University of Kentucky J. David Rosenberg College of Law Megan L. Couch

DESIGN & LAYOUT 40 Effective Legal Writing By Professor Shavonnie Carthens Jesi L. Ebelhar 41 Law Practice Management The B&B - Bench & Bar (ISSN-1521-6497) By Stephen Embry is published bi-monthly by the Kentucky Bar Association, 514 West Main Street, Frankfort, Bar News KY 40601-1812. Periodicals Postag e paid at Frankfort, KY and additional mailing offices. 44 Student Writing Competition All manuscripts for publication should be sent 44 Law Day 2021 to the Managing Editor. Permission is granted for reproduction with credit. Publication of 46 Judicial Nominating Commission Results any article or statement is not to be deemed an endorsement of the views expressed therein by the Kentucky Bar Association. Departments Subscription Price: $20 per year. Members 54 Kentucky Lawyer Assistance Program subscription is included in annual dues and is not less than 50% for the lowest subscription 56 Kentucky Bar Foundation price paid by subscribers. For more information, 58 Continuing Legal Education call (502) 564-3795. POSTMASTER Send address changes to: 64 Who, What, When and Where B&B - Bench & Bar 514 West Main Street Cover and several inside graphics by ©istockphoto.com/JesiEbelhar Frankfort, KY 40601-1812 BENCH & BAR | 1 PRESIDENT'S PAGE

Wise Reminders for the Next Generation of Kentucky Attorneys

Photo Credit: Jim Hoffman, Administrative Office of the Courts

ecently, as president of the BY TOM KERRICK KBA, I was fortunate to OTHER TOPICS TOUCHED UPON BY OUR Rparticipate in the 2020 Swear- JUSTICES WERE AS FOLLOWS: ing-In Ceremony of new attorneys. Previous presidents told me 1. BE GRACIOUS. Never forget who helped you get this would be an event I would enjoy, and they were right. We this far and accomplished becoming a lawyer. Always be had to do it by Zoom, which prevented the personal involvement gracious and express your gratitude to those individuals. with these new attorneys and their supporters, but it was still a meaningful and exciting event. 2. BE COLLEGIAL. Always be collegial and courteous to other individuals in the profession – other attorneys, Since we were doing by Zoom, the Supreme Court, led by Clerk judges, clerks, court personnel, janitors. Civility is not Kelly Stephens, divided this group of 240 new attorneys into a sign of weakness but is actually a sign of confidence five groups and each group was introduced and sworn-in on the and strength in your abilities. The new members were hour. During each approximately 30-minute ceremony, Chief reminded of the “Golden Rule” by more than one justice. Justice John D. Minton Jr. made introductory remarks and then one justice of the Court was selected to address the group with 3. ALWAYS DO YOUR BEST. We are part of a long brief comments. I think a summary of these comments are worth standing, noble profession and to take that reputation repeating and reminding ourselves of the characteristics of being seriously. The admittees were reminded that it takes a a Kentucky lawyer. career to build your reputation, while only a few seconds can destroy what you have worked so long and hard to First, the new lawyers were invited to stop by the 2nd floor of establish. They were encouraged to always do their best our state capitol to introduce themselves to the justices and to and not just be good enough. “Never give up, never give observe just how beautiful our Kentucky Supreme Court really out, and never give in.” is. Included in this layout is a picture of the actual courtroom. It truly is a beautiful setting. CONTINUED ON NEXT PAGE

2 | JANUARY/FEBRUARY 2021 Kentucky lawyers deserve steadfast support.

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4. GIVE BACK TO YOUR PROFESSION. Be involved in your bar association in some fashion, whether that be in your local bar or the statewide bar association, whether that be in the young lawyers division or a specialty area of law you may tend to emphasize. Also, be a mentor to others in our profession. Most of us had another attorney that helped mentor us along and that should be handed down with no expectation of any award or reward.

5. GIVE BACK TO YOUR COMMUNITY. Attorneys are leaders and all communities need leaders. Attorneys often serve on city, county or educational boards, giving needed and necessary advice with no compensation. Attorneys serve on various charitable boards, church or synagogue bodies and even volunteer as little league coaches. My wife and I still get the biggest smile whenever I am greeted with “Coach Kerrick” by one of my former little league players who are now in their 30s or 40s and have their own little leaguers.

4 | JANUARY/FEBRUARY 2021 THE NEED FOR LAWYERS TO BE INVOLVED IS GREATER THAN IT HAS EVER BEEN. Whether that be through a bar association event, a community event or just a good deed on your own that nobody else may ever know. Be involved in some fashion that will make that organization, community or individual better and you will be amazed at how rewarding it can be - - - even without earning a fee!

As we start a new year, I encourage each of you to BE INVOLVED!

The Supreme Court is considering amendments to the Supreme Court Rules and invites members of the Bar to submit written comments. The following rules are currently up for consideration: Proposed • Supervised Practice and Practice Pending Admission – SCR 2.116 and 2.117 Amendments • Conditional Admission, Reinstatement, and Restoration to Membership – SCR 2.042; 2.300; 3.030; 3.150; 3.230; 3.290; 3.360; 3.500; 3.501; 3.502; 3.503; 3.504; to the Supreme 3.505; 3.510 The Supreme Court is also considering several rules that clarify the process for amending the Written comments should be submitted electronically Court Rules Civil, Criminal and Supreme Court Rules. This to [email protected]. All comments impacts the following rules: must be received by March 15, 2021. • Supreme Court Rules – Section X, SCR 10.000 To view the proposed amendments, visit: • Civil Rules – CR 87 https://www.kybar.org/news/545980/Updated-Information- Regarding-Proposed-Rules-Amendments.htm • Criminal Rules – RCr 13.08

BENCH & BAR | 5 JAY BILAS Attorney and college basketball analyst

We have an outstanding lineup of speakers to cover a variety of topics for all Kentucky practitioners.

Political power couple JAMES CARVILLE and MARY MATALIN

6 | JANUARY/FEBRUARY 2021 A special thank you to the PLANNING COMMITTEE 2021 KBA Annual Convention Amelia M. Adams, Co-Chair Matthew P. Cook, Co-Chair Damon L. Preston and CLE Planning Committees Dana Arnold Judge Pamela R. Goodwine Mark R. Overstreet for planning a great event full Mindy G. Barfield Pierce W. Hamblin Katie A. Shepherd of outstanding CLE programs Judge T. Bruce Bell Jennie Y. Haymond Jessica R. Shoulders and social events. Matt Boyd Thomas N. Kerrick Virginia H. Snell Judge Traci Brislin Paul T. Lawless Christine L. Stanley Judge Kimberly N. Bunnell M. Todd Lewis Justice Laurance B. VanMeter Judge Karen Caldwell LaToi D. Mayo Kyle M. Virgin Miranda D. Click J.D. Meyer Stephanie M. Wurdock Elizabeth A. Combs Daniel P. Murphy, Jr. James B. Cooper Jerome “Jay” Prather

CLE PLANNING COMMITTEE Christine L. Stanley, Chair Matthew P. Cook Damon L. Preston Amelia M. Adams Seth E. Fawns Katie A. Shepherd Matt Boyd Thomas N. Kerrick David B. Sloan Professor Allison I. Connelly LaToi D. Mayo Brandon C.R. Sword

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2021 KBA ANNUAL CONVENTION REGISTRATION WILL BE ONLINE ONLY REGISTRATION The 2021 Kentucky Bar Association Annual Convention is scheduled for early OPENING SOON! May and the Annual Convention Planning Committee and the CLE Planning Committee have been working to secure a variety of events and programs for the convention.

This year we will be sending out the convention overview and registration materials via email, so check your inboxes often for that information!

BENCH & BAR | 7 features: JAILS

PROGRESS AND PROMISE: Kentucky’s Unfinished

CriminalBY JOHN TILLEY Justice Reforms

orget bourbon or the automotive quarter of all the world’s prisoners, despite the number of state inmates soared almost industry. One of the most surprising totaling less than 5% of its population.2 At a 700% during that period, far outpacing the Fand shocking growth stories in Ken- time when most states were running a race state’s population growth of only 30%.6 tucky, during my lifetime, has been the to incarcerate, Kentucky was surging like growth in our prison population. We were Secretariat, imprisoning one out of every As the head counts rose, so did the pressure —at one time—a world leader. 92 people.3 on state and local budgets, and taxpayers paid dearly. It’s been said that states It’s true; the Commonwealth emerged It’s easy to think that the growth was due educate, medicate, and incarcerate, but as the international epicenter for prison to an increase in crime, but experts now even education couldn’t keep pace with growth, from 1999 to 2009, when we expe- agree: the increased use of jails and pris- Kentucky’s free-spending appetite for cor- rienced one of the fastest growing prison ons had an important, but minor role in rections. The annual spending on prisons populations in the world. Over those 10 public safety.4 In fact, Kentucky’s crime rate grew from around $5 million in the ‘70s, years, the incarceration rate soared by 45%, in 2009 nearly matched that of 1974, and to $440 million by 2010.7 And Kentucky’s nearly quadruple the national average.1 And Kentucky’s serious crime rate remained far per-inmate spending was—and remains— that’s in a country that locks up close to a below most other states at the time.5 Yet low compared to the rest of the country.8

8 | JANUARY/FEBRUARY 2021 we asked “…shouldn’t we decide who we’re • In 2009, 57% of all convicted mad at, and who we’re afraid of?” Or, “how felony offenders in Kentucky were many more teachers should we pull from sentenced to prison rather than the classroom so we can afford to incar- probation or alternative sanc- cerate low-level drug users?” “How often tions—an especially high number should parenting be confined to the visit- compared to other states;14 ing hours of a prison?” “How many more • About 25% of Kentucky’s inmate Kentuckians should we condemn to perma- population was serving time for nent underemployment due to a criminal drug crimes. Of those, around record?” And finally, “shouldn’t we look to 75% were locked up for possession turn tax burdens into taxpayers?” offenses or first-time trafficking offenses, which other states often Many of us continue to ask these questions managed with alternative sanc- today, as we encourage Kentucky to fully tions;15 and commit to common sense reform: tested, evidence-based, and effective policies that • For the 12 years prior to 2010, produce sustainable results. Despite our the number of parolees sent back history of dashing pillar to post on criminal to prison for technical viola- justice approaches, most of these strategies tions—rather than a new felony already have a proven track record within conviction—nearly doubled as a our own state, if not across the country. percentage of prison admissions.16

AT TIMES, A NATIONAL LEADER However, understanding the drivers was Kentucky has often been hailed as a national only a first step in the year-long effort that model for reform at the highest levels of spanned hundreds of hours of meetings and leadership—from renowned policy institutes public hearings and collected input from and liberal advocacy groups to Vice Presi- voices representing every criminal justice dent Mike Pence.12 But few efforts garnered stakeholder and more. Our goal was to find as much acclaim as House Bill 463. consensus on a package of common-sense reforms, and the result was HB 463,17 a With prison counts at crisis levels, policy landmark 150-page bill that passed through makers began searching for solutions to both chambers of the state legislature with control spending and growth, while also only one dissenting vote. protecting public safety and refocusing resources on the most serious offenders. By In short, the bill was designed to preserve the summer of 2010, legislators braced for a expensive prison space for the most serious deep dive, launching a task force to review offenders, modernize drug laws, strengthen Kentucky’s sentencing and corrections data, probation and parole in an effort to reduce trends, and state policies. recidivism, and demand greater government accountability.18 Half of the savings from The group had great partners providing the bill was designated for reinvestment in technical assistance: The Pew Center on substance abuse programs, mental health Meanwhile, for every handful of individuals the States and its Public Safety Perfor- treatment, and prevention and reentry sent to prison, teachers were taken from mance Project (PSPP), the Crime and efforts designed to reduce reoffending.19 the classroom and books from the hands 9 Justice Institute (CJI), and the JFA Insti- of students. By pouring millions of state tute. And the results were clear; Kentucky’s IMPLEMENTATION— tax dollars into building and staffing pris- injuries were self-inflicted. Rather than an WHY IT MATTERS ons, Kentucky also diverted scarce resources 10 increase in crime, the experts pointed to our Has the bill hit its target? The answer is from the system. This includes probation laws, policies, and practices as the principal complicated. Some had projected that the and parole, reentry, and substance abuse drivers behind prison growth. Their work prison population would have ballooned treatment (all of which help drive down revealed that: to over 30,000, if left unchecked.20 At recidivism and strengthen public safety— 11 the beginning of 2020, Kentucky’s count poignantly, at a lower cost). • From 2001 to 2009, arrests jumped hovered closer to 23,000, indicating that 32%, even though reported crime Kentucky may have staved off a surge of It’s understandable why many of us work- remained essentially flat. Research- more than 30%.21 So, while the bill clearly ing on criminal justice issues began asking ers attributed the increase to a 70% 13 helped Kentucky relinquish its crown as the tough questions in 2010. Most importantly, jump in drug arrests;

BENCH & BAR | 9 features: JAILS

epicenter of prison growth, the expected quality treatment and supervision in the which persist throughout the entire crimi- outcomes haven’t come as quickly or community. It also called for enhanced nal justice ecosystem. steadily as some would like. Moreover, the data collection and oversight mechanisms population has continued to ebb and flow, to ensure the policies were working. Per- ADMINISTRATIVE PATHS even peaking above 24,000 at one point.22 haps most importantly—in contrast to HB TO REFORM 463—the bill contained more mandatory While most of Kentucky’s key reforms During the development and implementa- than permissive language. occurred through legislation between tion of HB 463, Kentucky’s former Public 2010 and 2016, administrative efforts often Advocate, Ed Monahan, often remarked The results were swift and emphatic. Ken- lagged behind. According to reports from that “good ideas don’t implement them- tucky achieved a 34% reduction in the the Department of Corrections’ Reentry selves,” as unfortunately, the bill suffered number of incarcerated youths within the Division in 2016, none of the 30-plus staff from lackluster adherence. Notably, Ken- first three years,30 which led to the closure could recall connecting one individual tucky’s Parole Board frequently maintained or consolidation of four facilities across leaving prison to a job.33 Yet, mere months a parole grant rate far below what was the state.31 Despite these successes, racial later, that group was setting the pace for anticipated—often falling well below its disparities still plague juvenile justice. A best practices in reentry, creating individual pre-HB 463 levels.23 Courts and prose- key provision in the original version of roadmaps for those returning home, and cutors have also sidestepped many of the Senate Bill 200 would have collected data using social workers to link returning citi- most crucial reforms, often ignoring proven to identify and combat the problem, but zens to transportation, housing, treatment, strategies for diversion, pretrial release, and that language was deleted in legislative and meaningful employment.34 later reentry. Consider: between 2013 and negotiations.32 Thankfully, the Department 2016, the number of people sentenced to for Juvenile Justice and other agencies and It’s clear that solutions are best found by prison for simple drug possession spiked departments voluntarily undertook the listening to those closest to the problem, by 102%, even though HB 463 specifically effort to collect the relevant data. Kentucky, and Kentucky was receiving praise from the encouraged deferred prosecution and pro- like the rest of the country, must work to “real” experts. In fact, during a celebration bation for such cases.24 eliminate racial and ethnic disparities at the White House following the passage LESSONS LEARNED AND IMPLEMENTED IN SUBSEQUENT REFORMS Kentucky brought those lessons to bear on the next major reform, three years later. Much like adult offenders, Kentucky’s juvenile justice population had grown considerably by 2014, and policy leaders were eager for reforms that would increase community-based interventions and reduce out-of-home placements for offenders.25 Most disturbing, the system was sending kids to juvenile prison for missing school—a status offense—faster than all but three states.26 The impact of incarceration on children can be devastating, and the average cost to taxpayers topped $100,000 annually for each out-of-home placement.27 Children were also serving roughly the same length of time for status offenses, misdemeanors, and felony offenses.28

In reaction, Kentucky modeled its response on HB 463, launching a task force and tapping the expertise of national policy experts to mine data and analyze the trends behind juvenile arrests, incarceration, and supervision. The effort resulted in Senate Bill 200,29 which sought to improve juvenile outcomes through expanded access to

10 | JANUARY/FEBRUARY 2021 of The First Step Act, Gregory Allen cover the findings in detail, the results of 4. Revise the persistent felony (former federally-incarcerated Floridian) the work are summarized in the following offender (PFO) statute for mentioned Kentucky as a model for how reform recommendations: non-violent offenses. Ken- to get folks back on their feet and prevent tucky’s PFO statute dramatically 1. Limit the use of Monetary Bail. a return to prison, noting how we reduced increases penalties for a second 35 In Kentucky, too many individu- rates of recidivism. Someone close to the or subsequent felony, without als are held pre-trial on relatively problem had thought we’d listened. consideration of an offender’s low bond amounts, despite the criminal history. Thus, an individ- presumption in favor of their While best practices in reentry were being ual with only non-violent charges deployed, Kentucky also increased sub- release. Indeed, there has been a can face the same enhancement stance abuse treatment behind the wall, substantial growth in the use of as someone with multiple con- growing the number of treatment slots from monetary bail for low risk defen- victions for violent offenses. This 1,500 to nearly 6,000.36 Beginning in 2015, dants. Most would agree that scheme is considerably more the state looked to medication-assisted money should not determine severe than those from our sister treatment (MAT), to improve outcomes for whether someone is jailed for a states, especially for the manda- those suffering from opioid-use disorder. crime, but this is the system in tory enhancement of second-time Other states followed suit, with Califor- Kentucky. Often, the poor who nonviolent offenders. States nia enacting legislation this year modeled don’t pose a danger are locked like Ohio, Indiana, Tennessee, directly on Kentucky’s approach.37 up pre-trial, while the wealthier Utah, Mississippi, Arkansas and get out of jail. Our money-based Texas have no enhancement for Kentucky also expanded job-skills training system could be replaced with offenders convicted of a second in prison with multiple initiatives, none more one that releases those arrested non-violent offense. The research ambitious than “Justice to Journeyman,” a who are not a danger but allows is clear: more prison time does not 38 pretrial detention when a risk to collaboration with the state Labor Cabinet. 42 lower recidivism, and long sen- The program, implemented in prisons and public safety can be shown. tences may be adding significant juvenile justice facilities, allowed individu- 2. Re-classify drug possession as costs to the taxpayer with little or 45 als to get the jump on attaining journeymen a misdemeanor offense. Incar- no public safety return. credentials in skilled trades. ceration is no more effective at 5. Re-classify certain non-DUI reducing recidivism than other traffic offenses. Thousands of These administrative successes and renewed alternatives like probation. To that police bookings every year are efforts to implement legislative reforms end, those sentenced to incarcer- began to make a difference. However, each for non-DUI misdemeanor traf- ation have the same (or higher) fic offenses, including: operating step toward a smarter, more measured and rate of future criminal behav- data-driven system has been met with on a suspended license; failure ior. In Kentucky, there has been to maintain insurance; traveling equal, opposing forces and incremen- significant growth in new court without a license; failure to regis- tal backtracking—especially in efforts to commitments for simple drug combat substance-use disorder. For exam- ter the transfer of a motor vehicle; possession. Of those sentenced and, unauthorized use of a motor ple, the legislature later rolled back a key to prison, nearly half had no prior 46 vehicle. provision of HB 463 and re-upped the felony charges on their records, penalties for low-level drug peddling.39 and almost three-fourths had Other highlights from our work group’s 22 Reform fatigue—as some called it—had only a single-possession charge at also taken hold. recommendations embrace: (1) increasing admission (with no other felony the felony threshold for flagrant non-sup- charges).43 ANOTHER TASK FORCE port; (2) streamlining parole processes; (3) Despite some weariness, Kentucky 3. Increase the felony threshold level developing specialty parole options for attempted to regain reform momentum just from $500 to $2,000. Importantly, geriatric inmates; (4) expanding the use of a few years later. But the work of the next raising the felony threshold loss swift, certain, and proportional sanctions; (5) using more earned credits for those on task force, its many recommendations and amount has no impact on overall proposals, were rejected by the legislature property crime or larceny rates. supervision; (6) streamlining the revocation 40 And yet, Kentucky is one of only hearing process; and (7) minimizing multi- in 2018. The research and findings, how- 47 ever, stand. Teaming yet again with the Pew 15 states with a misdemeanor ple barriers to successful reentry. But none limit of $500 or less—last rais- gained traction in the legislature after the Charitable Trusts and its partner the CJI, 48 the task force revealed that many of the ing its level in 2009 from $300. report’s adoption, in late 2017. same drivers of prison population growth Compared with Texas’s $2,500 41 threshold and Georgia’s $2,000, The Commonwealth must also commit to present in 2010 continue. And while 44 there’s not enough space on these pages to this low threshold is significant. solving the overcrowding in county jails. State law requires that all class D inmates

BENCH & BAR | 11 features: JAILS ABOUT THE AUTHOR JOHN TILLEY 49 is a be housed there, and that the state pay for it. At times, that number has climbed to 50 lawyer, and former nearly 12,000 state inmates—close to half of the total state prison population. Only legislator and Secre- two other states (Louisiana and Mississippi) house as many state inmates in county 51 tary of the Kentucky jails. Under this arrangement, counties are incentivized to take state prisoners and Justice and Public have come to rely on the revenue—a perverse incentive that serves to thwart reform Safety Cabinet. He’s efforts. The majority of Kentucky jails also lack physical space, treatment options, and 52 currently a Senior other resources of prisons. So, it’s no surprise their recidivism rates are higher than Fellow at the Council those leaving state-run prisons. on Criminal Justice, WHAT’S NEXT and is also leading State Engagement for Recidiviz, a new tech Even though reform efforts stabilized—and at times contracted—Kentucky’s incarcera- non-profit pioneering data-based approaches to tion rate and inmate population are too high. Consider an analysis this year by Kentucky criminal justice. During his time in public service, Youth Advocates, finding that our state ranks third in the nation for the highest number 53 Tilley chaired the House Judiciary Committee of children impacted by parental incarceration. A separate report from the Prison Policy and sponsored or led multiple landmark reforms Initiative in 2018 found that, if Kentucky were a country, we’d rank third in the world 54 in criminal and juvenile justice and drug policy, for locking up women. including HB 463 and SB 200. As Secretary, he led an overhaul of multiple departments. Tilley As regrettable as these rankings are, it wasn’t that long ago that Kentucky was that is a nationally recognized speaker in the areas of world leader at growing its prisons. Reforms bent this incredible curve. Common sense criminal justice reform and drug policy and has solutions helped us avert future growth. The roadmap exists. Kentucky must simply find spoken internationally as well. the political will to get back on the path.

ENDNOTES Reach of American Corrections, 22-30 (2009), described Kentucky as a state to watch in its 1 Public Safety Performance Project, The Pew available at https://www.pewtrusts.org/-/me- criminal justice approach to reentry, during Center on the States, Kentucky: A Data-Driv- dia/assets/2009/03/02/ pspp_1in31_report_fi- a meeting at The White House on criminal en Effort to Protect Public Safety and Control nal_web_32609.pdf. justice reform and the eventual federal First Corrections Spending, 1 (2010), available a t 12 In 2011, the Pew Center on the States and Step Act. https://www.pewtrusts.org/~/media/legacy/ their Public Safety Performance Project issued 13 Supra endnote 7, at 3. uploadedfiles/pcs_assets/2010/kentucky- a national statement praising Kentucky for “… 14 Id. at 4. briefupdatedpdf.pdfhttps://www.pewtrusts. research-based strategies to reduce recidivism, 15 Id. org/~/media/legacy/uploadedfiles/pcs_as- hold offenders accountable and maximize the 16 Id. sets/2010/kentuckybriefupdatedpdf.pdf. state limited financial resources.” Likewise, the 17 Ky. H.B. 463 (2011), available at https://apps. 2 Id. National ACLU issued a policy brief citing legislature.ky.gov/record/11rs/hb463.html. 3 Id. Ky’s HB 463 as a model, in August, 2011, 18 Id. 4 Kentucky Criminal Justice Policy Assessment entitled “Smart Reform is Possible.” Finally, 19 Id. Council Justice Reinvestment Work Group, more recently, Vice President Mike Pence 20 The Kentucky Justice and Public Safety Kentucky CJPAC Justice Reinvestment Work Group Final Report, 1 (2017). 5 Id. 6 Id. 7 Public Safety Performance Project, The Pew Center on the States, 2011 Kentucky Reforms Cut Recidivism, Costs Broad Bill Enacts Evidence-Based Strategies, 2 (2011), available at https://www.pewtrusts.org/~/media/legacy/ America’s Premier Civil-Trial Mediators & Arbitrators Online uploadedfiles/pcs_assets/2011/2011ken- America’s Premier Civil-Trial Mediators & Arbitrators Online tuckyreformscutrecidivismpdf.pdf. 8 Christian Henrichson & Ruth Delaney, NADN is proud to partner with the National Defense and Trial Bar Associations Vera Institute of Justice, The Price of Prisons What Incarceration Costs Taxpayers, 10 (2012), available at https://shnny.org/uploads/Price- of-Prisons.pdf. 9 In my experience as both a legislator and as Secretary of the Kentucky Justice and Public Safety Cabinet, I witnessed millions in state tax dollars “siphoned away” from teacher sala- View Bios & Availability Calendars for the top-rated neutrals in each state, as approved by local litigators ries, books, etc., as Corrections’ costs increased. The savings from reforms are mandated by HB 463 to inure 50% to the General Fund (where funds could be spent on education), www.NADN.orgwww.NADN.org and the other half to reinvestment, where the money can be spent on efforts in reentry. Our free database was used by 8000+ law offices in 2019 to schedule over 100,000 mediations & arbitrations online 10 Id. 11 The ewP Center on States, One in 31 The Long

12 | JANUARY/FEBRUARY 2021 Cabinet executive staff, Kentucky Department 30 Jake Horowitz & Casey Pheiffer, The legislature.ky.gov/record/18rs/hb396.html. of Corrections (DOC) personnel (including Pew Chartable Trusts Public Safety Per- 41 Kentucky Criminal Justice Policy Assessment budget analysts), and leadership at the Depart- formance Project, Juvenile Justice Reforms Council Justice Reinvestment Work Group, ment for Public Advocacy (DPA) have each, at Yield Major Advances in Kentucky (2018), Kentucky CJPAC Justice Reinvestment Work various times, predicted the population would available at https://www.pewtrusts.org/en/ Group Final Report, 17 (2017). have, and/or could have, surged above 30,000, research-and-analysis/articles/2018/05/03/ 42 Id. if not for reform. These projections were also juvenile-justice-reforms-yield-major-advanc- 43 Id. based on various growth rates computed by es-in-kentucky. 44 Id. contracted criminal justice analysts/experts 31 While at the Justice Cabinet, we implemented 45 Id. at 22- 23 and government economists. a strategy working with our Department for 46 Id. 21 The potential growth avoidance estimate is Juvenile Justice to close those four facilities, 47 Id. based on data from the DOC showing prison given our decrease in total population. 48 Id. at 19-30. population. 32 The original version—as it was introduced— 49 KRS 532.100. 22 Ky. Dept. Corrections, KENTUCKY DE- contained a provision requiring the collection 50 Ky. Dept. of Corrections, KENTUCKY DE- PARTMENT OF CORRECTIONS STATE- of data on disproportionate minority contact PARTMENT OF CORRECTIONS STATE- WIDE POPULATION REPORT (Oct. 31, (DMC). WIDE POPULATION REPORT (Oct. 31, 2019), available at https://corrections.ky.gov/ 33 Information gathered during my Cabinet’s 2019), available at https://corrections.ky.gov/ About/researchandstats/Documents/Daily%20 first leadership meeting with DOC and the About/researchandstats/Documents/Daily%20 Population/2019/10/10-31-19.pdf. Reentry Division. Population/2019/10/10-31-19.pdf. 23 Ky. Dept. of Public Advocacy, The Advocate 34 See e.g. supra endnote 12. 51 Peter Wagner, Some Private Prisons, Are, (February 2017 Supplement), available at 35 I was present at the White House First Step Um, Public. Prison Policy Initiative, (2016), https://dpa.ky.gov/Public_Defender_Resourc- Act meeting where Mr. Allen made his com- available at https://www.prisonpolicy.org/ es/The%20Advocate/Feb%202017%20supple- ments. blog/2016/06/09/privatejails/. ment.pdf. 36 Ky. Department of Corrections, Addiction 52 Robert G. Lawson, Turning Jails into Prisons— 24 Kentucky Criminal Justice Policy Assessment Services of Kentucky, (Nov. 25, 2020, 9:00AM), Collateral Damage from Kentucky’s War on Council Justice Reinvestment Work Group, available at https://corrections.ky.gov/Divi- Crime, 95 Ky. L.J. 1, 28-35 (2006-2007). Kentucky CJPAC Justice Reinvestment Work sions/ask/Pages/default.aspx. 53 Judi Jennings, The Impact of Parental Incarcer- Group Final Report, 9 (2017). 37 Cal. A.B. 1304 (2020), available at https:// ation on Kentucky Kids & What You Can Do 25 Kentucky Legislative Research Commission, leginfo.legislature.ca.gov/faces/billStatusCli- About It, Kentucky Youth Advocates, (2020), Report of the 2013 Task Force on the Unified ent.xhtml?bill_id=201920200AB1304. available at https://kyyouth.org/the-impact- Juvenile Code (December 2013), available at 38 My colleague, Secretary Derrick Ramsey of-parental-incarceration-on-kentucky-kids- http://www.lrc.ky.gov/lrcpubs/rm514.pdf. (of both the Labor and the Education and what-you-can-do-about-it/. 26 Id. Workforce Development Cabinets) and I 54 Aleks Kajstura, States of Women’s Incarceration: 27 Id. announced this initiative in early 2017. The Global Context 2018, (2018), available at 28 Id. 39 Ky. H.B. 333 (2017), available at https://apps. https://www.prisonpolicy.org/global/wom- 29 Ky. S.B. 200 (2014), available at https://apps. legislature.ky.gov/record/17rs/hb333.html. en/2018.html. legislature.ky.gov/record/14rs/sb200.html. 40 Ky. H.B. 396 (2018), available at https://apps.

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BENCH & BAR | 13 features: JAILS

The Perfect Storm? A Look at the Federal Compassionate Release Program Following the First Step Act and BY JOSHUA F. BARNETTE During a Worldwide Pandemic AND MICHAEL DENBOW

uan Alberto Fernandez pled guilty in federal court to one count of conspiracy to distribute methamphetamine in November 2014.1 Statutorily, Mr. Fernandez faced a mandatory Jminimum sentence of 10 years in prison.2 However, because of his lengthy criminal history—which included, among other things, 10 prior convictions for possession of controlled substances—Mr. Fernandez was classified as a career offender under the federal sentencing guidelines, which placed his potential sentence at more than 21 years.3 The Court ultimately exercised leniency, sentencing Mr. Fernandez to 12 years and seven months in federal prison in August 2015.4

At the time of his sentence, Mr. Fernandez had diabetes, but was otherwise “relatively healthy.”5 Five years later, his health had significantly deteriorated; Mr. Fernandez was now in “end stage renal failure, Stage V of chronic kidney disease.”6 On July 28, 2020, the warden at FCI Phoenix, where he was serving his sentence, recommended Mr. Fernandez for a compassionate release.7 Although the Federal Bureau of Prisons’ Office of General Counsel denied that request,8 on August 31, a federal defender in Los Angeles filed a motion for compassionate release with Mr. Fernandez’s sentencing court, citing his deteriorating health and heightened risk of contracting COVID-19.9 Two weeks later, the U.S. District Court for the Central District of California granted that motion,10 and Mr. Fernandez was released the next day.

Saferia Johnson was not as fortunate. On June 5, 2017, Ms. Johnson was arrested on federal charges.11 For more than a year, not posing a risk of flight or danger to the community, Ms. Johnson remained out on bond pending a resolution to her case.12 In July 2018, after entering a plea of guilty to one count each of conspiracy to steal and embezzle public money and aggra- vated identity theft for her involvement in a scheme to obtain fraudulent federal tax returns, Ms. Johnson was sentenced in the Middle District of Georgia to serve 70 months in the custody of the Bureau of Prisons (“BOP”).13 By all accounts, Ms. Johnson’s offenses were nonviolent.

Approximately two years later, after the pandemic hit the United States, Ms. Johnson, who suffered from “long-term, pre-existing medical conditions, which the CDC lists as risk factors for developing more severe COVID-19 disease,”14 petitioned the prison where she was held, a minimum security federal correctional facility, for compassionate release and placement on home confinement.15 BOP officials denied Ms. Johnson’s request.16

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Subsequently, in July 2020, Ms. Johnson to grant motions for compassionate release. Procedurally, according to the 1994 reg- contracted COVID-19, was transported Much remains unknown about how com- ulations, an inmate - or someone on the to a local hospital, and was placed on a passionate release requests are handled inmate’s behalf - must initiate a request ventilator.17 By the end of July, the federal within BOP, but a review of the limited for compassionate release, and, in doing defender’s office in the Middle District of data suggests inmates have far greater suc- so, must identify the extraordinary and Georgia had been appointed to represent cess appealing directly to the courts than compelling reasons justifying the request Ms. Johnson regarding her request for com- waiting for BOP to act. as well as a proposed release plan.26 The passionate release.18 However, on August inmate’s release plan must include a pro- 3, 2020, before her compassionate release A LOOK BACK AT THE posed residence, the inmate’s proposed request could be pursued, Ms. Johnson, 36 STATUTORY & REGULATORY means of support, and, if the request is years-old and with two young children, HISTORY OF for medical reasons, where the inmate will died in custody. COMPASSIONATE RELEASES receive treatment and how the inmate will The Sentencing Reform Act of 1984 pay for the treatment.27 This request is The concept of compassionate release provided federal district courts with the submitted to the warden of the inmate’s contemplates an exercise of mercy toward authority to reduce an inmate’s sentence. facility.28 The regulations state that inmates inmates with advanced age, terminal ill- Specifically, the Sentencing Reform Act may only make such a request when “there nesses, or debilitating and declining health provided courts with the ability to reduce are particularly extraordinary or compelling conditions, but the disparity in results an inmate’s sentence upon motion by the circumstances which could not reasonably illustrated above is consistent with the BOP Director if “extraordinary and com- have been foreseen by the court at the time seemingly scattershot approach the federal pelling” reasons warrant.20 Release under 18 of sentencing.”29 system has always taken toward compas- U.S.C. § 3582(c)(1)(A) for extraordinary sionate release requests. Since Congress and compelling reasons has since become If the warden approves the request, the enacted the Sentencing Reform Act of known as a “compassionate release.” Con- warden makes a recommendation to the 1984, statutory mechanisms have existed gress created this so-called safety-valve BOP Office of General Counsel.30 If the to permit federal courts to release inmates to address “the unusual case in which the General Counsel agrees the request should based upon “extraordinary and compelling defendant’s circumstances are so changed, be approved, the General Counsel solic- reasons.”19 Nevertheless, such releases were such as by terminal illness, that it would its certain mandated information to be seldom granted. A difference in interpre- be inequitable to continue the confine- included in the General Counsel’s recom- tation by BOP and the U.S. Sentencing ment of the prisoner.”21 Yet, the decades mendation to the BOP Director.31 If the Commission as to whether a “debilitating since the creation of compassionate release Director grants the request, the Direc- and declining health condition” needs to have shown that this mechanism, even in tor will contact the U.S. Attorney in the have been unanticipated at the time of sen- the face of an overcrowded prison system, inmate’s sentencing district to move the tencing may be one factor that led to the is rarely used. court for a modification of the sentence to dramatically different results in these two time served.32 cases. Enter new legislation and a world- BOP did not promulgate regulations gov- wide pandemic. erning compassionate releases until almost If the inmate’s request is denied by the a decade after the Sentencing Reform Act warden, the inmate may appeal the deci- Although institutional compassionate became law.22 Until that time, releases sion administratively; however, a denial release requests are still granted far less were granted or denied on an ad hoc basis by BOP’s General Counsel or Director often than federal legislation permits, the with little oversight. In 1994, official BOP is a final administrative decision.33 Until First Step Act of 2018 has allowed inmates policy stated that compassionate releases the passage of the First Step Act in 2018, to petition the courts directly for compas- may be granted in situations involving this final administrative decision was sionate release. Further, the presence of “extraordinary or extremely grave medi- non-appealable. COVID-19 appears to have dramatically cal circumstances.”23 A subsequent BOP changed the landscape of the program and Director Memorandum seemed to expand BOP was not the only federal agency given courts a motivation to grant mercy the program in two key manners. The first with statutory obligations to create pol- with greater frequency than ever before. expansion made compassionate release icies regarding compassionate releases available to inmates with a life expectancy - nor was it the only agency to drag its What follows is a look back at the statutory of one year, doubling the previous six- feet in fulfilling its obligations.34 In 2006, and regulatory history regarding federal month life expectancy requirement.24 The the U.S. Sentencing Commission finally compassionate releases, a breakdown of the second expansion clarified that, “contrary promulgated a policy statement on com- limited data on compassionate releases, and to BOP practice, inmates with extremely passionate releases. More than 20 years a look at the role COVID-19 has played serious or debilitating medical conditions” earlier, Congress had mandated that these in effectuating these releases. The article were eligible for consideration.25 policy statements “describe what should be concludes by exploring methods that seem considered extraordinary and compelling to have some success in convincing courts CONTINUED ON PAGE 18 16 | JANUARY/FEBRUARY 2021 Kentucky’s Prisons, COVID, and No Compassionate Release BY JOSHUA F. BARNETTE AND MICHAEL DENBOW

he Kentucky Department of Corrections is not The DPA created a matrix identifying high-risk inmates immune from the same pandemic issues faced by the by, among other things, age, offense of conviction, medi- Tfederal Bureau of Prisons. As of December 4, 2020, cal vulnerability, and time left on sentence.9 DPA culled the Department of Corrections (“DOC”) operated 14 cor- out individuals convicted of certain violent crimes and sex rectional institutions with 10,000 inmates.1 At the time of crimes.10 this writing, 2,895 inmates and 456 employees have tested positive for the virus; 24 inmates and three employees have To date, Governor Beshear has issued four executive orders died.2 The numbers could have been worse. commuting the sentences of 1,881 inmates.11 These individuals can be categorized into three groups for purposes Currently, the DOC daily inmate population is running at of their release: those who are medically vulnerable; those just over 10,0003 - more than 2,000 fewer inmates than at who are over the age of 65; and those who, at the time, the beginning of March 2020,4 just before COVID-19 hit. had less than six months remaining on their sentence.12 Because the DOC has no compassionate release program Importantly, these commutations are not unconditional.13 through which inmates can seek early release,5 the Common- All individuals released under a commutation must not have wealth was forced to consider other options in responding to a positive COVID test, must have a verifiable home address, the virus. To that end, Governor Andy Beshear began using and must not obtain a felony conviction during the com- his executive authority to issue commutations.6 muted portion of the sentence.14 Thus, while the individual is being released from prison early, s/he still must abide by In April, “to safeguard the health and safety of all Ken- certain conditions of the release. tuckians, including corrections staff and those in custody by reducing the risk of COVID-19 transmission for an Kentucky’s novel response to the pandemic illustrates how at-risk population,” Governor Beshear issued his first exec- inter-agency collaboration can be vital during an unpar- utive orders.7 By mid-summer, the Kentucky Department of alleled public health crisis, even without a compassionate Public Advocacy (“DPA”) and the DOC had begun work- release program. These efforts undoubtedly saved many lives. ing to identify additional potential candidates for release.8

ENDNOTES 1 Ky. Dep’t of Corr., Statewide Population 5 See Letter from Robyn R. Bender, Executive ry, 7th Meeting (Dec. 3, 2020), available at Report for: 12/04/2020, available at https:// Director, Office of Legal Services, to Corey https://apps.legislature.ky.gov/committeed- corrections.ky.gov/About/researchand- Shapiro, Legal Director, ACLU Kentucky, ocuments/8/12950/Dec%2003%202020%20 stats/Documents/Daily%20Popula- at p.5 ( June 12, 2020) available at https:// Inmate%20Early%20Release%20Due%20 tion/2020/12/12-04-20.pdf. Another ap- www.aclu-ky.org/sites/default/files/wysiwyg/ to%20COVID-19%20Burikhanov%20 proximately 8,700 individuals are considered jpsc_response_to_aclu_6-5-20_letter_final2. KJPS%20PPT.pdf. to be under the DOC’s custody but are in pdf. 12 Id. community service programs such as halfway 6 See Ky. Justice & Pub. Safety Cabinet, 13 Id.; Telephone Interview with Samuel N. houses or county jails. See id. Inmate Early Release Due to COVID-19, Potter, Post Conviction Branch Manager, Ky. 2 Ky. Dep’t of Corr., Kentucky DOC presentation before Interim Joint Comm. Dep’t of Pub. Advocacy (Dec. 7, 2020). COVID-19 Updates, available at https:// on Judiciary, 7th Meeting (Dec. 3, 2020), 14 Ky. Justice & Pub. Safety Cabinet, Inmate corrections.ky.gov/facilities/pages/covid19. available at https://apps.legislature.ky.gov/ Early Release Due to COVID-19, aspx (last visited Dec. 8, 2020). By in large, committeedocuments presentation before Interim Joint Comm. one state institution—Kentucky State /8/12950/Dec%2003%202020%20Inmate% on Judiciary, 7th Meeting (Dec. 3, 2020), Reformatory—accounted for the majority of 20Early%20Release%20Due%20to%- available at https://apps.legislature.ky.gov/ deaths: 19 inmates and two employees. Id. 2COVID committeedocuments/ 3 Ky. Dep’t of Corr., Statewide Population -19%20Burikhanov%20KJPS%20PPT.pdf. 8/12950/Dec%2003%202020%20In- Report for: 12/04/2020, available at https:// 7 See id. mate%20Early%20Release%20Due%20 corrections.ky.gov/About/researchand- 8 Telephone Interview with Samuel N. Potter, to%20COVID- stats/Documents/Daily%20Popula- Post Conviction Branch Manager, Ky. Dep’t 19%20Burikhanov%20KJPS%20PPT.pdf. tion/2020/12/12-04-20.pdf. of Pub. Advocacy (Dec. 7, 2020). In certain situations, DPA Post-Conviction 4 Ky. Dep’t of Corr., Statewide Population 9 Id. Alternative Sentencing Workers assisted Report for: 02/28/2020, available at https:// 10 Id. with the development of suitable residence corrections.ky.gov/About/researchand- 11 Ky. Justice & Pub. Safety Cabinet, Inmate plans for commutation-eligible inmates. stats/Documents/Daily%20Popula- Early Release Due to COVID-19, presenta- Telephone Interview with Samuel N. Potter, tion/2020/03/03-02-20.pdf. tion before Interim Joint Comm. on Judicia- Post Conviction Branch Manager, Ky. Dep’t of Pub. Advocacy (Dec. 7, 2020).

BENCH & BAR | 17 features: JAILS

reasons for sentence reduction, includ- In 2013, the Department of Justice Office overhauled 18 U.S.C. § 3582. In doing so, ing the criteria to be applied, and a list of Inspector General issued a scathing it clarified compassionate release eligibil- of specific examples.35 What constitutes report of BOP’s compassionate release pro- ity, mandated that BOP notify inmates of extraordinary and compelling reasons has gram.39 The OIG undertook a deep dive their ability to seek compassionate release, been modified through the years to its into the program by administering ques- and imposed reporting requirements on current iteration of four categories: med- tionnaires to BOP wardens, interviewing BOP for transparency purposes.43 Most ical condition of the defendant; age of BOP personnel, and analyzing compas- importantly, the First Step Act now per- the defendant; family circumstances; and sionate release requests referred to the BOP mits inmates to file a motion with the court other reasons as determined by the BOP Director between 2006 and 2011.40 The seeking compassionate release when they Director.36 OIG discovered overwhelming evidence have exhausted all administrative remedies that “BOP does not properly manage the associated with their institutional request, Additionally, in direct contrast with BOP compassionate release program, resulting or upon the lapse of 30 days from when the regulations, a 2016 amendment to the Sen- in inmates who may be eligible candidates warden at the inmate’s institution received tencing Commission’s policy statement for release not being considered.”41 Equally the inmate’s compassionate release request, explicitly provides that “an extraordinary damning, the OIG concluded that “BOP whichever is earlier.44 Finally, after 34 years, and compelling reason need not have been had no timeliness standards for compas- the federal compassionate release program unforeseen at the time of sentencing in sionate release requests,” which resulted in appeared to be gaining traction. order to warrant a reduction in the term 28 of 208 inmates dying while awaiting a of imprisonment.”37 Of paramount impor- decision from the BOP Director.42 Clearly, COMPARING THE NUMBERS: tance, nothing in Congress’s mandates or the program was not effectively addressing COMPASSIONATE RELEASES the Sentencing Commission’s policy state- the objectives of the statutes, regulations, THROUGH STATUTORY ment left BOP to determine whether an and policies. CHANGES AND A WORLDWIDE inmate posed a danger to the community PANDEMIC - that determination was reserved for the The First Step Act of 2018 brought Obtaining historical data on compassion- courts.38 responsive change by codifying many ate releases is no easy task. As reported of the recommendations set forth in the in the 2013 OIG report, “BOP does not OIG’s report. The First Step Act ostensibly know the total number of inmate requests

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Gina I. Rogers, RN, BSN, LNCC NO RISK If we can’t find an expert, YOUR STRATEGIC PARTNER we refund 100% of your fee. (270) 726-3211 www.medicalreviewconsulting.com 18 | JANUARY/FEBRUARY 2021 for compassionate release” because BOP 145 inmate deaths.54 The pandemic forced directly from the courts when BOP does institutions were not required to track those BOP’s hand in developing ways to address not respond promptly to their request. Thus, numbers and BOP’s Central Office only the spread of the virus. One mechanism: do the crucial take away is for inmates, or law- tracked requests that had been referred to more with what you already have; increase yers acting on behalf of someone serving a the BOP Director for approval.45 Since the compassionate releases. federal sentence, is to pay close attention OIG’s report in 2013, the compassionate to this timing and not wait for BOP action release program has been under constant As of November 27, 2020, BOP reported before seeking relief from the court. scrutiny by legislators, governmental watch- 2,149 inmates had been approved for com- dogs, and policy think-tanks. This scrutiny, passionate release since the inception of the As mentioned, the 30-day provision of coupled with the First Step Act and First Step Act in December 2018.55 Thus, the First Step Act is critical, especially COVID-19, has created a wave of trans- 1,670 federal inmates have been granted considering BOP Director decisions on parency and data gathering over the past compassionate release since May 26, 2020, compassionate release requests may take few years, but the inconsistent and often an average of 278 per month. This dramatic 141 to 196 days.60 Importantly, the 30-day nonexistent recordkeeping in the first 30 increase in the utilization of the compas- provision is not reliant on the warden years of the program has caused a dearth sionate release program came without any remaining idle on the inmate’s request.61 If of overall data. significant changes to the program over the inmate has not received a final admin- what was provided for in the First Step istrative decision within 30 days of serving Here’s what we know: Between 1990 and Act.56 the warden with the request, the inmate can 2000, BOP granted 226 compassion- seek court intervention. For example, if an ate release requests, averaging about 21 No official data currently exists to indicate inmate makes a request on January 1, 2021, releases per year.46 In 2011, BOP granted what number of pandemic-era compassion- and the warden expeditiously approves the 29 compassionate releases, and another ate releases were the product of motions request and makes a referral to the Gen- 39 in 2012.47 Between August 2013 and filed by the BOP Director versus motions eral Counsel, but the General Counsel or January 2018, BOP approved an average filed by the inmate. However, one nonpar- Director does not give a final administra- of 75-76 compassionate releases per year.48 tisan, nonprofit organization reported that, tive decision on that request by January 31, Inexplicably, in fiscal year 2018 (October 1, “as the pandemic ramped up, federal prison 2021, the inmate may file a compassionate 2017 – September 30, 2018), BOP granted wardens denied or ignored more than 98% release motion with the sentencing court. only 24 compassionate releases.49 of compassionate release requests. . . .”57 Thus, motions to the sentencing court must Moreover, “of the 10,940 federal prisoners be abundantly clear as to when the warden In the first year following the enactment of who applied for compassionate release from first received the inmate’s compassion- the First Step Act of 2018 (December 21, March through May, wardens approved ate release request, and should, whenever 2018 – December 20, 2019), 145 inmates 156. . . . Higher-ups in Washington, D.C., possible, include supporting documenta- were granted compassionate release, a reviewed 84 of the warden approvals and tion evidencing the warden’s receipt of the number that includes 96 inmates who overturned all but 11.”58 This alone sug- request. petitioned their respective sentencing court gests inmates are obtaining compassionate after exhausting administrative remedies or release by challenging BOP action, or lack Once the motion is supported with evi- experiencing delays within the BOP pro- thereof, in courts. dence showing the warden’s receipt of the cess.50 Over the next six months (December inmate’s request, any further documenta- 21, 2019 – May 26, 2020), another 334 In fact, one federal defender commented tion regarding that request helps bolster the inmates received compassionate releases.51 she “was not aware of a single BOP-ini- inmate’s motion. If the warden approved This last figure encompasses the beginning tiated motion for compassionate release the request and made a release recom- months of the COVID-19 pandemic in the based on a heightened-risk of severe illness mendation to the General Counsel, such United States. from COVID-19 infection.”59 documentation may support the defendant’s motion because the warden’s referral The first confirmed diagnosis of the coro- ASSISTING INMATES WITH likely will include not only an explanation navirus in the United States occurred on COMPASSIONATE RELEASES: as to why the official closest to the inmate January 20, 2020.52 Before long, COVID- WHAT WORKS? - the inmate’s warden - believes the inmate 19 hit the Bureau of Prisons. Within two Because of BOP’s failure to provide is a suitable candidate for compassionate months, an inmate at the Metropolitan complete transparency and centralized release but also further supporting medical Detention Center – Brooklyn had tested reporting on compassionate releases, little is documentation, when appropriate.62 positive, and two staff members - one in known about the best practices for assisting Grand Prairie, Texas, and one in Leaven- and ultimately securing an inmate’s com- What is apparent is that a motion for com- worth, Kansas - had tested positive.53 As passionate release. The most significant passionate release should be as thorough, of the writing of this article, 80,199 federal change to compassionate release has come specific, and particular as possible with inmates had completed coronavirus testing through the First Step Act’s creation of a regard to not only the statutory require- with 23,323 inmates testing positive and means by which inmates can seek relief ments, such as a proposed residence plan,

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but also the circumstances justifying release. Where the inmate’s motion seeks release ABOUT THE AUTHOR for a medical condition or otherwise debil- MICHAEL DENBOW is a member (partner) in Stites and itating condition that was unforeseeable at Harbison’s Louisville office. He focuses his practice on the time of sentencing, the motion should white collar criminal defense and other government and give great attention to explaining the extent regulatory matters. He handles matters in federal and of the inmate’s condition, how the circum- state courts throughout the southeast and represents cli- stances have changed since sentencing, and ents when dealing with such government entities as the provide physicians’ prognoses, when rele- Department of Justice, the FBI, the SEC, and the CFPB, vant. Doing so allows the court to easily among others. Denbow also routinely represents profes- analyze the 18 U.S.C. § 3553(a) sentencing sional athletes and entertainers in contract negotiations, factors that it must consider when ruling on business advice, and litigation matters. Denbow attended a motion for compassionate release. Washington and Lee University for his undergraduate studies and attended law school at the University of Lou- A carefully crafted motion should provide isville Louis D. Brandeis School of Law. a detailed roadmap of relevant § 3553(a) factors and explain why a compassion- JOSHUA F. BARNETTE is an attorney in Stites and Harbi- ate release is justified given the inmate’s son’s Lexington office. He joined the firm after clerking for unique circumstances. The more informa- the Hon. Gregory F. Van Tatenhove, U.S. District Judge, tion included in the motion, the better the Eastern District of Kentucky. He brings more than a inmate’s chances at securing compassionate decade of experience as a state and federal probation officer release. to the firm’s white-collar criminal defense group, and represents indigent federal criminal defendants as a member In short, although compassionate release of the Eastern District of Kentucky’s CJA Panel. Barnette’s has a less than stellar history, resulting in practice also focuses on torts, civil rights, products liability, the failure to exercise mercy in compelling and general business litigation. He is a member of the cases, evidence suggests the tide is turning, American, Kentucky, and Fayette County Bar Associations, spurred on by the pandemic and Congres- the National Association of Criminal Defense Lawyers, the sional change. Hopefully, the result will be Kentucky Association of Criminal Defense Lawyers, and fewer people suffering the unfortunate fate the Defense Research Institute. He received his J.D. from the University of Kentucky of Saferia Johnson. J. David Rosenberg College of Law, an M.P.A. from Columbus State University, and a B.S. in criminal justice with a minor in psychology from Mercer University.

ENDNOTES 10 Order Granting Defendant’s Order for Com- at https://www.bop.gov/resources/news/ 1 Plea Agreement, United States v. Fernandez, passionate Release, United States v. Fernandez, pdfs/20200804_press_release_coleman.pdf ). No. 8:14-CR-00008-2 (C.D. Cal. Nov. 12, No. 8:14-CR-00008-2 (C.D. Cal. Sept. 14, 18 Motion to Appoint Counsel, United States v. 2014), ECF No. 38. 2020), ECF No. 80. Johnson, et al., No. 7:16-CR-00045-1 (M.D. 2 Id. 11 Arrest Warrant, United States v. Johnson, et Ga. July 29, 2020), ECF No. 129. 3 Defendant’s Sentencing Memorandum, United al., No. 7:16-CR-00045-1 (M.D. Ga. June 5, 19 18 U.S.C. § 3582(c)(1)(A)(i). States v. Fernandez, No. 8:14-CR-00008-2 2017), ECF No. 21. 20 See Sentencing Reform Act of 1984, Pub. L. (C.D. Cal. Apr. 25, 2015), ECF No. 52. 12 See Unsecured Appearance Bond, United States No. 98-473, § 212(a)(2), 98 Stat. 1987, 1998-99 4 Judgment, United States v. Fernandez, No. v. Johnson, et al., No. 7:16-CR-00045-1 (M.D. (Oct. 12, 1984). 8:14-CR-00008-2 (C.D. Cal. Aug. 28, 2015), Ga. June 5, 2017), ECF No. 25. 21 S. Rep. No. 98-225 (1983). ECF No. 61. 13 Judgment, United States v. Johnson, et al., No. 22 28 C.F.R. § 571.60-571.64; see also Control, 5 Motion for Compassionate Release, United 7:16-CR-00045-1 (M.D. Ga. July 23, 2018), Custody, Care and Instruction of Inmates; States v. Fernandez, No. 8:14-CR-00008-2 ECF No. 83. Compassionate Release, 59 Fed. Reg. 1238 (C.D. Cal. Aug. 31, 2020), ECF No. 79. 14 Press Release, U.S. Dep’t of Justice, Federal ( Jan. 7, 1994). 6 Id. Bureau of Prisons, Inmate Death at FCI Cole- 23 See U.S. DEP’T OF JUSTICE, OFF. OF 7 Request for Compassionate Release/Reduction man’s Satellite Camp (Aug. 3, 2020) (available INSPECTOR GEN., I-2013-006, The Federal in Sentence/Debilitated Medical Condition, at https://www.bop.gov/resources/news/ Bureau of Prisons’ Compassionate Release United States v. Fernandez, No. 8:14-CR- pdfs/20200804_press_release_coleman.pdf ). Program, at 9 (April 2013) (available at https:// 00008-2 (C.D. Cal. Aug. 31, 2020), ECF No. 15 Carli Teproff, Woman asked for compassionate www.oversight.gov/sites/default/files/oig-re- 79-1. release. The prison refused. She just died of ports/e1306.pdf ); see also William W. Berry, III, 8 Response to Request for Compassionate COVID-19, MIAMI HERALD, Aug. 10, Extraordinary and Compelling: A Re-exam- Release/Reduction in Sentence/Debilitated 2020, https://www.miamiherald.com/news/spe- ination of the Justifications for Compassionate Medical Condition, United States v. Fernandez, cial-reports/florida-prisons/article244718922. Release, 68 MD. L. REV. 850, 852 n.9 (2009). No. 8:14-CR-00008-2 (C.D. Cal. Aug. 31, html. BOP Program Statement 5050.46, now re- 2020), ECF No. 79-7. 16 Id. scinded and replaced, can no longer be accessed 9 Motion for Compassionate Release, United 17 Press Release, U.S. Dep’t of Justice, Federal through the Bureau of Prisons’ online database States v. Fernandez, No. 8:14-CR-00008-2 Bureau of Prisons, Inmate Death at FCI Cole- of like program statements. (C.D. Cal. Aug. 31, 2020), ECF No. 79. man’s Satellite Camp (Aug. 3, 2020) (available 24 U.S. DEP’T OF JUSTICE, OFF. OF

20 | JANUARY/FEBRUARY 2021 INSPECTOR GEN., I-2013-006, The Federal 51 See U.S. DEP’T OF JUSTICE, NAT’L separately from compassionate releases. See Bureau of Prisons’ Compassionate Release Pro- CRIMINAL JUSTICE REFERENCE U.S. DEP’T OF JUSTICE, NAT’L CRIMI- gram, at 8-9 (April 2013) (available at https:// SERV., NCJ 254799, First Step Act Imple- NAL JUSTICE REFERENCE SERV., NCJ www.oversight.gov/sites/default/files/oigreports/ mentation: Fiscal Year 2020 90 Day Report, 254799, First Step Act Implementation: Fiscal e1306.pdf ). at 4 ( June 2, 2020) (available at https://www. Year 2020 90 Day Report, at 4 (June 2, 2020) 25 Id. at 9. ncjrs.gov/pdffiles1/nij/254799.pdf). This report (available at https://www.ncjrs.gov/pdffiles1/ 26 28 C.F.R. § 571.61. does not distinguish between releases granted nij/254799.pdf ) (distinguishing the number of 27 28 C.F.R. § 571.61(a)(2). on BOP motions and those granted on inmate inmates securing compassionate release from 28 28 C.F.R. § 571.61(a)(1). motions. the number of inmate (1,002) qualifying for 29 Id. 52 Jennifer Harcourt et al., Severe Acute Respira- home confinement under the First Step Act 30 Id. tory Syndrome Coronavirus 2 from Patient with of 2018 and the number of inmates (3,183) 31 28 C.F.R. § 571.62(a)(2). Coronavirus Disease, United States, 26 Emerging released to home confinement under the 32 28 C.F.R. § 571.62(a)(3). Infectious Diseases, no. 6, June 2020, at 1266- CARES Act of 2020, which expanded the 33 28 C.F.R. § 571.63. 1273 (available at https://wwwnc.cdc.gov/eid/ BOP Director’s ability to release inmates to 34 See 28 U.S.C. §§ 994(a)(2)(C) and (t). article/26/6/20-0516_article). home confinement during the pandemic). 35 See Sentencing Reform Act of 1984, Pub. L. No. 53 Michael Balsamo, AP Exclusive: 1st Fed 57 Keri Blakinger et al., Thousands of Sick 98-473, § 217(a), 98 Stat. 1987, 2019-2023 (now Inmate Tests Positive for Coronavirus, ASSO- Federal Inmates Sought Compassionate Release. codified at 28 U.S.C. § 994(t)). CIATED PRESS, March 21, 2020, available 98 Percent Were Denied., THE MAR- 36 See U.S. SENTENCING GUIDELINES at https://apnews.com/article/ec49cc7f4d1b- SHALL PROJECT (Oct. 7, 2020, 6:00 AM), MANUAL § 1B1.13 (2018), available at https:// 00bc5010dfb6d935e042. Additionally, reports available at https://www.themarshallproject. guidelines.ussc.gov/gl/%C2%A71B1.13. surfaced that another two inmates at federal org/2020/10/07/thousands-of-sick-fed- 37 Compare 28 C.F.R. 571.61(a)(1) with U.S. prison complex in Oakdale, Louisiana, also eral-prisoners-sought-compassionate-re- SENTENCING GUIDELINES MANUAL § tested positive around the same time. See Sarah lease98-percent-were-denied. 1B1.13 app. C, amend. 799 (2016), available at N. Lynch, U.S. Prison Union Official Warns of 58 Id. https://guidelines.ussc.gov/ac/799. Coronavirus Spread by Inmate Transfers from 59 Id. 38 18 U.S.C. § 3582(c)(1)(A)(ii); U.S. SENTENC- Outbreak Hotspots, REUTERS, March 23, 60 See Letter from Stephen E. Boyd, Assistant ING GUIDELINES MANUAL § 1B1.13 2020, available at https://www.reuters.com/ Attorney Gen., U.S. Dep’t of Justice Office of (2018), available at https://guidelines.ussc.gov/ article/health-coronavirus-prisons/usprison- Legislative Affairs, to Brian Shatz, Senator gl/%C2%A71B1.13. union-official-warns-of-coronavirus-spread- ( Jan. 16, 2018) (on file with The Marshall 39 See U.S. DEP’T OF JUSTICE, OFF. OF IN- by-inmate-transfers-from-outbreak-hotspots- Project, and available at https://www.themar- SPECTOR GEN., I-2013-006, The Federal Bu- idUSL1N2BG1B8. shallproject.org/documents/4369114-1-2018- reau of Prisons’ Compassionate Release Program 54 U.S. DEP’T OF JUSTICE, FED. BUREAU BOP-response. (April 2013) (available at https://www.oversight. OF PRISONS, COVID-19 Coronavirus, 61 See 18 U.S.C. § 3582(c)(1)(A); see also gov/sites/default/files/oig-reports/e1306.pdf ). COVID-19 Inmate Test Information, https:// Opinion & Order, United States v. Milby, No. 40 See id. at 63. Because the case files reviewed by the www.bop.gov/coronavirus/index.jsp (last visited 5:09-CR-00181-KKC (E.D. Ky. Apr. 27, OIG were either approved or denied by the BOP Nov. 27, 2020). 2020) ECF No. 777 (considering and granting Director, they necessarily received an approval and 55 U.S. DEP’T OF JUSTICE, FED. BUREAU inmate’s motion where no final administrative recommendation from the warden at the inmate’s OF PRISONS, First Step Act: FSA Numbers, decision had been rendered within 30 days, institution. See 28 C.F.R. 571.62(a)(1). https://www.bop.gov/inmates/fsa/ (last visited even after warden approved request). 41 Id. at 11. Nov. 27, 2020). 62 See, e.g., Request for Compassionate Release/ 42 Id. 56 While the Department of Justice, through Reduction in Sentence/Debilitated Medical 43 See First Step Act of 2018, Pub. L. No. 115-391, § an Attorney General Memorandum dated Condition, United States v. Fernandez, No. 603(b), 132 Stat. 5194, 5239 (2018). March 26, 2020, increased the utilization of 8:14-CR-00008-2 (C.D. Cal. Aug. 31, 2020), 44 See First Step Act of 2018, Pub. L. No. 115-391, § home confinement for certain inmates at risk ECF No. 79-1; see also Memorandum Regard- 603(b), 132 Stat. 5194, 5239 (2018) (now codified of contracting COVID-19, those releases are ing Request for Reduction in Sentence, United at 18 U.S.C. 3582(c)(1)(A)). likely distinct from compassionate releases States v. Milby, No. 5:09-CR-00181-KKC 45 U.S. DEP’T OF JUSTICE, OFFICE OF because home confinement releases are tracked (E.D. Ky. Apr. 27, 2020) ECF No. 771-3. INSPECTOR GEN., I-2013-006, The Federal Bureau of Prisons’ Compassionate Release Pro- gram, at 34 (April 2013) (available at https://www. oversight.gov/sites/default/files/oigreports/e1306. pdf ). 46 Mary Price, The Other Safety Valve: Sentence Reduction Motions under 18 U.S.C. §3582(c)(A) (1), 13 FED. SENT’G REP. 188, 191 (2001). 47 Andrew Cohen, Older Prisoners, Higher Costs, The Marshall Project (May 7, 2015, 10:09 AM), available at https://www.themarshallproject. org/2015/05/06/older-prisoners-higher-costs. 48 See id.; Letter from Stephen E. Boyd, Assistant Attorney Gen., U.S. Dep’t of Justice Office of Legislative Affairs, to Brian Shatz, Senator ( Jan. 16, 2018) (on file with The Marshall Project, and available at https://www.themarshallproject.org/ documents/4369114-1-2018-BOP-response. 49 U.S. SENTENCING COMM’N, THE FIRST STEP ACT OF 2018: ONE YEAR OF IM- PLEMENTATION, at 46 n.131 (Aug. 2020) (available at https://www.ussc.gov/sites/default/ files/pdf/research-and-public ations/researchpublications/2020/20200831_First- Step-Report.pdf ). 50 Id. at 47.

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Addressing Prisoner Rights through CRIPA: DOJ’s Enforcement Efforts BY CARRIE B. POND

s Nelson Mandela famously observed, “It is said that no federal courts and by its own petition.4 However, after the Fourth5 one truly knows a nation until one has been inside its jails. and Ninth6 Circuits affirmed district court decisions that the Attor- A A nation should not be judged by how it treats its highest ney General lacked standing to initiate suits challenging conditions citizens, but its lowest ones . . . .”1 The Civil Rights of Institution- in state facilities for people with cognitive disabilities, even those alized Persons Act, or CRIPA,2 embodies this principle by giving that were “unsanitary and unsafe” and “resulted in injuries and the Department of Justice (DOJ) an additional avenue to ensure deaths,”7 Congress feared DOJ’s “litigative efforts to protect the that those confined to state and local governmental-run institu- institutionalized [would] be paralyzed” without further action.8 tions, including jails and prisons, are not deprived of their basic CRIPA was designed to overcome this potential obstacle to civil civil rights. rights enforcement.

Passed in 1980, CRIPA expressly authorizes the Attorney Gen- CRIPA has 11 provisions, with sections addressing the Attorney eral to participate in and bring civil actions against state and local General’s authority to initiate actions on behalf of the United States governmental institutions that violate the constitutional or federal and certification requirements to initiate such actions,9 the right of statutory rights of their residents.3 For nearly a decade before CRI- the Attorney General to intervene in private actions implicating PA’s passage, DOJ had taken such action, both upon request by institutional harm,10 anti-retaliation protections,11 and various other

22 | JANUARY/FEBRUARY 2021 There are limitations to CRIPA. CRIPA does not authorize DOJ to address issues concerning federal facilities or federal officials.15 CRIPA does not authorize DOJ to represent individuals or recover monetary damages or obtain other individual relief. The statute does not create any new substantive rights; rather, it confers power on the Attorney General to bring litigation grounded in previously established constitutional or statutory rights of institutionalized people. Additionally, CRIPA’s protection of federal statutory rights does not cover people in jails and prisons; therefore, DOJ can review and seek relief for actions that violate only the constitutional rights of those confined to those institutions.16 Finally, evidence of harm to one individual, even if serious, is not enough to allow DOJ to take action. DOJ only has authority to address systemic patterns or practices that subject institutionalized persons to conditions that deprive them of their civil rights.17

DOJ’s Civil Rights Division, Special Litigation Section, is charged with enforcing CRIPA in jails and prisons. Increasingly, the Special Litigation Section investigates, resolves, and enforces these corrections matters in partnership with the U.S. Attorney’s Office where the jail or prison is located. The Department learns about possible civil rights violations through a variety of avenues. DOJ receives information through informal means like news reports, communications from whistleblowers, outreach from advocacy groups, or letters and calls from prisoners, their families, or other community members. DOJ may also learn of potential violations at a prison or jail through its investigations into other institutions or after being

12 notified by other federal agencies involved with an institution. Once requirements and disclaimers regarding the Act’s scope. This arti- DOJ has been notified of alleged wrongful conduct by a jail or cle will focus on civil rights actions brought by DOJ under CRIPA. prison, it conducts a preliminary inquiry to determine whether a pattern or practice investigation is warranted. CRIPA authorizes DOJ to protect the civil rights of people confined to residential institutions run by or on behalf of state or local If, following the preliminary inquiry, there is a reasonable belief governmental entities. This enforcement authority extends to jails that individuals in a jail or prison may be subjected to a pattern and prisons, pretrial detention facilities, juvenile correctional facil- or practice that deprives them of their constitutional rights, DOJ ities, nursing homes, and facilities for people with mental illness 13 may open an investigation. CRIPA requires DOJ to provide official, or intellectual and developmental disabilities. Where DOJ has a written notice to the appropriate representative with jurisdiction reasonable belief that individuals confined in a covered institution over the jail or prison seven days prior to commencing the inves- are subject to a pattern or practice that deprives them of their tigation.18 DOJ then seeks cooperation from the institution, and constitutional or federal statutory rights, CRIPA authorizes the conducts an investigation that is similar to fact discovery in liti- Department to initiate an investigation and, ultimately, bring an gation. These investigative steps may include touring the facility action seeking equitable relief to require the state or local institution 14 under investigation, requesting that parties produce relevant doc- to remedy the violations. uments, conducting interviews, and retaining expert consultants.

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Although institutions frequently choose to cooperate in the investi- filed under the statute.23 If the matter goes through trial, DOJ seeks gation, DOJ may also issue a civil subpoena to obtain the necessary equitable relief. Court-ordered agreements and equitable relief must information. comply with the Prison Litigation Reform Act (PLRA).24

Upon conclusion of its investigation, DOJ informs the institution, After either the parties enter into a negotiated agreement or DOJ in writing, of the results. If the investigation does not reveal a obtains court-ordered relief, DOJ monitors the agreement for com- pattern or practice that deprives incarcerated individuals of their pliance. Compliance enforcement ensures that remedies are actually constitutional rights, DOJ notifies the institution via a public implemented and reforms are sustainable. This phase may require document that it is closing its investigation. If, however, the evi- post-agreement litigation to obtain additional court-ordered reme- dence uncovered during DOJ’s investigation establishes a pattern dies, up to and including orders of contempt, appointment of special or practice of constitutional violations, DOJ sends the institution masters, and receivership. Subsequent prospective relief during the a CRIPA Notice Letter, a public document that details the infor- enforcement phase of a case also must comply with the PLRA. mation DOJ reviewed and its conclusions from the investigation. In the CRIPA Notice, DOJ outlines the identified deprivations of DOJ has used CRIPA to address systemic issues, including institu- rights, the conditions that cause the deprivations, and the facts that tional failure to protect prisoners from harm or inadequate facility support its assessment.19 CRIPA also requires that DOJ include in security; inappropriate prisoner classification and housing (includ- its notice the minimum remedial measures necessary to correct the ing isolation); inadequate measures to protect prisoners from sexual violations.20 The CRIPA Notice triggers a statutory 49-day waiting assault or harassment; inadequate medical and mental health care; period before the Department can file a complaint.21 inadequate suicide prevention measures; excessive force and inappropriate use of restraints by jail or prison staff; inadequate fire The Department then engages in negotiation and conciliation safety; and unsanitary and environmentally unsafe living condi- efforts and provides technical assistance to help jurisdictions correct tions.25 Although these categories encompass common conditions the identified conditions.22 In most cases, DOJ obtains remedies DOJ has addressed under CRIPA, any pattern or practice that through a negotiated settlement agreement with the jurisdiction. violates the constitutional rights of those confined to jails or prisons Only if these efforts fail may DOJ institute a civil action for equi- could serve as a basis for a CRIPA enforcement action. table relief necessary to correct the violations of rights. CRIPA requires the Attorney General to personally sign any complaint

24 | JANUARY/FEBRUARY 2021 Nationwide, DOJ’s enforcement of CRIPA has led to reduced use of force and restraints, reduced use of isolation, increased and better-trained staff, better security protocols, improved delivery of medical and mental health care, reduced overcrowding, and implementation of discharge planning services to facilitate prisoners’ 26 ABOUT THE AUTHOR transition back into the community. These improvements have not CARRIE B. POND only directly helped those confined to jails and prisons, but also the is an Assistant staff who work there and the surrounding communities by assisting United States Attorney for the East- former inmates with the transition into post-institution life. ern District of Kentucky, where she handles affirmative civil enforcement In Kentucky, DOJ has used CRIPA to address conditions in jails work primarily in the areas of health- including the provision of inadequate medical care, failures to pro- care fraud and civil rights. tect inmates from harm, and excessive use of force. For example, in 2005, DOJ found reasonable cause to believe that officials of the Grant County Detention Center in Williamstown, Ky., had not taken adequate steps to protect prisoners from harm and to provide medical care.27 As a result of DOJ’s investigation, the County agreed to implement remedial measures in an August 2009 letter ENDNOTES of agreement.28 More recently, DOJ issued a CRIPA Notice Letter 1 Nelson Mandela, Long Walk to Freedom: The Autobiography of Nelson Man- in February 2019 about conditions at the Boyd County Detention dela 201 (1994). Center in Catlettsburg, Ky., after concluding that there was reason- 2 42 U.S.C. § 1997 et seq. able cause to believe that the facility routinely subjects prisoners to 3 S.Rep. No. 96-416, at 3 (1980); H.R. Rep. No. 96-897, at 9 (1980). excessive force through the use of chemical agents, electronic con- 4 S.Rep. No. 96-416, at 1-3 (1980); H.R. Rep. No. 96-897, at 8-9 (1980). 5 United States v. Solomon et al., 563 F.2d 1121 (4th Cir. 1977). trol devices, and restraint chairs. DOJ also found reasonable cause to 6 United States v. Mattson et al., 600 F.2d 1295 (9th Cir. 1979). believe that the detention center routinely violates prisoners’ rights 7 Id., at 1297. to bodily privacy through its use of restraint chairs. These alleged 8 S.Rep. No. 96-416, at 3 (1980); H.R. Rep. No. 96-897, at 9 (1980). deficiencies, per the CRIPA Notice Letter, violated the Fourth, 9 42 U.S.C. §§ 1997a & 1997b. 29 10 Id. § 1997c. Eighth, and Fourteenth Amendments to the Constitution. 11 Id. § 1997d. 12 Id. § 1997 (definitional section), § 1997e (requirement that inmates seek- As CRIPA’s legislative history notes, individuals confined to insti- ing to bring § 1983 civil rights actions exhaust administrative remedies), tutions like jails and prisons are “uniquely unable to protect their 1997f (requiring annual report by Attorney General to Congress), § 1997g 30 (anticipating cooperation between federal, state, and local governments constitutional . . . rights without outside assistance.” Institution- and prioritization of federal funds to address civil rights violations), § alized individuals may not be aware of their legal rights, and those 1997h (requirement of notice to other federal agencies where institution who are may fear retaliation for asserting them. Those in jails and is federal funding recipient), § 1997i (disclaimer respecting standards of prisons are also physically isolated from family, friends, and other care), and § 1997j (disclaimer respecting private litigation). 13 42 U.S.C. § 1997(1). advocates who could help protect those rights, a fact which is 14 Id. § 1997a. exacerbated by the fact that jails and prison often are located in 15 See id. § 1997(1)(A). rural areas, far from population centers. Moreover, institutionalized 16 See id. §§ 1997a(a). individuals often do not have the monetary resources to finance 17 See id. 31 18 Id. § 1997b(a)(2). litigation to challenge systemic, institution-wide abuse. 19 See 42 U.S.C. § 1997b(a)(1)(A)-(C). 20 Id. § 1997b(a)(1)(C). CRIPA is a crucial tool for protecting the rights of a particularly 21 Id. § 1997b(a)(1). vulnerable population. DOJ uses information from community 22 See id. § 1997b(a)(2)(B) (requiring the Attorney General to certify conciliation efforts prior to filing suit) and (a)(2)(C) (requiring the Attorney members affected by civil rights violations to bring and pursue General to provide “reasonable time” to take appropriate action). cases, and the voice of the community is very important to the 23 42 U.S.C. § 1997a(c). agency. Those with information about potential civil rights vio- 24 18 U.S.C. § 3626. lations implicating CRIPA can contact the U.S. Attorney’s 25 For a list of corrections matters handled by the Special Litigation Section, please visit the Department’s website at https://www.justice.gov/crt/spe- Offices for the Eastern or Western Districts of Kentucky, or cial-litigation-section-cases-and-matters/download#corrections. reach out to the Civil Rights Division at (202) 514-3847 or via 26 Id. https://civilrights.justice.gov. 27 Available at https://www.justice.gov/sites/default/files/crt/legacy/2010/12/15/grant_county_findlet_5-18-05.pdf 28 https://www.justice.gov/crt/special-litigation-section-case-summaries/ download#grant-summ. 29 Available at https://www.justice.gov/crt/case-document/file/1135696/ download. 30 S.Rep. No. 96-416, at 19 (1980). 31 Id. at 19-21.

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book review: a u t h o r s t r a c e k e n t u c k y ’s uby n james d e p. rdady s i d e

“Hidden History of Kentucky Political Scandals,” Robert Schrage and John Schaaf, The History Press, 2020, 128 pages.

This new history of the commonwealth is a tour of the under- world of Kentucky politics where have dwelled the adventurer, the boodler, and the assassins who terminated a governor’s brief term. Among the portraits in the authors’ rogues gallery is the Rev- JAMES WILKINSON olutionary-era soldier-politico who was on the payroll of the Should the Frankfort thoroughfare named for this notorious fina- Spanish crown at the same time he held the second-highest gler be renamed?, wonders a co-author. rank in the U.S. Army. The consistent themes of Mr. Wilkinson’s life, history has deter- A nineteenth century state treasurer, called “Honest Dick” Tate, mined, were greed and disloyalty to the new republic he was sworn who absconded at the end of his tenure with his pockets bulg- as a soldier to serve. ing with the public’s money is another of the authors’ subjects. Born in Maryland in 1757, the son of a prominent merchant-planter, William Goebel remains a singular figure in the history of Mr. Wilkinson earned a medical degree in 1775 and served as a staff Kentucky, assassinated almost certainly by political rivals at officer to Gen. Nathanael Green in the Continental Army during the dawn of the twentieth century. The book tells his story in the siege of Boston. He negotiated the surrender of British General detail, as it has busied historians for 120 years. John Burgoyne at Saratoga in 1777. Deputized to report to Con- gress, Mr. Wilkinson inflated his role in the subduing of the British The book is especially informative on the complex of scandals forces. “His long history of deceit had begun,” the authors relate. that pervaded the General Assembly in the 1990s that came to be known as “BOPTROT.” Found to have conspired to replace George Washington as commander of the Army, Mr. Wilkinson was forced to resign. Some of the book’s more sensational chapters are discussed herein. Image courtesy of Arcadia Publishing.

26 | JANUARY/FEBRUARY 2021 He served for a time in the Pennsylvania militia, then emigrated meaningful oversight. He enjoyed friendly coverage for years from to Kentucky in 1784, perhaps calculating that his fortunes would the Democrats’ outriders in the press. “Tate is one of the clever- multiply on the frontier. No doubt charismatic and intelligent, Mr. est gentleman in Kentucky,” a fawning Louisville Daily Journal Wilkinson laid out Frankfort and helped it become incorporated by enthused in a front-page editorial in 1868. 4 act of the Virginia legislature. As Kentucky debated statehood, Mr. Wilkinson conspired in New Orleans with Esteban Miro Rodri- Mr. Tate dined at the public trough to finance investments in specu- guez, the Spanish governor, to add Kentucky to Spain’s colonial lative stocks, coal mines, and a plunge into the bourbon business, holdings. Mr. Wilkinson’s end of the deal, reduced to a writing, was which was booming in the 1880s. He also joined political allies in to be a handsome royal pension, control of shipping between Ken- starting up the Cincinnati News Journal, a Democratic paper. It tucky and Louisiana, and rank and position in the Spanish army. was probably a bad idea to try there, a resolutely Republican town until the 1970s. While on Spain’s payroll, Mr. Wilkinson led Kentucky volunteers in battles against indigenous peoples – Indians. On the strength By the mid-1880s, stories of Tate’s profligate spending and benef- of his reputation gained in the Indian wars, Mr. Wilkinson was icence to his favored acquaintances were circulating in the rumor appointed a brigadier general in the American army by President mill always churning in capital cities. A clamor for an audit of the Washington. He eventually became commander, all the while pass- treasurer’s accounts arose in a hostile quarter of the press including ing U.S. strategy and troop movements to the Spanish.1 papers in Louisville, Owensboro, and Henderson. Editorialists began to make sport of Mr. Tate’s nickname as he was renominated Mr. Wilkinson conspired with Aaron Burr to create an independent in 1885: country in the middle of the America continent. Then, fearing exposure, he turned on Mr. Burr, exposing Burr’s role in an effort “He got the nomination through the state Central to save himself. Executive Committee, and the reason why they thus dictate to the people is a question they should answer 5 Mr. Wilkinson served in the War of 1812, ineffectively according … The people ought to dictate a little bit.” to historians. He eventually faced an Army court-martial for his business with Mr. Burr and for his conniving with the Spanish, but Mr. Tate’s margin in his last race for treasurer in 1887 narrowed to was acquitted of all charges.2 20,000 votes. His probity was a major issue raised by Republican William O. Bradley in his campaign for governor. Posing as an agent for the American Bible Society. Mr. Wilkin- son travelled to Mexico in 1825. He died there in 1825. He had Pressure for an audit was building when on March 15, 1888, Mr. betrayed his country, his faith, and his military commission in his Tate boarded a train for Louisville. The next day he boarded one endless quest for booty. for Cincinnati, which was probably the last time he was seen in Kentucky. The investigators bored in on the treasurer’s accounts. 6 Of Wilkinson Theodore Roosevelt wrote, “In all our history, there “The chaos was kicking in,” the authors write. is no more despicable character.” One of the treasury employees testified later that on Mr. Tate’s last Historian Thomas Jewett wrote that Mr. Wilkinson was a “man day in office he was seen to “put an unusually large roll of money who lied and cheated his entire life.” 3 in his pocket,” along with a plush coin purse filled with gold, and two half-pound tobacco sacks filled with gold coin. HONEST DICK TATE A legislative review put Mr. Tate’s defalcation at $247,000, Kentucky State Treasurer for 20 years after the Civil War, James $6.7 million in 2020 money. In trials against his sureties, the loss W. Tate was given his nickname for the same reason huge men are was put at around $100,000 after collection of delinquent accounts called “Tiny.” and IOUs. The authors suggest that this amount is what Mr. Tate made off with. As he disappeared, he sent his wife Lucy $2,500, Born at the Forks of Elkhorn in 1831, Mr. Tate got his first job at which she promptly turned over to authorities. the post office in Frankfort at the age of 17, and held appointive jobs in state government while still in his twenties. The Democratic Over the next few months after he had vanished, Mr. Tate’s family Party was ascendant then, and Mr. Tate burnished his political received letters from him postmarked from Canada, Japan, China, credentials as a member of its state Central Committee. Nomi- and San Francisco. Rumors of Dick Tate sightings elsewhere nated for state treasurer at the party convention in 1867, he won abounded. His daughter Mona eventually brought suit to have in a landslide. Mr. Tate declared legally dead and thus make her eligible to collect on a life-insurance policy. Mona won the case, “Probably just as 7 Once elected, he assembled a cadre of influential friends with “Honest Dick” Tate had planned,” the authors say. loans and salary advances from the public till and thus avoided

BENCH & BAR | 27 features: JAILS

WILLIAM GOEBEL Briefly Kentucky’s chief executive at the dawn of the twentieth century, William Goebel remains the only sitting American governor to have been assassinated.

The dominant legislator in Frankfort of his era, Mr. Goebel attacked over-reaching corporate influence, sought stronger regulation of banks and the elimination of tolls on turn- pikes and bridges. Mr. Goebel as state senator representing Kenton County also supported better education, suffrage for women in school-board races, and better treatment for Black Kentuckians.

The son of German immigrants, Mr. Goebel did not speak English until he was six years old, but eventually was licensed as a lawyer. He partnered at different times in a Covington law firm with John White Stevenson8 and John G. Car- lisle. 9 Mr. Goebel learned the operations of his partners’ corporate clients and profited handsomely using this inside information practicing his cases – apparently the concept of a Chinese Wall had not yet been born. Mr. Goebel special- ized in suing the railroads, often the Louisville & Nashville Railroad, and claimed to have never lost a case against them. There is no doubt that he was an excellent lawyer. He was a very able speaker, and had a thorough knowledge of prece- dents and corporate and contract law.10

Perhaps the most significant Kentucky public figure of his time, Mr. Goebel was timid and awkward in the society of ladies, never married, and was seldom linked romantically with any woman. His life centered around his work. He retired at the end of the day to a little room with spare furnishings, a split-reed chair, a few pictures, a dresser, and two 10-pound dumbbells.11

Mr. Goebel was elected to the Kentucky Senate in 1887. He accu- Mr. Goebel’s domination of the General Assembly as the nine- mulated two things incessantly: legislative influence and mortal teenth century ended was unquestioned. His most notorious act was enemies. The combination earned him two less than flattering nick- the creation of what came to be called the Goebel Election Com- names: “Boss Bill” and the “Kenton King.” mission, a device seemed poised to deliver him victory in his race for governor with little regard for what the actual vote was to be. Never one to shrink from a confrontation, Mr. Goebel shot and killed a rival on a street in Covington in an impromptu duel Trailing in the reported vote, Mr. Goebel was officially declared after each had insulted the other in the most scandalous fashion governor on January 31, 1900, the day after he had sustained what imaginable. in a few days proved to be a fatal gunshot on the sidewalk in front of the old Capitol on Broadway.12 Foremost among his political adversaries were the chieftains of the L&N, who didn’t like Mr. Goebel in the first place for his habit of Who assassinated William Goebel? No simple answer can be given. winning legal cases against them. Mr. Goebel gave the L&N and The testimony is too unreliable, the partisanship too strong. Perjured corporations generally as good as he got. Campaigning for governor evidence was known at the time, and other sworn statements may in 1899, he declaimed in a speech in Danville, “I believe the railroad be equally faulty. As a writer for Harper’s Weekly wrote in 1900, companies should have a bit in their mouths and the Democratic “One side charges too much, the other side denies too much.” 13 Party should hold the bridle.”

28 | JANUARY/FEBRUARY 2021 The Goebel Affair is the most disturbing in Kentucky’s political Park in Henderson, which put the old Audubon Raceway, renamed history. The Republicans said, “They Stole the Election,” and the Riverside Downs, also in Henderson, at a decided competitive dis- Democrats answered, “They killed our Governor.”14 advantage. The principal owner heard an offer from a lobbyist that sounded too good to be true, or perhaps too true to be good, and A large statute depicting Mr. Goebel still stands on the lawn in the owner, M.L. Vaughn, called the FBI, which set in motion an front of the Old Capitol and a marker in place of a paver closer to elaborate series of sting operations. the building shows the place where he sustained the fatal wound. Also a subject of the sting was the sacrifice of legislative honor involving a multi-county banking bill. George L. Atkins, once the state auditor and a viable candidate for governor in 1979, was found to have improperly influenced debate of a bill of vital importance to Humana, the Louisville health care conglomerate.

In all, 17 current and former legislators were convicted of federal crimes, along with two important lobbyists, the Jockeys’ Guild, Inc., the owner of a southern Kentucky racetrack, and a governor’s nephew.

The trial of Donald Blandford, a former House Speaker, and the U.S. Attorney, produced this remarkable exchange: [Prosecutor Steve Pence]: Q. I believe you were quoted as saying you don’t think there is anything wrong with taking money from lobbyists as long as there is nothing, no promises made; is that right? Photos by Megan Couch. [Mr. Blandford]: A. That’s, that’s pretty accurate, yes … And again, now, it is in the mind of the beholder, I BOPTROT guess, whether it is wrong, but I think we are talking Mr. Schaaf, the co-author of the book, worked for more than four about what is legal here. decades as staff member and legal counsel in and around the Gen- Q. Okay. We, I’m going to get to that in a second. But eral Assembly, and the book’s rendering of the complex of scandals 15 didn’t you say after court the other day to the press, that became called BOPTROT is clear-eyed and free of cant. lobbyists can take, or I can take as much money from a lobbyist, it doesn’t make any difference, as long as The book traces the seeds of the scandal to the emerging indepen- I don’t promise anything in return, there is nothing dence of the legislature in the 1970s and 1980s. For generations wrong with that. Didn’t you say that? it had functioned as little more than an adjunct of the governor’s office. As legislators’ capacity to make decisions affecting substantial A. I said it was not a bribe. economic interests grew, they came under the increasing influence Q. Okay, in your mind. And there is nothing wrong of lobbyists who had formerly need ply their trade only with the with it? governor. A. No. In the 1980s lobbyists began to spend more time and money developing relationships with lawmakers. There was wining and dining Q. As a matter of fact, you did it plenty of times, of them in Frankfort and in sunnier locales such as Florida and didn’t you? Las Vegas. A. There is nothing illegal about it.

It is likely that many have legislators believed that they were under- Q. And did it plenty of times, took money from a appreciated and underpaid for the time spent away from their lobbyist when you didn’t promise them anything? families and their regular jobs. There were no clear rules on lobby- A. Yeah. ing and legislative ethics, and some legislators accepted lobbyists’ hospitality, including trips, meals, or even cash.16 Q. From Bill McBee (a lobbyist and former legislator). A. Yeah.17 Some untoward relationships developed concerning statutory changes affecting an off-track wagering concession granted to Ellis

BENCH & BAR | 29 features: JAILS

The 1993 General Assembly put strict limits on the value of hospitality that could be bestowed on individual legislators by lobbyists. The 2014 General Assembly enacted a ‘no cup of coffee’ rule, pro- ABOUT THE AUTHOR hibiting even de minimis gifts to legislators from lobbyists. The A regular contributor, JAMES P. reforms also required lobbyists to file comprehensive spending DADY is editor of the Bench & Bar reports six times a year, forbade campaign contributions from lob- and chairman of the Communications byists to legislators and legislative candidates. and Publications Committee. He lives in Bellevue, where he is chairman of its Also created by the reform legislation was a Legislatives Ethics Planning and Zoning Commission. Commission, which provides annual ethics seminars for legislators, training for lobbyists, and informal opinions about how ethics law 18 to legislators, lobbyists and the general public. GET YOUR COPY OF

Kentucky also has enacted an executive branch code of ethics the 1990s, and another set of them to cover local-government officials. HIDDEN HISTORY OF KENTUCKY POLITICAL SCANDALS In covering these reforms in detail, the authors conclude the book By Robert Schrage and John Schaaf with an optimistic tone. It is possible to rise above Kentucky’s history of official malfeasance and to make itself into a model of www.arcadiapublishing.com/Products/9781467145824 probity in government, they seem to be saying. ENDNOTES There is a good deal more to the book than is described here. It is 1 Text, at 21. recommended as a short course in what in Kentucky history lies 2 Kentucky Encyclopedia, University Press of Kentucky, 1992, at 955. 3 Text at 21. beneath the gauzy images of Lincoln, Clay, the towering twin spires 4 Text at 46. of Churchill Downs, and yearlings gamboling in sunny Bluegrass 5 Text at 48-49, citing the Hazel Green Herald, June 24, 1885. meadows. 6 Text at 54. 8 Mr. Stevenson had been a state representative, 7 Text at 55. lieutenant governor, governor, U.S. Senator, president of the American Bar Association, and a professor at the Cincinnati Law School. 9 Mr. Carlisle had been Speaker of the U.S. House, a U.S. Senator, and Secretary of the Treasury. 10 Text at 57. 11 “William Goebel: The Politics of Wrath,” James C. Klotter, University Press of Kentucky, 1977, P. 9. 12 The story of the improbable 1899 election and its bloody aftermath is as sensational as any in the history of the commonwealth but is too complicated and lengthy to be told here. The authors render it capably. The authoritative treatment remains Mr. Klotter’s, which is digested well in the Kentucky Encyclopedia and in “A New History of Kentucky, Second Edition,” Mr. Klotter and Craig Thompson Friend, University Press of Kentucky, 2018, pp. 259-262. Also, “A History of Kentucky,” Thomas D. Clark, The Jesse Stuart Founda- tion, 1988, pp. 433-446, and the Goebel entry in the Encyclopedia of Northern Kentucky, University Press, 2009, pp. 405-407, also by Prof. Klotter. 13 Prof. Klotter, “The Politics of Wrath,” p. 124. 14 Prof. Clark’s “History of Kentucky,” p. 442. 15 The sobriquet ‘BOPTROT’ was a creation of the FBI. It is a play on the name of the House Business Organizations and Professions Committee that had jurisdiction over racing issues; ‘trot’ is shorthand for a form of racing conducted at Riverside Downs. 16 Text at 83-84. 17 Text at 92-93, citing United States v. Blandford (6th Cir. 1994) 33 F.3d 685, 691. 18 Text at 103-04.

30 | JANUARY/FEBRUARY 2021 BENCH & BAR | 31 COLUMNS

LEGAL FOOD FRENZY: KENTUCKY LAWYERS COMPETE TO FIGHT HUNGER BY MIRANDA D. CLICK, YLD CHAIR

Currently, one in six adults and one in During that time, law firms, legal offices, counted for the competition. Winners will five children in the Commonwealth of government offices, and law schools from be announced April 12, 2021. Kentucky struggle with food insecurity, across the Commonwealth will engage in making our state ranked 8th highest in the a friendly competition to raise food and Awards will be presented to the winners of nation in food insecurity. Food insecurity money for Kentucky’s food banks. We the following categories: means facing the choice between paying for encourage every member of the KBA to GRAND PRIZE - medicine, electricity, or food. Hunger can take part in this two week competition. No affect people from all walks of life…your donation is too small. Law firms and legal ATTORNEY GENERAL’S CUP: neighbor, your child’s classmate, or even organizations can sign up online for the Awarded based on most pounds or a co-worker. Many Kentuckians are one Legal Food Frenzy now at www.kyfood- pounds equivalent overall. job loss or medical crisis away from food frenzy.com. Once you sign up, each firm or organization will designate a team leader insecurity. That is truer than ever as many BAR PRESIDENT’S AWARD: Kentuckians have lost their jobs or are in to promote the competition within their Awarded based on most pounds or financial crisis as a result of the pandemic. organization and coordinate food dona- pounds equivalent per attorney overall. Feeding Kentucky (formerly the Kentucky tion drop-offs with their local food bank. Association of Food Banks) distributed the Your firm’s donations go directly toward KBA SUPREME COURT equivalent of 72 million meals across the supporting your area’s local food bank. If Commonwealth in 2019 and has reported you signed up before February 1, 2021, your DISTRICT: a substantial increase in need in 2020 as the team received 100 bonus pounds to your Awarded based on most pounds or pandemic continues to escalate. Simply put, total! If 100 percent of all attorneys and pounds equivalent per attorney. the need for donations to fight hunger has staff in your firm or legal group participate never been greater. in the campaign, your team will also receive 100 bonus pounds. COMMITTEE CHAIRS: The good news is attorneys in Kentucky can Legal Food Frenzy help! The KBA Young Lawyers Division is During the Legal Food Frenzy Campaign, excited to partner with Feeding Kentucky food donations will be welcomed, although DANIEL CAMERON and Attorney General Daniel Cameron financial donations are encouraged because Attorney General in Kentucky’s Fifth Annual hunger relief Feeding Kentucky can acquire healthy effort- The Legal Food Frenzy! Last year, nutritional food at deeply discounted rates. MIRANDA CLICK the Food Frenzy was a success, raising the Financial donations can be made online at YLD Chair equivalent of 300,000 meals for food banks. the Legal Food Frenzy website or by cash This year, we are asking the legal commu- or check. This year we will be recogniz- WHITNEY WILGUS nity to come together and do even more to ing any individual who donates $100 or Feeding Kentucky fight hunger, setting the goal of the equiv- more as a VIP on the Legal Food Frenzy alent of 400,000 pounds of food or $50,000 website, social media, and in the Bench & SARAH MCKENNA YLD donated through the Legal Food Frenzy Bar Magazine. As stated above, the cam- Campaign. paign runs through March 15th and all JANET LUO donations must be received by the food YLD The Legal Food Frenzy Campaign will bank on or before March 22, 2021 to be run from March 1, 2021-March 15, 2021. KRISTA LOCKE Office of Attorney General 32 | JANUARY/FEBRUARY 2021 T H E FOOD D R IVE OF T H E K ENTUCKY BAR AS S O C I ATION ALL PROCEEDS TO BENEFIT FEEDING KENTUCKY

SIGNUP NOW DONATIONS COLLECTED MARCH 1-15, 2021

ATTORNEY GENERAL CUP AWARDED TO THE WINNER ON APRIL 12, 2021 LAW SCHOOL: Awarded based on most pounds or pounds equivalent collected.

BROUGHT TO YOU BY CORPORATE LEGAL NS IA K DEPARTMENT: C U Awarded based on most pounds or T

E IS COMPRISED OF 7 REGIONAL

pounds equivalent collected. K FOOD BANKS THAT DISTRIBUTE FOOD TO ALL 120 COUNTIES LOCATED IN KENTUCKY GOVERNMENT ENTITY: Awarded based on most pounds or pounds equivalent collected.

SOLO LAW FIRMS (1 – 3 ATTORNEYS): Awarded based on most pounds or pounds equivalent per attorney.

SMALL LAW FIRMS (4 – 10 ATTORNEYS): Awarded based on most pounds or pounds equivalent per attorney. A HUGE THANK YOU TO OUR SPONSORS MID-SIZED LAW FIRMS (11 – 49 ATTORNEYS): Awarded based on most pounds or pounds equivalent per attorney. The winning law firms and legal organizations will receive recognition at the 2021 Annual Convention and will be recognized in the Bench & Bar. The law firm or legal organization LARGE LAW FIRMS that raises the most overall total pounds will be awarded the prestigious Attorney Gen- (50+ ATTORNEYS): eral’s Cup! Additionally, this year we have added the Bar President’s Award for the group Awarded based on most pounds who donates the most pounds or pounds equivalent per attorney in their group! Most or pounds equivalent per attorney. importantly, the support of attorneys across the Commonwealth will help bring Kentucky (An individual office of a large firm one step closer to ensuring that all of its citizens have access to adequate food. If every will compete on its own rather than attorney in Kentucky gave as little as five dollars, we could double our goal! Please find it having donations from each office in your heart to give what you can to help fight hunger. I can’t think of a better goal for our combined into one firm total). organization and I trust that you will help us make this our best Legal Food Frenzy yet!

BENCH & BAR | 33 COLUMNS

The Boone County Jail Immigration Dentetion Project: Unseen Threats from COVID-19 BY DEAN COLIN CRAWFORD

rofessor Enid Trucios-Haynes – a involved in since I came to Kentucky. It professor of, among other things, serves a population in crisis, in urgent need Pconstitutional and immigration of representation and support.” law – came from New York to join the faculty of the Brandeis School of Law in The efforts of Professor Trucios-Haynes 1993. In New York, her practice included and her student volunteers has also involved pro bono representation of asylum seekers. additional support for the Boone County As a result, she knew the challenges faced Jail Immigration Detention Project, posting by immigrants and refugees and sought multi-lingual “Know Your Rights” infor- involvement in Louisville similar to the mation online, along with web videos and work she’d done in New York. Now for other resources. All of this can be found nearly 10 years, Professor Trucios-Haynes on the website of the School of Law’s has worked with community volunteers Human Rights Advocacy Program, which and students to defend the rights of the Trucios-Haynes founded. detained immigrant population at what was for many years Kentucky’s only immigrant Ryan Cannon, a third-year student at detention facility, the Boone County Jail. Brandeis who will graduate in May 2021, echoes his professor’s sentiments about the The Boone County Jail Immigration value of the project: “I found this work a Detention Project was born in 2011, when welcome, real-world component added to Professor Trucios-Haynes was approached the curriculum.” However, Cannon, who in 2011 by Brandeis graduate Becca O’Neill intends to pursue a career in public interest to join an effort to help detainees in Boone law, added that “I also found it profoundly County. For many years, this work involved sad. I went several times, and the lack of monthly trips from Louisville to Boone humanity was horrifying. The detainees County with other volunteer lawyers, law were placed in over-crowded cells, and students and community members. these were not violent criminals. The conditions were inhumane. The detainees were The days were grueling. Louisville-based being forced to sign documents in English volunteers had to hit the road at 6:00 a.m. when they didn’t speak English. The expe- to be able to enter the jail by 8:00 a.m. rience saddened me because it revealed our Once inside, the volunteers would first failure to live up to our ideals as a country.” give a presentation for all new detainees But he also said that “at least we were able about their rights – in both English and to speak with the detainees and document Spanish (the majority of the detainees in their information and send it to activists Boone County, Trucios-Haynes reports, are nationally working for detention reform. Mexican nationals.) For the remainder of I hope this will help contribute to better the day, they would then meet individu- conditions in the future.” ally with detainees to discuss their cases, gather their concerns and, when neces- Cannon elaborated, indicating that he sary, represent their interests with the learned important lessons working with the jail authorities. Despite the physical and Boone County Jail Immigration Detention emotional demands of the visits, however, Project that he intends to take into practice Professor Trucios-Haynes reports that “the following graduation: “the severity of the Boone County Jail Immigration Detention conditions that I saw these people had to Project work has been among the most tolerate – crowded and being seldom able gratifying and important efforts I’ve been to bathe, separated from their families

34 | JANUARY/FEBRUARY 2021 and in great distress - made a powerful witness to the conditions they endure and in which the federal Immigration and impression. I realized that to serve those engaging in advocacy to improve the sit- Customs Enforcement (ICE) agency’s han- most in need it is essential to get out and uation. As a consequence, the web-based dling of detainees like those held in Boone see what they are going through up close. materials Trucios-Haynes and her team County has contributed to the spread of I had shadowed Legal Aid attorneys visit- have prepared and posted are more import- Covid-19, precisely because of the squalid ing their clients, but what I saw in Boone ant than ever. conditions described to me by Professor County was much more disturbing.” Trucios-Haynes and Ryan Cannon. The crowded jail conditions raise additional However, the in-person visits that have cause for concern. Specifically, they create “And the spread is not just in the facilities,” been a regular part of the work of Profes- a petri dish for Covid-19 infection, caus- Professor Trucios-Haynes explained to me. sor Trucios-Haynes and other volunteers, ing yet more concern for Trucios-Haynes “ICE guards and jail authorities responsi- like most everything else in our lives, had and her fellow volunteers. Trucios-Haynes ble for the detainees expose them to the to pivot to a different mode of service from directed me to a report prepared by the deadly virus, and carry the infection out- March 2020, as the Covid-19 pandemic Detention Watch Network, “a national coa- side of the facility, creating a deadly spiral swept across the country. Since then, jail lition of organizations and individuals” that of infection. So ICE and jail employees authorities have not permitted volunteers has, since 1997, undertaken to build “power also bring the virus back to their com- to enter. This is of great concern to Tru- through collective advocacy, grassroots munities.” She continued to observe that cios-Haynes and her fellow volunteers; the organizing, and strategic communica- high infection rates ICE detention facili- detainees’ civil rights continue to hang in tions to abolish immigration detention in ties are among the highest in the country. the balance, and the ban on visits prevents the United States. The Detention Watch An October 2020 article in the Journal of the volunteers from educating detainees Network recently released a report, “Hot- the American Medical Association doc- about their rights, not to mention bearing beds of Infection,” documenting the ways umented that from April to August of 2020, the positivity rates reported at ICE detention facilities was consistently much higher than the positive test results among the general population. In May 2020, for example, the reported positivity rate for those in ICE detention was a staggering 52%. That month, the comparable rate for the general population was 7%.

Litigation Support, As a result, the need to help and advocate for the detained population remains high, Valuation, and and the Boone County Jail Immigrant Detention Project continues to welcome Financial Forensics volunteers. If you are interested, please Billy Upchurch email Professor Trucios-Haynes: ethaynes@ CPA/ABV/CFF, CFE, CVA louisville.edu. In the subject line of your email, please write “Boone County.”

Credentialed Flemingsburg Louisville Richmond Lexington Maysville

Chris Hatcher CPA/CFF, CFE, CVA, CGMA 866.287.9604 www.baldwincpas.com

BENCH & BAR | 35 COLUMNS

CHASE IS ADDING AN ONLINE MASTER OF LEGAL STUDIES TRACK

hase College of Law this year will • WHERE LAW AND TECHNOLOGY MERGE: While courses will have definitely combine traditional legal concepts digital applications, they will be built on a traditionally legal foundation. The course Cand cyberspace issues in an exclu- Digital Crimes & Torts, for example, will begin where any law school class in those sively online Master of Legal Studies courses would begin, with introductions to what constitutes a crime or a tort. By degree track. knowing what a theft is, for example – whether from a brick-and-mortar store or an online store – students could then explore how elements of crimes may or may The Digital Law and Technology track not be recognizable, or need to be redefined, as digital crimes, such as cyberstalking, within the graduate-level degree pro- cyberbullying or cyberterrorism. gram for students who want to be able to understand legal issues but do not want to • POTENTIAL STUDENTS: The overall MLS program, both in digital and in-per- become lawyers will concentrate on the son formats, is designed to allow students to create a course of study they think intersection of law and technology with will be most valuable in their careers. Students can be as general or focused in courses such as Digital Crimes and Torts, their approaches as they wish. In the digital law track, for example, a student who Legal Boundaries in the Digital Age and works for a company with significant online functions, or who wants a job with one, Digital Commerce and the Law. could concentrate on courses related to data privacy and security. Another student, perhaps one with a job in sales or who has an entrepreneurial desire to become an “In today’s high-tech world, knowing both online retailer, might choose courses focused on digital commerce. Others, such as the available technology and the laws that business executives or consultants, might opt for a mix of courses to gain a general apply to it is essential,” says Lawrence understanding of law and technology issues. Rosenthal, associate dean for academ- ics. “There is a technology (and legal) • NOW AND THE FUTURE: The online track will provide students with skills they component behind almost everything can use now and also can apply within developing technologies, such as blockchain, in these days, and knowing that information which information is stored in blocks that are chained together, Artificial Intelligence, will be tremendously advantageous in the self-driving vehicles and the Internet of Things, which connects everyday devices. workplace.” • PART OF AN OVERALL PLAN: The online Digital Law and Technology track Students will be able to complete the online will be one of the few programs of its type at an American Bar Association-approved track in 10 to 20 months, depending on law school, and will complement law-and-technology programs for Juris Doctor how many courses they take each of six students at Chase. academic terms annually in the online program. The seven-week terms will allow Chase created the W. Bruce Lunsford Academy for Law, Business + Technology eight students to enter the program or to take years ago with a gift from alumnus W. Bruce Lunsford to prepare students for practices breaks as they choose. A first term, for in those merging fields. Another Chase program, the Law + Informatics Institute, focuses example, could include an online version on legal issues of privacy and data security. of the traditional law school course Legal Analysis and Problem Solving and the The online Digital Law and Technology track will give students, in effect, three ways in cyberspace-focused course Digital Crimes which to earn an MLS degree at Chase: all online, all in-person in traditional law school and Torts. A subsequent term might have courses or a combination of traditional in-person classes and online digital law courses. courses such as Digital Commerce and the Law, Law for Entrepreneurs or Seminar in Technology Law.

36 | JANUARY/FEBRUARY 2021

COLUMNS

HOSTS SPECIAL EVENTS TO MARK ANNIVERSARY OF 19TH AMENDMENT

he University of Kentucky J. David Rosenberg College of At the kickoff event, Roula Allouch, a 2006 graduate of UK Rosen- Law engaged students, faculty, staff, alumni, and others berg Law and a member of the ABA Commission on the 19th Tin discussions about equality and voting through a series Amendment, introduced the traveling exhibit. Allouch said ABA of events in October commemorating the centennial of the 19th President Judy Perry Martinez created the special commission in Amendment. part to celebrate the 100 years of women’s constitutional right to vote but also to educate the public about the battle for women’s In addition, the law school had the privilege of housing for two suffrage. The exhibit allows viewers to follow, step by step, the pro- weeks "100 Years After the 19th Amendment: Their Legacy, and cess to the ratification of the 19th Amendment. Our Future,” a traveling exhibit created by the American Bar Asso- ciation Standing Committee on the Law Library of Congress. “As I reflect on bringing this exhibit to my home law school The six-banner, free-standing exhibit features historic photos and and fellow Kentuckians, I think it gives us an opportunity to artifacts, and it details the story of the battle for ratification and commemorate and celebrate because it’s important to celebrate outlines the challenges that remain. Since late 2019, the exhibit has accomplishments. But it’s also important to recognize what the 19th traveled from state to state, stopping at law schools, courthouses, Amendment’s limitations were and what it didn’t do in particular and libraries across the country. for black women and women of color,” Allouch said.

The 19th Amendment celebration at UK Rosenberg Law included Allouch’s parents were originally from Syria, a country in a civil a trivia night hosted by the Women’s Law Caucus student organi- war as people struggle for the right to participate in their country, zation; a discussion about the history of women at the University communities and democracy. Allouch said it is important to not of Kentucky by the UK Women and Philanthropy Network; a only recognize what others did in the past but also move forward conversation about voting rights with Joshua A. Douglas, Ashland, as some communities continue to face voter suppression and voting Inc.-Spears Distinguished Research Professor of Law; and a talk rights challenges. about the history of the passage of the 19th Amendment by Pro- fessor Emerita Carolyn S. Bratt. “While I’ve recognized that struggle happening in my parent’s homeland of Syria, as I look around, I see the struggle continuing Law Library staff created a comprehensive website to in my own country, the United States of America,” Allouch said. accompany the ABA 19th Amendment Traveling Exhibit: https://library.law.uky.edu/19thamendment/home Melanie Goan, a UK associate professor of history and a Kentucky Women Suffrage Project volunteer, said she has never thought so carefully about how to cast her ballot to ensure that her wishes are registered.

38 | JANUARY/FEBRUARY 2021 “If you have been following the news lately at all, it has been impos- For many black women, the fight was about the survival of their sible to miss the anxiety that Americans are feeling about voting communities – about life or death, Murphy said. “For black women, right now. … So, this makes it a really good time to think about the fight for the right to vote meant voting for a country that the history of voting,” Goan said. would address issues surrounding job training, address issues around equal pay and educational opportunities for their communities. For Fayette District Court Judge Melissa Murphy, a 2001 graduate of black women, the fight for the right to vote meant that they would the law school, paid tribute to the black women who fought in the elect representatives and leaders and local officials who would not suffrage movement but have been forgotten in the history books. condone and would not support the killing and lynching of their At the time, many white women did not see these women as equal fathers and their brothers and their husbands.” and thought including black women in the movement would hurt the cause. The Voting Rights Act of 1965 finally made voting an “unhindered and unfettered reality for all,” said Murphy, who noted that she has “I think many of us can attest that through our elementary and the right to vote and to run for office because of these black women. secondary education, there were only two names that were ever discussed when we talked about the 19th Amendment. We talked “This work is unfinished,” Murphy said. “There are still far too about Susan B. Anthony and we talked about Elizabeth Cady Stan- many people who have been disenfranchised and counted out of ton,” Murphy said. our voting process. Let us who stand because of the voices of these women not forget that, without their work, our voices would be Murphy said she later learned about the numerous black women silenced, too.” – including Mary Virginia Cook Parrish of Bowling Green and Mary Ellen Britton of Lexington – who played a part in the suffrage movement “and I realized how much I owe a debt of gratitude to the work that they continue to do.”

BENCH & BAR | 39 EFFECTIVE LEGAL WRITING Watch

BY SHAVONN IE C AR TH Aim for Professional E yourN S Toneand Approachable – ffective, and well received, legal writ- your audience. Acknowledging the unique until you can write a legal memo that uses ing reflects a concern for mechanical perspectives of your audience members will a friendly tone. Embrace the steps you need achievement. We might applaud our help you craft your legal communication to take to approach your writing without usageE of active voice, avoidance of gram- with a tone that is more likely to be well being condescending, confrontational mar errors, and mastery of clear and concise received. without professional purpose, or lacking in sentence structure. While it is appropriate civilized language. A legal communication to concern ourselves with these technical- Second, maintain a professional tone. Even that is blemished by a tone infused with ities, I would warn any legal writer against if you have an informal relationship with biases, crassness, or vitriol, is unlikely to be neglecting the artful aspects of striking the your colleagues or clients, there is still an accepted by your audience. Without the appropriate tone. Novice and seasoned legal expectation that legal communications will proper tone, an otherwise perfect piece of writers should aim to achieve a tone that is be written in a professional tone. Profes- legal writing, will fail to successfully com- both professional and approachable. sionalism shouldn’t be sacrificed at the feet municate legal information to your target of familiarity. audience. First, remember your audience. People have unique experiences, backgrounds, and Preserving a professional tone will also ABOUT THE lenses through which they will interpret require that you evaluate your distinc- AUTHOR legal communications. Your target audience tive personality and sense of humor. It is SHAVONNIE could come from an economic, educational, important to assess whether your writing CARTHENS is or cultural background that is quite differ- style and personal anecdotes tarnish the an Assistant Pro- ent from your own. For example, a common value of your writing. Written communi- fessor of Law at greeting that is used in your professional cations lack the verbal cues that help us the University of community might drastically depart from understand intent, meaning, and purpose. Louisville, Louis acceptable greetings in your client’s culture. The humor that entertains your in-per- D. Brandeis In addition, when speaking to a layperson, son audience may fall flat when written. School of Law. you will need to dispense with legal termi- Even worse, without context and verbal She teaches nology that they haven’t been exposed to. cues, those same jokes may be perceived Lawyering Skills I and II. Professor There may even be slight variances in tone as offensive or unprofessional. To alleviate Carthens obtained a J.D. at North when writing to different recipients. For these types of misunderstandings opt for a Carolina Central University School example, you could take on a slightly more tone that is interesting, but neutral. of Law, and her B.A. at the Univer- casual tone when speaking to a long-time sity of North Carolina at Chapel Hill. colleague than you would with a judge. Lastly, strive to be self-aware and divorce Prior to joining the faculty at the your personal opinions and biases from your University of Louisville, she taught Becoming a competent legal writer, dare I tone. The goal of legal writing is to commu- bar preparation and legal writing say competent attorney, requires that you nicate with others. If you are a having a bad at St. Mary’s University School of learn about the world that your audience day, then you might want to delay writing Law in San Antonio, Texas, served members inhabit. When armed with a to your client until you can proceed with a as an Academic and Bar Support greater understanding of your readers you more patient and educational tone. If you Skills Instructor at Elon University will be able to adapt your writing style and had a heated disagreement with a colleague School of Law in Greensboro, N.C., language to better connect with and serve I advise you to pause, and take a breath, and worked in private practice in the Washington, D.C. area. 40 | JANUARY/FEBRUARY 2021 LAW PRACTICE MANAGEMENT

BY STEPHEN EMBRY HOW TO KNOCK DOWN Law Firm Silos I've been re-reading Walter Isaacson's collected and then analyzed. Given the allows you to maintain your independence. biography of Steve Jobs. I know there are obvious truth of this, why is it so hard to criticisms of the book, but Isaacson is a implement? Why are law firm silos so hard To break down silos, law firm leaders good writer/storyteller. From the book, I to break down? How can firm leadership be simply must have a driving vision that realized Jobs engineered a return of Apple more effective? will enable partners to trust leadership to dominance by doing two things really more than be self-focused. Leadership must well. He forced the organization to make First, most lawyers are at their core skep- show commitment to getting and servic- decisions quickly without endless debate. tical and fiercely independent by nature. ing clients and eliminate all other agendas. And compensation decisions are a zero- To succeed, especially in the future as data Second, the organization was decentralized. sum game: award one partner higher becomes more important, like Job's Apple, There weren't silos or profit centers. These compensation means other partners have every decision a law firm makes should be attributes let Apple get ahead even though to make less. made using the mission of getting and serv- it made mistakes along the way. ing clients as the lodestar. Second, in most firms, law partner com- Of course, Apple was able to do these pensation is largely governed by origination Leadership has to earn the trust of its things because Jobs forced the whole orga- credits. The partner who brings in the partners. Leadership has to recognize that nization to work together for the good of client typically gets the lion share of the collaboration and cooperation can't detract the whole organization. He had a vision for origination credits for that client. In many from the overall mission of getting and the organization—to make high qualitative firms, the most significant factor govern- keeping good clients. That sometimes, client usable products—to which he and Apple ing partner compensation is the amount of and marketing decisions made by commit- relentlessly adhered. origination credits. This hinders coopera- tee can bog down efforts to get business. tion and sharing of information. Leadership that fails to recognize that some I thought about these characteristics and partners are just better at getting business how they often play out in law firms par- Add the fact that in today’s world many than others and need to be heard will alien- ticularly given the huge amount of data partners view their only real insurance of ate those who can best get business. available within a law firm. All too often, maintaining their clients and compensation though, this data is unfortunately hidden is their origination credit. Higher origina- It must make and enforce decisions that away in silos: firms could better manage tion credits mean you can pack up and leave advance that mission and allow quick deci- themselves if all the data in the silos were the firm for greener pastures if need be. It sion making where necessary. Which brings the best business development partners to ABOUT THE AUTHOR the table on marketing efforts and lets STEPHEN EMBRY them do their thing. That brings the best is a frequent speaker, blogger and writer. and right partners to the table to best serve He is publisher of TechLaw Crossroads, a blog devoted to the client. That harnesses the resources to the examination of the tension between technology, the law solve the client's problems. And rewards and the practice of law. He is also co-author of a book enti- those best players. tled, “Mass Tort Claims Resolution Facilities,” and the 2020, 2017 and 2016 editions of the American Bar Association’s By relentlessly focusing on the true “TechReports.” He also serves as vice chair of the ABA Law missions-getting and servicing clients, lead- Practice Division. Formerly a member of Frost Brown Todd ership can knock down lawyer silos. LLC and the firm's class action, privacy and mass tort groups, he is a national litigator and advisor who is experienced in developing solutions to complex litigation and corporate problems. He now practices with his own firm, embryLaw LLC. BENCH & BAR | 41 BAR NEWS

summary of minutes kba BOARD OF GOVERNORS MEETING • SEPTEMBER 18, 2020

The Board of Governors met on Friday, • Heard status reports from the FY 2021-2022 Budget & Finance Committee September 18, 2020. Officers and Bar and Rules Committee. Governors in attendance were, President T. Kerrick, President-Elect J. Meyer, • KBA Chief Bar Counsel Jane Herrick presented the history of Bar Counsel, Vice President A. Cubbage, Immediate as well as the annual discipline report. Past President S. Smith, Young Lawyers • 2021 Annual Convention Planning Committee Co-Chairs Amelia Adams Division Chair M. Click and Young and Matthew Cook reported that planning is going very well. The convention Lawyers Division Chair-Elect M. Keane. will be the first large convention at the newly renovated Central Bank Center. Bar Governors 1st District – J. Sigler, nd Ms. Adams reported that the Committee has secured several speakers includ- V. Sims; 2 District – M. Cook, S. Mon- ing James Carville and Mary Matalin, as well as Jay Bilas. A contribution of talvo-Gesser; 3rd District D. Benge, J. th $7,000 has been received from the United States District Court for the East- Ridings; 4 District – S. Phillips, J. ern and Western Districts of Kentucky. Mr. Cook asked the Board to spread Watkins; 5th District – A. Adams, M. th the word on the event, as they are hoping to have the highest attendance on Barfield; 6 District – J. Gatherwright, record. T. McMurtry; and 7th District – R. Blackburn, W. Hall. • Young Lawyers Division (YLD) Chair Miranda Click reported that the YLD was off to a great start. She indicated that they were working on a spotlight In Executive Session, the Board of Gov- series on social media which highlights the good works of YLD members in ernors considered two (2) disciplinary the community. She also reported that a Health and Wellness Committee default cases, involving one attorney. had been formed with YLD and that they were working with their members Judy McBrayer Campbell of Frankfort, to get something to each district. She indicated that YLD had been slated to Greg Caudill of Danville, Callie Foster have several programs on the schedule for the May 2021 KBA Annual Con- of Paducah and Dr. Leon Mooneyhan of vention. She closed with a brief report on the Legal Food Frenzy. Shelbyville non-lawyer members serving Approved proposed ethics opinion regarding the ethical duties of lawyers de- on the Board pursuant to SCR 3.375 par- • fending insured clients without separate retained counsel for the client where ticipated in the deliberations. insurance carriers have reserved rights to coverage defenses and intervene to determine those rights in the same or separate litigation. In Regular Session, the Board of Gover- nors conducted the following business: • Immediate Past President Steve Smith reported a small reception will be held at Hotel Covington to present awards to the distinguished award recipients from 2020 and honor the bar governors that recently retired from the Board on June 30, 2020. Hotel Covington was selected for the event due to a previous contract with them for an event for the 2020 Annual Convention. • Ratified the vote to approve retired Kentucky Supreme Court Justice Daniel Venters to serve as Chair of the Clients’ Security Fund for FY 2020-2021. • President Tom Kerrick reported he is continuing to work on scheduling a version of a townhall meeting with each district. He reported that most people are not ready to get out to attend an in-person event. President Kerrick indicated that other bar associations are having success with virtual meetings and he will be working to schedule virtual meetings with each district to discuss the KBA, its departments and the Board, and then open it up for questions. He is working to form a planning committee and will work on a program for the events.

42 | JANUARY/FEBRUARY 2021 Address or e-mail changes?! Notify the Kentucky Bar Association • President Kerrick reported that he recognizes that the legal profession is at Over 19,000 attorneys are licensed a crossroads and would like to focus on the health and well-being of our attorneys by providing avenues for relief for various crises attorneys face across to practice in the state of Kentucky. the state. He reported that he will be creating district well-being committees It is vitally important that you keep which will be separate from the statewide initiative that the KBA Well-Being the Kentucky Bar Association KBA Committee focuses on. The district committees aim to focus on the specific informed of your correct mailing needs of members in each individual district, as the needs could vary in each address. Pursuant to SCR .0, all region. Each committee will work to promote health and well-being initia- KBA members must maintain a current tives to members in their area, while listening to local attorneys on what they address at which he or she may be need to lead a healthier lifestyle. communicated, as well as a physical • Presentations were made by IPSCO and Mercer in providing group health- address if your mailing address is a care coverage for KBA members. Post Office address. If you move, you must notify the Executive Director of • Approved one disabled inactive status request pursuant to SCR 3.030(6)(a). the KBA within 10 days. All roster • Executive Director John Meyers reported the Bar Center is still closed to changes must be in writing and must the public because of COVID-19. He reported that he has not received include your -digit KBA member any complaints from the members or the public. Departments are rotating identification number. staff into the building to complete tasks. He indicated that most section and committee meetings were being held virtually. Mr. Meyers reported that he Members are also reuired by is continuing to monitor the school systems and COVID cases in the area SCR .0 to maintain with the and that there is not a reopening date currently set. He also indicated that Director a uniue, valid email address this is similar to many other bar associations. Mr. Meyers reported that he and shall upon change of that address will continue to work with HRG on a reopening plan. notify the Director within 10 days of • Mr. Meyers reported that the KLEO Summer Institute was held remote- the new address. Members who are ly, and that Professor Allison Connelly indicated that it was a success. He classified as a “Senior Retired Inactive” reported that Lawyers Mutual Insurance of Kentucky (LMICK) had just or “Disabled Inactive” member are not announced that it would provide $10,000 a year for three years to KLEO. reuired to maintain a valid email Mr. Meyers also reported that they are still in the process of setting up the address on file and those “Honorary” KLEO Foundation. members who no longer actively practice law or maintain an office. • Approved the total reserve/surplus carry forward of 26 sections and the Young Lawyers Division fund for fiscal year ending on June 30, 2020. here are seeral ways to udate • Mr. Meyers reported that the CLE Annual Report included in their materi- your address andor email or your als was prepared by Director for CLE Mary Beth Cutter. oneniene.

Online: Visit www.kyar.or to make changes online by logging into the website and editing your proﬁle.

kba members Form: Complete the Address Do you have a matter to discuss with the Chanesdates form found at KBA’s Board of Governors? www.kyar.or, under the or Memers tab, Memers Reuest, Board meetings To schedule a time on the Board’s Address Chanesdates. Email are scheduled on agenda at one of these meetings, completed form to jcheekkybar.org please contact John Meyers or OR mail to March 19, 2021 Melissa Blackwell at Kentucky Bar Association, May 11, 2021 (502) 564-3795. Executive Director 1 W. Main St., Frankfort, KY 001-112

*Announcements sent to the Bench & Bar’s Who, What, When & Where column or communication with other departments other than the Executive Director do not comply with the rule and do not constitute a formal roster change with the KBA.

BENCH & BAR | 43 BAR NEWS do you know someone who could win the… 2021 KBA ANNUAL

LAW DAY 2021 Student Writing ADVANCING THE Competition? OF RULE LAW NOW The Kentucky Bar Association invites and encourages students currently enrolled at the University of Kentucky LAW DAY 2021 J. David Rosenberg College of Law, the The American Bar Association is working to University of Louisville Louis D. Brandeis redesign this year’s Law Day celebration in School of Law, and the Northern light of the COVID-19 pandemic. Kentucky University Salmon P. Chase College of Law to enter the KBA Annual Student Writing Competition. This More information will be available in competition offers these Kentucky legal the coming weeks. This year's theme is, scholars the opportunity to earn recog- “Advancing the Rule of Law Now.” nition and a cash award. First, second, and third place awards will be given. Law Day 2021 falls on Saturday, May 1. entries must be received by If you have any questions, please feel free to reach out to Shannon Roberts JUNE 1, 2021 at the KBA at [email protected]. 1ST PLACE *

2ND PLACE 3RD PLACE Jest Is For All by arnie glick $300 $200 *Also includes possible publication in the Bench & Bar.

SUBMIT ENTRIES WITH CONTACT INFORMATION TO: Megan Couch Communications Department Kentucky Bar Association 514 West Main Street Frankfort, KY 40601-1812

Students may enter their previously unpublished articles. Articles entered should be of interest to Kentucky practitioners and follow the suggested guidelines and requirements found in the “General Format” section of the Bench & Bar Editorial Guidelines. For inquiries concerning the KBA Annual Student Writing Competition or to receive a copy of the Bench & Bar Editorial Guidelines, contact Megan Couch at [email protected] or call (502) 564-3795 ext. 221.

44 | JANUARY/FEBRUARY 2021 COMMONWEALTH OF KENTUCKY JUDICIAL CONDUCT COMMISSION

To access the orders from the Judicial Conduct Commission in the following cases, please visit:

https://kycourts.gov/Courts/JCC%20Actions%20Documents/ 2020privatereprimand11052020.pdf

PRIVATE REPRIMAND

Talk to us about LEGAL MALPRACTICE And learn why lawyers throughout Kentucky refer their legal Malpractice cases to William F. McMurry and Associates Building referral relationships based on confidence and trust.

William F. McMurry is Board Certified as a Legal Malpractice Trial Specialist By the American Board of Professional Mental ealth Liability Attorneys (ABPLA.org) The ABPLA is accredited by the ABA Resource page to certify specialist in the field of now availale. Legal Malpractice – SCR 3.130(7.40)

Email [email protected] See page 54 for Call 502-326-9000 more information.

William F. McMurry will personally handle each case while some services may be provided by others.

BENCH & BAR | 45 BAR NEWS

CERTIFICATION OF CANVASSING BOARD FOR BAR MEMBERS, SUPREME COURT AND COURT OF APPEALS NOMINATING COMMISSION, INDIVIDUAL CIRCUITS AND INDIVIDUAL DISTRICTS Pursuant to the provisions of Section 118 of the Kentucky Constitution, SCR 7.010 and SCR 7.030, a duly appointed canvassing board, on November 9, 2020, tabulated ballots online for the election of Bar members to the Judicial Nominating Commissions for the Supreme Court and Court of Appeals, 57 Judicial Circuits and ten (10) Judicial Districts. Pursuant to the provisions of SCR 7.030(11), the following candidates for each designated commission received the indicated number of votes:

SUPREME COURT AND COURT OF APPEALS 8TH JUDICIAL CIRCUIT MELINDA G. DALTON Somerset 773 SHAWN R. ALCOTT Warren 87 MICHAEL A. OWSLEY Warren 103 CHARLES E. ENGLISH, JR. Bowling Green 1535 GARY C. JOHNSON Pikeville 1034 9TH JUDICIAL CIRCUIT J. CLARKE KELLER Lexington 942 ROBERT KEITH BOND Hardin 40 RYAN M. MCLANE Crestview Hills 392 JERRY M. COLEMAN Hardin 41 SUSAN D. PHILLIPS Louisville 1431 KERRY SMITH Paducah 538 10TH JUDICIAL CIRCUIT PATRICK A. ROSS Hart 36 KEITH A. SPARKS Nelson 32 1ST JUDICIAL CIRCUIT BETHANY L. DENTON Ballard 9 11TH JUDICIAL CIRCUIT MARY B. POTTER Hickman 6 ELMER GEORGE Marion 27 THEODORE H. LAVIT Marion 26 2ND JUDICIAL CIRCUIT CRAIG W. HOUSMAN McCracken 68 12TH JUDICIAL CIRCUIT VAN FRANKLIN SIMS McCracken 65 JAMES L. THEISS Oldham 83 DAVID L. VISH Oldham 80 3RD JUDICIAL CIRCUIT CHARLES ROBERT HAGGARD Christian 25 TH JACK N. LACKEY, JR. Christian 28 13 JUDICIAL CIRCUIT DAVID W. THOMAS Jessamine 42 TH 4 JUDICIAL CIRCUIT CHRIS A. WHITWORTH Garrard 33 JOHN KEITH CARTWRIGHT Hopkins 23 TH CHARLES G. FRANKLIN, II Hopkins 20 14 JUDICIAL CIRCUIT RICHARD M. RAWDON JR. Scott 71 TH 5 JUDICIAL CIRCUIT JONATHAN C. ROUSE Woodford 75 BRUCIE W. MOORE Union 13 CHARLES A. WILLSON Webster 9 15TH JUDICIAL CIRCUIT STEVEN N. HOWE Grant 17 TH 6 JUDICIAL CIRCUIT MATTHEW T. SMITH Grant 8 JOHN W. STEVENSON Daviess 62 JAKE A. THOMPSON Carroll 16 R. MICHAEL SULLIVAN Daviess 60

TH 7TH JUDICIAL CIRCUIT 16 JUDICIAL CIRCUIT ALICIA C. JOHNSON Logan 13 DAVID E. DAVIDSON Kenton 160 LORA L. ROBEY Logan 13 JAMES M. WEST Kenton 151

46 | JANUARY/FEBRUARY 2021 17TH JUDICIAL CIRCUIT 30TH JUDICIAL CIRCUIT JAMES D. BENDER Campbell 53 DEMETRIUS O. HOLLOWAY Jefferson 789 TIMOTHY E. SCHNEIDER Campbell 86 ROBERT MEYER Jefferson 678

18TH JUDICIAL CIRCUIT 31ST JUDICIAL CIRCUIT SAM W. ARNOLD, III Harrison 13 CLYDE COMBS, JR. Floyd 35 CHARLES D. WELLS Pendleton 10 JIMMY C. WEBB Floyd 21

19TH JUDICIAL CIRCUIT 32ND JUDICIAL CIRCUIT J. KIRK CLARKE Mason 19 MICHAEL J. CURTIS Boyd 44 JOHN C. PRICE Fleming 18 JAMES H. MOORE, III Boyd 42

20TH JUDICIAL CIRCUIT 33RD JUDICIAL CIRCUIT JOHN R. MCGINNIS Greenup 27 RANDALL SCOTT MAY Perry 19 TRACY D. FRYE Greenup 28 FRANK C. MEDARIS, JR. Perry 21

21ST JUDICIAL CIRCUIT 34TH JUDICIAL CIRCUIT MICHAEL R. CAMPBELL Rowan 47 BRIEN G. FREEMAN Whitley 21 MICHAEL SHIELDS Montgomery 38 DAVID S. HOSKINS Whitley 27

22ND JUDICIAL CIRCUIT 35TH JUDICIAL CIRCUIT BRIAN JOHNSON Fayette 528 RHONDA J. BLACKBURN Pike 56 MARTHA A. ROSENBERG Fayette 577 DONALD H. COMBS Pike 60

23RD JUDICIAL CIRCUIT 36TH JUDICIAL CIRCUIT CHARNEL M. BURTON Lee 5 RANDY A. CAMPBELL Knott 16 THOMAS P. JONES Lee 5 GRAHAM T. MARTIN Magoffin 20

24TH JUDICIAL CIRCUIT 37TH JUDICIAL CIRCUIT ELDRED E. ADAMS. JR. Lawrence 32 ROBERT W. MILLER Carter 15 ROGER MASSENGALE Johnson 28 WILLIAM H. WILHOIT Carter 16

25TH JUDICIAL CIRCUIT 38TH JUDICIAL CIRCUIT JAMES T. GILBERT Madison 79 DEBORAH LEE BOLT Ohio 18 JOHN H. ROMPF, JR. Clark 71 ABRAM V. CONWAY Ohio 17

26TH JUDICIAL CIRCUIT 39TH JUDICIAL CIRCUIT JOHNNIE L. TURNER Harlan 9 TAMMY HOWARD Breathitt 19 KELLIE D. WILSON-LEE Harlan 8 GARY C. ROSE Wolfe 17

27TH JUDICIAL CIRCUIT 40TH JUDICIAL CIRCUIT V. KATIE GILLIAM Laurel 59 CATHERINE B. CAPPS Cumberland 9 BRIAN C. HOUSE Laurel 52 NICHOLAS A. CARTER Monroe 11

28TH JUDICIAL CIRCUIT 41ST JUDICIAL CIRCUIT ROBERT R. BAKER Lincoln 39 PHILLIP LEWIS Leslie 16 MARK D. KNIGHT Pulaski 45 YANCEY L. WHITE Clay 14

29TH JUDICIAL CIRCUIT 42ND JUDICIAL CIRCUIT LAURA H. HARRIS Adair 6 JEFF EDWARDS Marshall 26 DAVID F. MCANELLY Casey 9 MICHAEL PITMAN Calloway 34

BENCH & BAR | 47 BAR NEWS

43RD JUDICIAL CIRCUIT 55TH JUDICIAL CIRCUIT THOMAS W. DAVIS Barren 16 MARK E. EDISON Bullitt 11 RONALD HAMPTON Barren 21 JOSEPH J. WANTLAND Bullitt 16

44TH JUDICIAL CIRCUIT 56TH JUDICIAL CIRCUIT JOHN L. BROWN Bell 11 STUART CURTIS PEEK Livingston 13 JENNIFER F. NAGLE Bell 12 MARC A. WELLS Caldwell 16

45TH JUDICIAL CIRCUIT 57TH JUDICIAL CIRCUIT JOHN BAIRD Muhlenberg 10 FRANK V. PHILLIPS Wayne 10 DANIEL J. SHERMAN, JR. Muhlenberg 9 JOEL SMITH Russell 8

46TH JUDICIAL CIRCUIT 1ST JUDICIAL DISTRICT THOMAS C. BRITE Breckinridge 20 MARY B. POTTER Hickman 6 ALEC G. STONE Meade 17 10TH JUDICIAL DISTRICT 47TH JUDICIAL CIRCUIT PATRICK A. ROSS Hart 14 MATTHEW THOMAS BUTLER Letcher 9 DAMON R. TALLEY Larue 12 PEYTON F. REYNOLDS Letcher 9 13TH JUDICIAL DISTRICT 48TH JUDICIAL CIRCUIT VIRGINIA C. HILL Lincoln 28 JOHN B. BAUGHMAN Franklin 91 DAVID W. THOMAS Jessamine 38 ROBERT W. KELLERMAN Franklin 91 28TH JUDICIAL DISTRICT 49TH JUDICIAL CIRCUIT MELINDA G. DALTON Pulaski 26 TIMOTHY J. CROCKER Simpson 7 MARK D. KNIGHT Pulaski 36 DAVID GOIN Allen 8 40TH JUDICIAL DISTRICT 50TH JUDICIAL CIRCUIT FRANK V. PHILLIPS Wayne 12 DEEDRA BENTHALL Boyle 26 JOEL SMITH Russell 11 CHARLES D. PATRICK Mercer 27 42ND JUDICIAL DISTRICT 51ST JUDICIAL CIRCUIT WILLIAM C. ADAMS III Calloway 16 SANDRA D. FREEBURGER Henderson 27 DENNIS J. COURTNEY Calloway 15 J. CHRISTOPHER HOPGOOD Henderson 30 57TH JUDICIAL DISTRICT 52ND JUDICIAL CIRCUIT THOMAS A. DONAN Nelson 20 KEVIN D. BISHOP Graves 15 KEITH A. SPARKS Nelson 19 CHARLES S. FOSTER Graves 12 58TH JUDICIAL DISTRICT 53RD JUDICIAL CIRCUIT GEORGE M. CARTER Marshall 15 GREGORY NEAL Shelby 45 ROBERT L. PRINCE Marshall 15 DOROTHY L. WATTS Anderson 44 59TH JUDICIAL DISTRICT 54TH JUDICIAL CIRCUIT BETHANY L. DENTON Ballard 5 JEFFREY R. AYLOR Boone 81 DANIEL C. THOMAS Ballard 4 HARRY D. WALLACE Boone 72 60TH JUDICIAL DISTRICT CATHERINE BROWN CAPPS Cumberland 8 NICHOLAS A. CARTER Monroe 9

48 | JANUARY/FEBRUARY 2021 BAR NEWS FEBRUARY Following is a list of applicants who have applied to take 2021 KENTUCKY the February 23 & 24, 2021 Kentucky Bar Examination. NOTE: This list is current as of January 20, 2021. Any applications BAR APPLICANTS filed after this date will not be included on this list.

Amelia Jane Abdon John Gregory Gullett Nola Elizabeth McCall Kenneth Lyle Simpson Jacob Michael Abrahamson Casey Ray Hall Wade Anthony McNabb Andrew Evan Skomorowsky Sarah Brooke Abshear Al'Lisha Jacqueline Aaron Wallace Meek Stephanie LaKaye Smith Denise Hanserd Ashley Nicole Adams Walter Franklin Milam Brigitte Sarah Sotto Felicia Renay Harris Courtney Elizabeth Albini Dax Jameson Miller Lexington Mary Souers Christopher Michael Harrison Shauna Anderson Erik Ross Miller Rebecca Nicole Spears Donald Tyler Harrison Heather Jo Ansert Wesley Aaron Miller Justin DouglasStanley Jeremy Wayne Hayes Austin Alexander Apsley Benjamin Jefferson Mills Taylor Nicole Stegmann Daniel Matthew Heflin Troy Brandon Ayers Sadik Morshed Angela Stevens Melina Ann Hettiaratchi Jonathan Ball Murphy Andrew Mullins Tia Kizziath America Steward Chynna Breann Hibbitts William Charles Bausch Caroline Kaye Nelson Kristi Mary Ronna Street Christopher Ryan Belknap Joy Elizabeth Hill Landon Thomas Norman Scott James Stutts Anesha Briquel Blakey Alea Victoria Hipes Lauren Anne North Scott Michael Sullivan Justin D Brockman Alexandria Griffin Hisle Jeffrey Wendell Pasley Gabriel Elizabeth Thatcher Alexander Callahan Kaitlin Elizabeth Hizny Sonam Patel Kaley Janae Thompson Brenda Sofia Calleja Haley Nichole Johnson Cheyanna Belle Patrick Nathan Thompson Olivia Marie Carrico Joshua Paul Johnson Lucas McCoy Patrick Wesley Ray Tipton Terry Alexander Carter Shelby Ann Johnson Joseph Douglas Peterson Kelsey Lynn Truxal Chelsea Marie Clem Taylor Joyce Kennedy Christine Huyen Pham Logan Tucker Terri Lynn Collins Amelia Lou Kitchens Timothy Edward Poole Alexander Paul Valenti Channing Simpson Cox Hannah Marie Kochanek CaraBell Cassady Preece Matthew Cody VanMeter Thomas Howard Crush Jessica Paige Larew Jason Scott Rainey Jack White Veljkovic Robert Sinclair Davies William Champ Ligon Michael Thomas Reis Leeria Louise Elizabeth Blair Walden John Trevor DeRossett Matthew Jacob Little Jenna Brooks Rohrig Cameron Aaron Warren Alexander Hunter Durham William Christopher Little Yisrael Mordechai Safeek Eston Vance Whiteside Rachel Elise Ehlermann Timothy Joseph Lowe Anureet Kaur Sandhu Nicholas Whitten Amanda Hope Ferrell Brennan Joseph Lucas Jagdeep Singh Sangha James Wright Williams Joseph Paul Fiefhaus Courtney Lynch April Dawn Satow Phillip Malcolm Williams Shelbi Leigh Fields Joshua John Marshall Virginia Leigh Schell Reana Nail Williams James Zachary Gadomski Pamela Rena Masters Allison Claire Schten Angela Williams Cox Donovan Dwayne Gibbs Olivia Anne Mattingly Samantha Jo Scott Lauren Marie Wilson Laila Gonzalez Darian Tyler Mault Brian Kenneth Sharp Kennedy Peyton Womack Julie Jordan Greenlee Holly Jade McCabe Abigail Leigh Shipp Kelley Nicole Yates Samuel Quenton Groft Michael William McCain Scott Washington Shofner

BENCH & BAR | 49 BAR NEWS

Robert B. Conley sworn in Jan. 1 as justice of Supreme Court of Kentucky

upreme Court Justice Robert B. Conley was joined over the Greenup/Lewis Drug by his children, Katlyn and Robert, and his fiancée, Court, which was recognized by Melanie Simpson, when he was sworn in Jan. 1, via the National Drug Court Insti- Zoom. He was welcomed to the state’s highest court by tute in 2010 as a mentor court to the other six justices, including Chief Justice John D. help train Drug Court personnel Minton Jr., who administered the oath of office. His term began from the Eastern United States. at midnight Jan. 4. S Prior to taking the bench, Jus- Justice Conley was elected in the November general election to tice Conley worked in Ashland serve the 7th Supreme Court District, which is made up of 22 East- as an associate in the law firm of ern Kentucky counties. He succeeds Supreme Court Justice Samuel McKenzie, Woolery & Eurick T. Wright III. and then as a corporate attorney with Addington Mining/Addington Environmental.

Thanks to all of those people that He earned a bachelor’s degree in economics and business from the University of Kentucky in 1981 and a juris doctor from Salmon P. voted for me and helped me in Chase College of Law at Northern Kentucky University in 1984. any way to get to this point, He worked his way through UK and his first year of law school as a steelworker for ARMCO Steel.

Justice Conley will have a traditional in-person investiture Justice Conley was married to the late Melanie Stephens Conley ceremony in the Supreme Court Courtroom at the Capitol in for 28 years and they had two children, Katlyn Ann Conley and Frankfort when it can be done safely amid the pandemic. Robert B. Conley II. He has been active in his community as a coach for youth baseball, football, softball and soccer teams. He

He comes to the state’s highest court after 26 years as a trial court has also been involved in Bridges Christian Church in Russell “ as a Sunday school teacher, adult Bible study leader, deacon and judge for Greenup and Lewis counties. He was appointed to fill a vacancy in the 20th Judicial District in 1994 and then elected elder. He is engaged to Melanie Simpson of Lexington. to that seat for three successive terms. In 2006, he was elected to the 20th Judicial Circuit. While a circuit” judge, he presided 50 | JANUARY/FEBRUARY 2021 BAR NEWS

The Supreme Court has approved the use of a civil cover sheet to improve the collection of court data. Under Supreme Court Administrative Order 2019-17, use of the civil cover sheet became mandatory Jan. 1. You can find the cover sheet at kycourts.gov under Legal Forms. The cover sheet will expand the number of case types tracked by the Kentucky Court of Justice to ensure proper identification of civil case types and support uniform data collection statewide.

It will also better align Kentucky’s data collection process with national standards and allow the KCOJ to accurately track the number of cases involving self-represented litigants. That data will guide future decisions about the allocation of resources, give judges additional information about new cases and improve the reporting of court statistics.

Attorneys were encouraged throughout 2020 to use the cover sheet for all conventionally and electronically filed civil complaints. To date, approximately 2,900 civil cover sheets have been filed. As of Jan. 1, a cover sheet must be included with all conventionally filed civil cases. The eFiling application has been updated to automatically collect the civil cover sheet data and does not require the cover sheet to be uploaded for electronic filings.

The civil cover sheet is one of several initiatives the Supreme Court has adopted based on recommendations from the Civil Justice Reform Commission. The commission was launched to address concerns about the cost, delay and complexity of civil litigation.

Deputy Chief Justice Lisabeth T. Hughes chairs the commission, which includes judges from all four levels of the court system, legislators from the House and Senate, attorneys from the plaintiff's and defense bars, a circuit court clerk and support staff from the Administrative Office of the Courts.

If you have questions about the civil cover sheet, contact the Division of Court Services at [email protected] or 502-573-2350, x50109.

BENCH & BAR | 51 BAR NEWS

STATE COURT SYSTEM LAUNCHES UPDATED WEBSITE Users will find new design, features at kycourts.gov

The Kentucky Court of Justice launched an find a case, order a background check, eFile, The Jan. 5 launch was for Phase 1 of the updated website Jan. 5. access CourtNet and request court data/ website. More information and functional- analytics. Users can also get the latest court ity are coming during Phase 2 later in 2021. “The state court system’s new site has a news from the KCOJ social media feeds “The KCOJ maintains a large website that modern design, improved navigation and and news releases. provides access to many court services advanced functions,” Administrative Office and resources,” Director Dudgeon said. of the Courts Director Laurie K. Dudgeon The county pages have been overhauled “The need to improve the user experience said. “Providing a better web and mobile to help users find what they need to know throughout such a complex site led us to presence is another way we’re using tech- about their elected officials and judicial divide this project into phases.” nology to make it easier to do business with center. One new feature is a photo gallery the courts.” of the justice, judges and circuit court clerk Kentucky Interactive is the service pro- who serve that county. vider for the KCOJ website. Since 2003, The redesigned KCOJ website is one of Frankfort-based Kentucky Interactive the newest in Kentucky state government. The legal forms library is one of the most has collaborated with the commonwealth It provides access to comprehensive infor- frequently used resources and now offers of Kentucky to provide a secure, mobile- mation on the court system, including searches by keyword, language and subject friendly platform that allows government Supreme Court and Court of Appeals area. The court data/analytics section offers agencies to offer their services online. opinions, trial court dockets, local rules, new interactive dashboards, including the court programs, legal help and attorney Court Designated Worker Performance resources. The site offers easy access to pay Measures Dashboard for tracking juvenile court fines and fees online, find a court date, complaints and outcomes.

52 | JANUARY/FEBRUARY 2021 BAR NEWS

Photo by Mark Cornelison | UK Photo. Mary J. Davis Named Dean of University of Kentucky J. David Rosenberg College of Law BY: SHAWNTAYE HOPKINS

niversity of Kentucky J. David Rosenberg College of Law Davis succeeded David A. Brennen, who was the first African Interim Dean Mary J. Davis, Ashland, Inc-Spears Distin- American dean of the college, serving from 2009-2020. Uguished Research Professor of Law, has been named dean of the law school. Davis is the first woman to serve in the role as a In spring 2020, Davis led the college through unprecedented permanent dean at the college. challenges in teaching and learning when the university quickly transitioned all classes online due to the COVID-19 pandemic, “In addition to her university service, Mary has made contributions and she has been instrumental as the law school continues to adapt to the profession at the state, regional, national, and international and thrive through the health crisis. levels through scholarly activities, including service as a visiting professor at four law schools and authoring a leading casebook on “When I received an offer to teach law at the University of Ken- product liability. She is passionate about continuing to enhance tucky in 1991, I thought that I had won the lottery,” Davis said. “I the college’s strong reputation,” said Provost David W. Blackwell. have been honored to serve this institution as a member of a faculty “It is an exciting yet challenging time at UK, and announcements of first-rate scholars and educators and to teach the exceptional stu- like these remind us that our brightest days are ahead,” Blackwell dents who attend the UK Rosenberg College of Law. I am grateful said in an announcement to the college. “As we continue to work for the opportunity to continue to serve this institution as its dean. toward our ambitious goals, I’d like to thank you for the work you I was excited in 1991 for the future, and I remain excited for what do every day. Please join me in congratulating Dean Davis and sup- the future holds for the UK Rosenberg College of Law.” porting her as she leads your college to the next level of excellence.” Davis joined the law faculty at UK after spending six years in prod- Davis has served on the faculty since 1991. She began a tenure as ucts liability litigation defense practice for the law firms of Womble, interim dean on July 1, 2019, as the college transitioned from its Carlyle, Sandridge & Rice in Winston-Salem, North Carolina, and two-year temporary location into a $56 million rebuild on its orig- McGuire, Woods, Battle & Boothe in Richmond, Virginia. Her inal site. Prior to becoming interim dean, Davis served as chair of practice experience involved management of nationwide litigation the college’s building committee. In this role, she was instrumental, and she is a leading scholar in the nation in the field of products from design through construction, in the College of Law having liability. a facility to provide a 21st century legal education through teaching, learning, research, practical skills training and co-curricular Davis is a 1985 magna cum laude graduate of the Wake Forest programming. University School of Law, where she served as managing editor of the law review, and a 1979 cum laude graduate of the University During her tenure as interim dean, the UK College of Law also of Virginia. became the UK J. David Rosenberg College of Law in December 2019 following a generous gift from alumnus J. David Rosenberg For more information, including quotes from her colleagues and his wife, Dianne. The couple pledged $20 million to fund an and students, visit: https://law.uky.edu/news/uk-board- endowment and non-endowed gift to support student scholarships, approves-1st-woman-dean-rosenberg-college-law. faculty recruitment and retention, and programs for the college.

BENCH & BAR | 53 KYLAP Mental Health Resources

We recognize that lawyers and judges are at risk for mental health difficulties at a rate far higher than the general population. We understand that good mental health and wellness is essential for the sustainability of lawyer wellbeing. We are committed to offering resources to you to help your mental health before you reach a crisis in your life and in your career.

A Mental Health Resource page has been created to provide a variety of resources to KBA members regarding mental health. More information is being added. Visit www.kybar.org/page/CLEMentalHealthResources to review the list of current resources.

You are not alone. Please call the National Suicide Prevention Lifeline at 800-273-8255, if you’re thinking about suicide, are worried Additional Resources about a friend or loved one, or would like emotional support. The National Suicide Prevention Lifeline network is available 24/7 National Institute of Mental Health: across the United States. https://www.nimh.nih.gov/health/topics/ suicide-prevention/index.shtml In addition, the Kentucky Lawyer Assistance Program (KYLAP), is another resource that can help attorneys facing pressing issues and National Suicide Prevention Lifeline: who are in need of support. Attorneys can call the KYLAP office on https://suicidepreventionlifeline.org/ our direct line (no operator required) at (502) 226-9373. Our telephone is answered 24 hours a day, 7 days a week, 365 days a year through our Suicide Prevention Resource Center: confidential employee assistance service. https://www.sprc.org https://www.sprc.org/states/kentucky Also, our KYLAP Foundation is available to provide financial assistance for mental health treatment. We also publish numerous additional resources on our website, www.kylap.org, and we have over 100 lawyer volunteers who will offer CONFIDENTIAL assistance when called.

54 | JANUARY/FEBRUARY 2021 BENCH & BAR | 55 KENTUCKY BAR FOUNDATION Seeks Annual Grant Applications The mission of the Kentucky Bar Foundation (KBF) is to further the public’s understanding of the judicial system and the legal The Kentucky Bar Foundation profession through programs and philanthropic partnerships that help those in need. One of the ways that the KBF serves this mission is by awarding annual grants to will award its 2021 grants law-related organizations and projects. Grant applications for the KBF’s 2020-2021 this May. Please visit grant year are now available with a submission deadline of March 15, 2021. To be con- kybarfoundation.org/grants sidered for a grant, your program must meet the following requirements, among others: • Recipient must be a 501(c)(3) nonprofit organization. to request a grant application.

• The program or project for which funding is requested must have a law-related purpose and provide services in the Commonwealth of Kentucky.

Congratulationsdiversity to the fund grantRecipients! KENTUCKY LEGAL EDUCATION STREET LAW, UNIVERSITY OPPORTUNITY (KLEO) $25,000 OF KENTUCKY ROSENBERG $ This grant will support the 2021 KLEO Summer Institute, COLLEGE OF LAW 6,305 which will be held at the University of Louisville Brandeis UK StreetLaw is a student-led organization through which cur- School of Law. The 12-day residential program will prepare rent law students invest in high school students by going into 15 first-year law students (5 from each of the state’s public law partner schools and teaching students about basic legal concepts schools) from low-income, minority and/or disadvantaged back- over a ten-week period. This grant will support an immersion day grounds for the rigors of law school. During the institute, law program for high school students from schools that have high school professors will introduce KLEO scholars to the curric- percentages of minority and socioeconomically disadvantaged ulum they will encounter during their first year of law school. students. UK StreetLaw plans to bring groups of 25 students KLEO scholars are also exposed to the special study skills and from 5 high schools to the law school campus for an enriching strategies they will need to succeed. Additionally, former KLEO day-long event, including a tour; law classes & discussion; lunch scholars from each law school will serve as mentors to teach with local lawyers, law professors & students; admissions infor- the new scholars. Each student is also assigned to a practicing mation; student organization information; and a takeaway bag. attorney or judge who serves as a mentor.

56 | JANUARY/FEBRUARY 2021 KENTUCKY ATTORNEYS RAISE $ 131,795 2020 FOR LAW-RELATED NONPROFITS 1st Supreme Court District The Kentucky Bar Foundation (KBF) thanks the more than Raises 4,000 attorneys who were Sustainer Contributors last year. Nearly $ When annual KBA dues are paid by attorneys, each attorney 12,000 can make a $30.00 voluntary contribution to the Kentucky for Nonprofits Bar Foundation. These small, individual contributions Although the Kentucky Bar Foundation was add up in a big way – $131,795 in 2020! The KBF uses unable to host its annual Judge Johnstone Award the contributions to help fund its annual grants program Dinner due to COVID-19, we were fortunate to as well as its diversity fund grants program. Grant awards have many generous sponsors who nevertheless benefit law-related nonprofit organizations and projects made contributions towards grants for law-related including assistance to veterans, survivors of domestic organizations and projects throughout the violence, refugees, and individuals who are recovering Commonwealth. We want to extend our from addiction. sincerest appreciation to the following sponsors To learn more about contributing to the Kentucky Bar who generously contributed this year to help ensure Foundation, please call KBF at 1-800-874-6582 or visit those in need have somewhere to turn during a https://kybarfoundation.org/donate/. particularly difficult time for so many Kentuckians. LIFE FELLOW SPONSORS Christian County Bar Association Congratulations to the Keuler, Kelly, Hutchins, Blankenship & Sigler, LLP three groups that received McCracken County Bar Association grants this year from the Kentucky Bar Foundation’s GOLD SPONSORS Grumley, Riley & Stewart, P.S.C. Diversity Fund, which provides R. Harvey Johnston, III Congratulations financial support for efforts McMurry & Livingston, PLLC aimed at increasing diversity to the in the legal profession. SILVER SPONSORS Recipients! Cotthoff & Willen, Attorneys at Law ALL RISE, NORTHERN The Johnstone Family KENTUCKY UNIVERSITY Kentucky Bar Association’s Young Lawyers Division CHASE COLLEGE OF LAW $11,000 Justice Christopher Shea Nickell Rebekkah Bravo Rechter The Chase Law All Rise program selects 10 students who are Stifel Investments-Chustz/Treece Group first-generation college, low-income, or ethnically or racially diverse. These individuals, even if granted an opportunity to attend law UK J. David Rosenberg College of Law school, face many obstacles to realizing their dreams. The Chase White, White & Crenshaw, PLLC

Law All Rise program aims to remove those obstacles and pave a more manageable path to the legal profession for these underserved BRONZE SPONSORS individuals. All Rise students receive financial and professional skills Denton Law Firm, PLLC support throughout their law school careers. This grant will support Diana K. Douglas 10 All Rise students who matriculate at Chase College of Law in the English, Lucas, Priest & Owsley, LLP fall of 2021 by providing them with their first-year books. Independence Bank *All programs are subject to stipulations regarding their funds John T. Soyars in the event of COVID-related issues U.S. Bank

BENCH & BAR | 57 CONTINUING LEGAL EDUCATION

Accepting the Lessons of BY MARY BETH CUTTER, KBA DIRECTOR FOR CLE

have found myself using the expres- entry into technological advances. While paper, is more important than ever. We sion, “don’t throw the baby out with these technological advances necessitated are operating without the net of pre and the bathwater,” fairly frequently by COVID quarantining and the required 2020post communication personal contact. For during these uncertain times. In shift from in person programming have example, if a co-worker emails me what is this backwards, upside down year, provided increased convenience and finan- in essence a yes or no question, in typi- Ithe difficulty lies in what would normally cial and scheduling efficiencies, it is much cal days I could answer with a simple “yes” be the easiest part of following that advice; more difficult to maintain the outreach and or “no.” But, such short and to the point the discernment challenge is in figuring personal touch that is needed to keep the answers would have been preceded and out what constitutes the “baby” and what professionalism in our profession. It takes followed by personal, friendly conversation is the “bathwater.” In the world of continu- more effort. or even elaboration in person. To answer ing legal education, we have been forced so succinctly these days, when I have not to do things completely differently. It has Written communication, whether it is an seen my co-workers since March 13, 2020, been a headfirst dive rather than a gradual email, text message, or even old-fashioned is rude. It just is. They are due more time

Jason F. Darnall, Chair Frank Hampton Moore III First District Representative Second District Representative [email protected] [email protected]

Graham C. Trimble Eric M. Weihe Third District Representative Fourth District Representative [email protected] [email protected]

LaToi D. Mayo David B. Sloan Interested in assisting with a CLE? Have ideas for a program? Contact Mary Beth Cutter, KBA Director Fifth District Representative Sixth District Representative for CLE at [email protected], or any member of the Continuing Legal Education Commission. [email protected] [email protected]

Leigh Gross Latherow Justice Laurance 2020-2021 CLE COMMISSION MEMBERS Seventh District B. VanMeter nd th From left to right: Frank Hampton Moore III, 2 Supreme Court District (SCD); Eric M. Weihe, 4 SCD; Representative Supreme Court Liaison th th Leigh Gross Latherow, 7 SCD; David B. Sloan, 6 SCD; Mary Beth Cutter, Director for CLE; [email protected] Graham C. Trimble, 3rd SCD; LaToi D. Mayo, 5th SCD; Terri Marksbury, CLE Staff; and Jason F. Darnall, chair, 1st SCD. Not pictured: Justice Laurance B. VanMeter, Supreme Court Liaison.

58 | JANUARY/FEBRUARY 2021 and care since we do not have our in person written communications and impact our am sharing and highlighting that this has professional and even personal communica- relationships since our relationships are been an issue for me as well. Now is a great 2020tions to support the written words. There is based so heavily on non-live communicat- time to work on it. But, enough about me. . . no body language, no facial expressions, no ing. Even with “live” meetings via Zoom, visual context and there has not been any WebEx, Teams or some other platform, it Over the past year, we have learned that for some time. can be difficult to express ourselves the way there is much that can be accomplished we intend. The dynamic is different from remotely. I have also learned that there While the state of our work and personal when we are all in the same room. I am are some things that should not be. Law is lives varies greatly from person to person no expert on this subject and have, in fact, about people. We should not throw out the and circumstance to circumstance, and even struggled with it. But, I am learning with baby even while we accept new efficiencies for those who view the endured changes the aid of trusted advisors and research into and conveniences. Nevertheless, I have also as positive, change in and of itself can non-live communication and relationship learned through this year that things will be stressful. That stress can seep into our building. Perhaps one of the positives I take never be as they were, nor should they be. away from 2020 is that I will have put forth It is clear that effective communication additional and needed effort is more important than ever and what is into my communication style. I effective is not immune from the rapid evo- ABOUT THE AUTHOR have always thought of myself lution we are experiencing. Increased and as being a good writer. How- intentional professionalism and civility MARY BETH CUTTER ever, when my humor does in our writing/typing is worth the effort serves as the Kentucky not come through the words, I and needed in order to not lose what is Bar Association’s am just sarcastic and arrogant. important. With all of that time saved in director for Continuing Whether I employ the strategy not appearing and meeting live, a few min- of walking away from a writ- utes of deliberate kindness and politeness Legal Education. Cutter ten communication for a few in our written communications would likely received her B.A. with minutes and then returning to go far in preserving if not furthering our distinction from Centre reread it before sending, or just professional and personal relationships. College, and her Juris make sure I write with a smile on my face, I intend to use this Doctorate from the University of Kentucky time to improve. Given some College of Law. Following her admission of the emails I have received to the Kentucky Bar, she was engaged over the past nine months (and in private practice, focusing primarily in before that), I am not alone in this tendency, which is why I the areas of health care, civil litigation, employment, real estate, and domestic law. She has been with the Kentucky Bar Association since November of 2008.

BENCH & BAR | 59 CONTINUING LEGAL EDUCATION

2020 KENTUCKY LAW UPDATE thank you!

he 2020 Kentucky Law Update program series proudly supported over 8,000 members in reaching their annual CLE requirements. TThe CLE staff is sincerely thankful for every member who vol- unteered their time to the program in each of the nine locations. Thank you for your dedication, expertise, and talent that continues to allow for a successful Kentucky Law Update each year.

WRITTEN MATERIAL AUTHORS P. Stewart Abney Stephen Embry Carla H. Montgomery Tanya Y. Bowman Angela Logan Edwards Catherine A. Monzingo CLE STAFF Bonnie M. Brown Joshua C. Elliott Elizabeth Mosley Sonja M. Blackburn Thomas L. Canary Nathaniel Goins Peter L. Ostermiller Coleen Kilgore Caroline J. Carter Rachael H. Chamberlain Jane H. Herrick Shari Polur Terri Marksbury Mary E. Cutter J. Allan Cobb Zachary A. Horn Jeremiah W. Reece Lori J. Reed EmaLeigh C. Haines Scott E. Collins Andrea R. Hunt Lori J. Reed Clifford Timberlake Tamara Combs Shelly A. Kamei Jeffery L. Sallee Wesley B. Deskins Matthew T. Lockaby William D. Tingley Sheila M. Donovan Jane Broadwater Long

PROGRAM PRESENTERS P. Stewart Abney Robert W. Dibert Justice Debra Hembree Lambert Jeffery L. Sallee Tanya Y. Bowman Sheila M. Donovan Matthew T. Lockaby Madison T. Sewell Bonnie M. Brown Joshua C. Elliott Jane Broadwater Long Judge Larry E. Thompson Rachael Chamberlain Marisa J. Ford Rebecca A. Lyon William D. Tingley Chief Judge Denise G. Clayton Jane H. Herrick Judge Irvin G. Maze B. Scott West J. Allan Cobb Zachary A. Horn Catherine A. Monzingo Whitney H. Westerfield Scott E. Collins Shelly A. Kamei Peter L. Ostermiller Justice Laurance B. VanMeter Wesley B. Deskins Thomas H. Kerrick Shari Polur

60 | JANUARY/FEBRUARY 2021 Submitting CLE Credits Online 1 VISIT www.kybar.org SELECT CLE 2

SELECT Submit New Credits CLE CREDITS 4 Submit New Credits

CLICK ON THE Program BOX AND TYPE IN THE Activity Number. 5 Wait for the system to locate the program and for the field to populate. CLICK ON THE BOX TO SELECT THAT PROGRAM.

CLICK Next. 6

CLICK “Total CLE” AND ENTER THE AMOUNT OF CREDITS EARNED. 7 REPEAT FOR “Ethics” TO ENTER THE ETHICS CREDITS EARNED.

TYPE YOUR name as your certification AND signature. 8

9 CLICK Next.

YOUR CREDIT HAS NOW BEEN ADDED AND WILL APPEAR ON YOUR TRANSCRIPT. 10

BENCH & BAR | 61 IN MEMORIAM

s a final tribute, the Bench & Bar publishes brief memorials recognizing AKBA members in good standing as space permits and at the discretion of FOSTER L. HAUNZ, 82, beloved husband, father, the editors. Please submit either written information or a copy of an obituary grandfather, brother, uncle, friend and attorney- that has been published in a newspaper. Submissions may be edited for space. at-law, passed away peacefully with family by his Memorials should be sent to [email protected]. side. He was a proud graduate of St. Xavier in Louisville, and maybe an even prouder graduate NAME CITY STATE DATE DECEASED of the University of Notre Dame where he was a Steven R. Adams Cincinnati Ohio November 1, 2020 “Double Domer,” receiving both undergraduate David Michael Andrews Lexington Kentucky June 18, 2020 and law degrees from his cherished alma mater.

David Arthur Baker Louisville Kentucky October 17, 2020 Through a distinguished law career of over 50 David Louis Barth Fort Thomas Kentucky August 7, 2020 years, he became a leading expert in trust and James Garland Bland Jr. Charlotte North Carolina July 1, 2020 municipal law, serving as the city attorney for small cities throughout Kentucky, including St. Stephen W. Cessna London Kentucky October 4, 2020 Matthews, Windy Hills, Indian Hills and many James E. Clarkson Maysville Kentucky November 18, 2020 others. Andrew Terrian Coiner Paducah Kentucky March 18, 2020 While Foster loved being a lawyer – and his Walter W. Davis Glasgow Kentucky October 8, 2020 family – he also loved beagles, ice cream, a Benjamin L. Dickinson Glasgow Kentucky October 19, 2020 nightly bourbon, and pretty much anything Foster L. Haunz Louisville Kentucky October 20, 2020 sweet. His wit and sense of humor were leg- endary, as were his combination of intelligence Kenneth G. Haynes Louisville Kentucky November 1, 2020 and quirkiness. Charles R. Hembree Lexington Kentucky July 26, 2020 Jesse S. Hogg Ocala Florida March 25, 2019 The preceding memoriam for Foster L. Haunz is based upon information obtained from Legacy.com. It was J. B. Johnson Jr. Corbin Kentucky November 9, 2020 also published in the Courier-Journal from Oct. 22 to John S. Kelley Bardstown Kentucky August 28, 2020 Oct. 24, 2020. To access the obituary in its entirety, visit: https://www.legacy.com/obituaries/name/ Ricky Allan Lamkin Murray Kentucky October 7, 2019 foster-haunz-obituary?pid=196984388 W. Terry McBrayer Lexington Kentucky October 11, 2020 Melissa Diane Robichaud Peachtree City Georgia July 13, 2020 Cecil Carl Varney Lovely Kentucky September 10, 2020 Francine Anita Wayman Covington Kentucky October 30, 2020

62 | JANUARY/FEBRUARY 2021 FRANCINE WAYMAN, 75, passed away on Oct. 30, 2020. Born in Covington she WALTER TERRY MCBRAYER, 83, passed away on Oct. 11, 2020 due to complications from lived most of her life in Taylor Mill. She a five-year battle with cancer. Terry began a law practice in a single room above a grocery was a graduate of Dixie Heights High store in Greenup, Ky., in 1963 with his older sister Phyllis by his side. That small practice School, Northern Kentucky University would grow into a powerhouse law firm, now known as McBrayer PLLC. Terry was not and Salmon P. Chase College of Law. Her the sort of individual to boast of his numerous roles in politics and government, such as his first law practice was with Porter Wright five terms in the Kentucky House of Representatives starting in 1976, where he became Morris & Arthur where she worked until Speaker Pro Tempore and Majority Leader, or his leadership of the Kentucky Democratic she opened her own office in Crestview Party and his service as former President Bill Clinton's Kentucky representative in 1992 Hills and later Edgewood where she retired and 1996, or his role in founding the State Capital Group in 1989. He would likewise in 2014. Francine was a nurturing, helping be mildly embarrassed at the mention of his various awards and accolades received over person, and knew no strangers. She was a the years. Terry loved his family, friends, everyone at the McBrayer law and government long-time member of the Latonia Baptist relations firms, the Kentucky Wildcats, and fishing. He was so much to so many and Church where she taught Sunday School, everyone knew him in their own unique way. He never met a stranger. He remembered was a deacon and problem solver. names and always made you feel like you were the most important person in the room. He was always quick with a joke or a story and would "hold court" wherever he was. He The preceding memoriam for Francine Wayman is based upon information obtained from Legacy.com. treasured all his friends deeply. It was also published in the Published in Kentucky Enquirer from Nov. 3 to Nov. 5, 2020. To access The preceding memoriam for Walter Terry McBrayer is based upon information obtained from Legacy. the obituary in its entirety, visit: https://www. com. It was also published in the Lexington Herald-Leader on Oct. 13, 2020. To access the obituary in legacy.com/obituaries/nky/obituary.aspx?n=fran its entirety, visit: https://www.legacy.com/obituaries/name/walter-mcbrayer-obituary?pid=196937487 cine-wayman&pid=197039210

K.GREGORY HAYNES, 75, passed away on Nov. 1, 2020. He was surrounded by those he JUDGE DON COLLINS PARIS, 78, died most cherished, and embraced in the loving thoughts of many friends who will never forget Aug. 23, 2020. Married to Shari Mountz his ready smile and laugh, his dry wit and his keen intellect. Greg graduated from Davidson Paris, he was a lifelong Lexingtonian and College, and received his J.D. from the University of Kentucky J. David Rosenberg College University High graduate. He received of Law. Law degree in hand, he moved to Washington D.C., where he began his distin- his B.S. from Florida State Tallahassee guished career as a trial attorney with the United States Department of Justice where he in 1962 and J.D. from University of Ken- joined the team of lawyers defending President Nixon during Watergate. Greg returned to tucky J. David Rosenberg College of Law Kentucky in 1975 when he joined the firm of Wyatt Grafton & Sloss, now Wyatt Tarrant in 1965. He began his law career and life & Combs, LLP. Though too humble to admit it, he became recognized as one of the best of service with the Kentucky Court of trial lawyers around, working as lead counsel in the most complex cases. Throughout all Appeals, practiced with firm of Angelucci this success, Greg never wavered from the highest standards of ethics, professionalism and & Tackett before becoming Fayette Dis- civility, and he always treated everyone with respect, decency and kindness. Most of all, Greg trict and Circuit Judge, ultimately retiring enjoyed being with his wonderful family, who will miss him in too many ways to describe. as Chief Administrative Law Judge. He served on the Board of the Bluegrass Boys The preceding memoriam for K. Gregory Haynes is based upon information obtained from Legacy.com. It Ranch, Kentucky Real Estate Appraisal was also published in the Courier-Journal from Nov. 3 to Nov. 4, 2020. To access the obituary in its entirety, Board and was instrumental in founding visit: https://www.legacy.com/obituaries/louisville/obituary.aspx?n=k-gregory-haynes&pid=197039949 CASA of the Bluegrass.

The preceding memoriam for Don Collins Paris CHARLES R. “RUSTY” HEMBREE, 95, passed July 26, 2020. Rusty attended the University is based upon information obtained from Legacy. of Tennessee, where he received his undergraduate and law degree. He also obtained his com. It was also published in the Lexington Master of Law Taxation at New York University. Rusty tried hundreds of cases before the Herald-Leader on Aug. 28, 2020. To access the U.S. tax courts, state and federal, and tried one case before the U.S. Supreme Court which obituary in its entirety, visit: https://www.legacy.com/obit ended in his favor. He was a member of the Fayette County, Kentucky and Tennessee Bar uaries/kentucky/obituary. associations, The Order of the Coif, and senior partner of Kincaid Wilson Schaeffer & aspx?n=don-collins-paris&pid=196710536 Hembree. Rusty served as chairman of the Board of Central Bank, and served on the Board of Directors for Citizens National Bank in Somerset, Ky., Kentucky Central, Kentucky Finance, Bluegrass Broadcasting, the local Red Cross, Cardinal Hill Hospital, Markey Cancer Center, Bluegrass Council Boy Scouts, Lexington Chamber of Commerce, The Kincaid Foundation, Georgetown College, Midway University, and Ask Us Inc.

The preceding memoriam for Charles “Rusty” Hembree is based upon information obtained from Legacy.com. It was also published in the Knoxville News Sentinel from Jul. 29 to Jul. 30, 2020. To access the obituary in its entirety, visit: https://www.legacy.com/obituaries/name/ charles-hembree-obituary?pid=196564025

BENCH & BAR | 63 WHO, WHAT, WHEN & WHERE

Have an item for Who, What, When & Where? The Bench & Bar welcomes brief announcements about member placements, pro- motions, relocations and honors. Notices are printed at no cost and must be submitted in writing to: Managing Editor, Bench & Bar, 514 West Main Street, Frankfort, KY 40601 or by email to [email protected]. Digital photos must be a minimum of 300 dpi and two (2) inches tall from top of head to shoulders. There is a $10 fee per photograph appearing with announcements. Paid professional announcements are also available. Please make checks payable to the Kentucky Bar Association.

Kopka Pinkus Dolin is pleased to announce the addition of Frost Brown Todd (FBT) member Jennifer Lauren Thompson as a new senior attorney to the firm’s Lexington Barber is serving as United States Delegate office. Thompson’s practice will focus on a wide variety of litigation to the United Nations. In this role, Barber matters including product liability, commercial trucking accidents, guides and supports U.S. efforts to safeguard premises liability, contract and coverage disputes. Before joining the American economy, promote human rights, Kopka Pinkus Dolin, she practiced at Lexington law firms, Phillips deliver humanitarian aid, and empower women th Parker Orberson & Arnett and Golden & Walters . Thompson is a and girls. She represents the U.S. during the 75 graduate of the University of Kentucky J. David Rosenberg College UN General Assembly and delivers its position of Law and Centre College. on matters relating to the UN’s Economic and Social Council. Most recently, she delivered the U.S. statement Stites & Harbison, PLLC, welcomes attorney on resolutions concerning violence against women and protecting John Weber to the firm’s Louisville office. He children from bullying. During her time as a delegate, Barber is also joins the real estate & banking service group. serving as a Special Advisor to U.S. Ambassador to the U.N. Kelly His practice focuses on commercial real estate Craft, a Kentucky native. Barber focuses her law practice at FBT and business transactions, advising developers, on state and local tax, economic incentives, and government affairs. investors and lenders in the acquisition, con- She has served in countless leadership positions, including the Uni- struction, development and sale of multifamily, versity of Kentucky Board of Trustees, Kentucky State Fair Board, office, retail, industrial and other commercial U.S. Bank Advisory Board, Louisville Bar Association, Kentucky properties nationwide. Before joining Stites & Harbison, Weber Bar Foundation, and American Bar Association Taxation Section, was a real estate attorney with a local law firm in Louisville. He among others. Barber is a graduate of the University of Kentucky earned his J.D. from the University of Louisville Louis D. Brandeis and the University of Kentucky J. David Rosenberg College of Law. School of Law, cum laude, in 2018. Weber also received a Master of Education, magna cum laude, from Lipscomb University in 2013. Bell, Orr, Ayers & Moore, P.S.C., is pleased to announce that managing partner Paul T. Ferreri Partners, PLLC, is proud to announce Lawless was recently installed as president of the Hon. Jefferson ( Jeff ) Layson to the Ferreri Kentucky Defense Counsel, Kentucky’s premier Partners team. He most recently served as an organization of civil defense attorneys. KDC Administrative Law Judge (ALJ) for the Ken- works to promote and support its members tucky Department of Workers' Claims, a role through professional education and develop- in which he oversaw and adjudicated hundreds ment, collegiality, and diversity to enhance the of claims across the Commonwealth. Prior to quality of service its members offer their clients and to ensure access becoming an ALJ, Layson was in private prac- to justice for defendants. Lawless has served as a member of KDC’s tice with a concentration in workers' compensation for over 20 Board of Directors since 2016 and, for the past year, has served years. Layson will be managing Ferreri Partners' new Western as the organization’s president-elect and the chair of the Awards Kentucky office in Bowling Green. Committee.

64 | JANUARY/FEBRUARY 2021 Embry Merritt Shaffar Womack, PLLC, Ferreri Partners, PLLC, is honored to welcome is excited to announce the addition of Amy Michael DeFilippo to the Ferreri Partners Lawson to its growing practice. Lawson is a team. DeFilippo has focused his practice since member of Embry Merritt Shaffar Womack’s 2004 on civil defense litigation. He has earned workers’ compensation and civil litigation an AV Preeminent Rating from his peers departments. She has practiced Kentucky work- through Martindale-Hubbell, and is well-versed ers’ compensation law and civil litigation in the in all aspects of civil litigation, including claim Lexington area for 17 years and is excited to evaluation, pre-suit negotiation, risk manage- assist in growing their Lexington practice in both areas. Lawson has ment, mediation, arbitration, trial practice and appeals. DeFilippo practiced with three large civil litigation and workers’ compensation will be based in Ferreri Partners’ Louisville office. firms located within the city of Lexington since obtaining her law license and passing the Kentucky bar in 2003. She has focused Wyatt, Tarrant & Combs LLP is pleased to much energy and attention in her practice within the scope of announce that one of its partners, Jefferey Kentucky workers’ compensation law. Yussman, has been named president of the Special Needs Alliance (SNA). The invitation Bell, Orr, Ayers & Moore, P.S.C. (BOAM), is only national nonprofit association of attorneys pleased to announce that Timothy E. Bridge- serves individuals with disabilities and their man has been named a shareholder of the families. Among the criteria of SNA member- firm. He joined BOAM in 2014 after gradu- ship is relevant legal experience in the fields of ating from the University of Louisville Louis disability and elder law, and active participation with national, state D. Brandeis School of Law, magna cum laude. and local disability advocacy organizations. Yussman concentrates Bridgeman focuses his practice on real estate his law practice in the areas of estate planning and administration, transactions and providing services to banks, business succession planning and charitable planning. mortgage companies, realtors, investors, developers and HOAs. He also represents banks and other creditors in foreclosures, reposses- Kentucky Defense Counsel (KDC) is pleased to announce its sion actions, bankruptcy, and other collection matters. 2020 KDC Award recipients, as follows: Diplomat-Robert M. Spragens, Jr., Defense Lawyer of the Year-Stacey A. Blankenship, McMasters Keith Butler is proud to announce Young Lawyer-Olivia F. Amlung. Additionally, two past presidents that Amy L. Cooper has joined the firm as an of KDC were recognized as recipients of the Executive Committee associate. Cooper earned her J.D. from Emory Award-Robert M. “Bob” Hoffer and Katherine J. “Kit” Horn- University School of Law in 2012, where back. All award recipients were recognized at the KDC 2020 Fall she was inducted into the National Order of Seminar and will be presented with their plaques at the 2021 KDC Barristers. She began her career with one of Spring Seminar in March. the largest domestic relations firms in Geor- gia, before relocating to Kansas City, where she worked as an assistant prosecuting attorney with the Jackson County Prosecuting Attorney’s Office. She joined McMasters Keith Butler after relocating to Louisville with her husband. Her primary area of practice is defense of professional negligence claims made against physicians, healthcare personnel, hospitals and long-term care facilities.

Bell, Orr, Ayers & Moore, P.S.C., is pleased Robert Spragens Stacey Blankenship Olivia Amlung to announce the addition of a new associate attorney to its office. Katie Monin received an undergraduate degree from Western Kentucky University in 2016, where she graduated summa cum laude. She obtained her law degree from the University of Kentucky J. David Rosenberg College of Law in 2019 and was named to the Order of the Coif at graduation. While in law school, she served th as production editor for the 107 Volume of the Kentucky Law Bob Hoffer Kit Hornback Journal. After graduation, she served as a judicial law clerk to Chief Justice John D. Minton Jr. of the Supreme Court of Kentucky. She focuses her practice in estate planning and business formation.

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Kentucky Defense Counsel is pleased to announce the following Kentucky Defense Counsel is pleased to announce its Officers new Directors, who began three-year terms on November 12th: for 2020-21: President-Paul T. Lawless, Bowling Green, Presi- District 5-Ashley K. Brown, Lexington and Elizabeth J. “Beth” dent-Elect-Jason R. Coltharp, Paducah, Vice President-Kristen Winchell, Lexington. District 7-Jeffrey M. Baldwin, Paintsville H. Fowler, Louisville, Secretary-Treasurer-Todd S. Page, Lexing- and Todd P. Kennedy, Pikeville. Additionally, Christine L. Stanley, ton, and Immediate Past President-Claire E. Parsons, Covington. Lexington, was elected a Director at Large and Brown will serve The 2020-21 officers began their one-year terms on Nov. 12, 2020, as DRI Membership Chair for one year. KDC would also like to and will continue through the 2021 Fall Seminar. recognize its outgoing Directors on completion of their terms. District 5-Guy E. Hughes, Lexington and District 7-R. Stephen McGinnis, Greenup, David C. Stratton, Pikeville. All of these individuals were recognized by KDC President, Paul Lawless, at the November 12 Board meeting and during the 2020 KDC Fall Seminar.

Paul Lawless Jason Coltharp Kristen Fowler

Ashley Brown, Elizabeth Winchell Jeffrey Bladwin

Todd Page Claire Parsons

Stites & Harbison, PLLC, welcomes attorney Abigail E. Clark to the firm’s Louisville office. She joins the intellectual property & tech- Todd Kennedy Christine Stanley Guy Hughes nology service group. Her practice focuses on biotechnology/life sciences, copyrights, patent prosecution and protection, trademarks and intellectual property litigation. Before joining Stites & Harbison, Clark was a law clerk for the Federal District Court in the Western District of Kentucky. Clark earned her J.D., magna cum laude and Order of the Coif, from the University of Kentucky J. David Rosenberg College of Law in 2019. During law school, she was an articles editor for the Kentucky Law Journal. She also earned a B.S. in neuroscience and psychology, Steve McGinnis Dave Stratton Paul Lawless distinction and general honors, from Indiana University in 2015. Clark is admitted to practice in Kentucky and has been approved Kopka Pinkus Dolin proudly welcomes Kimberly Newman as a to sit for the Patent Bar this year. new senior attorney to the firm’s Lexington office. Newman brings 28 years’ experience in workers’ compensation and has extensive experience defending claims in a wide range of industries and for Gwin Steinmetz & Baird PLLC is pleased to a variety of well-known and reputable companies. Before joining announce that Alexa Glibbery has joined the Kopka Pinkus Dolin, she was a member of Allen & Newman, firm’s long-term care and insurance practice a regional insurance defense firm with offices located through- groups. Glibbery is a 2015 graduate of the Uni- out the southeast. She is also a member of Claims and Litigation versity of Louisville Louis D. Brandeis School Management Alliance (CLM) where she previously served as the of Law and is admitted to practice in Kentucky. Kentucky Lead State chair. Newman is a graduate of the University of Kentucky and the University of Louisville Louis D. Brandeis School of Law. Taliaferro, Carran, Cowherd & Hampton, PLLC, would like to announce the promotion of Lisa D. Hampton to partner. Taliaferro,

66 | JANUARY/FEBRUARY 2021 Carran, Cowherd & Hampton specialize in plaintiff ’s personal companies and self-insureds. He also practices subrogation liti- injury, wrongful death and tractor trailer cases and have been in gation. He graduated from the Florida Coastal School of Law in business since 1999. Hampton joined the firm five years ago and 2010 and previously worked at Pohl & Aubrey, PSC, before joining acts as the managing partner. Kopka Pinkus Dolin.

Stites & Harbison, PLLC, announced that Kentucky Governor Andy Beshear has Kentucky native Marjorie A. Farris became the appointed Stites & Harbison, PLLC, attorney firm’s new chair in January 2021. She will be the Whitney Frazier Watt to the Board of Direc- first woman to lead the firm since its founding tors of the Governor’s Scholars Program. Watt in 1832. Farris succeeded Robert M. Connolly, attended the program at Northern Kentucky who served as the firm’s chair for the past six University in 1995. She will serve a three-year years. Farris plans to be actively engaged across term. The Governor’s Scholars Program is a all of Stites & Harbison’s 10 offices in Kentucky, summer residential program for exceptional Georgia, Indiana, Tennessee, and Virginia. An accomplished trial high school students in Kentucky. The mission of the program lawyer, Farris has actively defended more than 75 class actions is to enhance Kentucky’s next generation of civic and economic nationwide. Her practice encompasses a wide variety of substantive leaders. Watt is a member (partner) of Stites & Harbison based matters, including products liability, insurance bad faith, ERISA, in the Louisville office. She is a member of the torts & insurance and complex business disputes. Farris earned her J.D., cum laude, practice service group. Her litigation practice focuses on product from the University of Louisville Louis D. Brandeis School of Law, liability and also includes toxic torts, mass actions, contract dis- where she was Law Review’s notes editor, and her B.A. with high putes, tortious interference, coverage disputes and wrongful death. distinction from the University of Kentucky. Outside of the firm, Watt is active in a variety of professional and community organizations. R. Christopher Johnson recently made the move to Kopka Pinkus Dolin as a new associate attorney in the firm’s Lexington office. Dinsmore & Shohl LLP is pleased to welcome attorney Terri Johnson focuses his practice on workers compensation matters, han- Stallard, who has joined the firm’s Lexington office as a partner in dling insurance defense matters on behalf of employers, insurance its leading private client & family wealth planning practice group.

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She joins from McBrayer PLLC, where she practiced since 2004. of the firm, he is active in the community. He serves on the Louis- Stallard focuses on estate planning, business succession planning ville Zoo Foundation’s Board of Directors and is the mayor of the and asset protection. Having begun her career as an attorney at City of Glenview, Ky. the IRS, she is uniquely equipped with the knowledge to help clients navigate all possible options to preserve financial value for Ferreri Partners, PLLC, is pleased to announce themselves and their families. Zachary Richards as its newest associate. After spending his first years representing injured par- Stone Legal Group is pleased to announce ties, Richards has spent the last six years in the Nathan Mitchell has joined the firm as an realm of civil defense. He graduated magna cum associate attorney. His primary focus will be laude from the University of Tennessee with a probate and estate planning. He is a graduate Bachelor of business administration in logis- from the University of Mississippi and obtained tics. Richards will be based in Ferreri Partners’ his J.D. from the University of Louisville Louis Louisville office. D. Brandeis School of Law. He is a member of the Kentucky and Louisville Bar associations. The International Association of Defense Counsel (IADC) has appointed Stites & Har- The Legal Aid Society has recognized Stites bison, PLLC, attorney Sarah Cronan Spurlock & Harbison, PLLC, attorney Morgan Ward as chair of its Cyber Security, Data Privacy and with its Outstanding Volunteer Award for 2020. Technology Committee. IADC is an invita- Ward was one of three individuals honored with tion-only, peer reviewed member organization the award this year. The Legal Aid Society was comprised of the world’s leading corporate and founded in Louisville in 1921 with the mission defense attorneys and insurance executives. Spurlock is a member to pursue justice for people in poverty. The orga- (partner) of Stites & Harbison based in the Louisville office. She is nization provides civil legal help related to issues a member of the health care service group and co-chair of the firm’s of income, family, housing, safety and health in a 15-county area privacy & data security group. Spurlock regularly advises clients on of Kentucky. Ward is a member (partner) in the business litigation a wide range of health care and privacy matters, including fraud and service group based in Louisville. His practice focuses on commercial litigation, real estate litigation, trust and estates disputes, regulatory litigation, constitutional law, insurance coverage litigation, trial practice, arbitration, mediation and appellate practice. Ward has argued cases before the U.S. Court of Appeals for the Sixth Circuit, the Kentucky Supreme Court and the Kentucky Court of Appeals.

Kentucky Gover- nor Andy Beshear has appointed Stites & Harbison, PLLC, attorney Tom Halb- leib, Jr., as a member of the Kentucky Local Government Public- Private Partnership Board. He will serve a term expiring on August 1, 2024. Halbleib is a member (partner) of the firm based in the Louisville office. He is a member of the business & finance service group. He serves as outside general counsel to businesses and governmental organizations and, as a transactional lawyer, he has gained substantial experience representing airport sponsors, governmental agencies and other tax-exempt organizations, commercial lenders, and buyers and sellers of assets and businesses. Outside

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abuse laws, physician and hospital contracting, information privacy laude, in 2020. In law school, Barker was managing editor of the and security laws, and data breach prevention and response. Her Kentucky Law Journal, Volume 108. Barker was a member and practice includes regulatory and transactional matters and health chair of the Honor Council, a member and secretary of Street Law, care litigation. She is currently a member of the Board of Directors a board member of Trial Advocacy, a member and secretary of the of Yew Dell Botanical Gardens. She is a past volunteer for Louis- Women’s Law Caucus and an admissions ambassador for UK Law. ville Legal Aid Society. Prior to joining the firm, she was a summer associate for Stites & Harbison in 2018 and 2019. She also served as Ross Owens, III, former Legal Aid attorney, has published a book a senate intern for the Kentucky State Senate documenting his career’s commitment to justice. “Bending the Arc in the spring of 2016. Barnes is a member of Toward Justice,” highlights Owens’ experiences towards improving the torts & insurance practice service group. the lives of the underprivileged. The book is available for pre-pur- She earned her J.D. from the University of chase at colowensbooks.com. Kentucky J. David Rosenberg College of Law, cum laude, in 2020. During law school, Barnes Stoll Keenon Ogden PLLC (SKO) is pleased to welcome three served as executive editor of the Kentucky Jour- new associate attorneys to its Lexington office, all with educational nal of Equine, Agriculture & Natural Resources backgrounds rooted in the Commonwealth. Kelly Ball Broad- Law. She also was vice president of the Student Bar Association, bent is a 2020 graduate of the University of Kentucky’s J. David an admissions ambassador for UK Law and co-chair of the Trial Rosenberg College of Law. A Lexington native, she earned an Advocacy Board’s Education Committee. Prior to joining Stites undergraduate degree from Wake Forest University. Broadbent pre- & Harbison, Barnes was a summer associate for the firm in 2018 viously served as a summer associate for SKO firm in 2018. She is a and 2019. She was published in the Kentucky Journal of Equine, member of the firm’s business services, equine transactional, trusts Agriculture & Natural Resources Law in 2020 & estates, and real estate practices. Danielle Day, a former NCAA and in its blog in 2019. Khan is a member of champion swimmer for the University of Kentucky, graduated in the business litigation service group. She earned May 2017. Day earned her J.D. from the University of Florida’s her J.D. from the University of Kentucky J. Levin College of Law in 2020. She is a member of the firm’s labor David Rosenberg College of Law, cum laude, & employment practice. CJ Donald comes to SKO from Texas, in 2020. During law school, she was an articles where he was a member of the litigation practice group in the Dallas editor for the Kentucky Law Journal, Volume office of Haynes & Boone. He is a 2017 graduate of Vanderbilt Uni- 108. Khan was a member of the Moot Court versity Law School and a 2014 Centre College alumnus. Donald is Board, a member of the Class Gift Committee a member of the firm’s banks & financial services, business services, and a member and fundraising chair of the Women’s Law Caucus. and corporate finance & lending practices. Prior to joining Stites & Harbison, Khan was a summer associate for the firm in 2019. She also served as a prosecutorial intern at Lindsay Tate Porter has joined English, Lucas, the Fayette County Office of the Commonwealth’s Attorney in the Priest & Owsley, LLP, as an associate attorney. summer of 2017 and a law clerk for Mattmiller Crosbie, PLLC, in Porter practices in the areas of education and the summer of 2018. school law, employment law, and family law. A Frankfort native, she graduated from Western Kentucky University, magna cum laude, in 2016. Upon graduation from WKU, Porter attended the University of Louisville Louis D. Brandeis School and graduated magna cum laude in May 2020. While attend- ing the Brandeis School of Law, Porter clerked for an insurance Stay defense firm in Middletown, Ky., participated in the American Inn of Court as a pupil member, served as the Moot Court Board exec- Connected. utive vice-president, and as a University of Louisville Law Review Make sure to follow us associate symposium editor. to stay in the know. Stites & Harbison, PLLC, announces the Kentucky Bar Association addition of three attorneys to the firm.Megan Barker joins the Lexington office while Caitlyn KyBarNews Barnes and Ameena Khan join the Louisville office. All are admitted to practice in Ken- tucky. Barker is a member of the health care and insurance regulatory service group. She earned her J.D. from the University of Ken- tucky J. David Rosenberg College of Law, cum

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