Kentucky Supreme Court Reverses Conviction In The Killing Of Amy Dye Of Logan County, Ruling That "Threatening [The 17 Year Ol Accused With Death Penalty] Is Objectively Coercive".

Ky. court overturns conviction in death of child

Investigators repeatedly threatened a teen suspect with the prospect of execution and being sexually assaulted in prison unless he admitted to the beating death of his 9-year-old sister, resulting in a coerced confession, the Kentucky Supreme Court ruled Thursday.
 
The unanimous high court found police went too far when they questioned Garrett Thomas Dye, then 17, about the death of his adopted sister, Amy Dye, in Todd County near the Kentucky-Tennessee state line. The justices ordered a new trial for Dye, who is serving 50 years in prison, and ordered a trial court to determine if evidence collected based on the statements should be allowed at the trial.

"Not only did the officer erroneously convey that (Dye) was death-eligible, but also that he was certain to receive a death sentence unless he confessed to his sister's murder," Justice Will T. Scott wrote. "We hold that repeatedly threatening a 17-year-old with the death penalty is objectively coercive."

The ruling places limits on what investigators may say to teenaged suspects during an interrogation and barred using such language when questioning teen suspects in the future.

Scott also concluded four officers made "inappropriate allusions" to prison violence and rape throughout the interrogation.
"Everybody's gonna forget about you until you get to Eddyville then they'll remind you of what happened. Every day they'll remind you," an officer told Dye.
"We will not feign ignorance to the fact that the officers were alluding to prison violence and/or rape and that is precisely how (Dye) understood these comments," Scott wrote.
Todd County Commonwealth's Attorney Gail Guiling did not immediately return a message seeking comment Thursday.

The girl's death drew the attention of state lawmakers. Records in the case were eventually released showing social workers either ignored or dismissed allegations of abuse and neglect against the child.
Amy Dye went missing Feb. 4, 2011, after spending the afternoon with her brother shoveling gravel. Police found the body early the next morning in a thicket about 100 yards from the Dye home. Investigators confiscated shovels, clothes, shoes and took a DNA swab from Garrett Dye.

Dye's father told officers he didn't want the teen questioned without an attorney present and he was released. Police arrested Dye the next day and charged him in the slaying.
During four hours of interrogation, police repeatedly told Dye he would be executed for killing his sister with a jack handle.
"Each death penalty reference was immediately followed by an officer asserting the only way for (Dye) to avoid execution was to confess to the murder," Scott wrote.

The officers did not tell Dye he was ineligible for execution under a U.S. Supreme Court decision barring the death penalty for anyone under 18 at the time of a crime. The officers also didn't disclose that Dye couldn't have received a death sentence because there were no aggravating factors to the slaying, which is required under Kentucky law to bring a capital case.

Also, the officers repeatedly told Dye he would be sexually assaulted and possibly beaten in prison if he went to death row at the Kentucky State Penitentiary at Eddyville. Dye at one point said he wanted to speak with a lawyer. Officers later told Dye if he chose to speak with a lawyer before talking to them, he would lose an opportunity to tell the truth.

Those threats and omissions were enough to overcome Dye's will and ability to make a rational decision about whether to talk to investigators, Scott wrote. Based on Dye's statement, officers returned to the house and seized more evidence, including shovels and other yard working equipment.
The admissibility of those materials at trial should be decided by a judge, Scott wrote.

In A Case Of First Impression For Kentucky, Judge Asked To Decide Whether Spousal Testimony Priviledge Applies To Same Sex Couples.

Ky judge to decide same-sex privilege issue

A Kentucky judge is weighing whether a same-sex couple qualifies for the privilege of not testifying against a spouse in a slaying case in Louisville.
The question arose in the case of Bobbie Joe Clary. Clary is charged in the Oct. 29, 2011, murder and robbery of 64-year-old George Murphy, accused of fatally wounding Murphy with a blunt object in his Portland home.

Clary is claiming self-defense, saying that Murphy was raping her and she fought back by hitting him in the head with a hammer.
The Courier-Journal reports ( http://cjky.it/13UjPsJ) Clary and partner Geneva Case were legally married in Vermont in 2004. Kentucky doesn't recognize same-sex marriages.
Attorneys for Clary say the couple is legally married and denying them the same marital rights others have would be a violation of the Constitution.

The case has become the first legal test in the state over forcing same-sex partners to testify against each other _ raising the broader issue of whether the state recognizes marriages or civil unions that are legal elsewhere. The case could have ramifications for issues such as divorces and division of property after death.
"It is going to have a huge impact," Angela Elleman, an attorney for Clary, said.
Elleman noted that couples are leaving the state to marry and coming back with legal issues that are going to have to be resolved.
"It's going to come up again and again and again," she said.

Kentucky voters amended the state constitution in 2004 to say that "only a marriage between one man and one woman shall be valid or recognized as a marriage."
Similar language passed as an amendment to the California Constitution in 2008. The amendment, known as Proposition 8, has been struck down by a federal appeals court. In what could be a sweeping case, the U.S. Supreme Court is expected to issue its verdict on the legality of the California gay-marriage ban soon.

Elleman said the Supreme Court ruling could affect the case here. Jefferson Circuit Court Judge Susan Schultz Gibson has set a July 30 hearing date.
Assistant Commonwealth's Attorney Stacy Grieve said prosecutors are not trying to make a statement against gay marriage, just follow state law and let the jury hear from a "witness with essential information concerning" the murder.

"Our position is that Ms. Case and Ms. Clary are not in a valid marriage under Kentucky law," Grieve said. "The murder happened here and we have to follow the laws of Kentucky."
Clary is claiming self-defense, saying that Murphy was raping her and she fought back by hitting him in the head with a hammer. The prosecution says Clary admitted her guilt to Case, who also allegedly saw Clary clean blood out of Murphy's van and abandon it in Southern Indiana.

But Case has told the prosecution she will not testify, invoking the "Husband-Wife" privilege under state law, where a spouse can refuse to testify as to events occurring after the date of their marriage.
Prosecutors have asked Gibson to refuse to recognize Case's claim of spousal privilege and order her to testify. Clary's attorneys argue that the civil union Clary and Case entered into was designed to give them all the rights, benefits and responsibilities of a married couple.

Susan Sommer, director of constitutional litigation at gay and lesbian rights organization Lambda Legal in New York, said there have been different outcomes across the country on the issue.
"This is very much about the privacy of the relationship between the two spouses and the importance of the state not piercing that relationship," she said. "Their relationship is the same for all the purposes and why we have these privileges in the first place."

NEW KENTUCKY LAW VOIDS LOCAL GUN REGULATIONS, ALLOWS CITIZENS TO CARRY GUNS IN MOST CITY BUILDINGS.

Ky. law allows openly carried guns in city buildings
BY Jessie Halladay

LOUISVILLE, Ky. -- People can now openly carry a firearm in any city-owned facility in Kentucky — including libraries, parks, the zoo, city council chambers and city hall — thanks to a revision made to state law last year.

The law, which applies to any legal firearm, also states that in some places, like suburban firehouses run by special districts, people with the appropriate permit may carry concealed weapons.

The revision, which became subject to enforcement this month, clarifies that firearms may only be regulated by the state, voiding all local ordinances and restrictions.

"Local governments can't regulate firearms," said Rep. Bob Damron, a Democrat from Nicholasville, Ky., who sponsored the bill, which was passed in 2012.

State law prohibits firearms in schools, jails and prisons. Colleges and universities are allowed to prohibit guns under state law, and restrictions in court buildings are set by the judicial branch. Private businesses may still prohibit guns, and a separate state statute allows cities to ban people from carrying concealed firearms into their facilities.

But with few state regulations specifically addressing guns on property owned by local governments and special districts, signs prohibiting people from openly carrying firearms have started coming down.

Damron said Kentuckians have not always been clear about where they are allowed to carry their firearms because of varied local policies and laws. But local bans were illegal, Damron said.

The bill passed the state House 88-8 on March 14 and the Senate less than two weeks later 34-2. Gov. Steve Beshear signed it into law April 11. A spokeswoman for Beshear had no immediate comment Thursday.

The law has created some consternation.

In response to the measure, Hardin County officials enacted an ordinance that bans concealed firearms from county buildings, said Hardin County Attorney Jenny Oldham. But the county is seeking advice from the attorney general's office on whether county-owned Hardin Memorial Hospital must allow openly carried firearms or is exempt because it is a health care facility.

In Louisville, the law has prompted a review of all metro government policies that might reference firearms, and some concern about its impact.

"We have serious concerns about the safety implications for our employees of metro government and the public who comes into these buildings," said Jefferson County Attorney Mike O'Connell, whose office is nonetheless making sure city laws and policies comply with the new state law.

Chris Poynter, a spokesman for Louisville Mayor Greg Fischer, said the city will now allow anyone openly carrying a firearm into its buildings. Other weapons, however, remain banned — "even though you can bring guns, you can't bring knives," Poynter noted — so metal detectors and security will remain.

"We have concerns for the safety of our workers," said Poynter, who pointed out that sometimes the work of government can make people angry. "To be able to come to the office with a gun is disconcerting to some of our employees. But the law seems quite clear on that."

Metro Councilman Kelly Downard said he's not afraid that people will act inappropriately.

"There are a whole lot of things more dangerous than that around City Hall," Downard said. "That doesn't scare me."

But Councilwoman Madonna Flood said the law "flies in the face of common sense."

It is not far-fetched that people may use weapons in meetings when they become upset, she said, citing the fatal September shooting of two men at a Spring Creek Homeowners Association meeting.

"When you bring guns into a situation where things become heated," Flood said, "you're asking for trouble."

Zoo's response

Louisville Zoo Director John Walczak said adjusting to the new rules is a "big change" for zoo staff, since guns had not been allowed there previously. Signs that once asked patrons to return any weapons to their cars have been removed.

Walczak said the zoo is developing training for personnel so they can monitor the zoo and ensure the safety of patrons, should someone bring in a firearm.

Stephanie Phelps, who visited the Louisville Free Public Library with her young son this week, said the idea of having guns inside a library makes her feel very uncomfortable.

"I don't think it's right at all," she said, adding that she would be concerned about someone who is emotionally unstable having a weapon and becoming agitated.

"They snap and they've got a gun and there goes everybody," she said.

Craig Buthod, library director, said incidents like the shooting in Newtown, Conn., where 26 people, including 20 children, were shot and killed at Sandy Hook Elementary School, have heightened awareness about the potential for danger.

But he said he doesn't believe many gun owners will opt to bring their firearms into libraries, especially because they are places where children gather.

"I think most people have better sense," Buthod said. "I don't think we'll have very many people bringing guns."

Firehouse firearms

In suburban fire districts, which are considered special districts under state law and aren't governed by the city or county, fire chiefs and trustee boards are no longer allowed to make their fire stations gun-free zones.

Additionally, because special districts are not covered under the separate law that allows cities to ban concealed weapons, they also must allow those with permits to bring guns into their buildings.

That includes firefighters on duty — something that has been met with mixed reaction among fire chiefs.

Harrods Creek Fire Chief Kevin Tyler said he's very uncomfortable with having his firefighters carrying weapons while on duty, for several reasons. Traditionally, firefighters do not carry weapons, and the public has come to expect that, Tyler said.

While obtaining a concealed carry permit requires some certification and training, Tyler said that's not sufficient for first responders. "We are seen as the people who help you," Tyler said, not the people who enforce laws and carry guns.

Jeff Riddle, chief of Middletown Fire, said on any given shift he has two or three firefighters who carry their personal weapons. Riddle said firefighters carrying guns present many potential problems, but there is nothing he can do to prevent it.

Riddle said the trustees have approved a new policy that prohibits leaving any potentially harmful item, including a gun, knife and medication, unattended in the firehouse. "If they bring it in, they are personally liable," Riddle said.

Buechel Fire Chief Rick Harrison, meanwhile, said he welcomes his firefighters who have permits to carry their firearms on duty. Harrison said there are times when firefighters encounter dangerous situations in which guns would provide added safety. For several years, Harrison has had permission from the trustee board to carry his weapon inside the firehouse.

"The gun they are allowed to carry is for their personal protection," Harrison said. He said the department plans to conduct additional training in firearm safety.

Harrods Creek Sgt. Ali Thomas, who has a concealed carry permit, said he won't be taking his gun to work.

Thomas, a former military police officer, said as a firefighter he doesn't want the added responsibility of carrying a gun on duty. "It's an added, unnecessary risk" that he'd have to worry about, Thomas said.

While Damron said he would be willing to look at whether the revised law is causing unexpected consequences, he firmly believes regulation should rest with the state.

He also sees no problem allowing guns in libraries, parks or other public venues.

Generally, "I'm in favor of giving people the right to protect themselves wherever they are," he said. Areas may be safer "if you have a carry concealed holder in those areas than if they were gun-free zones."

IN A CASE OF FIRST IMPRESSION IN KENTUCKY, FEDERAL BANKRUPTCY JUDGE ALLOWS GAY COUPLE TO FILE JOINT BANKRUPTCY.

Gay married couple allowed to file joint bankruptcy in Kentucky

(PICTURED ABOVE ARE Joey Lester, left, and Bob Joles lost their $200,000 investment in a downtown market).
Written by
Andrew Wolfson |

Despite living together for 16 years, Bob Joles and Joey Lester of Louisville could not legally marry in the state of Kentucky.

Even after they wed May 9 in Buffalo, N.Y., the state of Kentucky wouldn’t recognize their union.

But that didn’t stop them in June from becoming the first gay married couple to file jointly for bankruptcy in Kentucky. Nor did it prevent a federal bankruptcy judge from confirming their reorganization plan July 24.

Kentucky voters amended the state constitution in 2004 to say that “only a marriage between one man and one woman shall be valid or recognized as a marriage.” But Joles and Lester were allowed to file a joint Chapter 13 bankruptcy in federal court because the Obama administration has decided it will no longer contest such filings by married same-sex couples.

Joles and Lester, who lost more than $200,000 they invested in a downtown market — The Bodega at Felice — say the administration’s change was a blessing.

It allowed them to save $306 on a second filing fee and let Joles, who managed the store and is now unemployed, keep his car. And it kept them from having to divide the stuff they had accumulated during their lives together, which Joles said would have been like going through a divorce.

But the couple, who live in Clifton, said the real advantages of filing jointly were intangible.

“It made our marriage seem more real,” said Joles, 48. “And it forced the court to recognize us as a married couple.”

Lester, 47, a senior sales trainer for Verizon Wireless, said that while the couple regretted having to file for bankruptcy, it made sense to do it together.

“We have been together for 16 years, and our money is our money and our debts are our debts,” he said.

But opponents of gay marriage, including Martin Cothran, a policy analyst for the Family Foundation of Kentucky, said the Obama administration’s policy change is a “backdoor way of establishing same-sex marriage in the state” — violating the constitutional amendment his group helped get on the ballot.

State Rep. Stan Lee, R-Lexington, agreed, saying, “For a bankruptcy trustee and judge to allow this to go forward in the commonwealth of Kentucky is an affront to the citizens of this state who spoke very loudly in 2004 when they passed the marriage amendment.”

Lee, who has unsuccessfully fought to end partnership benefits for gays at Kentucky universities, also said he thinks it is “troubling that the Justice Department, at the direction of this president, would decide to choose what laws they enforce and not enforce. He is charged with enforcing all the laws, not just the ones he likes.”
Change in direction

Attorney General Eric Holder told Congress in February 2011 that the Justice Department would stop defending the Defense of Marriage Act, which bans recognition of gay marriages by the federal government.

Holder said that President Barack Obama decided that treating gay married couples differently violates the Constitution’s guarantee of equal protection under the law.

In July 2011, the Justice Department announced that the U.S. Trustee, the department’s division charged with enforcing the bankruptcy code, would no longer oppose joint bankruptcy filings by married gay couples. Previously, it had done so vigorously.

The Justice Department and the U.S. Administrative Office of the Court do not track how many bankruptcy cases have been filed jointly by gay married couples. But bankruptcy court officials in Louisville and Lexington confirmed that the Joles-Lester case is the first in Kentucky.

The couple’s lawyer, Shannon Fauver, who said she plans to file a bankruptcy petition for a married lesbian couple in the next few weeks, said the court’s acceptance “gives them protections they didn’t have before. It is a big deal.”

Chris Hartman, director of the Fairness Campaign, a civil rights group, said the change “is good news,” adding that there are more than 1,400 legal privileges, many of them money-saving, that are automatically afforded heterosexual couples yet almost universally denied to same-sex ones.

Fauver said after she filed the Joles-Lester petition June 5 in U.S Bankruptcy Court in Louisville, she received an email from the court asking if she had meant “to file for two guys.” Her legal word-processing software gave her no choice but two list one of the two men as “wife.”

“I said ‘yes’ — would you like to see their marriage license?” Fauver recalled.

William Lawrence, who was assigned to the case as the creditors’ trustee, said such a petition had never been filed in the Western District of Kentucky. Jerry Truitt, bankruptcy clerk for the Eastern District of Kentucky, said none have been filed there.

Lawrence said he asked Assistant U.S. Trustee Joseph Golden if he could accept it, and Golden informed him about the Justice Department’s new policy.
Upholding the law

Joles and Lester said they had no choice but to file after their banks declined to consolidate loans for their store at 829 E. Market St., which they ran from 2006 until it closed May 2009.

They said they feared that creditors would come after their home and other assets. They filed a business bankruptcy as well.

The couple’s petition listed assets of $414,443 and liabilities of $474,767, including loans from PNC, US Bank and Stock Yards Bank.

Under their plan, which was confirmed by Bankruptcy Judge Alan Stout, they must pay secured creditors $398 every two weeks for five years. Unsecured creditors will get about 5 cents on the dollar.

Justice Department spokeswoman Nanda Chitre said that while the department is no longer defending the Defense of Marriage Act when it is challenged in lawsuits, executive branch agencies are continuing to enforce it because it was enacted by Congress and it is the judiciary’s job to decide if it is constitutional.

She said the department decided not to contest filings by married gay couples in bankruptcy court because House Republican lawyers, who have stepped in to defend the act in some litigation, chose not to challenge those filings.

A spokesman for House Speaker John Boehner, R-Ohio, has said that would be too expensive and that bankruptcy cases are “unlikely to provide the path to the Supreme Court, where we imagine the question of constitutionality will ultimately be decided.”

Two cases involving the constitutionality of the Defense of Marriage Act appear headed to that court.

A spokesman for Mitt Romney’s presidential campaign, Christopher Walker, said in an email that “as president, Gov. Romney has pledged to appoint an attorney general who will defend the Defense of Marriage Act.”

For now, however, gay married couples may file bankruptcy jointly, which Joles said he appreciates.

“We live here and pay taxes here,” he said. “It is nice to know we have the same rights as other Americans.”

EDITOR'S NOTE: The federal Defense of Marriage Act

“In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

Kentucky Constitution

Marriage is prohibited and void:
(a) With a person who has been adjudged mentally disabled by a court of competent jurisdiction;
(b) Where there is a husband or wife living, from whom the person marrying has not been divorced;
(c) When not solemnized or contracted in the presence of an authorized person or society;
(d) Between members of the same sex;
(e) Between more than two persons

Kentucky constitutional amendment, 2004:

“Only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.”

Jurisdictions that permit same-sex marriage

Connecticut, Iowa, Massachusetts, New Hampshire, New York, Vermont, Washington and Washington, D.C.

EDITOR'S COMMENT: I WONDER IF THIS CASE WOULD MAKE IT TO THE SUPREME COURT SO THE COURT CAN CLARIFY IF GAY COUPLES CAN FILE JOINTLY IN BANKRUPTCY COURT.

Kentucky Supreme Court Upholds Removal Of Harlan Circuit Judge, Russell D. Alred.

Kentucky Supreme Court upholds removal of Harlan judge
By Jack Brammer

FRANKFORT — The Kentucky Supreme Court has upheld a decision by the Judicial Conduct Commission to remove Harlan Circuit Judge Russell D. Alred from office for misconduct.

In a 62-page opinion Monday written by Chief Justice John D. Minton Jr., the state's highest court agreed with the commission's finding of eight of nine counts of misconduct by Alred.

"From our review of the record, it is clear that Judge Alred engaged in a pattern of misconduct, displaying disregard for the law and the Kentucky Code of Judicial Conduct," said the opinion. "He continually refuses to accept responsibility for his actions or acknowledge his wrongdoing."

An attorney for Alred, Marcus Carey of Erlanger, argued before the Supreme Court in April that Alred was treated unfairly and should be allowed to keep his job.

The Judicial Conduct Commission ordered Alred removed last September.

Alred agreed not to preside over cases after the commission ruling last year, but he still receives his salary.

The high court's ruling does not take effect immediately. Alred can ask the court for a rehearing.

Alred was the fourth judge since 1984 to be removed from office by the commission.

The commission had offered a deal in which Alred would receive a 90-day suspension if he would admit ethics breaches, but he refused.

The panel judged Alred guilty of numerous ethics violations, including having improper involvement in cases, failing to dispose of cases fairly, using his office to advance personal interests and misrepresenting his actions.

In the Supreme Court ruling, Justices Mary Noble and Wil Schroder concurred with Minton's opinion. Justice Daniel J. Venters concurred in a separate opinion, which Justice Lisabeth Hughes Abramson joined.

Justice Bill Cunningham concurred in part and dissented in part in a separate opinion, which Justice Will T. Scott joined.

In his opinion, Cunningham wrote, "Judge Alred has not killed or physically injured anyone. He has not molested his secretary. He has not stolen a dime.

"In fact, he hasn't even been charged with a crime of any kind — misdemeanor or felony. None of his friends or family members has gotten rich or gone free because of his missteps. He has not enriched himself financially nor engaged in any kind of debauchery.

"His judicial misconduct has been primarily on behalf of children and against criminals. In all his excessive exuberance, he has failed to grasp his professional responsibility. He simply has not learned how to conduct himself as a judge."

Read more here: http://www.kentucky.com/2012/07/23/2267865/kentucky-supreme-court-upholds.html#storylink=cpy

WE JOIN THE LEXINGTON HERALD LEADER IN BEMOANING "KENTUCKY'S BACKWARD POLICY ON EX-FELON VOTING RIGHT". YES, WE DO!

Ky.'s backward policy on ex-felon voting

Ky. disenfranchises too many citizens

Each election season, responsible citizens loudly bemoan — as they should — low voter turnout.

In the Kentucky primary this May, only 14 percent of registered voters exercised their privilege.

Equally discouraging — but more easily remedied — is that a huge number of Kentuckians did not even have that privilege.

As a report issued by the Sentencing Project last week confirms, Kentucky remains one of the most backward states when it comes to restoring voting rights to felons who have paid their adjudicated debt to society.

We are one of only six states in which more than 7 percent of the population is disenfranchised as a result of felony convictions. Among black Americans, that climbs to 22 percent.

Contrast that to neighboring Indiana where less than 1 percent of the voting age population is disenfranchised for felony convictions and 7.8 percent of blacks.

Kentucky is one of only a handful of states that doesn't restore voting privileges even after a person has served time and been released from probation or parole.

Under the Kentucky constitution, ex-felons can only regain voting rights by petitioning the governor individually.

For several years, the Democrat-controlled Kentucky House of Representatives has passed a bill to place an amendment on the ballot that would automatically restore voting rights for all but the most serious criminals once they have served their sentences or been released from probation or parole.

Each of those bills has died in the Senate where Republicans set them aside without a hearing.

That's just another example of the cynical march by some right-wing elements to pick and choose who gets to vote in this country.

Voting is the most basic privilege of citizenship, it is what holds a democracy together. We don't take to the streets in violent protest when we lose an election because we had a say and will again.

It's in everyone's interest for people who have committed crimes and served their time to rejoin society. But the chances of that happening are reduced when they are excluded from this most basic right.

Opinion polls consistently show that people favor restoring voting rights to felons who have served their time. It's time for the Kentucky Senate to get that message.

Read more here: http://www.kentucky.com/2012/07/17/2260811/kys-backward-policy-on-ex-felon.html#storylink=cpy

KENTUCKY SUPREME COURT UPHOLDS LAW MAKING LANDLORDS LIABLE FOR TENANTS' DOG BITES.

Ky Supreme Court rules landlords could be liable for dog bites

If their tenants’ dogs bite people, an opinion by the Kentucky Supreme Court says landlords can be liable. The Kentucky Enquirer reported the opinion won’t help a Newport family. Their child was wearing a lion costume for Halloween when he was mauled by a boxer in July 2009. The court ruled the dog was too far from the rental property for the landlord to be liable in that case. Instead, the dog’s owner was found liable. She was ordered to pay $80,000 to the family.

EDITOR'S COMMENT: THE CASE IS BRANDON BENNINGFIELD (BY AND THROUGH HIS MOTHER AND NEXT FRIEND, LAURIE ENNINGFIELD) V. HELEN ZINSMEISTER, DECEASED; AND WADE ZINSMEISTER. YOU CAN CLICK HERE TO READ THE OPINION.

In A Welcome News, Kentucky Supreme Court Limits Police Use Of "Protective Sweeps" That Do Away With Our Constitutional Right To "Be Secure In Our Homes Against Warrantless Searches And Seisures". There Is A God!

Ky. court limits 'protective sweeps' by police
By BRETT BARROUQUERE

LOUISVILLE, Ky. — Lexington police told Crystal Lynn Guzman that, unless she agreed to allow a search of her apartment, an officer would remain with her while another got a warrant.

Guzman consented to a warrantless "protective sweep" search in the early hours of Sept. 10, 2008, which turned up cocaine and drug paraphernalia and resulted in Guzman's arrest.

But the Kentucky Supreme Court ruled Thursday that the threat of getting a search warrant amounted to an impermissible ruse by officers, who had no probable cause for a warrant. The ruling and threw out Guzman's conviction as well as the evidence seized in the search.

The ruling sets new limits in Kentucky on how far police officers may go to gain access to homes and vehicles without a search warrant.

"Even when a search is authorized by consent, the scope of the search is limited by the terms of its authorization," five justices wrote in an unsigned opinion.

Justice Bill Cunningham wrote in a concurring opinion that using the threat of a search warrant without probable cause to get the document has become a dangerous and much used technique that "could be an exploding land mine."

"When you have consent to enter into one's living room, you are not invited into the kitchen, or the bedroom, or the basement," Cunningham wrote. "Here, we are talking about the suppression of drugs. When the issue appears squarely before us in full bloom, it could mean the suppression of a murder weapon. Hopefully, this writing will help us avoid that more critical situation."

When making an arrest, police have the right to search and control the immediate area around where the incident happened for their own safety. But, when making an arrest in a home, officers generally need some evidence of criminal wrongdoing in another part of the residence to continue searching. Without consent or an emergency circumstance, officers have to stop the search unless a warrant is granted.

In this case, officers went to Guzman's apartment after a neighbor complained about possible drug transactions. Officers found Guzman and a man on the floor having sex when they arrived. Once Guzman turned on a lamp, officers asked if anyone else was in the apartment, to which Guzman responded no. Officers saw a blanket covering a doorway and conducted a "protective sweep" of the apartment.

During the sweep, an officer found a spoon in the kitchen sink that had drug residue on it. That's when an officer asked for permission to search the entire apartment. Guzman refused and officers threatened to get a warrant do to so.

The justices noted that there was no evidence of criminal wrongdoing seen in the living room and were told that no one else was in the apartment. Without consent, officers should not have conducted the sweep or been in the kitchen, the justices wrote.

The justices noted that the "ancient" Fourth Amendment to the Constitution, as well as Section 10 of the Kentucky Constitution, protect citizens from warrantless search and seizures and "do not discern between rich or poor."

"This apartment, its occupants, and their unseemly activities may not have measured up to an acceptable standard of decency," the justices wrote, but that didn't give officers the right to search the home.

Cunningham noted that the method used by police "is fraught with constitutional problems."

"Misinformation or deception by a law enforcement officer for purposes of obtaining consent to search will not be upheld," Cunningham wrote.

Read more here: http://www.kentucky.com/2012/06/21/2232923/ky-court-limits-protective-sweeps.html#storylink=cpy

Editor's comment; A great win for "We, the people".

Editor's note: The case is CRYSTAL LYNN GUZMAN V. COMMONWEALTH OF KENTUCKY, 2010-SC-000415-DG (2012) and can be read here.

Kentucky Supreme Court: Exigent Circumstances Did Not Exist For Police To Enter "Wrong" Apartment Without A Search Warrant.

State Supreme Court rules against Lexington police for entering home without a search warrant By Greg Kocher Urgent circumstances did not exist for Lexington police to enter an apartment without a warrant in 2005, the Kentucky Supreme Court ruled Thursday. The decision is the latest development in a case that was addressed by the U.S. Supreme Court in 2011 and sent back to Kentucky. At issue are the circumstances that must be present for the police to enter a home without a search warrant, which the Constitution normally requires.

The decision is not only a victory for Hollis Deshaun King, whose 2006 conviction on various drug charges was canceled by a previous Kentucky Supreme Court decision, it is a victory for the public against unreasonable searches and seizures, said Jamesa J. Drake, the public defender who represented King. The case dates to Oct. 13, 2005, when King was entertaining two friends at his Centre Parkway apartment. No one disputes that there was marijuana and a small amount of cocaine in the apartment. But police might never have known were it not for a nearby undercover operation in which an informant bought crack cocaine from a dealer. When the dealer entered King's apartment building, the police moved in to arrest the dealer.

Police heard a door slam in a breezeway but did not see which apartment the suspect had entered. As it turned out, their suspect had entered the door on the right. The police went to the door on the left, after smelling pot coming from that door. After they knocked and announced themselves, the officers said they heard noises they thought might indicate that evidence was being destroyed. They kicked in King's door and. finding the drugs, arrested King and his friends. King eventually pleaded guilty to drug trafficking, marijuana possession and being a persistent felony offender, but he reserved the right to appeal a circuit court's denial of his motion to suppress evidence. The Kentucky Court of Appeals affirmed the circuit court's judgment. But in 2010, the Kentucky Supreme Court threw out the evidence against King and vacated his conviction, ruling that police did not have cause to burst into his home without a warrant. The state court said police may not rely on "exigent" or urgent circumstances they themselves create to enter a home without a warrant. But in its May 2011 decision, the U.S. Supreme Court held that police may rely on urgent circumstances so long "as the police did not create" the emergency by engaging or threatening to engage in conduct that violates the Fourth Amendment protection from unreasonable search and seizure.

Because the police did not engage in such conduct, the U.S. Supreme Court reversed the Kentucky Supreme Court. But the U.S. Supreme Court held that any question about whether urgent circumstances actually existed were better addressed by the state supreme court. That issue was addressed in Thursday's seven-page opinion written by Justice Wil Schroder. Under the Fourth Amendment, police can't conduct a warrantless search in a private home without probable cause (the smell of marijuana provided the undisputed reasonable cause in this case) and urgent circumstances. Any other search is unreasonable. The state attorney general's office originally argued that the warrantless entry was justified by the "hot pursuit" of a fleeing suspect and the imminent destruction of evidence. The U.S. Supreme Court denied review on the issue of hot pursuit, so the state Supreme Court on Thursday reaffirmed its original opinion that "there was no hot pursuit justifying the warrantless entry of the back left apartment." On the issue of imminent destruction of evidence, the Kentucky Supreme Court concluded that the commonwealth "failed to meet its burden" of demonstrating urgent circumstances justifying a warrantless entry. During a Fayette Circuit Court hearing in which King sought to suppress evidence, Lexington police officer Steven Cobb repeatedly referred to the "possible" destruction of evidence. Cobb said that he heard people moving inside the apartment and that this was "the same kind of movements we've heard inside" when other suspects have destroyed evidence. Cobb never articulated the specific sounds he heard that led him to think evidence was about to be destroyed.

Thursday's opinion said the sounds "were indistinguishable from ordinary household sounds, and were consistent with the natural and reasonable result of a knock on the door. Nothing in the record suggests that the sounds officers heard were anything more than the occupants preparing to answer the door." Finally, the opinion said that urgent circumstances "do not deal with mere possibilities, and the commonwealth must show something more than a possibility that evidence is being destroyed to defeat the presumption of an unreasonable search and seizure." Chief Justice John D. Minton Jr. and Justices Mary Noble, Daniel Venters and Lisabeth Hughes Abramson concurred in the majority opinion. Justice Bill Cunningham dissented because he said the officers acted under urgent circumstances, and Justice Will T. Scott joined in that dissent. Allison Martin, communications director for the state attorney general's office, said Thursday's decision was under review there. "Our attorneys have 20 days to determine whether or not they will ask for a rehearing at the Kentucky Supreme Court," Martin said. In addition, the attorney general's office has 90 days to seek a review by the U.S. Supreme Court, Martin said.

Read more here: http://www.kentucky.com/2012/04/26/2165923/state-supreme-court-rules-against.html#storylink=omni_popular#wgt=pop#storylink=cpy

Editor's note: check out the opinion here.

Kentucky Supreme Court Rules Universities CANNOT Ban Guns In Glove Compartment Of A Car Parked On University Grounds, But May Do So Elsewhere.

Supreme Court says gun in car is legal at University of Kentucky By Linda B. Blackford A University of Kentucky graduate student and employee was wrongfully fired for having a gun in his car, the Supreme Court of Kentucky has ruled. In its decision released Thursday, the justices reversed a Fayette Circuit Court decision that upheld Michael Mitchell's firing after police searched his car and found a gun on UK property. The case now returns to circuit court. It started in 2009, when Mitchell was an anesthesia technician and graduate student at UK. Some of Mitchell's co-workers reported that he had a gun in his locker at work. Mitchell told UK police officers that he had a concealed-carry license and kept a semi-automatic pistol in his car, which was parked at Commonwealth Stadium. UK then fired Mitchell for violating its policy prohibiting firearms on UK property. Mitchell filed suit, saying his firing violated the state and federal right to bear arms. The circuit court granted summary judgment in favor of UK, and Mitchell appealed the case to the Supreme Court. The justices said the case presented two conflicting issues: the right to bear arms versus UK's right to prevent them on campus. In the end, a majority of justices concluded that the conflict had to be resolved in favor of the intent of the Kentucky General Assembly. "We base this on the General Assembly's explicit statement that the concealed-carry licensing statute is to be liberally construed in favor of the right to bear arms, as well as the legislature's clearly expressed policy of exempting a person's vehicle from firearms regulation," the decision said. UK spokesman Jay Blanton said officials had not yet had time to review the decision Thursday morning. Mitchell's attorney, Christopher Hunt of Lexington, was not immediately available for comment. Read more here: http://www.kentucky.com/2012/04/26/2165507/supreme-court-says-gun-in-glovebox.html#storylink=omni_popular#wgt=pop#storylink=cpy Editor's note/comment: You can read the court's opinion here. Editor's note:Read the Supreme Court ruling against UK over firing of employee over gun by clicking here.

Telling Us What Many Of Us Already Knew Except Most Lawmakers, Kentucky Supreme Court Affirms That The General ASSembly's Redistricting Plan Violates Section 33 Of The State Constitution; Legislators Must Run In Old (Previous) Districts.

Read the short opinion here. The court will issue comprehensive opinion later.

Click here to read Judge Shephard's opinion on appeal.

ANYONE who thought the Supreme Court will do away with Fisher 11's constitutional requirement of a population variance of -5% to 5% was sadly mistaken. The court, with this opinion, CLEARLY reaffirmed Fisher 11.

Jeff Hoover And Others Seek Injunction To Restrain The Enforcement Of Kentucky's Legislative Redistricting Efforts.

Read the plaintiffs' verified complaint here seeking the injunction, memorandum in support of the injunction, and the order the Plaintiffs proposed for the judge to sign.

I suspect the whole redistricting scheme, from what I read since I have not seen the plans, may be declared unconstitutional.

But we have to wait and see.

It Is Time To Re-Think Annual Legislative Sessions For Kentucky.

Joe Gerth | Need for yearly legislative sessions in Kentucky questionable

FRANKFORT, Ky. — It's time to ask a question that you hear on a daily basis as you walk the halls of the Kentucky Capitol: Do we really need yearly legislative sessions that are costly and are producing fewer and fewer results?

We pose this question as the legislature heads into the final full week of the steeped-in-politics 2011 General Assembly — poised to pass fewer bills this year than ever.

Folks who will admit to supporting the 2000 constitutional amendment to allow annual legislative sessions are about as rare as tea partiers who favor tax increases.

House Speaker Greg Stumbo, however, defends the annual sessions, saying they help members plan their year since there is less of a risk of being called into special session to approve pressing legislation.

At this point in this session, only one bill has passed both houses of the legislature and been signed by the governor.

That bill is Senate Bill 110, allowing optometrists to perform certain surgeries and procedures, which sailed through the legislature after the optometrists gave political contributions to all but one member of the General Assembly.

Only five other bills — on weighty topics like reclassifying the city of Pikeville — have passed both houses but are not yet signed into law. And only one of those has passed both houses in the same form.

And with time growing short, only 14 other Senate Bills have cleared house committees and 18 House bills have cleared Senate committees.

That's what $1.5 million of your tax dollars has bought so far.

If the House and Senate follow their calendar, Senate Bills that don't clear a House Committee by Tuesday — before the full House recesses for the day — are officially dead.

House bills that haven't yet cleared committee still have a little bit of life left because of the Senate leadership's use of parliamentary maneuvers that get bills their first two floor readings before they pass committees.

Those maneuvers often act to prevent legislators from filing floor amendments to the bills, and they also prevent members from closely scrutinizing the bills before votes — but they also keep bills alive later in the session.

But this year's session could be historic for the amount of work the House and Senate didn't do.

The 2011 session is the sixth regular odd-year session since the constitutional amendment establishing them passed, and never before have fewer than 101 bills passed and become law.

If you determine productivity by the number of bills that pass, the 2005 session, which saw 156 bills become law, was the most productive. But since then, the number has dropped to 120 in 2007 and 101 in 2009.

Some, if not many, would argue that the less the legislature does, the better. They view most legislation as an attack on their liberties, their wallets or both.

It would be very surprising if the legislature even passes half the number of bills it did in 2009 — and only a few of those bills will be considered important pieces of legislation.

Blame it on a lack of money in state coffers, which severely limits what a legislature can do.

And blame it on politics. Senate President David Williams, who is running for governor, started the session trying to pass 13 bills that looked more like a campaign than serious legislation during the first week — which is normally reserved for organizational activities.

Some wag suggested that the first week of the session was so much about gubernatorial politics that Williams ought to pay the $280,000 cost out of his campaign account.

Few of those bills would have had a shot of passing the House in a normal year — but House members were even more unlikely to pass the legislation because they could be seen as giving Williams' gubernatorial aspirations a lift.

And they wouldn't want to do that. So, the question remains: Is the annual session working? Or should we declare it a failed experiment and amend the Kentucky Constitution again to get rid of it?

Joseph Gerth's column appears on Mondays. He can be reached at (502) 582-4702 or at jgerth@courier-journal.com. His mailing address is 525 W. Broadway, P.O. Box 740031, Louisville, KY 40201-7431.

My Friend Marcus Carey Says "[Eric Deters] Lawsuit Could Expose Ugly Underbelly Of Kentucky Judicial System". I AGREE.

Lawsuit Could Expose Ugly Underbelly Of Kentucky Judicial System

Eric Deters gets tons of attention. He is a loud talker on WLW radio, he is an "in your face" lawyer and he sues at the drop of a hat. Now, after fighting for years to defend himself against a series of complaints over allegedly unethical behavior, Deters is suing the Kentucky Bar Association in federal court.

According to a newspaper article this morning, Deters is asking Federal District Judge Danny Reeves to enjoin the KBA from finalizing a disciplinary action prosecuted against him. According to the report, the disciplinary action stems from an on-the-air criticism Deters leveled at Circuit Judge Stephen Bates. While the actual complaint and all proceedings up to the recommendation of the hearing officer are handled as confidential matters by the KBA, Deters lawsuit opens the door into an examination of the entire process.

Deters complains that one of the decision makers at the KBA works for the same firm that represented one of the people who filed a complaint, and that fairness required that person to step aside. This might seem a minor point, but the every litigant, including lawyers, deserve fair and impartial decision makers. And that is where the real ugly stuff starts.

Deters is reported to have broadcast some very harsh criticism of Judge Stephen Bates of Grant County, who had ruled against Deters in a case he was prosecuting. According to a number of reports, some of that criticism suggested that the judge was acting "unethically".

At issue in Deters lawsuit is nothing less than The First Amendment. According to the rules of the Kentucky Bar Association, lawyers are severely muzzled when it comes to criticizing a sitting judge. While propriety and respect are hallmarks of the legal profession and the Bar Association, which is an arm of the Supreme Court, has an interest in securing for the entire system a healthy respect among the public, Deters suit raises a very interesting question: Why should lawyers not have the same rights as ordinary citizens to speak their minds?

If Deters accusations were false, malicious or defamatory, then just as any other ordinary citizen there are and should be penalties for such speech. But, included in the larger context of Deters suit is the question whether lawyers can be constitutionally prohibited from criticizing judges.

Since the current set of bar association rules, and the decisions interpreting them, have been handed down by the very judges which the rules are written to protect, Deters suit has the potential to expose much more than the allegations of the complaints filed against him. It sounds like his suit could raise the question whether those whose oath requires them to defend the constitution are ignoring it in order to benefit themselves.


Editor's comment: Thoughtful piece, Marcus.

It remains to be seen whether the "lawsuit could expose [the] ugly underbelly of Kentucky judicial system" or whether Eric Deters might as well be "whistling dixie"!

This One Will Haunt Lexington Mayor, Jim Newberry, Come Election Time.

Mayor calls for probe into jail personnel practices
By Ryan Alessi and Valarie Honeycutt Spears

Mayor Jim Newberry on Saturday called for an independent investigation into management and personnel policies at the Fayette County Detention Center after three female corrections officers have filed lawsuits this year alleging harassment, retaliation or sexual discrimination.

Newberry's announcement came three days after the most recent suit was filed by corrections officer Tanya Newcomb, who alleged that her supervisor, Capt. Dwight Hall, retaliated against her for filing a complaint about a warning he gave her in 2006.

Newcomb's complaint also described a "sexually hostile atmosphere" at the detention center — a theme that arose in two previous lawsuits brought by female corrections officers this year.

The city's law department told Newberry that the two previous situations were unrelated to each other.

But Newberry, in a news release issued Saturday afternoon, said in light of the third complaint, "I think we need an independent agency to take a look at employment practices at the jail."

Newberry is expected to select an organization to conduct the review next week, according to the release.

Until now, Newberry has remained quiet about the lawsuits, citing the sensitive legal nature of the cases.

"We have worked to make significant improvements over the last two and a half years," Newberry said in a statement. "This probe will help us decide whether more changes are needed."

I Omitted To Inform You About A VERY Important Kentucky Supreme Court CORRECT Ruling Concerning "Loss Of Consortium". Sorry. Read More Below.

Read the very well reasoned opinion by Justice Mary Noble.

Below is an excerpt:

But just as the Court did not address whether loss of parental consortium continues after the age of majority in Guiler, the legislature has not addressed specifically in the statute whether loss of consortium damages continue after the death of the spouse in KRS 411.145. This question was not at issue in Guiler, but is the controlling question here. Thus this Court must answer that question, and does so by saying that loss of consortium damages under KRS 411 .145 do not cease at death.

The Court reaches this conclusion by first looking at the language of the statute: "a wife or a husband may recover damages." Those damages, as enumerated in subsection (1), encompass "services, assistance, aid, society, companionship and conjugal relationship . . . ." KRS 411 .145(1) . When this loss results from a "negligent or wrongful act" of a third person, the legislative intent is clear that this person must compensate the spouse for the loss. The general focus of this statute is compensatory in nature.

The courts have been exhorted that "common sense must not be a stranger in the house of the law." Cantrell v. Kentucky Unemployment Ins. Comm'n , 450 S.W.2d 235, 237 (Ky. 1970) . It is apparent that the kinds of damage elements enumerated in the statute are those that describe the personal relationship, mental and physical, between spouses. It is equally apparent that the pain and deprivation coming from loss of such interactions does not magically disappear the day a spouse dies . It defies common sense to put a value on such losses while a spouse is lying incapacitated, but to say the loss is worthless after death. While grief and loss are borne in different ways by different people, it is nonetheless a common part of the human condition that a jury can properly evaluate based on the facts and circumstances of each case.

Further, since the statute is intended to be compensatory, full compensation cannot be had if the damages claimed are required to terminate at death. Indeed, in many cases death is so sudden or follows so quickly after the injury that to cut loss of consortium damages off at death is to essentially deny the cause of action to the spouse altogether . In creating the cause of action, the legislature did not indicate in the statute that it applied only when the victims survived . To read the statute that way would be to create a class of plaintiffs whose cause of action depended on the vagaries of fate, rather than an orderly operation of law. Can it reasonably be said that one whose spouse survives suffers more loss of consortium than one whose spouse dies?

Moreover, allowing a loss of consortium claim only if the victim survives would appear to give perverse incentives to potential tortfeasors . Such a rule could create incentives to kill victims instead of leaving them disabled, as only by instantly killing the victim can the tortfeasor be guaranteed to owe no loss of
consortium damages. While this logically follows the common law rule, it is obviously absurd.

Editor's comment: Justice Mary Noble, I couldn't have said it BETTER myself!

Kentucky Appeals Court Says Gay/Lesbian Couples Cannot Adopt Children As "Step Parents".

Read more from the C-J, until I can post the opinion here and analyze it.

But if you insist on an excerpt from the C-J, here it is:

In a harshly worded opinion, the Kentucky Court of Appeals has barred judges from allowing lesbians to adopt as though they are a stepparent.
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Ruling 3-0 in a Jefferson County case, the court said that stepparent adoptions are allowed only when the stepmother or father is married to the biological parent, and marriages between gays are forbidden by both statute and Kentucky's constitutional amendment banning same-sex marriage.

In a 62-page ruling issued Friday about the case, the court said that with a "wink-wink" and a "nod-nod," Family Court Judge Eleanore Garber and lawyers for a lesbian couple ignored those laws.

And as many as three or four family court judges in Jefferson County may have allowed such adoptions, the opinion said.

"It is not this or any court's role to judge whether the legislature's prohibition of same-sex marriage ... is morally defensible or socially enlightened," Judge Glenn Acree of Lexington wrote for the court in the decision that criticized Garber and the lawyers involved.

"Nor is it this or any court's role ... to craft any means by which the legal consequences of such a prohibition may be negated or avoided."

The case involved two women identified only as S.J.L.S. and T.L.S. and their son, identified as Z, who is now 8.

The court allowed T's adoption of Z, but only because S waited more than a year to challenge it, and Kentucky law says adoptions can't be attacked for any reason after more than one year.

Regardless of that case's outcome, however, the court said "stepparent-like adoption" does not exist under the laws of Kentucky. "We wish to make this point perfectly clear."

The ruling was condemned by the American Civil Liberties Union, which says that children of same-sex couples deserve the protection of two parents just like any other child.

"This is worrisome because any public policy that denies the child of a same-sex couple of the right to have two parents does one thing and one thing only: It harms that child," said Christine Sun, senior staff attorney for ACLU's Lesbian, Gay, Bisexual and Transgender Task Force.
...
The case took on added intrigue because a letter from the Cabinet for Families and Children to the court objecting to the adoption disappeared from the court file.
...
The events leading to the case arose in 1997, when S and T met and agreed to be life partners, according to the court's opinion.

S took T's last name, legally changing her own, and later agreed to be artificially inseminated by a man picked by T. In 2001, when Z was just six weeks old, S and T moved for joint custody, which was granted.

Two years later, their relationship ended, but T had "an unquestioned and deep affection for Z," the court said, and with S's permission, she initiated adoption proceedings.

Zeller claimed the petition was "akin to a step-parent adoption" -- which doesn't require the cabinet's approval -- and wrote in a court filing that Z was T's "step-son."

A Cabinet worker wrote to Garber that T couldn't adopt Z as a stepparent because she and S weren't married, but the letter went missing. A second letter, from one of the agency's lawyers, did get to Garber, and the lawyer warned in it that if the adoption went through, S would have to terminate her rights to the child, as is routine when a mother gives up a child for adoption to a stranger.

According to the Court of Appeals, Garber knew the cabinet's position but approved the adoption in 2005 anyway, citing other states that allow stepparent-like adoptions. Garber also ruled that S wouldn't have to waive her parental rights to the child.

"Let's face it, this is a legal fiction because gay couples cannot marry in the state of Kentucky," Zeller said in Family Court, according to the Court of Appeals. "So it's a legal fiction . . . to give equal protection, equal rights, to gay couples."

Zeller also said that adoption by gays was an area in which the General Assembly "hasn't caught up with many, many people who are in the shadows of what our Christian nation views as family."

Later, after a dispute on visitation, S hired a new lawyer and challenged the adoption, and Garber agreed she had erred in granting it but decided that S waited too long to challenge it.

The Court of Appeals affirmed that decision, but denounced Zeller and S's original counsel, Bryan Gatewood, for pursuing a "stratagem so clearly contrary to statute and public policy" and trying to achieve their ends through the courts rather than the legislature.

"Unfortunately, the parties' sexuality preference or some other sympathy for their plight impaired the way legal professionals viewed the law," Acree wrote in an opinion in which Judge James Lambert joined.

Judge Michelle Keller concurred in the result only. "We cannot ignore -- and the family court should not have ignored -- the fact that the parties' relationship simply does not exist as a 'marriage' of any kind."
...

Editor's comment: From the C-J story, it appears that the judges chastised by the Court of Appeals opinion were trying to make law rather than interpret, and apply, it to the facts of the case, as judges swear an oath to do.

Justice John Minton Selected As Kentucky's Chief Justice.

Here is th press release:

Kentucky Court of Justice
John D. Minton Jr. elected new chief justice of Kentucky
Press Release Date: Monday, May 12, 2008
Contact Information: Leigh Anne Hiatt, APR
Public Information Officer
502-573-2350, x 4064
Cell-502-545-2839
lhiatt@kycourts.net
http://courts.ky.gov


FRANKFORT, Ky. -- On Monday, May 12, the justices of the Supreme Court of Kentucky elected the first new leader of the Judicial Branch in a decade. The justices chose John D. Minton Jr. as the fifth chief justice of Kentucky. Justice Minton will succeed Chief Justice Joseph E. Lambert, who announced April 24 that he would retire June 27.

Chief Justice Lambert will administer the oath of office for Chief Justice-Elect Minton at a formal investiture service at the Capitol on Friday, June 27. The public and the media will be invited to attend the swearing-in ceremony.

"I am honored by the vote of my colleagues," said Justice Minton in response to being elected chief justice. "I look forward to working with the members of the Court and the Court of Justice family in service to the citizens of the Commonwealth."

"Justice Minton is an outstanding scholar and a person of unquestioned integrity," said Chief Justice Lambert. "His experience serving as a judge for three levels of Kentucky courts equips him well to be an outstanding chief justice. I am delighted with his election."

Other justices on the Supreme Court are Deputy Chief Justice Will T. Scott and Justices Lisabeth Hughes Abramson, Bill Cunningham, Mary C. Noble and Wil Schroder.

Profile of Justice Minton
Justice Minton, 56, was elected to the Supreme Court of Kentucky in November 2006 to represent the 2nd Supreme Court District. He had been appointed to the high court on July 24, 2006, to fill a vacancy created by Supreme Court Justice William S. Cooper, who retired June 30, 2006. Prior to his appointment to the Supreme Court, Justice Minton served as a judge for the Kentucky Court of Appeals, representing the 2nd Appellate District. He was elected to the Court of Appeals in November 2003 and served there until his appointment to the Supreme Court in July 2006.

He was a circuit judge from 1992 to 2003 for the 8th Judicial Circuit, which consists of Warren County, before being elected to the Court of Appeals. From 1996 to 2003, he also served by special appointment of the late Chief Justice Robert F. Stephens and Chief Justice Lambert as chief regional judge for the Green River Region, a 21-county area.

While on the circuit bench, Justice Minton was recognized by the Kentucky Court of Justice for his leadership in forming the Warren County Drug Court and for his commitment to law-related education programs. In 2003, the Kentucky Bar Association honored him with its Outstanding Judge Award. He is also a graduate of the National Judicial College.

Before his election to the Circuit Court bench, Justice Minton practiced law in Bowling Green for nearly 15 years. He earned a bachelor's degree with honors in history and English from Western Kentucky University in 1974 and a law degree from the University of Kentucky College of Law in 1977. Justice Minton is a member of Broadway United Methodist Church in Bowling Green. He serves on the board of the Student Life Foundation at Western Kentucky University. He is also a member and past president of the Bowling Green Rotary Club and a former member of the board of directors of Shakertown at South Union.

Originally from Cadiz, Ky., Justice Minton grew up in Bowling Green where he continues to reside. He is married to the former Susan Lenell Page, a Bowling Green native. They have a daughter, Page Sullivan Minton, and a son, John D. Minton III.

Justice Minton is the son of Dr. and Mrs. John D. Minton of Bowling Green. Dr. Minton previously served at Western Kentucky University as a history professor and as the fifth president of that institution.

Quotes From Professional Colleagues

John Stanley Palmore
Chief Justice of Kentucky, 1977-1982
"I am proud of Justice Minton. I have long known him and his father. As a fellow Bowling Green boy, I believe this is a great tribute to the Warren County Bar Association. Justice Minton is a wonderful person and will be a wonderful chief justice."

Sara W. Combs, Chief Judge
Kentucky Court of Appeals
"It was an unfailing pleasure to work with John Minton at the Court of Appeals before he joined the Supreme Court. His integrity, good will, intelligence and gentle manner all contribute to make him an ideal choice to lead the Court of Justice."

Robert W. McGinnis, Chief Regional Circuit Judge
Harrison, Nicholas, Pendleton and Robertson Counties
"Justice Minton's exceptional service as a trial judge and chief regional judge uniquely qualify him to perform both judicial and administrative functions as our next chief justice. His uncommon ability to get along with his fellow judges earned their utmost respect and will serve him well as he leads the judiciary."

Diane Thompson, Nelson County Circuit Court Clerk
President of the Kentucky Association of Circuit Court Clerks
"I have had the honor of working with Justice Minton for many years. His integrity and knowledge of all levels of our court system are unprecedented. I am confident that he will provide tremendous support to circuit court clerks because he understands the critical function of our office. The citizens of our Commonwealth will truly benefit from Justice Minton being elected our new chief justice."

Charles E. English, Attorney at Law
English, Lucas, Priest & Owsley LLP, Bowling Green, Ky.
"I have known Justice Minton for a long time. He is bright, kind and has a good judicial temperament. I believe he will make an excellent chief justice."

Supreme Court of Kentucky
The Supreme Court of Kentucky is the state's highest court. The seven justices are elected from seven appellate court districts and serve eight-year terms. The Kentucky Constitution provides that the Supreme Court justices elect one of their fellow justices to serve as chief justice for a term of four years. As executive head of the statewide judicial system, the chief justice oversees the Administrative Office of the Courts in Frankfort and the 4,000 statewide employees of the Kentucky Court of Justice, including elected justices, judges and circuit court clerks. The chief justice proposes a biennial budget to the General Assembly and executes the Judicial Branch budget.

Chief Justices of the Supreme Court of Kentucky
John D. Minton Jr., June 27, 2008-
Joseph E. Lambert, 1998-2008
Robert F. Stephens, 1982-1998
John Stanley Palmore, 1977-1982
Scott E. Reed, 1976-1977

Salary of the Chief Justice of Kentucky
$137,832

Comment: I have known Justice Minton for a long time, and I have practiced before him for numerous years, and I have NO doubt in my mind he will make a very good Chief.

Federal Judge finds that Kentucky's "concealed carry" gun law misfires with non citizens.

Read the story, on Kentucky's gun law which provides that non citizens not be allowed to carry guns concealed.

The court found that the law discriminates against non citizens.

According to Judge Thomas Russell, "A blanket prohibition discriminating against aliens is not precisely drawn to achieve the goal of facilitating firearms purchases when there exists a nondiscriminatory way to achieve the same goals," while concluding that "Finally, it is in the public interest [for the court] to prevent the violation of an individual's constitutional rights [such as happened with the gun law]".

[This is cross posted at http://BlackRobesSpeak.com]

Senate President, David Williams, and Kentucky's Chief Justice, Joseph Lambert, spar over senior judge program.

Read the story here.

I wonder who wins this argument: Senate President David Williams says the senior judge program is unconstitutional -- because the senior judges are NOT elected as REQUIRED by the Constitution -- and an "unfounded mandate".

Chief Justice Joseph Lambert, says "not so".

Oh BTW: David Williams is the President of one arm of the legislature that holds the "purse strings".

The Chief Justice controls the judiciary.

The senior judge program will expire next January UNLESS renewed by the legislature.

Your thoughts?