Louisville Charter Signed By Governor Thomas Jefferson in May 1780 will be (is) 235 years old this month!

Happy Birthday Louisville!

Fireworks and Thunder of Louisville

Fireworks and Thunder of Louisville

Signed by Thomas Jefferson as governor of Virginia in May 1780, the charter notes “Whereas Sundry Inhabitants of the County of Kentucky [Kentucky was then a county of Virginia] have at great expense & hazard, settled themselves upon lands at the falls of Ohio” then places one thousand acres in the hands of trustees to “divide into Lots of an half acre each, with convenient streets & public lots, which shall be of the same is hereby established a town by the Name of Louisville.” The charter further specifies that lots be sold at a public auction and that purchasers build “a dwelling house, 16 feet by 20 at least with a brick or stone chimney to be finished within 2 years from the day of sale.” The charter, lost for years, came to light in New York in the 1950s. Publisher and civic leader Barry Bingham Sr. purchased it and gave the document to the city. Since 1957 it has been on permanent loan to the University of Louisville.
Repository : Rare Books

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Attorney Vanessa Cantley on Medical Review Panels

Attorney Vanessa Cantley laid out objective facts and studies opposing a proposal to create medical review panels for malpractice claims in Kentucky. She told a state government committee that the panels interfere with the right of a patient or their families to have their day in court. She provided lawmakers with data about the high toll of preventable medical errors.

Mike O’Connell, Jefferson County Attorney, and the Price of “Loyalty”.

“It is money, money, money! Not ideas, not principles, but money that reigns supreme in American politics.”

 Robert C. Byrd

A recent op-ed from the Courier-Journal discussed how elected government officials in  Jefferson County have expected their employees to contribute financially to their re-election coffers.  For example, the Jefferson County Attorney’s office seems to have a long history of expected contributions from the attorneys working in that office going back as far as Bruce Miller.  Basically,  money has been contributed over the years by attorneys employed at the Jefferson County Attorney’s Office to assist their boss’s election efforts.  A practice that is not new, not novel, not regulated, and worse yet apparently not acknowledged beyond a simple denial by the current occupant of that political office – Mike O’Connell.

The Courier-Journal calls attention to this practice and asks its readers if this is what we want or expect from a County Attorney.  Whether called campaign contributions or  tokens of employee “loyalty”, should it continue?  

As an Army Judge Advocate and Army Officer occupying a position of trust and public service, we were held to a standard even higher than the criminal and ethical codes. Accepting money from those who work for you was and is absolutely prohibited.  We were expected to even avoid even the  “appearance of impropriety”.

The Jefferson County Attorney’s Office has a large staff.  A very large staff with over 400 attorneys.  All of us have read the stories on how difficult it has been for government lawyers to pay their school loans and raise a family on their government salaries with some even delivering pizza on their own time in the evenings.

Well, the Courier-Journal has issued the challenge and concluded its opionion-editorial piece with the following:

Mr. O’Connell can deny he seeks money from employees. But he can’t deny the appearance that employees feel pressured to give.

His current fundraising may not violate the law. It may skirt the Metro ethics ordinance.

But like so many things in politics, it doesn’t pass the smell test.

So why not limit contributions from employees? Or just stop taking them?

That way his employees could devote their full loyalty to the public and keep all of their hard-earned paychecks for doing so.

Sometimes the Courier-Journal irritates me with the reactionary tone of their editorials and even their stories.  However, the position that the news media occupies as the “Fourth Estate” aka the “press” can never be understated.  And although everyone seems to fawn over the new digital age, there is just some power and authority found in the written word on a piece of paper that is not found in audio or video.

You may not always like or appreciate the stories, but most of us will acknowledge the value they provide in accountability with the gathering of facts, interviews of those involved, and a marshaling of all that has been accumulated with a conclusion and opinion which you can either agree or disagree.  Those of us who blog part time owe a debt to the hard work that it takes to uncover these stories which allow bloggers like myself to throw in out two cents worth of opinion.  Thank you.

Here is the op-ed piece.  Hopefully, the Courier will keep it available on-line for some time.

Mike O’Connell’s Loyal Employees

Ah, for the good old days of Jefferson County politics where the “2 percent” club flourished in local offices and employees didn’t have to wonder how much to donate to the election fund of the boss.

Former Jefferson County Attorney J. Bruce Miller called his request for 2 percent of employees’ pay the “Assistant County Attorney Voluntary Fund.”

And former Jefferson County Sheriff Jim Greene made it easy by tucking envelopes into the paycheck of each employee that bore their names and a calculation of 2 percent of their pay.

But times have changed.

Today, it seems heavy-handed, if not outright wrong, for elected bosses to suggest employees must donate a fixed amount for the privilege of keeping their jobs.

So Jefferson County Attorney Mike O’Connell has come up with a new euphemism for employee support, calling it “loyalty.”

“I tell people that I hire that I seek competency, diligence and loyalty,” he told The Courier-Journal’s Andrew Wolfson. “And loyalty means they support me and this office in all things we do, including my election.”

His staff of nearly 400, including 120 prosecutors, has been amazingly loyal, according to campaign finance records of Mr. O’Connell, a Democrat who is running for re-election to his second full term.

Nearly half of the $201,000 Mr. O’Connell has amassed since his last election in 2010 came from assistant county attorneys and other employees in his office.

And this was for a race in which he didn’t even have an opponent until lawyer Karen Faulkner stepped forward one day before last week’s filing deadline.

Click on the above heading for the rest of the CJ Post.


STDS OF REVIEW: Contract interpretation

Furthermore, “[i]t is well established that construction and interpretation of a written instrument are questions of law for the court.” Cinelli, 997 S.W.2d at 476 (citing Morganfield Nat’l. Bank v. Damien Elder & Sons, 836 S.W.2d 893 (Ky. 1992)). Because we review questions of law de novo, we afford no deference to the interpretation of the trial court. Cinelli, 997 S.W.2d at 476 (citing Louisville Edible Oil Products, Inc. v. Revenue Cabinet Commonwealth of Kentucky, 957 S.W.2d 272 (Ky.App. 1997)).

From Spears v. Kentucky Ins. Agency, COA, PUB, 10/12/2012

Defenses. Immunity. Coleman vs. Smith, COA, Pub. 9/21/2012


ACREE, CHIEF JUDGE: The narrow issue presented is whether either, or both, of the appellants, Dexter Coleman and Mark Cantrell, is entitled to qualified official immunity. We find Cantrell engaged in a discretionary act and, as a result, may qualify for official immunity. With respect to Coleman, we find he failed to comply with a ministerial directive but, because a genuine issue of material fact exists, summary judgment was premature. Accordingly, for the following reasons, we reverse the circuit court’s June 28, 2011 order denying appellants’ motion for summary judgment on immunity grounds and remand for additional proceedings.

Defenses: Qualified Official Immunity

Qualified official immunity was addressed in Gibson v. Hicks, COA, Pub., 7/27/2012:

Qualified official immunity is not a mere defense but provides immunity from a claim. In Rowan County v. Sloas, 201 S.W.3d 469, 475 (Ky. 2006), the Court explained the scope of protection afforded government officials:

[A]n official sued in his or her individual capacity enjoys only qualified official immunity, which affords protection for good faith judgment calls made in a legally uncertain environment. Thus, officials are not liable for bad guesses in gray areas, and most government officials are not expected to engage in the kind of legal scholarship normally associated with law professors and academicians. Thus, qualified immunity protects all but the plainly incompetent or those who knowingly violate the law. [Internal quotations and citations omitted].

Whether Gibson is entitled to qualified official immunity is a question of law subject to de novo review. Haney v. Monsky, 311 S.W.3d 235, 240 (Ky. 2010).

In Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001), the Court pronounced that qualified official immunity requires a classification of the particular acts or functions in question as either discretionary or ministerial. However, as noted by the circuit court, the distinction between discretionary and ministerial acts is often blurred and subject to a divergence of judicial opinion.3 To clarify the law and offer further guidance, in Haney, the Court explained the distinction:

Qualified official immunity applies only where the act performed by the official or employee is one that is discretionary in nature. Discretionary acts are, generally speaking, those involving the exercise of discretion and judgment, or personal deliberation, decision, and judgment. It may also be added that discretionary acts or functions are those that necessarily require the exercise of reason in the adaptation of means to an end, and discretion in determining how or whether the act shall be done or the course pursued. Discretion in the manner of the performance of an act arises when the act may be performed in one or two or more ways, either of which would be lawful, and where it is left to the will or judgment of the performer to determine in which way it shall be performed. On the other hand, ministerial acts or functions—for which there are no immunity—are those that require only obedience to the orders of others, or when the officer’s duty is absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts.

3 In his concurring opinion in Caneyville Volunteer Fire Dep’t. v. Green’s Motorcycle Salvage, Inc., 286 S.W.3d 790, 813 (Ky. 2009), Chief Justice Minton referred to immunity as a “judge- made swamp” that should be drained.

Haney, 311 S.W.3d at 240 (internal quotations and citations omitted).

* * *

In Stratton v. Commonwealth, 182 S.W.3d 516 (Ky. 2006), Cabinet employees placed a young child back into a home where the child died as a result of caretaker abuse. The administrator of the child’s estate filed an action against the Cabinet in the Board of Claims alleging that if the Cabinet employees had followed regulations requiring them to interview certain witnesses, the tragedy would have been prevented. The Court held that the Cabinet’s determination regarding what action, if any, should be taken to resolve each claim was discretionary “just as in police investigations.” Id. at 521.

More recently, in Turner v. Nelson, 342 S.W.3d 866 (Ky. 2011), the Court held that a teacher was entitled to qualified official immunity when it was alleged that she failed to report sexual abuse of a kindergarten student by a five-year-old classmate. Noting that KRS 620.030 requires that abuse be reported to appropriate authorities if a person knows or has reasonable cause to believe that a child is


abused, the Court held that absent actual or personal knowledge of the alleged abuse, the determination that there is reasonable cause involves the exercise of discretion. Id. at 877-878. The Court again emphasized the rationale behind the qualified official immunity doctrine:

Since Turner did not have actual or personal knowledge of the events alleged, the only other basis upon which she was required to make a report would be the development of a “reasonable cause to believe” that one of the children had been abused. Making such a determination clearly involves the exercise of discretion. It is similar to a judicial decision that there is or is not probable cause to support an asserted proposition. The very purpose of the doctrine of qualified official immunity is to protect government officials exercising discretion from second-guessing of their good faith decisions made in difficult situations such as this. The essence of reaching a determination as to whether reasonable cause exists would require discretion. This requires that Turner make reasonable inquiry into the facts, weighing the credibility of each child and then using her judgment and experience of a teacher of kindergarten level students, to reach a decision as to whether there was reasonable cause to believe that sexual abuse had occurred.

The reasoning expressed in Turner is persuasive. The General Assembly did not intend that the Cabinet investigate every case of alleged abuse against an adult. The majority of such cases necessarily remain within the realm of law enforcement. Instead, as a threshold to the application of the Adult Protection Act, the alleged victim must be eighteen years of age or older and suffer from a mental or physical dysfunction that impairs his or her ability to manage his or her resources, perform daily activities, or protect against neglect or abuse.

Because Gibson did not have actual or personal knowledge of Hicks’s mental or physical condition, she was required to initiate an investigation only if there was reasonable cause to believe that Hicks was an adult as defined in the statute. “Making such a determination clearly involves the exercise of discretion.” Id. Therefore, as a part of the screening process, Gibson was required to exercise her professional judgment, based on training and experience, to determine whether the allegations of abuse met the statutory and regulatory criteria. We hold that Gibson is entitled to qualified official immunity.

Gibson’s allegation that she is entitled to statutory immunity under KRS 209.050 and KRS 44.070(1) is rendered moot by our decision that she was entitled to summary judgment.

Stds of Review: Disability Retirement Benefits

From, West v. Kentucky Retirement System, COA, NPO, 7/15/2011

Upon review of the denial of disability retirement benefits, we accept the agency’s findings of fact as true as long as they are supported by substantial evidence. Bowling v. Natural Resources and Environmental Protection Cabinet, 891 S.W.2d 406 (Ky. App. 1995). Substantial evidence is such evidence as would “induce conviction in the minds of reasonable [persons].” Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998). Where it is determined that the agency’s findings are supported by substantial evidence, the court must then ask whether the agency has correctly applied the law. Kentucky
Unemployment Insurance Commission v. Landmark Community Newspapers of Kentucky, Inc., 91 S.W.3d 575, 578 (Ky. 2002). A reviewing court may also reverse a final order of an administrative agency, in whole or in part, where it is found that the agency’s order violates statutory or constitutional provisions, is in excess of the agency’s authority as granted by statute, or is deficient as otherwise provided by law. KRS 13B.150(2).

Open Records Requests and Disclosure to Parties in Litigation

The following SCOKY decision addressed open records requests by parties involved in litigation:

Department of Revenue, Finance and Administration Cabinet, Commonwealth of Kentucky, et al. v. Mitzi D. Wyrick

2008-SC-000468-DG October 21, 2010 2009-SC-000543-DG October 21, 2010

Opinion of the Court by Justice Schroder.  All sitting; all concur.  The Supreme Court interpreted the “civil litigation limitation” to the Open Records Law, found in KRS 61.878(1).  The Court held that a request for open records should be evaluated independently of whether the requester is a party or potential party to litigation.  The civil litigation limitation applies only to documents otherwise excluded from disclosure by KRS 61.878(1)(a)-(n).  It is not an exception to an agency’s duty to disclose nonexempted records.  A court of competent jurisdiction, upon request, may grant disclosure of documents excluded from disclosure under KRS 61.878(1)(a)-(n) with one qualification:  if the document pertains to civil litigation, the court cannot order disclosure beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery.

CIVIL (INTERNET DOMAINS): Commonwealth of Kentucky, ex rel. J. Michael Brown, Secretary, Justice & Public Safety Cabinet v. Interactive Media Entertainment & Gaming Assn., Inc., et al. (SC 3/18/2010)

Commonwealth of Kentucky, ex rel. J. Michael Brown, Secretary, Justice & Public Safety Cabinet v. Interactive Media Entertainment & Gaming Assn., Inc., et al.
2009-SC-000043-MR March 18, 2010 Opinion by Justice Noble. All sitting; all concur.

Petitioners filed for a writ from the Court of Appeals to stop Commonwealth from seizing the Internet domain names of gambling websites. The Court of Appeals granted the writ after concluding that the circuit court was acting outside its jurisdiction. The Supreme Court reversed the Court of Appeals, holding petitioners lacked standing to challenge the forfeiture. Some of the counsel for petitioners claimed to represent the domain names themselves. The Court held that in in rem litigation such as this, only those with an interest in the property have an interest in the litigation. Since the property can have no interest in itself, it had no interest in contesting the forfeiture.

Furthermore, the Court held that two gaming trade associations who purported to represent the remaining petitioners also lacked standing. The Court noted that these trade associations have standing only if its members could have sued in their own right. Since neither trade association would identify which domain name registrants it claimed to represent, the Court held the associations could not meet their burden of showing they had standing. The Court declined to reach the merits of the case and remanded to the Court of Appeals with instructions to dismiss the petition for a writ.