KBA President Barbara Dahlenburg Bonar John, Katie, Alex and Ian in Covington’s Devou Park NATIONAL INSURANCE AGENCY When Your Term Is Up... We Won’t Let You Down! THE KBA LIFE PLAN: • Guaranteed renewable to age 75 • Low rates and easy application • 11th and 21st year rates at a fraction of ordinary rates • Long term protection even with changes in your health • Renewal and conversion features for lifetime protection National Insurance Get started today by phone, fax, online, Agency, Inc. or in person... Professional Association Insurance Program Administration 502-425-3232 • 800-928-6421 www.NIAI.com 11801 Brinley Avenue • Louisville, KY 40243 This issue of the Kentucky Bar CONTENTS Association’s Bench & Bar was published in the month of July. Publications Committee Constitutional Law Frances Catron-Malone, Chair, Frankfort Paul Alley, Florence Mindy Barfield, Lexington 17 Reservations for 50: A Closer Look Gregory M. Bartlett, Covington at the Tenth Amendment’s Powers Sandra A. Bolin, Berea Michael A. Breen, Bowling Green Reserved to the States Christopher S. Burnside, Louisville By John J. Balenovich Shawn E. Cantley, Louisville David C. Condon, Owensboro William S. Cooper, Elizabethtown 23 Board and Commission Appointments: James P. Dady, Newport Executive Power – With Limits Bruce K. Davis, Lexington Judith D. Fischer, Louisville By Bill Lear & David Fleenor P. Franklin Heaberlin, Prestonsburg Sheryl E. Heeter, Newport Judith B. Hoge, Louisville 28 Civil Resolution of Ecclesiastical Disputes Edna M. Lowery, Frankfort By Paul E. Salamanca Theodore T. Myre, Jr., Louisville Eileen M. O’Brien, Lexington Brian K. Pack, Glasgow 34 Reforming Reform – Kentucky’s Campaign Richard M. Rawdon, Jr., Georgetown Sandra J. Reeves, Corbin Finance Laws in Transition E.P. Barlow Ropp, Glasgow By David S. Samford Candace J. Smith, Covington E. Frederick Straub, Jr., Paducah Gerald R. Toner, Louisville John A. West, Covington Departments Michele M. Whittington, Frankfort 3 President’s Page Publisher By Barbara Dahlenburg Bonar James L. Deckard 6 Fall Getaway Registration Form Editor Frances Catron-Malone 9 YLS By Scott D. Laufenberg 16 Effective Legal Writing Managing Editor Barbara L. Thomas By Adrienne Noble Nacev The Bench & Bar (ISSN-1521-6497) is 38 Judicial Conduct Commission published bi-monthly by the Kentucky Bar 42 Supreme Court of Kentucky Association, 514 West Main Street, Frankfort, Order Correcting 2008-01 KY 40601-1812. Periodicals Postage paid at Frankfort, KY and additional mailing offices. Amendments to Circuit and All manuscripts for publication should be District Civil Fees & Costs sent to the Managing Editor. Permission is 46 Shop Talk By Michael Losavio granted for reproduction with credit. Publication of any article or statement is not 48 Resolution Adopted by to be deemed an endorsement of the views KBA Board of Governors expressed therein by the Kentucky Bar Recognizing Kentucky Public Association. Subscription Price: $20 per year. Members Defenders’ Excessive Caseloads subscription is included in annual dues and is 50 CLE not less than 50% of the lowest subscription price paid by subscribers. For more informa- 52 Kentucky Bar News Cover photo and photo above tion, call 502-564-3795. 59 Who, What, When & Where by Deogracias Lerma. POSTMASTER Send address changes to: Come join us October 23-25, 2008 for our Fall Getaway in beautiful French Bench & Bar Lick, Indiana at the historic West Baden Springs Hotel. Register now for a 514 West Main Street relaxing fall weekend! See page 6 of this issue for registration information Frankfort, KY 40601-1812 or register online at www.kybar.org. — Barbara D. Bonar, KBA President Kentucky Bar Association Annual Convention 2008 Chief Justice Joseph E. Lambert Administering the Oath to the 2008-2009 Kentucky Bar Association Board of Governors. Left to right: 7th Supreme Court District Bar Governor Bobby Rowe, 3rd Supreme Court District Bar Governor Daniel J. Venters, 2nd Supreme Court District Bar Governor James D. Harris, Jr., 1st Supreme Court District Bar Governor Jonathan Freed, Young Lawyers’ Section Chair Scott D. Laufenberg, Vice President Bruce K. Davis, President-Elect Charles E. English, Jr., 4th Supreme Court District Bar Governor Douglas C. Ballantine, 5th Supreme Court District Bar Governor Anita M. Britton, 6th Supreme Court District Bar Governor David V. Kramer and President Barbara Dahlenburg Bonar. 2008-2009 KBA President Barbara Dahlenburg Bonar accepting gavel from 2007-2008 KBA President Jane Winkler Dyche. KBA President Barbara Dahlenburg Bonar giving inaugural address. KBA President Barbara Dahlenburg Bonar with her husband, John Bonar, and her father, Charles Dahlenburg. 2 Bench & Bar July 2008 PRESIDENT’S PAGE CastingCasting shadowsshadows inin thethe newnew MillenniumMillennium Barbara Dahlenburg Bonar Character is like a tree and reputation like its shadow. The shadow is what we think of it; the tree is the real thing. — Abraham Lincoln, 16th U.S. president (1809-1865) celebrating 200 years in February, 2009. ou won’t glean it from the news dedicated to this very proposal, if you ment genres, we have been urged to Y these days, but one of the most can believe it.) How unfair, we say. take the lead, and we wittingly have pressing issues on the collective minds Especially given that the real intent of complied. And history shows that we of attorneys is the apparently declining the tyrant from Henry VIII was to elimi- have consistently taken on these battles reputation of our profession, and the nate the guardians of the law so as to in spite of the known social setbacks. results from our recent Kentucky Bar create chaos and run amok. But doesn’t We inherited the wind, remember? member survey seem to confirm it. So, that tell us something right there? Even So, can we as a profession pursue if we care so deeply about our image, where old Will had scripted our profes- justice without fear of social condemna- why is it we can’t come up with a sure sion the grandest of compliments, our tion, and then ask to be socially method to improve it? critics managed to turn it against us for coddled? Sometimes. But it doesn’t Each of us chose this profession posterity. always work out that way. Courage because we think it is an honorable one, So let’s first accept that our reputation seems to defy popularity. Thomas right? We exit law school proud to be is a two-edged sword. Being warriors for More’s unwavering passion for the rule attorneys and generally keep that belief the rule of law and noncomplacent to of law was exactly what got him throughout our careers. More impor- tyranny is what elevates our profession. beheaded. And let’s not forget Abraham, tantly, although the professional road Yet our valiant and often misunderstood Martin, John, Bobby and a few others. we travel is often harsh and fraught with warfare is what also brings our image Famous for their respective agendas of pitfalls, most of us remain true to our right back down. social justice, they were also publicly oath, devoted to our clients and, above History certainly supports such a pub- condemned by their enemies, and, oh all, honorable in our professionalism. lic relations conundrum. Take the yes, ultimately assassinated to take their So why is our image so tainted? Is it American Revolutionists. Thomas Paine seats of honor. Even fictional Atticus because people just generally dread knew all too well that fighting British Finch, the exemplar for a reputable encounters with the legal system and tyranny would undoubtedly “raise a attorney, lived with constant public dis- resent our making money off of their formidable outcry of disbelief” among paragement, merely for standing up for misfortunes? Maybe we should blame colonists. His solution? Publish Common justice. word-smithing lawyer politicians, the Sense anonymously and urge protectors Taking on unpopular battles in the complexity of our times, or the sensa- of law to lead the charge. “If the name of justice will just not always win tionalism of a few bad lawyers and impulses of conscience were clear, uni- us friends. And as long as greed and modern-day media? Well, yes we form, and irresistibly obeyed,” he pled, corruption continue in our world, so should. That still doesn’t get us any “man would need no other lawgiver.” We must our role to fight them, even when closer to solving our image problem, took the bait, and promptly laid the popularity wanes. As the warfare though. groundwork for our country’s birth. becomes more complicated, the enemies Besides, the persecution of our profes- Attorneys have been expected to smarter, and attacks on us and society sion is as old as the ages. Shakespeare’s show the same courage and tenacity in more fervent, we just have to be satis- “First thing…. let’s kill all the lawyers” most of America’s greatest reforms. In fied that our victories are no less has been a favorite expression of attor- the abolition of slavery, the civil rights consequential to social reform than in ney hate-mongers – for a long while, one movement, and, most recently, reforms history. The public may misunderstand would assume. (And there’s now a blog in our financial, business and govern- us, but our saving grace is the mighti- July 2008 Bench & Bar 3 ness of our profession’s legacy. character in our lawyers and, ultimately, yes, even popularity. Is it possible then, to still improve our bar. “The easiest way to judge one’s This year, in the name of Lincoln, our image? According to Abe, it is. character,” he noted, “is by how he let’s honor and emulate our good We start back at the basics by building treats those who can do nothing for lawyers and judges, and educate other individual character, one lawyer at a him.” On that simple premise, we know disciplines as to the rule of law we fol- time.